New South Wales regulation

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021

In ForceNSW

Jurisdiction

New South Wales

Act Number

689 of 2021

Collection

regulation

Plain English Summary

8/10 complexity

This Regulation prescribes the procedural, documentary, inspection and fire‑safety rules for building, subdivision and occupation approvals in NSW, making the online planning portal central and imposing mandatory contents for certificates, inspections, maintenance and fire‑safety documentation.

It affects certifiers, applicants, building owners, Fire and Rescue NSW and the Planning Secretary by assigning inspection/recordkeeping duties, referral and consultation timeframes, registers for short‑term rentals and combustible cladding, and fixed penalties for non‑compliance.

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What it does

This Regulation sets out detailed procedural, documentary and safety requirements for development certification, construction and occupation of buildings in New South Wales, together with specific fire safety obligations, inspection regimes and registers. It operationalises the Environmental Planning and Assessment Act 1979 by specifying what must accompany applications for construction certificates, subdivision works certificates, occupation certificates and subdivision certificates (for example, prescribed documents must be lodged on the NSW planning portal, s 7(1)(c), s 30(1)(c), s 37(1)(c), s 54(1)(c), s 122). It creates documentary and inspection duties for certifiers and principal certifiers (for example, content required in compliance, construction, subdivision works and occupation certificates, ss 4, 23, 35, 49), prescribes critical stage inspection points and recordkeeping (ss 61, 63), and imposes specific procedural steps for performance solutions and referrals to Fire and Rescue NSW (ss 18, 26-29, 50-51).

The Regulation also implements sector-specific schemes and registers. It prescribes BASIX certificate requirements for BASIX development and associated fees (ss 10, 71, 72), requires disclosure and certification of embodied emissions and energy and water standards for development captured by the Sustainable Buildings State Environmental Planning Policy (ss 10A, 10B), and establishes a register and registration duties for short-term rental accommodation (ss 102C-102F). It requires owners of certain buildings with external combustible cladding to supply specified information to the Planning Secretary and establishes a combustible cladding register (ss 103-106).

Fire safety regulation is a central focus. The Regulation prescribes when a fire safety schedule and fire safety certificates are required, what they must contain, the maintenance, inspection and testing regimes for essential and critical fire safety measures (ss 78-86, 88-92, 81, 81A), and the interaction between certifiers, councils and the Fire Commissioner, including timing obligations for initial and final fire safety reports and for Fire and Rescue NSW to consider performance-based designs (ss 26, 27, 28, 50, 51). It also prescribes smoke alarm standards and locations across building classes and power-source requirements (ss 95-100, 99(2)).

Current sections

Direct links to the current provisions in Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

163

Part 1

Preliminary

Part 1 Preliminary

Name of Regulation

1 Name of Regulation

This Regulation is the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

Commencement

2 Commencement

(1) This Regulation commences on 1 January 2022, except as provided by subsection (2), and is required to be published on the NSW legislation website.

(2) Schedule 3[7]–[9] and 4 commence on the day on which this Regulation is published on the NSW legislation website.

Definitions

3 Definitions

(1) The Dictionary in Schedule 2 defines words used in this Regulation.

Note—

The Environmental Planning and Assessment Act 1979 and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Words used in this Regulation have the same meanings as in the Standard Instrument, unless otherwise defined in this Regulation.

(3) A reference in this Regulation to building work does not include a reference to physical activity involved in the erection of a temporary structure.

(4) A reference in this Regulation to an existing building does not include a reference to a temporary structure.

(5) In this Regulation, a reference to a class 1a or 10 building is a reference to—

(a) for the erection of a new building—a building that will be a class 1a or 10 building when completed, and

(b) for the alteration of an existing building—an existing class 1a or 10 building, and

(c) for the change of building use for an existing building—an existing building that will be a class 1a or 10 building as a result of the change of building use.

Part 2

Compliance certificates

Part 2 Compliance certificates

Information to be included in compliance certificate—the Act, s 6.33(1)

4 Information to be included in compliance certificate—the Act, s 6.33(1)

(1) A certifier must not issue a compliance certificate unless the certificate contains the following information—

(a) the name of the certifier,

(b) if the certifier is a registered body corporate—the name of the individual who issued the certificate,

(c) if the certifier is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who issued the certificate,

(d) the signature of the individual who issued the certificate,

(e) a description of the development,

(f) the registered number and date of issue of a relevant development consent,

(g) the address and folio identifier of the land,

(h) the date of the certificate,

(i) a description of work that was inspected, how the work was inspected and the date and time at which the work was inspected,

(j) a statement of the matters in relation to which the certificate is issued.

(2) A certifier must not issue a compliance certificate unless the certificate is accompanied by the documents referred to in the certificate that are relevant to the matters in relation to which the certificate is issued.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Copies of compliance certificates—the Act, s 6.33(1)

5 Copies of compliance certificates—the Act, s 6.33(1)

Within 2 days after issuing an occupation certificate, a certifier must give a copy of each compliance certificate relied on to issue the occupation certificate to—

(a) the consent authority, and

(b) if the consent authority is not the council—the council.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Restriction on issue of compliance certificates—the Act, s 6.18

6 Restriction on issue of compliance certificates—the Act, s 6.18

A certifier must not issue a compliance certificate of the kind referred to in the Act, section 6.4(e)(i) or (ii) for building work or subdivision work unless the required development consent is in force for the building or subdivision to which the work relates.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Part 3

Construction certificates

Part 3 Construction certificates

Division 1

Applications for construction certificates—the Act, s 6.33(1)

Division 1 Applications for construction certificates—the Act, s 6.33(1)

Application for construction certificate

7 Application for construction certificate

(1) An application for a construction certificate must—

(a) be in the approved form, and

(b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal.

(2) The application may only be made by a person who is eligible to appoint a principal certifier for the development.

(3) The certifier for the development must notify the applicant through the NSW planning portal that the application has been lodged.

Maximum penalty (subsection (3))—

(a) for a corporation—150 penalty units, or

(b) for an individual—75 penalty units.

Documents to accompany application for construction certificate

8 Documents to accompany application for construction certificate

(1) This section applies to an application for a construction certificate for development that involves building work.

(2) The application must be accompanied by—

(a) a detailed description of the development, and

(b) appropriate building work plans and specifications (referred to in this Part as relevant building work plans and specifications).

(3) The detailed description of the development must indicate the following matters—

(a) for each proposed new building—

(i) the number of storeys in the building, including underground storeys, and

(ii) the gross floor area of the building in square metres, and

(iii) the site area of the land on which the building is to be erected in square metres,

(b) for each proposed new building to be used for residential accommodation—

(i) the number of existing dwellings on the land on which the new building will be erected, and

(ii) the number of existing dwellings that will be demolished in connection with the erection of the new building, and

(iii) the number of dwellings to be included in the new building, and

(iv) whether the new building will be attached to an existing building, and

(v) whether the new building will be attached to another new building, and

(vi) whether the building will include a dual occupancy, and

(vii) the materials to be used in the construction of the new building, using the abbreviations set out in the Table to this section.

(4) The appropriate building work plans and specifications must include the following—

(a) detailed building work plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show the following—

(i) a plan of each floor section,

(ii) a plan of each elevation of the building,

(iii) the levels of the lowest floor, an unbuilt yard or area that belongs to the lowest floor and the adjacent ground,

(iv) the height, design, construction and provision for fire safety and fire resistance, if any,

(b) building work specifications that—

(i) describe the construction and the materials to be used to construct the building, and

(ii) describe the method of drainage, sewerage and water supply, and

(iii) state whether the materials to be used are new or second-hand and contain details of any second-hand materials to be used,

(c) a description of an accredited building product or system sought to be relied on for the purposes of the Act, section 4.15(4),

(d) a copy of a compliance certificate to be relied on,

(e) if the development involves building work to alter, expand or rebuild an existing building—a scaled plan of the existing building,

(f) for BASIX development, or for BASIX optional development if the development application was accompanied by a BASIX certificate—the other matters required by the relevant BASIX certificate.

Table

| Walls | Code | Roof | Code | Floor | Code | Frame | Code | | Brick (double) | 11 | Tiles | 10 | Concrete or slate | 20 | Timber | 40 | | Brick (veneer) | 12 | Concrete or slate | 20 | Timber | 40 | Steel | 60 | | Concrete or stone | 20 | Fibre cement | 30 | Other | 80 | Aluminium | 70 | | Fibre cement | 30 | Steel | 60 | Not specified | 90 | Other | 80 | | Timber | 40 | Aluminium | 70 | | | Not specified | 90 | | Curtain glass | 50 | Other | 80 | | | | | | Steel | 60 | Not specified | 90 | | | | | | Aluminium | 70 | | | | | | | | Other | 80 | | | | | | | | Not specified | 90 | | | | | | |

Fire safety documents to accompany application for construction certificate

9 Fire safety documents to accompany application for construction certificate

(1) An application for a construction certificate for building work that does not relate to a dwelling house, or to a building or structure that is ancillary to a dwelling house, must be accompanied by—

(a) a list of the existing fire safety measures provided in relation to the land or an existing building on the land, and

(b) a list of the proposed fire safety measures to be provided in relation to the land and buildings on the land as a consequence of the building work.

(2) An application for a construction certificate for fire alarm communication link works must be accompanied by—

(a) a plan that indicates the location of the new fire alarm communication link and associated works, and

(b) a document that describes the design, construction and mode of operation of the new fire alarm communication link and associated works.

(3) An application for a construction certificate for an alteration to a hydraulic fire safety system must be accompanied by—

(a) a plan that indicates the location of the alteration and associated works, and

(b) a document that describes—

(i) the required pressure and flow characteristics of the hydraulic fire safety system that will be altered, and

(ii) the pressure and flow characteristics that will be available from the town main following mains pressure reduction by or on behalf of the relevant water utility, and

(iii) the design, construction and performance of the alteration and associated works.

(4) In this section—

fire alarm communication link means the part of a fire alarm system that transmits a fire alarm signal from the system to an alarm monitoring network.

fire alarm communication link works means the installation or conversion of a fire alarm communication link to connect with the fire alarm monitoring network of a private service provider, but does not include works associated with the alteration of or change of building use for an existing building.

private service provider means a person or body that has entered into an agreement with Fire and Rescue NSW to monitor fire alarm systems.

BASIX certificate required for BASIX development

10 BASIX certificate required for BASIX development

(1) This section applies to an application for a construction certificate for—

(a) BASIX development, and

(b) BASIX optional development, if the development application was accompanied by a BASIX certificate.

(2) The application must be accompanied by—

(a) a BASIX certificate that applied to the development when the development consent was granted, or

(b) another BASIX certificate issued no earlier than 3 months before the application is made.

(3) The application for a construction certificate must also be accompanied by the other documents required by the BASIX certificate.

(4) If the development involves the alteration of a BASIX building that contains more than 1 dwelling, the application must be accompanied by a separate BASIX certificate for each dwelling.

10A

Embodied emissions for non-residential development under Sustainable Buildings SEPP

10A Embodied emissions for non-residential development under Sustainable Buildings SEPP

(1) This section applies to an application for a construction certificate for non-residential development under State Environmental Planning Policy (Sustainable Buildings) 2022.

(2) The application must disclose the amount of embodied emissions attributable to the development.

(3) The amount disclosed under subsection (2) must be determined using—

(a) the form published on the NSW planning portal as in force from time to time, and

(b) an itemised list of building materials for the development prepared by a quantity surveyor.

Example—

a bill of materials or bill of quantities

(4) The amount disclosed under subsection (2) must be certified by—

(a) a quantity surveyor, or

(b) a qualified designer, or

(c) an engineer, or

(d) an assessor accredited under NABERS.

s 10A: Ins 2022 (520), Sch 1[1] (am 2023 (531), Sch 1[1]).

10B

Energy and water use standards for large commercial development under Sustainable Buildings SEPP

10B Energy and water use standards for large commercial development under Sustainable Buildings SEPP

(1) This section applies to an application for a construction certificate for large commercial development.

