What is a Construction Certificate & when do I need one?

A Construction Certificate (CC) is a certificate that is issued by an accredited private certifier or a consent authority¹. The Certificate allows for building work to commence on a project. The purpose of the Certificate is to ensure that:

“the work you intend to carry out complies with the Building Code of Australia (BCA)

the design and construction work as depicted in the plans and specification you submit is not inconsistent with the development consent

any conditions of development consent that must be complied with before a construction certificate is issued have been met

• security required as a condition of consent has been provided

• any monetary contributions required as a condition of consent have been paid

• structural strength and fire protection matters have been satisfied, in the case of a change of building use or alterations to an existing building

• the application has been referred to the NSW Fire Brigades, and any matters raised by the Brigades have been taken into consideration.”²

A Construction Certificate must be issued prior to the commencement of building work as provided in s81(A)(2) of the Environmental Planning and Assessment Act 1979 (EP&A).

When is a CC required?

As stated above a CC is required prior to the commencement of any building work. Building work is defined in the EP&A Act as “any physical activity involved in the erection of a building.”³. The definition of building work is contingent upon the definition of building under the EP&A Act, which has a very wide definition. A building is defined as – “”building” includes part of a building, and also includes any structure or part of a structure,⁴ but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.”

Thus from the definitions pursuant to the EP&A Act a CC and DA are prima facie⁵ required for any work that is to be performed on a building.

There are however exceptions to this rule that are found in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008⁶. It is beyond the breadth of this article to deal with all the exceptions found within the Exempt and Complying Development Codes as the Codes range from standards for Tennis Courts to Windmills⁷. The author notes that the most prudent cause of action before undertaking any building work is for one to first speak to one’s local council or an accredited certifier to consider whether the proposed work falls within the exemptions, or whether a DA and CC must first be applied for.

Relationship between a Construction Certificate and a Development Consent

Once a Construction Certificate is issued it will form part of the development consent (DA)⁸. It is possible to apply for both a DA and a CC at the same time, however if you choose to only apply for one at a time you must apply for a DA prior to applying for a CC as a CC can not be issued until a DA has been issued.

Can a Construction Certificate be Altered?

It is possible to alter a Construction Certificate pursuant to s148 of the EP&A Regulations. An application to modify a construction certificate will be assessed in the same manner as the original application for a Construction Certificate.

Conclusion

If one is undertaking any type of building work in the state of New South Wales one must first apply for a DA and a CC, if the work does not fall within the exemptions provided in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. It is always a prudent to inquire with one’s local council prior to starting any building work and ask whether such work would require a DA and CC.

As a final note once a DA and a CC are issued before you start building works, you must appoint and notify a Principal Certifying Authority to oversee the work and notify the council, at least 2 days before the work commences.⁹

Footnotes

¹A municipal council
² http://www.planning.nsw.gov.au/assessingdev/pdf/alpine_da_guide_applying_for_construction_cert.pdf
³EP&A Act 1979 s.4
⁴including any temporary structure or part of a temporary structure
⁵at first instance
⁶“Exempt and Complying Development Codes”
⁷State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Part 2, Subdivision 39B; Subdivision 41
⁸EP&A Act s80(12)
⁹EP&A Act 1979 s.81A(2)(c)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.