If you are building in NSW without planning approval or have differed from what has been approved, the chances that you will not be able to obtain an Occupation Certificate (OC) are high; and without one, your building activity is considered an offence under the Environmental Planning and Assessment Act 1979 (EP&A Act).

A local council can become aware of this offence if a neighbour or Principal Certifier Authority (PCA) reports a non-compliance or irregularity.  When a local council becomes aware that a building or structure has been constructed outside of the requirements and without the necessary approvals, the council may then issue a notice of intent or order for the demolition of the unauthorised building.  Thankfully, there is a way to regularise unauthorised construction and works and that is to apply for a special certificate.

To gain this special certificate, property owners should apply when their buildings have been constructed without approvals or when required inspections have been missed or neglected.  Purchasers and sellers of property also seek these certificates to ensure the building will be safe for occupants and are not to be subject to legal action.

The certificate is valid for a period of seven years and prevents a local council from making an order against the building for the duration.  However, the special certificate does not entitle the landowner to apply for an OC and does not provide relief or certainty as to the council’s actions against the landowner after the seven-year period.  Further, the council may be entitled to require works be undertaken prior to the granting of the certificate.  These may include: installation of smoke detectors or precautionary and preventative safety installations.


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