(2) The application must be accompanied by reports about the standards for energy and water use achieved by the development, taking into account the standards specified in State Environmental Planning Policy (Sustainable Buildings) 2022, Schedule 3.

(3) The report for energy use must be in the form of a report under Section J of the Building Code of Australia.

(4) The report for energy use may also—

(a) refer to a performance-based design solution under Section J of the Building Code of Australia, or

(b) incorporate a review by a member of an independent review panel under NABERS.

(5) The report for water use may be in the form of annotated drawings and specifications.

(6) Subsection (2), to the extent it relates to energy use, and subsections (3) and (4) do not apply to large commercial development on land to which the following local environmental plans apply—

(a) Sydney Local Environmental Plan 2012,

(b) Sydney Local Environmental Plan (Green Square Town Centre) 2013,

(c) Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013.

(7) Despite subsection (6), subsections (2)–(4) apply to large commercial development to the extent that the development relates to prescribed serviced apartments.

(8) In this section—

large commercial development and prescribed serviced apartments have the same meaning as in State Environmental Planning Policy (Sustainable Buildings) 2022.

s 10B: Ins 2022 (520), Sch 1[1] (am 2023 (531), Sch 1[2]–[4]).

Withdrawal of application for construction certificate

11 Withdrawal of application for construction certificate

(1) An applicant may use the NSW planning portal to withdraw an application for a construction certificate at any time before the application is determined.

(2) The certifier may, but is not required to, refund to the applicant the whole or part of the application fee paid in relation to a withdrawn application.

Certifier may require additional information

12 Certifier may require additional information

(1) A certifier may require the applicant for a construction certificate to give the certifier information about the building work or a planning agreement that the certifier considers necessary to properly consider the application.

(2) If an applicant requests information from a planning authority that is a party to a planning agreement for the purposes of complying with a certifier’s request under this section, the planning authority may certify that specified requirements of the agreement have been complied with.

(3) This section does not affect the certifier’s duty to determine an application for a construction certificate.

Determination of application for construction certificate

13 Determination of application for construction certificate

(1) A certifier must ensure the certifier’s determination of an application for a construction certificate contains the following information—

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused—

(i) the reasons for the refusal, and

(ii) if the certifier is a consent authority—the applicant’s right of appeal under the Act,

(d) if the construction certificate is issued subject to a condition of the kind referred to in section 111 or 117—

(i) the reasons for the condition, and

(ii) if the certifier is a consent authority—the applicant’s right of appeal under the Act against the condition.

(2) Within 2 days after determining the application, the certifier must use the NSW planning portal to—

(a) give the determination to the applicant, and

(b) give a copy of the following to the consent authority and council—

(i) the determination and the application to which it relates,

(ii) a construction certificate issued as a result of the determination,

(iii) the relevant building work plans and specifications,

(iv) any fire safety schedule attached to the construction certificate,

(v) other documents that were lodged with the application for the certificate, including a decision on an objection under section 111 or 117,

(vi) other documents given to the certifier under section 12,

(vii) the record of an inspection made under section 17 in relation to the issue of the construction certificate.

(3) A copy of a record of inspection referred to in subsection (2)(b)(vii) is not required to be given to a consent authority or council that carried out the inspection.

(4) In this Part, a reference to issuing a construction certificate includes a reference to endorsing the construction certificate on the relevant building work plans and specifications.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Division 2

Issue of construction certificates—the Act, s 6.8

Division 2 Issue of construction certificates—the Act, s 6.8

Fire protection and structural capacity

14 Fire protection and structural capacity

(1) A certifier must not issue a construction certificate for building work under a development consent that authorises a change of building use unless—

(a) the fire protection and structural capacity of the building will be appropriate to its new use, and

(b) the building will comply with the Category 1 fire safety provisions that apply to the new use.

(2) Subsection (1)(b) does not apply to the extent of an exemption under section 74(4), 111(4) or 117(1).

(3) A certifier must not issue a construction certificate for alteration building work unless, on completion of the building work, the fire protection and structural capacity of the building will not be reduced.

(4) For the purposes of subsections (1) and (3), the certifier may assume that the building work is carried out in accordance with—

(a) the relevant building work plans and specifications, and

(b) the conditions of the construction certificate.

(5) This section does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.

(6) In this section—

alteration building work means building work that—

(a) involves the alteration of an existing building, and

(b) does not involve a change of building use.

fire protection and structural capacity of a building means—

(a) the structural strength and load-bearing capacity of the building, and

(b) the measures to protect persons using the building, and to facilitate their safe egress from the building, if there is a fire, and

(c) the measures to restrict the spread of fire from the building to other buildings nearby.

Maximum penalty (subsections (1) and (3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Design requirements for residential apartment development

15 Design requirements for residential apartment development

(1) This section applies to a construction certificate for residential apartment development if the development application was required, under the Environmental Planning and Assessment Regulation 2021, section 29, to be accompanied by a statement by a qualified designer.

(2) A certifier must not issue a construction certificate unless the certifier has received a statement by a qualified designer verifying that the relevant building work plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design principles for residential apartment development.

Maximum penalty (subsection (2))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(3) If the development application was also required to be accompanied by a BASIX certificate for a building, the design principles for residential apartment development do not need to be addressed to the extent to which they aim—

(a) to reduce the consumption of mains-supplied potable water or greenhouse gas emissions related to the use of—

(i) the building, or

(ii) the land on which the building is located, or

(b) to improve the thermal performance of the development, or

(c) to quantify and report on the embodied emissions attributable to the development.

s 15: Am 2022 (40), Sch 2[1]; 2022 (520), Sch 1[2]; 2023 (662), Sch 2[1].

Requirement for inspection

16 Requirement for inspection

(1) A certifier must not issue a construction certificate for development on a site that affects an existing building unless a certifier has carried out an inspection of the building.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection must include the following parts of the building—

(a) the parts of the building affected by the development,

(b) the egress routes from the parts of the building affected by the development.

Record of site inspections

17 Record of site inspections

(1) A certifier must make a record of each inspection carried out by the certifier for the purposes of section 16.

(2) A certifier who is required to make a record, but who is not the certifier in relation to the issue of the construction certificate, must give a copy of the record to the certifier in relation to the issue of the certificate—

(a) through the NSW planning portal, and

(b) within 2 days after carrying out the inspection.

(3) A record of an inspection must include the following information—

(a) the registered number of the relevant development application,

(b) the address of the site of the inspection,

(c) the type of inspection,

(d) the date of the inspection,

(e) if the inspection was carried out by a council—

(i) the name of the council, and

(ii) the name and signature of the individual who carried out the inspection,

(f) if the inspection was carried out by a registered certifier—

(i) the name and registration number of the registered certifier, and

(ii) if the registered certifier is a registered body corporate—the name and registration number of the individual who carried out the inspection,

(g) details of the current fire safety measures in the existing building,

(h) details about whether the relevant building work plans and specifications adequately and accurately describe the condition of the existing building,

(i) details about whether building work authorised by the relevant development consent has commenced on the site.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Requirement for performance solution report

18 Requirement for performance solution report

(1) A certifier must not issue a construction certificate for building work that involves a performance solution unless the certifier—

(a) has obtained or been given a performance solution report, and

(b) is satisfied that—

(i) the report was prepared in accordance with the requirements set out in the Building Code of Australia, A2G2(4), and

(ii) the relevant building work plans and specifications show and describe the physical elements of the performance solution, if possible, and

(iii) if the performance-based design brief for the proposed performance solution relates to a fire safety requirement for a class 2, 3, 4, 5, 6, 7, 8 or 9 building—the brief was developed following consultation with the Fire Commissioner as required by section 26.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) A performance solution report for a fire safety requirement must be prepared by or on behalf of—

(a) for a prescribed report—a recognised person, or

(b) otherwise—a person who is an accredited practitioner (fire safety).

(3) In this section—

prescribed report means a performance solution report for a requirement set out in the Building Code of Australia, Volume 1, E1P4, E2P1, E2P2, D1P4 or D1P5 for—

(a) a class 9a building that is proposed to have a floor area of 2,000 square metres or more, or

(b) a building, other than a class 9a building, that is proposed to have a fire compartment with a floor area of more than 2,000 square metres, or

(c) a building, other than a class 9a building, that is proposed to have a floor area of more than 6,000 square metres.

s 18: Am 2022 (788), Sch 1[1] [2]; 2023 (71), Sch 1.4[1] [2].

Compliance with development consent and Building Code of Australia

19 Compliance with development consent and Building Code of Australia

(1) A certifier must not issue a construction certificate for building work unless—

(a) the relevant building work plans and specifications include the matters required by a relevant BASIX certificate, if any, and

(b) the design and construction of the building, as described in the relevant building work plans and specifications and in other information given to the certifier under section 12, is consistent with the development consent, and

(c) the building will comply with the relevant requirements of the Building Code of Australia as in force on the relevant date.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(1A) The relevant date is—

(a) the day on which the application for the construction certificate was made, or

(b) if the building is a multi storey building and a construction certificate has been issued under the same development consent for building work involving the entrance floor—the day on which the application for that construction certificate was made.

(2) Subsection (1)(c) does not apply—

(a) to a temporary building, or

(b) to the extent of an exemption under section 74(4), 111(4) or 117(1).

(3) A certifier must not refuse to issue a construction certificate because a building product or system relating to the development does not comply with a requirement of the Building Code of Australia if—

(a) a certificate of conformity issued in accordance with the CodeMark scheme is in force in relation to the building product or system, and

(b) use of the building product or system is not prohibited under the Building Products (Safety) Act 2017.

(4) The following persons do not incur liability as a consequence of acting in accordance with subsection (3)—

(a) a certifier,

(b) an employee of a certifier, if the certifier is a consent authority.

(5) In this section—

entrance floor, of a multi storey building, means the floor of the building containing the principal pedestrian entrance.

s 19: Am 2023 (30), Sch 1[1]–[3].

Compliance with conditions of development consent

20 Compliance with conditions of development consent

A certifier must not issue a construction certificate for building work under a development consent unless the following have been complied with—

(a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before building work is carried out,

(b) a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before building work is carried out,

(c) a condition of the development consent that must be complied with before a construction certificate may be issued.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Compliance with planning agreement

21 Compliance with planning agreement

If a planning agreement specifies requirements of the agreement that must be complied with before a construction certificate for building work is issued, a certifier must not issue a construction certificate for the building work unless the certifier is satisfied the requirements have been complied with.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Fire safety systems in class 2–9 buildings—the Act, s 6.33(1)

22 Fire safety systems in class 2–9 buildings—the Act, s 6.33(1)

(1) It is a condition of a construction certificate for building work involving the installation, extension or modification of a relevant fire safety system in a class 2, 3, 4, 5, 6, 7, 8 or 9 building that the building work must not commence unless—

(a) plans have been submitted to the principal certifier that show—

(i) for building work involving the installation of the relevant fire safety system—the layout, extent and location of key components of the relevant fire safety system, or

(ii) for building work involving the extension or modification of the relevant fire safety system—the layout, extent and location of the new or modified components of the relevant fire safety system, and

(b) specifications have been submitted to the principal certifier that—

(i) describe the basis for the design, installation and construction of the relevant fire safety system, and

(ii) identify the provisions of the Building Code of Australia on which the design of the system is based, and

(c) the plans and specifications—

(i) are certified by a compliance certificate as complying with the relevant provisions of the Building Code of Australia, or

(ii) are endorsed by an accredited practitioner (fire safety) as complying with the relevant provisions of the Building Code of Australia, and

(d) if the plans and specifications were submitted before the construction certificate was issued—they are endorsed by a certifier with a statement that the certifier is satisfied they correctly identify the relevant performance requirements and deemed-to-satisfy provisions, and

(e) if the plans and specifications were not submitted before the construction certificate was issued—they are endorsed by the principal certifier with a statement that the principal certifier is satisfied they correctly identify the relevant performance requirements and deemed-to-satisfy provisions.

(2) Subsection (1)(c)(ii) does not apply to the extent of an exemption under section 74(4).

