Obtaining an occupation certificate for a residential apartment building

,The Residential Apartment Buildings (Compliance & Enforcement Powers) Act 2020 (“RABA”) came into force on 1 September 2020 and is one part of the suite of legislation governing the development and construction of residential apartment buildings in New South Wales.

In this article I will explain the requirements which need to be adhered to under the RABA in order to obtain an occupation certificate.

Firstly, some background information:

  • The RABA provisions apply to work which was authorised by a construction certificate or a complying development certificate.
  • The provisions apply to building work which and was not completed as at 1 September 2020 or was completed within the period of 10 years prior.
  • The RABA is administered by the Secretary of the Department of Customer Service. At the current time the Secretary is Emma Hogan, however compliance with the RABA is generally delegated to David Chandler, otherwise known as the Building Commissioner.

The RABA has broad application as it adopts an expansive definition of who is a “developer”.

Under the RABA a developer means any of the following:

  • The person who contracted or arranged for, or facilitated or otherwise caused, (whether directly or indirectly) the building work to be carried out.
  • The owner of the land on which the building work is carried out at the time the building work is carried out.
  • The principal contractor for the building work within the meaning of the Environmental Planning and Assessment Act 1979.
  • The developer of the strata scheme within the meaning of the Strata Schemes Management Act 2015.

The RABA also adopts a very broad definition of “building work”.

Building work is defined as:

  • Any physical activity involved in the erection of a building.
  • Work involved in, or coordinating or supervising work in relation to, the construction of a building or part of a building, the making of alterations or additions, the repair, renovation or protective treatment of a building or part of a building.

The effect of the definitions of “developer” and “building work” in the RABA is that any landowner, developer, and the principal contractor will be responsible to comply with the RABA for any project which required a construction certificate or a complying development certificate.

The RABA sets out a notification regime which needs to be taken into consideration before the work is due to be completed.

The regime provides that:

  • A developer must not apply for an occupation certificate unless, at least 6 months, but not more than 12 months, before that application is made, the developer has notified the Secretary of the proposed application. This is referred to as an expected completion notice.
  • The expected completion notice must set out the date that the developer expects to make the application for the occupation certificate (referred to as the expected date).

In relation to work which is scheduled to take less than 6 months to complete, the developer must give the Secretary an expected completion notice within 30 days of the commencement of the building work.

Additionally, if a developer becomes aware that circumstances have changed so that an application for the occupation certificate will be made on a different date than the date specified in an expected completion notice, the developer must notify the Secretary of the new expected date within 7 days of the developer becoming aware of the change in circumstances. This is referred to as an expected completion amendment notice.

The effects of not complying with the notification regime can have serious implications.

An order may be made that an occupation certificate cannot be issued or a strata plan cannot be registered if the expected completion notice, or an amendment notice, was not given or was given less than 6 months before the application for the occupation certificate was made.

A developer may be liable for a fine of up to $110,000 for failing to provide an expected completion notice, or $55,000 for failing to provide an amendment notice.

The information provided in this article is general information only and should not be relied upon as legal advice or be used as a substitute for obtaining legal advice. The specific circumstances relating to you impact upon your legal rights and obligations and personal legal advice based upon your circumstances should be obtained. This area of law changes frequently and the law may have changed after the time this article was prepared, up-to-date legal advice should be obtained. Please do not hesitate to contact Williamson Lawyers if we may be of assistance.

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