Land and Environment Court Issues Occupation Certificate; Says no Modified CC Required

The Land and Environment Court recently considered whether a certifier was required, prior to issuing an occupation certificate (“OC”), to be satisfied that a construction certificate (“CC”) had been issued for the building as constructed, or as originally approved.  The Court’s decision in Street of the Fishing Cat Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1631 is the first time the Court has considered this issue.  The Court’s decision is summarised below.

Section 6.10(2)(b) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) provides that an OC must not be issued to authorise a person to commence occupation or use of a new building erected pursuant to a development consent, unless a CC has been issued with respect to the “plans and specifications for the building”.  The building to which the provision relates is not explained in the provision.  It could be the building as originally approved, or the building as constructed at the time of issue of the OC.

Street of the Fishing Cat was the applicant for an OC to allow occupation of a newly constructed dwelling house at Mittagong.  Wingecarribee Council was appointed at the principal certifier.  The application was refused on the basis that the building as constructed was not consistent with the plans approved in the CC.

The circumstances were as follows:

• a development consent and CC were issued for construction of a dwelling;
• during construction, changes were made to the design of the dwelling;
• the changes were the subject of an application to modify the development consent, the application was approved by the Council;
• no amended CC was (or could legally have been) issued;
• the Council carried out and passed all critical stage inspections before and after the changes were made; and
• the building was completed in accordance with the plans and specifications approved under the modified development consent, but not the original CC; and
• there was no dispute as to the environmental impacts, structural stability, suitability for occupation, or any other meritorious aspect of the development.

 
The Court was asked to determine whether an OC could legally be issued if a CC had not been issued with respect to the plans and specifications for the building as constructed.

The Court was particularly concerned about the limitation in section 6.8(2) of the EP&A Act which prevents the issue of a CC for any building work that has commenced.  If section 6.10(2)(b) of the EP&A Act required a CC for building work as constructed, the intent of the EP&A Act would be frustrated because a person could never obtain an OC for work that was the subject of a valid development consent.  The Court considered that such an outcome “would yield unjust results and should not be preferred”.

The Court held that the certifier (and the Court standing in the certifiers’ place) has the power under the EP&A Act to issue an OC.  The Court then proceeded to make orders to issue the OC.  The Court interpreted section 6.10(2)(b) of the EP&A Act as only requiring a CC to been issued with respect to the plans and specifications as approved in the development consent in force at the time of issue of the CC.

The circumstances in Street of the Fishing Cat Pty Ltd v Wingecarribee Shire Council are not uncommon.  In our experience certifiers would generally take the same approach as Wingecarribee Shire Council did in this case and either refuse to issue an OC or issue an OC limited to those elements of a constructed building that are consistent with both the development consent and a CC.  The Court’s decision loosens that approach.  The Court’s decision in this case could have far reaching effect.  Wingecarribee Shire Council has a right of appeal against the Commissioner’s decision.

The above article is not legal advice.  If you require legal advice about how the contents of this article might apply to any particular facts and circumstances, please contact Michael Mantei, Partner – Planning, Environment and Certification at Madison Marcus.

Madison Marcus Law Firm

Contact: Michael Mantei, Partner

Email: Michael.Mantei@madisonmarcus.com.au

Direct Line: +61 2 9762 0406