Information to be included in construction certificate—the Act, s 6.33(1)

23 Information to be included in construction certificate—the Act, s 6.33(1)

(1) A certifier must not issue a construction certificate unless the certificate contains the following information—

(a) the name of the certifier,

(b) if the certifier is a registered body corporate—the name of the individual who issued the certificate,

(c) if the certifier is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who issued the certificate,

(d) the signature of the individual who issued the certificate,

(e) the registered number and date of issue of the relevant development consent,

(f) the date of the certificate,

(g) a statement to the effect that building work completed in accordance with the documents accompanying the application for the certificate, including modifications verified by the certifier shown on the documents, will comply with the requirements referred to in the Act, section 6.6,

(h) the Building Code of Australia classification of the building to which the certificate relates,

(i) if a performance solution report about the building work is required under section 18—the following details of the report—

(i) the title of the report,

(ii) the date on which the report was made,

(iii) the reference number and version number of the report,

(iv) the name of the person who prepared the report or on whose behalf the report was prepared,

(v) if the person referred to in subparagraph (iv) is an accredited practitioner (fire safety) and a registered certifier—the certifier’s registration number,

(i1) the edition of the Building Code of Australia considered by the certifier for section 19(1)(c),

(j) if the building work is exempt from compliance with the Building Code of Australia under section 74(4)—the details of the exemption.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) A construction certificate may indicate different Building Code of Australia classifications for different parts of the same building.

(3) A certifier must not issue a construction certificate for a building for which a fire safety schedule is required under Part 10 unless the certificate is accompanied by the schedule.

Maximum penalty (subsection (3))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

s 23: Am 2022 (788), Sch 1[3]; 2023 (30), Sch 1[4]; 2025 (17), Sch 1[1].

Modification of construction certificate—the Act, s 6.33(1)

24 Modification of construction certificate—the Act, s 6.33(1)

(1) The following persons may apply to modify the development the subject of a construction certificate or an application for a construction certificate—

(a) a person who made the application for the construction certificate,

(b) a person who has the benefit of the construction certificate.

(2) This Part applies to an application to modify development in the same way as it applies to the original application.

(2A) For the purposes of subsection (2), a reference in this Part to the Building Code of Australia is taken to be a reference to the edition of the Building Code of Australia that applied in relation to the original application.

(3) A certifier who grants an application for a construction certificate that relates to the modification of referred development must, as soon as practicable, notify the Fire Commissioner if the building to which the construction certificate relates is no longer a building to which Division 3 applies because of the modification.

(4) In this section—

referred development means development in relation to which an application for a construction certificate was previously referred to the Fire Commissioner under Division 3.

s 24: Am 2023 (30), Sch 1[5].

Division 3

Referral to Fire and Rescue NSW—the Act, s 6.8

Division 3 Referral to Fire and Rescue NSW—the Act, s 6.8

Interpretation

25 Interpretation

(1) In this Division—

document receipt date—see section 27(2)(a).

initial fire safety report means a written report specifying whether, on the basis of the documents referred to in section 27(1), the Fire Commissioner is satisfied that—

(a) the performance solution will meet the performance requirements it is intended to meet, and

(b) the fire hydrants in the proposed fire hydrant system will be accessible for use by Fire and Rescue NSW, and

(c) the couplings in the fire hydrant system will be compatible with the fire appliances and equipment used by Fire and Rescue NSW.

relevant building work means building work that involves a performance solution for a fire safety requirement in a building other than—

(a) a class 1a, 1b or 10 building, or

(b) a temporary structure.

(2) A certifier or the Fire Commissioner must use the NSW planning portal to provide a document, information or notice required under this Division.

(3) An application for a construction certificate to which this Division applies made but not finally determined before 11 December 2020 must be dealt with under the Environmental Planning and Assessment Regulation 2000 as in force immediately before that date.

s 25: Am 2022 (788), Sch 1[4].

Performance-based design brief—consultation with Fire Commissioner

26 Performance-based design brief—consultation with Fire Commissioner

(1) The owner of a building must ensure that the person who develops a performance-based design brief for a performance solution for a fire safety requirement in the building requests the Fire Commissioner’s comments on the brief if—

(a) the building is a class 2, 3, 4, 5, 6, 7, 8 or 9 building, and

(b) a construction certificate is required for the building work comprising the performance solution.

(2) A request must be made—

(a) during the development of the performance-based design brief, and

(b) in the way required by the Fire Commissioner.

(3) The Fire Commissioner must, within 10 business days after a request is made, give notice of whether or not the Fire Commissioner will provide comments on the performance-based design brief to—

(a) the person who developed the performance-based design brief, and

(b) the building owner.

(4) The building owner must not implement the performance solution unless the building owner has received and considered the Fire Commissioner’s written comments on the performance-based design brief.

Maximum penalty—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(5) However, a building owner may implement the performance solution if—

(a) the Fire Commissioner has failed to notify the building owner within 10 business days after a request was made whether or not the Fire Commissioner will provide comments on the performance-based design brief, or

(b) the Fire Commissioner has notified the building owner that the Fire Commissioner will not provide comments on the performance-based design brief, or

(c) the Fire Commissioner has not provided written comments within 20 business days after the request was made.

s 26: Am 2023 (71), Sch 1.4[3]–[6]. Subst 2022 (788), Sch 1[5]. Am 2025 No 48, Sch 3.5[1].

Certifier to forward plans and specifications to Fire and Rescue NSW

27 Certifier to forward plans and specifications to Fire and Rescue NSW

(1) Within 7 business days after receiving an application for a construction certificate for relevant building work, a certifier must give the following to the Fire Commissioner—

(a) a copy of the application,

(b) a copy of the relevant building work plans and specifications,

(c) details of the performance requirements that the performance solution is intended to meet,

(d) details of the assessment methods to be used to establish compliance with the relevant performance requirements under the Building Code of Australia.

Maximum penalty (subsection (1))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(2) The Fire Commissioner must—

(a) within 2 business days after receiving the documents, notify the certifier of the date of receipt of the documents (the document receipt date), and

(b) within 10 business days after the document receipt date, notify the certifier whether or not the Fire Commissioner will prepare an initial fire safety report for the building.

(3) The Fire Commissioner may give the certifier an initial fire safety report for the building only if notice has been given to the certifier under subsection (2)(b).

(4) An initial fire safety report may recommend conditions to be imposed on the erection or alteration of the building.

s 27: Am 2022 (788), Sch 1[6]; 2025 No 48, Sch 3.5[1].

Consideration of initial fire safety report

28 Consideration of initial fire safety report

(1) A certifier must not issue a construction certificate for relevant building work unless the certifier has considered an initial fire safety report for the building.

(2) However, a certifier may issue a construction certificate for relevant building work without considering an initial fire safety report if—

(a) the Fire Commissioner has notified the certifier under section 27(2)(b) that an initial fire safety report will not be prepared, or

(b) the Fire Commissioner has failed to notify the certifier within 10 business days after the document receipt date whether or not an initial fire safety report will be prepared, or

(c) the Fire Commissioner has notified the certifier that an initial fire safety report will be prepared, but the report is not given within 25 business days after the document receipt date.

(3) If a certifier does not adopt a condition recommended in an initial fire safety report that the certifier is required to consider because the certifier does not agree with the recommendation, the certifier must give written notice to the Fire Commissioner.

(4) The written notice must include the reasons for not adopting the recommended condition.

(5) If the Fire Commissioner notifies a certifier within 10 business days after the document receipt date that an initial fire safety report will be prepared but fails to give the report within 25 business days after the document receipt date, the certifier must give the Fire Commissioner written notice if a construction certificate is issued.

Maximum penalty (subsections (1), (3) and (5))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

s 28: Am 2022 (788), Sch 1[7]–[10]; 2025 No 48, Sch 3.5[1].

Adoption of conditions recommended by initial fire safety report

29 Adoption of conditions recommended by initial fire safety report

If a certifier adopts a condition recommended in a initial fire safety report, the certifier must—

(a) if the condition can be given effect to by being included in the relevant building work plans and specifications—ensure the condition is included by—

(i) redrawing the plans and specifications, or

(ii) annotating the relevant part of the plans and specifications, including by inserting, deleting or altering matter, or

(b) otherwise—issue the construction certificate subject to the condition.

Maximum penalty—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

Part 4

Subdivision works certificates

Part 4 Subdivision works certificates

Application for subdivision works certificate

30 Application for subdivision works certificate

(1) An application for a subdivision works certificate must—

(a) be in the approved form, and

(b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal.

(2) The application must also be accompanied by the following—

(a) details of the existing and proposed subdivision pattern, including the number of lots and the location of roads,

(b) details about the public authorities that have been consulted about the provision of utility services to the land,

(c) detailed engineering plans about earthworks, roadworks, road pavement, road furnishings, stormwater drainage, water supply works, sewerage works, landscaping works and erosion control works,

(d) a copy of any compliance certificates to be relied on.

(3) The application may only be made by a person who is eligible to appoint a principal certifier for the development.

(4) The certifier for the development must notify the applicant through the NSW planning portal that the application has been lodged.

Maximum penalty (subsection (4))—

(a) for a corporation—150 penalty units, or

(b) for an individual—75 penalty units.

Withdrawal of application for subdivision works certificate

31 Withdrawal of application for subdivision works certificate

(1) An applicant may use the NSW planning portal to withdraw an application for a subdivision works certificate at any time before the application is determined.

(2) The certifier may, but is not required to, refund to the applicant the whole or part of the application fee paid in relation to a withdrawn application.

Certifier may require additional information

32 Certifier may require additional information

(1) A certifier may require the applicant for a subdivision works certificate to give the certifier information about the subdivision work or a planning agreement that the certifier considers necessary to properly consider the application.

(2) If the applicant requests information from a planning authority that is a party to the planning agreement for the purposes of complying with the certifier’s request under this section, the planning authority may certify that specified requirements of the agreement have been complied with.

(3) This section does not affect the certifier’s duty to determine the application.

Determination of application for subdivision works certificate

33 Determination of application for subdivision works certificate

(1) A certifier must ensure the certifier’s determination of an application for a subdivision works certificate contains the following information—

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused—

(i) the reasons for the refusal, and

(ii) if the certifier is a consent authority—the applicant’s right of appeal under the Act.

(2) Within 2 days after determining the application, the certifier must use the NSW planning portal to—

(a) give the determination to the applicant, and

(b) give a copy of the following to the consent authority and council—

(i) the determination and the application to which it relates,

(ii) a subdivision works certificate issued as a result of the determination,

(iii) the plans and specifications in relation to which the subdivision works certificate is issued,

(iv) other documents that were lodged with the application for the certificate or given to the certifier under section 32.

(3) In this Part, a reference to issuing a subdivision works certificate includes a reference to endorsing the subdivision work on the relevant plans and specifications.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Compliance with development consent and planning agreement

34 Compliance with development consent and planning agreement

(1) A certifier must not issue a subdivision works certificate unless the design and construction of the subdivision work is consistent with the development consent.

(2) A certifier must not issue a subdivision works certificate under a development consent unless the following have been complied with—

(a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before work is carried out,

(b) a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before work is carried out,

(c) a condition of the development consent that must be complied with before the subdivision works certificate may be issued,

(d) a condition of a planning agreement that must be complied with before the subdivision works certificate may be issued.

(3) In this section—

design and construction of subdivision work means the design and construction of the work described in the plans and specifications and other information given to the certifier under section 32.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Information to be included in subdivision works certificate—the Act, s 6.33(1)

35 Information to be included in subdivision works certificate—the Act, s 6.33(1)

A certifier must not issue a subdivision works certificate unless the certificate contains the following information—

(a) the name of the certifier,

(b) if the certifier is a registered body corporate—the name of the individual who issued the certificate,

(c) if the certifier is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who issued the certificate,

(d) the signature of the individual who issued the certificate,

(e) the registered number and date of issue of a relevant development consent,

(f) the date of the certificate,

(g) a statement to the effect that work completed in accordance with documents accompanying the application for the certificate, including modifications to the documents verified by the certifier, will comply with the requirements referred to in the Act, section 6.12.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Modification of subdivision works certificate—the Act, s 6.33(1)

36 Modification of subdivision works certificate—the Act, s 6.33(1)

(1) The following persons may apply to modify the development to which an application for a subdivision works certificate or a subdivision works certificate applies—

(a) a person who made the application for the subdivision works certificate,

(b) a person who has the benefit of the subdivision works certificate.

