Background
The applicant built a dwelling in Mittagong under a development consent and construction certificate issued by Wingecarribee Shire Council. During construction, the Council approved modifications to the consent, including internal layout, window and door, roof, cladding and pergola changes. The building was constructed in accordance with the modified consent and was inspected at each relevant stage by the Council as principal certifier.
After completion, the Council refused the applicant’s occupation-certificate request because the construction certificate had not itself been modified to match the modified development consent. The Council also contended that the appeal was incompetent because the occupation-certificate application had not been validly made: it had been uploaded to the Planning Portal, but no fee had been paid.
The Court’s Holding
Commissioner Washington held that the appeal was competent. The application met the requirements in s 37 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021: it was in the approved form, included the required material and was lodged on the Planning Portal. No statutory provision made payment of a fee a condition of lodging an occupation-certificate application, and the Council had considered the application before refusing it.
The Court also held that the absence of a modified construction certificate did not prevent an occupation certificate being issued. The original construction certificate had been validly issued before construction began. On the proper construction of s 6.10(2)(b) of the Environmental Planning and Assessment Act 1979, that satisfied the requirement for a construction certificate concerning the building. The Court rejected the Council’s construction because it would produce the unjust result that a dwelling built under a validly modified consent could never be occupied. The appeal was upheld, with directions for the parties to file the relevant occupation certificate for review and annexure to final orders.
Key Takeaways
- An occupation-certificate application can be validly lodged through the Planning Portal without prior fee payment where the governing provisions do not make payment a lodgement requirement.
- A modified development consent does not automatically modify an existing construction certificate, but the lack of a modified certificate was not fatal on these facts.
- The Court distinguished statutory requirements for development applications, which expressly include fee payment, from those governing occupation-certificate applications.
Why It Matters
The decision prevents an administrative mismatch between a modified development consent and an earlier construction certificate from permanently preventing occupation of an otherwise compliant building. It also underscores that certifiers and councils must apply the distinct statutory requirements for occupation certificates, rather than importing requirements applicable to development applications.