(2) This Part applies to an application to modify development to which an application for a subdivision works certificate or a subdivision works certificate applies in the same way as it applies to the original application.

Part 5

Occupation certificates

Part 5 Occupation certificates

Application for occupation certificate

37 Application for occupation certificate

(1) An application for an occupation certificate must—

(a) be in the approved form, and

(b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal.

(2) An application for an occupation certificate must be accompanied by a copy of the following documents that are relevant—

(a) a development consent,

(b) a construction certificate,

(c) a fire safety certificate,

(d) a compliance certificate.

(3) An application that relates to development with an estimated development cost of $10 million or more, as specified in the development application, must also be accompanied by a copy of the following documents—

(a) if the certifier determining the application is a registered certifier—a document from the relevant council certifying that a monetary contribution or levy under the Act, section 7.11 or 7.12—

(i) is not required to be paid before an occupation certificate is issued, or

(ii) is required and has been paid,

(b) if the building resulting from the development is on land in a special contributions area—a document from the Planning Secretary certifying that a development contribution under the Act, former section 7.24—

(i) is not required to be made before an occupation certificate is issued, or

(ii) is required and has been made.

(4) An application that relates to a development consent that was granted with a condition requiring a commitment listed in a BASIX certificate to be fulfilled must also be accompanied by a copy of each relevant BASIX certificate.

(5) An application for an occupation certificate may only be made by a person who is eligible to appoint a principal certifier for the development.

(6) The principal certifier for the development must notify the applicant through the NSW planning portal that the application has been lodged.

Maximum penalty (subsection (6))—

(a) for a corporation—150 penalty units, or

(b) for an individual—75 penalty units.

s 37: Am 2023 (512), Sch 2[1]; 2023 (547), Sch 2[1][2].

Certifier may require additional information

38 Certifier may require additional information

(1) A certifier may require the applicant for an occupation certificate to give the certifier information about the following that the certifier considers necessary to properly consider the application—

(a) the building to which the application relates, including work that may have been carried out on the building,

(b) a planning agreement.

(2) If an applicant requests information from a planning authority that is a party to a planning agreement for the purposes of complying with a certifier’s request under this section, the planning authority may certify that specified requirements of the agreement have been complied with.

(3) This section does not affect a certifier’s duty to determine an application for an occupation certificate.

Determination of application for occupation certificate

39 Determination of application for occupation certificate

(1) A certifier must ensure the certifier’s determination of an application for an occupation certificate contains the following information—

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused—

(i) the reasons for the refusal, and

(ii) if the certifier is a council—the applicant’s right of appeal under the Act.

(2) Within 2 days after determining the application, the certifier must use the NSW planning portal to—

(a) give the determination to the applicant, and

(b) give a copy of the following to the consent authority and council—

(i) the determination,

(ii) the documents that were lodged with the application for the occupation certificate,

(iii) if an occupation certificate was issued—the certificate,

(iv) the records required to be made of critical stage inspections or other inspections required under this Regulation and any missed inspections,

(v) a compliance certificate and other documentary evidence, whether or not of a kind referred to in the Building Code of Australia, A5G3, relied on to issue the occupation certificate.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 39: Am 2023 (71), Sch 1.4[7].

Consideration of performance solution report

40 Consideration of performance solution report

(1) This section applies to the issue of an occupation certificate for a building if building work that involves a performance solution was carried out.

(2) A certifier must not issue an occupation certificate unless—

(a) the certifier is satisfied the building work was carried out in accordance with the performance solution report that accompanied the construction certificate or complying development certificate, and

(b) if the performance solution report was required to be prepared by a recognised person—

(i) the certifier has obtained a compliance certificate or written report, prepared by a recognised person, and

(ii) the certificate or report contains a statement that the building work the performance solution report relates to—

(A) has been completed, and

(B) is consistent with the performance solution.

Maximum penalty (subsection (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 40: Am 2022 (40), Sch 2[2]; 2022 (788), Sch 1[11].

Fire safety certificates

41 Fire safety certificates

(1) A certifier must not issue an occupation certificate authorising a person to commence the following unless a final fire safety certificate has been issued for the building—

(a) occupation or use of a new building,

(b) a change of building use for an existing building.

(2) A certifier must not issue an occupation certificate authorising a person to commence the following unless a fire safety certificate has been issued for the relevant part of the building—

(a) occupation or use of a partially completed new building,

(b) a change of building use for part of an existing building.

(3) This section does not apply to—

(a) a class 1a or 10 building, or

(b) a temporary structure.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

Health and safety, compliance with development consent and other issues

42 Health and safety, compliance with development consent and other issues

(1) A certifier must not issue an occupation certificate authorising a person to commence the following if the building is a hazard to the health or safety of the occupants of the building—

(a) occupation or use of a partially completed new building,

(b) a new use of a part of an existing building.

(2) A certifier must not issue an occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue unless—

(a) the certifier has inspected the temporary structure, and

(b) the temporary structure is suitable for its proposed occupation or use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.

(3) A certifier must not issue an occupation certificate authorising a person to commence occupation or use of a new building, or a partially completed new building, unless the design and construction of the new building, or the part of the new building that is completed, is consistent with the development consent in force for the new building.

(4) Subsection (3) applies only if the development consent, not including a construction certificate forming part of the consent, was issued on or after 1 March 2013.

Maximum penalty (subsections (1)–(3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Design requirements for residential apartment development

43 Design requirements for residential apartment development

(1) This section applies to an occupation certificate for residential apartment development if the development application was required to be accompanied by a statement by a qualified designer under the Environmental Planning and Assessment Regulation 2021, section 29.

(2) A certifier must not issue an occupation certificate unless the certifier has received a design statement.

Maximum penalty (subsection (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(3) If the development application was also required to be accompanied by a BASIX certificate for a building, the design statement does not need to address the design principles for residential apartment development to the extent to which they aim—

(a) to reduce the consumption of mains-supplied potable water or greenhouse gas emissions related to the use of—

(i) the building, or

(ii) the land on which the building is located, or

(b) to improve the thermal performance of the development, or

(c) to quantify and report on the embodied emissions attributable to the development.

(4) In this section—

design statement means a statement by a qualified designer verifying that the development achieves the design quality shown in the plans and specifications for which the construction certificate was issued, having regard to the design principles for residential apartment development.

s 43: Am 2022 (40), Sch 2[1]; 2022 (520), Sch 1[3]; 2023 (662), Sch 2[1].

Fulfilment of BASIX commitments

44 Fulfilment of BASIX commitments

(1) This section applies to an occupation certificate if a relevant BASIX certificate requires a certifier to monitor fulfilment of a commitment listed in the certificate in relation to a building.

(2) The certifier must not issue an occupation certificate for the building unless the commitment has been fulfilled.

Maximum penalty (subsection (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(3) In determining whether a commitment has been fulfilled, the certifier may rely on the advice of a properly qualified person.

BASIX completion receipt

45 BASIX completion receipt

(1) This section applies to an occupation certificate for BASIX development if a relevant BASIX certificate requires a certifier to monitor fulfilment of a commitment listed in the certificate in relation to a building.

(2) A certifier must not issue an occupation certificate for the building unless the certifier has a receipt from the Planning Secretary (a BASIX completion receipt) for the building.

Maximum penalty (subsection (2))—

(a) for a corporation—100 penalty units, or

(b) for an individual—50 penalty units.

(3) An application for a BASIX completion receipt must—

(a) be made in the approved form, and

(b) contain the following information—

(i) the number of each relevant BASIX certificate for the building or part of the building,

(ii) the postcode of the address of the building,

(iii) the date of the final inspection.

(4) The Planning Secretary may issue a BASIX completion receipt—

(a) by an approved BASIX system, or

(b) in another way approved by the Planning Secretary from time to time.

(5) A BASIX completion receipt must—

(a) be in the approved form, and

(b) confirm that the information required under subsection (3)(b) has been received.

(6) This section does not apply to an occupation certificate to commence occupation or use of a partially completed building.

Payment of development contributions

46 Payment of development contributions

(1) This section applies to development with an estimated development cost of $10 million or more, as specified in the development application.

(2) A registered certifier must not issue an occupation certificate for a building resulting from the development unless the certifier has—

(a) received a copy of a document from the relevant council required under section 37(3)(a), and

(b) confirmed with the relevant council that—

(i) the council issued the document referred to in paragraph (a), and

(ii) no contributions or levies have been required since the document was issued.

(3) If the development is on land within a special contributions area, the certifier must not issue an occupation certificate for a building resulting from the development unless the certifier has—

(a) received a copy of a document from the Planning Secretary required under section 37(3)(b), and

(b) confirmed with the Planning Secretary that—

(i) the Planning Secretary issued the document referred to in paragraph (a), and

(ii) no contributions have been required under former section 7.24 since the document was issued.

(4) This section does not limit the restrictions on the issue of occupation certificates referred to in the Act, section 6.10.

Maximum penalty (subsections (2) and (3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 46: Am 2023 (512), Sch 2[1]; 2023 (547), Sch 2[3][4].

Lighting affecting Siding Spring Observatory

47 Lighting affecting Siding Spring Observatory

(1) This section applies to complying development involving a dwelling house, dual occupancy or secondary dwelling in the Coonamble, Gilgandra, Warrumbungle Shire and Dubbo Regional local government areas.

(2) The principal certifier must not issue an occupation certificate for a dwelling house, dual occupancy or secondary dwelling on land in the Coonamble, Gilgandra or Warrumbungle Shire local government areas if any dwelling in the dwelling house, dual occupancy or secondary dwelling has—

(a) an outside light fitting that is not shielded, or

(b) more than 7 shielded outside light fittings, or

(c) more than 5 shielded outside light fittings that are not automatic.

(3) The principal certifier must not issue an occupation certificate for a dwelling house, dual occupancy or secondary dwelling on land in the Dubbo Regional local government area if a dwelling in the dwelling house, dual occupancy or secondary dwelling has an outside light fitting that is not shielded.

(4) In this section—

automatic, in relation to a light fitting, means a light fitting that—

(a) is activated by a sensor, and

(b) switches off automatically after a period of time.

outside light fitting means a light fitting that is attached or fixed outside a building, including on the exterior of a building.

shielded, in relation to a light fitting, means a light fitting that does not permit light to shine above the horizontal plane.

Maximum penalty (subsections (2) and (3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Compliance with planning agreement

48 Compliance with planning agreement

If a planning agreement specifies requirements of the agreement that must be complied with before an occupation certificate for a building may be issued, a certifier must not issue an occupation certificate for the building unless the certifier is satisfied the requirements have been complied with.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Information to be included in occupation certificate

49 Information to be included in occupation certificate

(1) A certifier must not issue an occupation certificate unless the certificate contains the following information—

(a) the name of the certifier,

(b) if the certifier is a registered body corporate—the name of the individual who issued the certificate,

(c) if the certifier is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who issued the certificate,

(d) the signature of the individual who issued the certificate,

(e) the date of the certificate,

(f) whether the certificate relates to—

(i) the occupation or use of a new building, or

(ii) a change of building use for an existing building,

(g) whether the certificate applies to—

(i) the whole building or part of the building, or

(ii) a partially completed building,

(h) a statement to the effect that—

(i) if the certificate is for a part of a new building or partially completed building—the health and safety of the occupants of the building have been considered, and

(ii) a current development consent is in force for the building, and

(iii) if building work has been carried out—a current construction certificate, or a current complying development certificate, has been issued in relation to the building work plans and specifications,

(iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(v) a fire safety certificate has been issued, if a fire safety schedule was required under Part 10, and

(vi) a report from the Fire Commissioner has been considered, if required,

(i) the following details of a performance solution report about the building work—

(i) the title of the report,

(ii) the date on which the report was made,

(iii) the reference number and version number of the report,

(iv) the name of the person who prepared the report or on whose behalf the report was prepared,

(v) if the person referred to in subparagraph (iv) is an accredited practitioner (fire safety) and a registered certifier—the certifier’s registration number.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) A certifier must not issue an occupation certificate in relation to which a fire safety schedule was required under Part 10 unless the certificate is accompanied by—

(a) a fire safety certificate, and

(b) a fire safety schedule.

Maximum penalty (subsection (2))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

s 49: Am 2022 (788), Sch 1[12].

Reports of Fire Commissioner

50 Reports of Fire Commissioner

(1) This section applies to an application for an occupation certificate for development that is subject to a construction certificate and involves a performance solution for a fire safety requirement in a building other than—

(a) a class 1a, 1b or 10 building, or

(b) a temporary structure.

(2) As soon as practicable after receiving the application, the certifier must request a final fire safety report for the building from the Fire Commissioner.

(3) The certifier is not required to request a final fire safety report under subsection (2) if the certifier has already refused the application for the occupation certificate.

(4) If the certifier refuses the application for an occupation certificate after making the request but before receiving a final fire safety report, the certifier must notify the Fire Commissioner.

(5) If the Fire Commissioner has provided the certifier with a final fire safety report within 10 business days after receiving the request for the report, the certifier must not issue an occupation certificate for the building unless the certifier has—

(a) considered the report, and

(b) given the Fire Commissioner written notice of the reasons for not adopting a recommendation for remediation that is not adopted.

(6) If the Fire Commissioner provided the certifier with a fire safety system report for a building under section 51, the Fire Commissioner is not required to also prepare a final fire safety report under this section.

(7) A certifier or the Fire Commissioner must use the NSW planning portal to make a request, or provide a notice or report, under this section.

(8) In this section—

final fire safety report, for a building, means a written report specifying—

(a) whether the Fire Commissioner is satisfied of the following—

(i) the building work complies with a performance solution for a fire safety requirement that was the subject of the construction certificate,

(ii) the fire hydrants in the fire hydrant system will be accessible for use by Fire and Rescue NSW,

(iii) the couplings in the fire hydrant system will be compatible with the fire appliances and equipment used by Fire and Rescue NSW, and

(b) if the Fire Commissioner is not satisfied of a matter in paragraph (a)(i)–(iii)—the Fire Commissioner’s recommendations for remediation.

Maximum penalty (subsections (2), (4) and (5))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 50: Am 2022 (788), Sch 1[13]–[15]; 2025 (17), Sch 1[2]; 2025 No 48, Sch 3.5[1].

Reports of Fire Commissioner for class 2 or 3 buildings

51 Reports of Fire Commissioner for class 2 or 3 buildings

(1) This section applies to an application for an occupation certificate for development that involved installing, extending or modifying a relevant fire safety system in a class 2 or 3 building.

(2) As soon as practicable after receiving the application, the certifier must request a fire safety system report from the Fire Commissioner.

(3) The certifier is not required to request a fire safety system report under subsection (2) if—

(a) the certifier has already refused the application for the occupation certificate, or

(b) the Fire Commissioner has provided a final fire safety report for the building under section 50.

(4) If the certifier refuses the application for an occupation certificate after making the request but before receiving a fire safety system report, the certifier must notify the Fire Commissioner.

(5) If the Fire Commissioner has provided the certifier with a fire safety system report within 10 business days after receiving the request for the report, the certifier must not issue an occupation certificate for the building unless the certifier has—

(a) considered the report, and

(b) given the Fire Commissioner written notice of the reasons for not adopting a recommendation for remediation that is not adopted.

(6) A certifier or the Fire Commissioner must use the NSW planning portal to make a request, or provide a notice or report, under this section.

(7) In this section—

fire safety system report, for a building, means a written report specifying—

(a) whether the Fire Commissioner is satisfied the relevant fire safety system is capable of performing to at least the standard in the current fire safety schedule for the building, and

(b) if not—the Fire Commissioner’s recommendations for modification of the system.

Maximum penalty (subsections (2), (4) and (5))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 51: Am 2022 (788), Sch 1[16] [17]; 2025 (17), Sch 1[3] [4]; 2025 No 48, Sch 3.5[1].

Division 4

Miscellaneous

Division 4 Miscellaneous

Circumstances in which occupation certificate not required

52 Circumstances in which occupation certificate not required

(1) For the purposes of the Act, section 6.9(2)(a)(iii) and (b)(ii), the following circumstances are prescribed—

(a) the building is a temporary structure, other than a temporary structure that is an entertainment venue,

(b) the building is a structure resulting from building work to which section 62 applies.

(2) A person who is prescribed to be the Crown for the purposes of the Act, Division 4.6 is also prescribed for the purposes of the Act, section 6.9(2)(a)(iv) and (b)(iii), in relation to Crown building work involving the erection of a new building.

Occupation certificates for partially completed buildings—the Act, s 6.33(1)

53 Occupation certificates for partially completed buildings—the Act, s 6.33(1)

It is a condition of an occupation certificate issued for the first completed stage of a partially completed building (the partial occupation certificate) that an occupation certificate must be obtained for the whole building within 5 years after the partial occupation certificate is issued.

Part 6

Subdivision certificates

Part 6 Subdivision certificates

53A

Persons with function of issuing subdivision certificates—the Act, s 6.5A

53A Persons with function of issuing subdivision certificates—the Act, s 6.5A

(1) The following persons have the function of issuing a subdivision certificate in relation to a subdivision carried out by or on behalf of the person—

(a) Port Authority of New South Wales,

(b) the port operator, within the meaning of the Ports and Maritime Administration Act 1995, of the following ports—

(i) the Port of Botany Bay,

(ii) the Port of Newcastle,

(iii) Port Kembla,

(c) Transport for NSW.

(2) Transport for NSW also has the function of issuing a subdivision certificate in relation to development for which Transport for NSW granted development consent.

s 53A: Ins 2024 No 72, Sch 2.2. Am 2025 No 66, Sch 4.3.

Application for subdivision certificate—the Act, s 6.33(1)

54 Application for subdivision certificate—the Act, s 6.33(1)

(1) An application for a subdivision certificate must—

(a) be in the approved form, and

(b) include all the information and documents specified in the approved form or required by the Act or this Regulation, and

(c) be lodged on the NSW planning portal.

(2) The application must be accompanied by the following documents—

(a) a plan of subdivision,

(b) a copy of the relevant development consent,

(c) a copy of a relevant subdivision works certificate,

(d) a copy of detailed subdivision engineering plans,

(e) for a deferred commencement consent—evidence the applicant has satisfied the consent authority of all matters of which the consent authority must be satisfied before the consent can operate,

(f) evidence the applicant has complied with all conditions of consent that it must comply with before a subdivision certificate can be issued, if relevant,

(g) a copy of a certificate of compliance from the relevant water supply authority, if relevant,

(h) for subdivision of land to which water or sewerage services will be provided under the Water Industry Competition Act 2006—a copy of a certificate of compliance under that Act for the development,

(i) for subdivision that is subject to an order of the Court under the Land and Environment Court Act 1979, section 40—evidence the required drainage easements have been acquired by the relevant council,

(j) for subdivision involving subdivision work—evidence of the matters specified in the Act, section 6.15(2).

(3) The application may only be made by—

(a) the owner of the land to which the application relates, or

(b) another person, with the written consent of the owner of that land.

(4) (Repealed)

(5) The plan of subdivision to which the application relates must be accompanied by a survey certificate on the plan in the form required under the Surveying and Spatial Information Act 2002.

(6) The certifier for the development must notify the applicant through the NSW planning portal that the application has been lodged.

Maximum penalty (subsection (6))—

(a) for a corporation—100 penalty units, or

(b) for an individual—50 penalty units.

(7) In this section—

water supply authority means—

(a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or

(b) a council or county council exercising water supply, sewerage or stormwater drainage functions under the Local Government Act 1993, Chapter 6, Part 3, Division 2.

s 54: Am 2025 (17), Sch 1[5] [6].

Certifier may require additional information—the Act, s 6.33(1)

55 Certifier may require additional information—the Act, s 6.33(1)

(1) A certifier may require the applicant for a subdivision certificate to give the certifier information about the subdivision or a planning agreement that the certifier considers necessary to properly consider the application.

(2) If an applicant requests information from a planning authority that is a party to a planning agreement for the purposes of complying with a certifier’s request under this section, the planning authority may certify that specified requirements of the agreement have been complied with.

(3) This section does not affect the certifier’s duty to determine an application for a subdivision certificate.

Determination of application for subdivision certificate—the Act, s 6.33(1)

56 Determination of application for subdivision certificate—the Act, s 6.33(1)

(1) A certifier must ensure the certifier’s determination of an application for a subdivision certificate contains the following information—

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused—

(i) the reasons for the refusal, and

(ii) if the certifier is a consent authority—the applicant’s right of appeal under the Act,

(d) the name of the certifier,

(e) if the certifier is a registered body corporate—the name of the individual who dealt with the application,

(f) if the certifier is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who dealt with the application,

(g) the signature of the individual who determined the application.

(2) Within 2 days after determining the application, the certifier must use the NSW planning portal to—

(a) give the determination to the applicant, and

(b) give a copy of the following to the consent authority and council—

(i) the determination,

(ii) the documents that were lodged with the application for the certificate,

(iii) if a subdivision certificate was issued—the endorsed plan of subdivision.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Note—

The form of a subdivision certificate is regulated under the Conveyancing Act 1919.

Part 7

Notification requirements for building and subdivision work and fire safety—the Act, s 6.33(1)

Part 7 Notification requirements for building and subdivision work and fire safety—the Act, s 6.33(1)

Notice of appointment of principal certifier

57 Notice of appointment of principal certifier

(1) The principal certifier for building work or subdivision work must ensure a notice given under the Act, section 6.6(2)(a) or 6.12(2)(a) contains the following information—

(a) a description of the work to be carried out,

(b) the address of the land on which the work will be carried out,

(c) the registered number and date of issue of the relevant development consent,

(d) the name and address of the principal certifier and the person who appointed the principal certifier,

(e) if the principal certifier is a registered certifier—

(i) the certifier’s registration number, and

(ii) a statement signed by the registered certifier to the effect that the certifier consents to being appointed as principal certifier, and

(iii) a telephone number on which the certifier may be contacted for business purposes.

(2) The notice must be lodged on the NSW planning portal.

Notice of critical stage inspections

58 Notice of critical stage inspections

(1) The principal certifier for building work must ensure a notice given under the Act, section 6.6(2)(b) contains the following information—

(a) the name and registration number of the principal certifier,

(b) a telephone number on which the principal certifier may be contacted for business purposes,

(c) a description of the work to be carried out,

(d) the address of the land on which the work will be carried out,

(e) the registered numbers of the development consent and the construction certificate,

(f) a list of the critical stage inspections and other inspections that must be carried out in relation to the work.

(2) The notice must be lodged on the NSW planning portal.

Notice of intention to commence erection of building or subdivision work

59 Notice of intention to commence erection of building or subdivision work

(1) A person required to give a notice under the Act, section 6.6(2)(e) or 6.12(2)(c) must ensure the notice contains the following information—

(a) the name and address of the person,

(b) a description of the work to be carried out,

(c) the address of the land on which the work will be carried out,

(d) the registered numbers and date of issue of the development consent and construction certificate,

(e) a statement signed by or on behalf of the principal certifier that all conditions of the consent that must be satisfied before the work commences have been satisfied,

(f) the date on which the work is intended commence.

(2) The notice must be lodged on the NSW planning portal.

59A

Information to be provided to Planning Secretary about Crown building work under Sustainable Buildings SEPP

59A Information to be provided to Planning Secretary about Crown building work under Sustainable Buildings SEPP

(1) This section applies to non-residential development under State Environmental Planning Policy (Sustainable Buildings) 2022 that is Crown building work certified to comply with the Building Code of Australia under the Act, Part 6 and that does not require a construction certificate under the Act, section 6.7(2).

(2) Before carrying out building work for development to which this section applies, the information required to accompany an application for a construction certificate under sections 10A and 10B must be given to the Planning Secretary through the NSW planning portal.

(3) Sections 10A(2)–(4) and 10B(3)–(5) apply to the information given to the Planning Secretary under this section in the same way as they apply to an application for a construction certificate.

s 59A: Ins 2022 (520), Sch 1[3A] (ins 2023 (531), Sch 1[5]).

Council to be notified of significant fire safety issues—the Act, s 10.13(1)(d)

60 Council to be notified of significant fire safety issues—the Act, s 10.13(1)(d)

(1) A certifier must give written notice to the council if—

(a) an application is made to the certifier for a certificate under the Act, Part 6 affecting an existing building, and

(b) the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and

(c) after receiving the application but before issuing the certificate, the certifier becomes aware, when carrying out an inspection or otherwise, of a significant fire safety issue with a part of the building.

(2) A principal certifier must give written notice to the council if—

(a) the principal certifier is appointed for building work affecting an existing building, and

(b) the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and

(c) after being appointed but before issuing an occupation certificate for the building work, the principal certifier becomes aware, when carrying out an inspection or otherwise, of a significant fire safety issue with the building.

(3) The notice under subsection (1) or (2) must—

(a) describe the fire safety issue and the parts of the building affected by the issue, and

(b) be made within 2 days after the certifier or principal certifier becomes aware of the fire safety issue, and

(c) be lodged on the NSW planning portal.

(4) A certifier or principal certifier is not required to give notice if the fire safety issue is being addressed—

(a) by a fire safety order, or

(b) by development that affects the building that is the subject of—

(i) a development consent, or

(ii) a construction certificate.

(5) To avoid doubt, this section extends to a council that is a certifier or principal certifier.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Part 8

Inspections of building work—the Act, s 6.33(1)(g)

Part 8 Inspections of building work—the Act, s 6.33(1)(g)

Critical stage inspections for building work

61 Critical stage inspections for building work

(1) The person having the benefit of a development consent must ensure that building work to which the development consent relates is inspected as required by this section (the critical stage inspections).

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) The building work for a class 1 or 10 building must be inspected on the following occasions—

(a) after excavation for, and before the placement of, a footing,

(b) before pouring an in-situ reinforced concrete building element,

(c) before covering the framework for a floor, wall, roof or other building element,

(d) before covering waterproofing in a wet area,

(e) before covering stormwater drainage connections,

(f) after the building work is completed and before an occupation certificate is issued for the building (the final critical stage inspection).

(3) The building work for a class 2, 3 or 4 building must be inspected on the following occasions—

(a) after excavation for, and before the placement of, the first footing,

(b) before covering fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread,

(c) before covering the junction of an internal fire-resisting construction bounding a sole-occupancy unit and another building element that is required to resist internal fire spread,

(d) before covering waterproofing in a wet area, for at least 10% of rooms with a wet area in the building,

(e) before covering stormwater drainage connections,

(f) after the building work is completed and before an occupation certificate is issued for the building (the final critical stage inspection).

(4) The building work for a class 5, 6, 7, 8 or 9 building must be inspected on the following occasions—

(a) after excavation for, and before placement of, the first footing,

(b) for a class 9a or 9c building—before covering fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread,

(c) before covering stormwater drainage connections,

(d) after the building work is completed and before an occupation certificate is issued for the building (the final critical stage inspection).

(5) The critical stage inspections must be carried out by—

(a) the principal certifier, or

(b) another certifier, as agreed with the principal certifier.

(6) Despite subsection (5), a final critical stage inspection must be carried out by the principal certifier.

(7) Building work comprising a swimming pool must also be inspected as soon as practicable after a barrier, if required under the Swimming Pools Act 1992, is erected.

(8) The inspection required under subsection (3)(b) or (4)(b) is an inspection of at least 1 of each type of protection method for each type of service, on each storey of the building comprising the building work.

(9) The inspection required under subsection (3)(c) is an inspection of at least 30% of sole-occupancy units, on each storey of the building containing sole-occupancy units.

(10) This section does not apply in relation to an inspection required when a building or dwelling is built off the site in sections and transported to the site for assembly.

Critical stage inspections for building work at ports

62 Critical stage inspections for building work at ports

(1) This section applies to building work that—

(a) is on land to which State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5 applies, and

(b) results in a structure that—

(i) does not have a classification under the Building Code of Australia, or

(ii) is, or is of a kind, declared by the Planning Secretary, by notice published in the Gazette, to be a structure to which this section applies.

(2) The person having the benefit of the development consent must ensure that building work to which the development consent relates is inspected before the use of the structure commences—

(a) on the occasions specified in subsection (3) (the critical stage inspections), and

(b) on other occasions required by the principal certifier.

Maximum penalty (subsection (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(3) The building work must be inspected on the following occasions—

(a) after excavation for, and before the placement of, a footing,

(b) before pouring an in-situ reinforced concrete building element,

(c) on completion of the building work (the final critical stage inspection).

(4) The critical stage inspections and other inspections required under subsection (2)(b) must be carried out by—

(a) the principal certifier, or

(b) another certifier, as agreed with the principal certifier.

(5) Despite subsection (4), the final critical stage inspection must be carried out by the principal certifier.

(6) Before carrying out the final critical stage inspection, the principal certifier must be satisfied the principal certifier has been given all certificates that the principal certifier must be given as a condition, under State Environmental Planning Policy (Three Ports) 2013, of a complying development certificate authorising the building work.

s 62: Am 2022 (40), Sch 2[3].

Records of critical stage and other inspections

63 Records of critical stage and other inspections

(1) A certifier, whether or not a principal certifier, must make a record of each critical stage inspection, and other inspections required by a principal certifier under this Regulation, carried out by the certifier.

Maximum penalty (subsection (1))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(2) A certifier who is required to make a record, and who is not the principal certifier for the work, must, within 2 days after the record is made, give a copy of the record to the principal certifier for the work.

Maximum penalty (subsection (2))—

(a) for a corporation—100 penalty units, or

(b) for an individual—50 penalty units.

(3) A record of an inspection must be made as soon as practicable after the inspection is carried out.

(4) A record must include the following information—

(a) the registered number of the development application,

(b) the registered number of the construction certificate or complying development certificate,

(c) the address of the site of the inspection,

(d) the type of inspection,

(e) the date on which it was carried out,

(f) the name of the certifier who carried out the inspection,

(g) if the certifier is a registered body corporate—the name of the individual who carried out the inspection,

(h) if the certifier who carried out the inspection is a registered certifier—

(i) the registration number of the certifier, and

(ii) if the certifier is a registered body corporate—the registration number of the individual who carried out the inspection,

(i) whether the inspection was satisfactory in the opinion of the certifier who carried it out.

Missed progress inspections

64 Missed progress inspections

(1) Within 2 days after a person who is not the principal certifier becomes aware that an inspection that the person was required to carry out has been missed, the person must notify the principal certifier of the circumstances of the missed inspection.

(2) Within 2 days after becoming aware that an inspection has been missed, the principal certifier must—

(a) notify the following—

(i) the person who appointed the principal certifier,

(ii) the principal contractor, if a principal contractor was required to be appointed for the work,

(iii) the owner-builder, if the work is being done by an owner-builder, and

(b) if satisfied of the following matters, make a record of the relevant information and give a copy of the record to the person who appointed the principal certifier—

(i) the inspection was missed because of unavoidable circumstances,

(ii) the work that would have been the subject of the missed inspection is satisfactory.

(3) If the principal certifier is satisfied of the matters specified in subsection (2)(b) and complies with subsection (2), the missed inspection is taken to not be required to have been carried out for the purposes of section 61(1) or 62(2).

(4) This section does not apply if a final critical stage inspection referred to in section 61 or 62 is missed.

(5) In this section—

required information means the following—

(a) a description of the development and the class of the building,

(b) the address and folio identifier of the land,

(c) the registered numbers of the development consent and the construction certificate,

(d) the name and registration number of the principal certifier,

(e) the name, address and telephone number of the principal contractor or owner-builder and, if that person is required to hold a licence or permit, the number of the licence or permit,

(f) details of the inspection that was missed and the unavoidable circumstances,

(g) a statement that the principal certifier is satisfied the work that would have been the subject of the missed inspection is satisfactory,

(h) the documentary evidence relied on to satisfy the principal certifier that the work that would have been the subject of the missed inspection is satisfactory, including evidence of a kind referred to in the Building Code of Australia, A5G3.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 64: Am 2023 (71), Sch 1.4[8].

Advance notice of inspections

65 Advance notice of inspections

The principal contractor for a building site or the owner-builder must notify the principal certifier at least 48 hours before a critical stage inspection or other inspection required by a principal certifier under this Regulation must be carried out, to allow the principal certifier or another certifier time to carry out the inspection.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Part 9

Other provisions about certification

Part 9 Other provisions about certification

Directions by principal certifiers about non-compliance—the Act, s 6.31

66 Directions by principal certifiers about non-compliance—the Act, s 6.31

(1) The Act, section 6.31 applies in relation to the carrying out of works otherwise than in compliance with a development consent, including approved plans and development consent conditions.

(2) The Act, section 6.31 does not apply in relation to non-compliance identified during—

(a) a critical stage inspection, or

(b) an inspection under this section.

(3) A notice containing a direction by a principal certifier under the Act, section 6.31 must—

(a) be in the approved form, and

(b) be issued within 2 business days after the certifier becomes aware of the non-compliance.

(4) At the end of the period specified in a notice for compliance, the principal certifier must inspect the site to assess whether the direction has been complied with.

(5) The principal certifier must—

(a) make a record of the inspection, and

(b) give a copy of the record to the person responsible for carrying out the part of the development to which the non-compliance relates.

(6) The inspection record must include the following information—

(a) the address of the site of the inspection,

(b) the date of the inspection,

(c) if the inspection was carried out by a council—

(i) the name of the council, and

(ii) the name and signature of the individual who carried out the inspection,

(d) if the inspection was carried out by a registered certifier—

(i) the name and registration number of the registered certifier, and

(ii) if the registered certifier is a registered body corporate—the name and registration number of the individual who carried out the inspection,

(e) details about whether the direction has been complied with.

(7) For the purposes of the Act, section 6.31(2), the prescribed period is 2 days after the inspection is carried out.

(8) A copy of a notice under the Act, section 6.31(2) that a direction has not been complied with must be given to the owner of the land, including an owners corporation, to which the direction relates.

General duties of principal certifiers

67 General duties of principal certifiers

(1) If building work or subdivision work requires development consent, the principal certifier who has control over the work must, before the work commences, be satisfied a construction certificate, subdivision works certificate or complying development certificate has been issued.

(2) A principal certifier for building work or subdivision work must, before residential building work over which the principal certifier has control commences, be satisfied the principal contractor for the work—

(a) holds an appropriate licence, if required under the Home Building Act 1989, and

(b) is covered by the appropriate insurance, if required under the Home Building Act 1989.

(3) Subsection (2)(b) does not apply to work carried out by an owner-builder.

(4) A principal certifier for building work or subdivision work must, before an owner-builder commences residential building work over which the principal certifier has control, be satisfied the owner-builder holds an owner-builder permit required under the Home Building Act 1989.

(5) A principal certifier for building work or subdivision work must, before the principal certifier issues an occupation certificate or subdivision certificate, be satisfied that—

(a) the building work or subdivision work has been inspected by the principal certifier or another certifier on the occasions required by this Regulation and the principal certifier, and

(b) the preconditions required by a development consent to be met before the issue of the occupation certificate or subdivision certificate have been met.

Maximum penalty (subsections (1), (2), (4) and (5))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Replacement of principal certifiers

68 Replacement of principal certifiers

(1) A person may be appointed to replace another person as the principal certifier for building work or subdivision work only if—

(a) the Registration Secretary gives written approval and the relevant council and consent authority are notified before the replacement occurs, or

(b) the current principal certifier, the proposed principal certifier and a person who is eligible to appoint a principal certifier for the work agree.

(2) An application to the Registration Secretary for approval, and a notification to the council and consent authority, under subsection (1)(a) must be—

(a) accompanied by the fee, if any, prescribed by the regulations under the Building and Development Certifiers Act 2018, and

(b) in a form approved by the Registration Secretary.

(3) A person appointed to replace another person as the principal certifier may exercise the functions of a principal certifier only if subsection (1) has been complied with.

(4) If the Registration Secretary approves the appointment of the relevant council to replace another person as the principal certifier under subsection (1)(a), the council must accept the appointment.

(5) A principal certifier appointed to replace another certifier under subsection (1)(b) must ensure that notice of the appointment is, within 2 days after the appointment, given to—

(a) the consent authority, and

(b) if the consent authority is not the council—the council.

(6) A notice given under subsection (5) must—

(a) contain the following information—

(i) the information required under section 57(1),

(ii) the name of the current principal certifier who has been replaced,

(iii) a statement that the current principal certifier agreed to be replaced, and

(b) be lodged on the NSW planning portal.

(7) A person is not required to give a notice under subsection (5) to a person who has agreed to, or been notified of, the proposed appointment.

Maximum penalty (subsections (3) and (5))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Provision of information to replacement principal certifiers

69 Provision of information to replacement principal certifiers

(1) This section applies if—

(a) a principal certifier (the new principal certifier) has been appointed to replace another principal certifier (the old principal certifier), and

(b) the new principal certifier is unable to obtain the prescribed information about a matter from the old principal certifier.

(2) The new principal certifier may, by written notice, request that the Registration Secretary give a direction in relation to the matter.

(3) The Registration Secretary may give a written direction to the following persons to give the prescribed information to the new principal certifier within the period specified in the notice—

(a) the old principal certifier,

(b) a person who the Registration Secretary reasonably believes has the information.

(4) A person must not, without reasonable excuse, fail to comply with a direction given to the person by the Registration Secretary.

Maximum penalty (subsection (4))—20 penalty units.

(5) It is not a reasonable excuse for the purposes of subsection (4) that a person has—

(a) a claim to a lien over a document or record that is prescribed information, or

(b) a right to keep the document or record as security for payment.

(6) In this section—

prescribed information means the following information, or a copy of the information, in relation to a matter—

(a) if the old principal certifier is not a council—the documents and records required to be kept under the Building and Development Certifiers Act 2018 by a registration holder, and

(b) if the old principal certifier is a council—

(i) the information required to be given to the Registration Secretary under the Building and Development Certifiers Act 2018 in relation to the person who performed the certification work on behalf of the council, and

(ii) the records required to be kept by the council under the Building and Development Certifiers Act 2018.

Principal certifiers must keep records of complaints

70 Principal certifiers must keep records of complaints

A principal certifier for development must—

(a) keep a written record of—

(i) each complaint received by the certifier in relation to the development, and

(ii) any action taken by, or response given by, the certifier in relation to the complaint, and

(b) keep the record for a period of 10 years from the date on which the principal certifier received the complaint.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

BASIX certificates

71 BASIX certificates

(1) The Planning Secretary may issue a certificate (a BASIX certificate) in relation to the sustainability of BASIX development and BASIX optional development.

(2) A BASIX certificate may be issued by an approved BASIX system.

(3) A BASIX certificate must contain the following—

(a) a description of the development that corresponds to the description contained in—

(i) the application, and

(ii) the documents required to accompany the application for a construction certificate for the development under this Regulation,

(b) a detailed list of the commitments by the applicant about the carrying out of the development, including commitments about measures, such as design and fit-out, to promote the sustainability of the development,

(c) a statement to the effect that the development will achieve the standards that apply to the development under State Environmental Planning Policy (Sustainable Buildings) 2022, Chapter 2 if the commitments are fulfilled.

(4) If the development involves the erection of a building for both residential and non-residential purposes, or the change of building use to both residential and non-residential purposes, the description referred to in subsection (3)(a) is required only in relation to the part of the development intended to be used for residential purposes.

(4A) A BASIX certificate that was issued on or after 28 March 2009 may be amended by—

(a) the Planning Secretary, or

(b) an approved BASIX system.

(4B) Despite subsection (3)(c), an amended BASIX certificate may contain a statement to the effect that the development will achieve the standards that applied to the development when the original BASIX certificate was issued if the commitments are fulfilled.

(5) In this section—

application means—

(a) a development application, application for a complying development certificate or application for a construction certificate, or

(b) an application for modification of a development consent, complying development certificate or construction certificate.

sustainability of development means the extent to which the development—

(a) reduces the consumption of mains-supplied potable water and greenhouse gas emissions related to the use of—

(i) the development, or

(ii) the land on which the development is located, and

(b) improves the thermal performance of the development, and

(c) quantifies and reports on the embodied emissions attributable to the development.

s 71: Am 2022 (520), Sch 1[4][5]; 2025 (587), Sch 1.

Fee for BASIX certificates—the Act, s 7.44

72 Fee for BASIX certificates—the Act, s 7.44

(1) If a BASIX certificate is issued using an approved BASIX system, the fee for the issue of the certificate is—

(a) the fee specified for the development in the Table to this section, or

(b) if the development is not specified in the Table—$50.

(2) If the BASIX certificate is not issued using an approved BASIX system, the fee for the issue of the certificate is—

(a) the fee specified for the development in the Table plus the lesser of—

(i) 50% of the fee specified in the Table, or

(ii) $250, or

(b) if the development is not specified in the Table—$50.

(3) An additional fee of $5 is payable for the use of the NSW planning portal to lodge an application for a BASIX certificate.

(4) The Planning Secretary may approve circumstances in which the amount payable under this section is reduced or waived.

Table

| Type of development | Fee | | New BASIX buildings | | Single detached dwellings | $50 | | Dual occupancies, attached dwellings and multi dwelling housing— | | | (a) for the first 2 dwellings, and | $80 | | (b) for each additional dwelling | $35 | | Residential flat buildings— | | | (a) for the first 3 dwellings, and | $120 | | (b) for each additional dwelling | $20 | | Alterations and additions to BASIX buildings | | For each dwelling | $25 |

Certifiers may be satisfied of certain matters

73 Certifiers may be satisfied of certain matters

(1) If a condition of a development consent requires a consent authority or council to be satisfied about a relevant matter, the condition is taken to have been complied with if a certifier is satisfied about the matter.

(2) In this section—

relevant matter means—

(a) a matter that relates to the form or content of the plans and specifications for the following kind of work that will be carried out in connection with the erection of a building or the subdivision of land—

(i) earthworks,

(ii) roadworks, including road pavement and road finishing,

(iii) stormwater drainage work,

(iv) landscaping work,

(v) erosion and sedimentation control works,

(vi) excavation work,

(vii) mechanical work,

(viii) structural work,

(ix) hydraulic work,

(x) work associated with driveways and parking bays, including road pavement and road finishing, and

(b) a matter that relates to the external finish of a building.

Exemption from BCA standards for fire safety building work

74 Exemption from BCA standards for fire safety building work

(1) A person may lodge an objection with a certifier that compliance with a specified provision of the Building Code of Australia relating to the operational performance of a relevant fire safety system is unreasonable or unnecessary in the circumstances.

(2) A person may lodge an objection under this section only if the person has, or will have, the benefit of—

(a) a construction certificate subject to a condition under section 22 in relation to building work involving the minor modification or extension of a relevant fire safety system, or

(b) a complying development certificate subject to a condition imposed by the Environmental Planning and Assessment Regulation 2021, section 147 in relation to building work involving the minor modification or extension of a relevant fire safety system.

(3) The objection must—

(a) specify the grounds of the objection, and

(b) be accompanied by a copy of the building work plans and specifications.

(4) The certifier may, if satisfied an objection is well-founded, exempt the building work, either conditionally or unconditionally, from a specified provision of the Building Code of Australia.

(5) A certifier may exempt the building work only if—

(a) the non-compliance with the Building Code of Australia relates only to the operational performance of the relevant fire safety system, and

(b) the certifier is satisfied the non-compliance will not reduce the operational performance of the relevant fire safety system, and

(c) an accredited practitioner (fire safety), other than the accredited practitioner who prepared the building work plans and specifications, has endorsed the non-compliance, and

(d) a current fire safety certificate or a current fire safety statement that relates to or includes the fire safety system being modified or extended has been issued for the building.

(6) This section does not apply to building work required by a fire safety order.

s 74: Am 2022 (40), Sch 2[4]; 2025 (17), Sch 1[7].

Signs on development sites

75 Signs on development sites

(1) The principal certifier and the principal contractor for building work, subdivision work or demolition work authorised to be carried out on a site by a development consent must ensure a sign that complies with this section is—

(a) erected in a prominent position on the site before the commencement of the work, and

(b) maintained at all times while the work is being carried out and while the person remains the principal certifier or principal contractor, and

(c) removed when the work has been completed.

Maximum penalty (subsection (1))—55 penalty units.

(2) The sign must be rigid and durable and show the following information—

(a) the name, address and telephone number of the principal certifier, and

(b) if there is a principal contractor—the principal contractor’s name and address and a telephone number on which the principal contractor may be contacted outside working hours.

(3) The information required under subsection (2) must be able to be read easily by a person on a public road or in another public place adjacent to the site.

(4) This section does not—

(a) require the erection of more than one sign on a site, or

(b) prevent the use of an appropriate sign that has already been erected on a site.

Certification for temporary structures

76 Certification for temporary structures

(1) The Act, sections 6.6(2) and 6.10(2)(b) do not apply to the erection of a temporary structure in accordance with a development consent.

(2) However, the Act, section 6.6(2)(a) and (e) applies to the erection of a temporary structure that is an entertainment venue.

Part 10

Fire safety—the Act, s 10.13(1)(d)

Part 10 Fire safety—the Act, s 10.13(1)(d)

76A

Definitions

76A Definitions

In this part—

relevant order means the following—

(a) a fire safety order,

(b) a building work rectification order, including a modified order, that includes a matter relating to a fire safety measure.

undertaking means the following—

(a) an undertaking given under the Design and Building Practitioners Act 2020, section 88,

(b) an undertaking given under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, section 28.

s 76A: Ins 2025 (17), Sch 1[8].

Application of Part

77 Application of Part

This Part applies to all buildings, other than—

(a) a class 1a or 10 building, or

(b) a temporary structure.

Fire safety schedules

78 Fire safety schedules

(1) This section applies to a person who—

(a) grants a development consent for a change of building use, other than by a complying development certificate, if building work is not—

(i) proposed by the applicant for the consent, or

(ii) required by the consent authority, or

(b) issues a complying development certificate for the erection of a building or a change of building use, or

(c) issues a construction certificate for building work, or

(d) gives a relevant order or accepts an undertaking in relation to premises.

(2) A person must—

(a) issue a schedule (a fire safety schedule)—

(i) in the approved form, and

(ii) containing the matters specified in section 79, and

(b) ensure the requirements of this section relating to the fire safety schedule are complied with.

Maximum penalty (subsection (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(3) For a relevant order in relation to which a further order is made under the Act, Schedule 5, clause 1, the fire safety schedule must be issued when the further order is made.

(4) A fire safety schedule is not required to be issued if—

(a) the work for which a complying development certificate or construction certificate will be issued relates only to—

(i) an alteration to a hydraulic fire safety system, or

(ii) the installation of a fixed on-site pumpset and the construction of a new external pumphouse to accommodate the pumpset, and

(b) the carrying out of the work will not result in a permanent reduction of the fire protection provided by the existing hydraulic fire safety system that will be the subject of the work, and

(c) there is notice of past, current or proposed action by or on behalf of a water utility to—

(i) install mains pressure reduction capability, or

(ii) implement mains pressure reduction.

(5) A copy of the fire safety schedule must be attached to the relevant development consent, construction certificate, relevant order or undertaking.

(6) The attached fire safety schedule is taken to form part of the development consent, construction certificate, relevant order or undertaking.

(7) An earlier fire safety schedule is superseded by a later fire safety schedule and ceases to have effect when the later fire safety schedule is issued.

(8) In this section—

approved form includes a form approved by the Commissioner for Fair Trading, Department of Customer Service.

Note—

This definition of approved form supplements the definition in the Dictionary.

s 78: Am 2022 (788), Sch 1[18] [19]; 2025 (17), Sch 1[9]–[11].

Content of fire safety schedules

79 Content of fire safety schedules

(1) A fire safety schedule must specify the current and proposed fire safety measures that must be implemented for the building, including statutory fire safety measures and other fire safety measures.

(2) A fire safety schedule must deal with the whole of the building and not only the part of the building to which the development consent, construction certificate or fire safety order relates.

(3) A fire safety schedule must—

(a) specify and distinguish between the statutory fire safety measures that are—

(i) currently implemented for the building, and

(ii) proposed or required to be implemented for the building, and

(b) specify each critical fire safety measure and the intervals, of less than 12 months, at which a supplementary fire safety statement must be given to the council for each measure, and

(c) specify the minimum standard of performance for each fire safety measure in the schedule.

(3A) A fire safety schedule must, if it relates to building work that is exempt under section 74(4) from compliance with the Building Code of Australia, include details of the exemption.

(4) In this section—

statutory fire safety measures means the measures specified in the following Table—

Table

| Access panels, doors and hoppers to fire-resisting shaftsAutomatic fail-safe devicesAutomatic fire detection and alarm systemsAutomatic fire suppression systemsEmergency liftsEmergency lightingEmergency warning and intercommunication systemsExit signsFire control centres and roomsFire dampersFire doorsFire hose reel systemsFire hydrant systemsFire seals protecting openings in fire-resisting components of the buildingFire shutters | Fire windowsLightweight constructionMechanical air handling systemsPerimeter vehicle access for emergency vehiclesPortable fire extinguishersSafety curtains in proscenium openingsSmoke alarms and heat alarmsSmoke and heat ventsSmoke dampersSmoke detectors and heat detectorsSmoke doorsSolid core doorsStandby power systemsWall-wetting sprinkler and drencher systemsWarning and operational signs |

s 79: Am 2025 (17), Sch 1[12] [13].

Providing fire safety schedules and fire safety certificates after fire safety order is given

80 Providing fire safety schedules and fire safety certificates after fire safety order is given

(1) As soon as practicable after a relevant order is given or an undertaking is accepted in relation to a building, the person who gives the order or accepts the undertaking must give a copy of the fire safety schedule for the building to—

(a) the council, and

(b) the Fire Commissioner.

(2) A person to whom a relevant order is given or from whom an undertaking is accepted in relation to a building must, within the time specified in the order or undertaking, give a copy of the final fire safety certificate for the building to—

(a) the person who gave the order or accepted the undertaking, and

(b) if the person who gave the order or accepted the undertaking was not the council—the council.

Maximum penalty (subsection (2))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(3) The final fire safety certificate must be issued after the requirements of the relevant order or the undertaking have been complied with.

(4) Subsections (1) and (3) do not apply to a fire safety order given by the Fire Commissioner or an authorised fire officer.

s 80: Am 2022 (788), Sch 1[20]; 2025 (17), Sch 1[14]–[19].

80A

Reissue of fire safety schedule

80A Reissue of fire safety schedule

(1) The owner of a building may request the reissue of a fire safety schedule in accordance with this section.

(2) A fire safety schedule may be reissued by—

(a) a council, if the council is satisfied—

(i) the schedule has been lost or destroyed, or

(ii) there are errors or omissions in the schedule that require correction, or

(b) a principal certifier, if the certifier—

(i) has not yet issued an occupation certificate for the whole of the building, and

(ii) is satisfied there are errors or omissions in the schedule that require correction.

(3) A request to reissue a fire safety schedule must not be made under this section if errors or omissions in the schedule have occurred due to—

(a) building work not authorised by the applicable construction certificate or complying development certificate, or

(b) a change in plans or specifications for the fire safety measures of the building.

(4) Despite section 78(2)(a), a council that reissues a fire safety schedule under this section may reissue the schedule in the same form as the schedule being replaced.

(5) A principal certifier who reissues a fire safety schedule under this section must give the council—

(a) a copy of the reissued schedule, and

(b) evidence of the errors or omissions that required correction.

s 80A: Ins 2022 (788), Sch 1[21]. Am 2025 (17), Sch 1[20] [21].

Essential fire safety measures to be maintained

81 Essential fire safety measures to be maintained

(1) The owner of a building must maintain each essential fire safety measure for the building—

(a) for an essential fire safety measure specified in a fire safety schedule—to a standard no less than that specified in the schedule, or

(b) for an essential fire safety measure applicable to the building but not specified in the fire safety schedule (an original measure)—to a standard no less than that to which the measure was originally designed and implemented.

Note—

Some pre-1997 buildings may not have a fire safety schedule but essential fire safety measures still apply.

Maximum penalty (subsection (1))—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(2) The owner of a building to which an original measure applies may request from the council a schedule of the original measures for the building.

(3) The council must provide the schedule to the owner as soon as practicable after receiving the request.

81A

Essential fire safety measures to be inspected, tested and serviced

81A Essential fire safety measures to be inspected, tested and serviced

(1A) This section applies on and from 13 February 2026.

(1) The owner of a building must ensure that the maintenance activities for each essential fire safety measure for the building are undertaken in accordance with—

(a) if a performance solution approved for building work addresses the maintenance activity—the performance solution, or

(b) AS 1851—2012, if the maintenance activity—

(i) is not addressed by a performance solution approved for building work, and

(ii) is addressed by AS 1851—2012.

Maximum penalty—

(a) for a corporation—600 penalty units, or

(b) for an individual—300 penalty units.

(2) The owner of a building must—

(a) keep the records required by AS 1851—2012, or the approved performance solution, on site at the building for at least 7 years, and

(b) make the records available for inspection by the Fire Commissioner or the relevant council.

Maximum penalty—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

(3) In this section—

AS 1851—2012 means AS 1851—2012, Routine service of fire protection systems and equipment as in force from time to time.

maintenance activities means the following—

(a) inspection,

(b) testing,

(c) servicing.

s 81A: Ins 2022 (788), Sch 1[22]. Am 2025 (17), Sch 1[22].

Part 11

Fire safety certificates—the Act, s 10.13(1)(d)

Part 11 Fire safety certificates—the Act, s 10.13(1)(d)

Application of Part

82 Application of Part

This Part applies to all buildings, other than—

(a) a class 1a or 10 building, or

(b) a temporary structure.

Final fire safety certificates and interim fire safety certificates

83 Final fire safety certificates and interim fire safety certificates

(1) A final fire safety certificate means a certificate that—

(a) is issued for a building by or on behalf of the owner of the building, and

(b) certifies that each essential fire safety measure specified in the current fire safety schedule for the building has been assessed by an accredited practitioner (fire safety) as capable of performing to at least the standard required by the current fire safety schedule.

(2) An interim fire safety certificate means a certificate that—

(a) is issued for part of a building by or on behalf of the owner of the building, and

(b) certifies that each essential fire safety measure specified in the current fire safety schedule for the part of the building has been assessed by an accredited practitioner (fire safety) as capable of performing to at least the standard required by the current fire safety schedule.

Notes—

1 A final fire safety certificate must be provided before an occupation certificate is issued under section 41(1) for—

(a) a new building, or

(b) a change of use for a building or part of a building.

2 A final fire safety certificate or an interim fire safety certificate must be provided before an occupation certificate is issued under section 41(2) for—

(a) a partially completed new building, or

(b) a change of use for a building or part of a building.

s 83: Am 2022 (788), Sch 1[23]–[25]; 2025 (17), Sch 1[23].

Issue of fire safety certificates

84 Issue of fire safety certificates

(1) A person must not issue a fire safety certificate unless the assessments required for the certificate have been carried out within the previous 3 months.

(2) The individual carrying out an assessment—

(a) must be an accredited practitioner (fire safety), and

(b) must not have installed a fire safety measure being assessed, and

(c) may be chosen by the building owner.

(3) The person who carries out an assessment must—

(a) inspect and verify the performance of each essential fire safety measure being assessed, and

(b) test the operation of equipment relevant to the essential fire safety measure being assessed that—

(i) is specified in the current fire safety schedule for the building, and

(ii) has not previously been tested in an assessment because it is newly installed.

(4) A fire safety certificate is not required to address an essential fire safety measure if—

(a) the certificate is issued in relation to work that has been authorised or required by a development consent, construction certificate or fire safety order, and

(b) the measure is addressed in another current final fire safety certificate or current fire safety statement.

(5) Subsection (4) does not apply if the person who issued the development consent, construction certificate or fire safety order determines it should not apply.

(6) A person may make a determination under subsection (5) only if the person—

(a) considers that the essential fire safety measure will be affected by the work, and

(b) has specified in the fire safety schedule attached to the development consent, construction certificate or fire safety order that the fire safety certificate issued in relation to the work must address the essential fire safety measure.

Maximum penalty (subsections (1) and (3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 84: Am 2022 (788), Sch 1[26]–[29]; 2025 (17), Sch 1[24].

Fire safety certificate to be given to Fire Commissioner and building practitioner and displayed in building

85 Fire safety certificate to be given to Fire Commissioner and building practitioner and displayed in building

(1) As soon as practicable after a fire safety certificate is issued for a building, the owner of the building must—

(a) give a copy of the certificate and a copy of the current fire safety schedule to the Fire Commissioner, and

(a1) give a copy of the certificate to a building practitioner to whom the owner is required to give notice, under the Design and Building Practitioners Act 2020, section 16, of the owner’s intention to apply for an occupation certificate, and

(b) ensure a copy of the certificate and a copy of the current fire safety schedule are prominently displayed in the building.

Maximum penalty—

(a) subsection (1)(a1)—

(i) for a corporation—200 penalty units, or

(ii) for an individual—100 penalty units,

(b) subsection (1)(b)—

(i) for a corporation—300 penalty units, or

(ii) for an individual—150 penalty units.

(2) Subsection (1)(b) ceases to apply to a fire safety certificate only when each essential fire safety measure listed in the certificate has become the subject of a later fire safety certificate or fire safety statement.

(3) In this section—

building practitioner has the same meaning as in the Design and Building Practitioners Act 2020.

s 85: Am 2022 (788), Sch 1[30]–[33].

Information to be included in fire safety certificates

86 Information to be included in fire safety certificates

(1) A person must not issue a fire safety certificate for a building or part of a building unless the certificate—

(a) is in the approved form, and

(b) contains the following information—

(i) the name and address of the owner of the building,

(ii) a description of the building, including the address,

(iii) a list of each essential fire safety measure in the building and the minimum standard of performance specified in the relevant fire safety schedule for each measure,

(iv) the date on which the essential fire safety measures were assessed,

(v) whether the certificate is a final or interim fire safety certificate,

(vi) a statement to the effect referred to in section 83(1)(b) for a final fire safety certificate or section 83(2)(b) for an interim fire safety certificate,

(vii) the date on which the certificate is issued,

(viii) the full name, business address, telephone number and accreditation number of each accredited practitioner (fire safety) who carried out an assessment under section 84(1).

(2) Subsection (1)(b)(iii) and (iv) applies only to the essential fire safety measures required to be addressed in the fire safety certificate.

(3) A person must not issue a fire safety certificate for a building or part of a building unless the certificate is accompanied by a fire safety schedule for the building.

(4) In this section—

approved form includes a form approved by the Commissioner for Fair Trading, Department of Customer Service.

Note—

This definition of approved form supplements the definition in the Dictionary.

Maximum penalty (subsections (1) and (3))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

s 86: Am 2022 (788), Sch 1[34] [35]; 2025 (17), Sch 1[25].

Part 12

Fire safety statements—the Act, s 10.13(1)(d)

Part 12 Fire safety statements—the Act, s 10.13(1)(d)

Application of Part

87 Application of Part

This Part applies to all buildings, other than—

(a) a class 1a or 10 building, or

(b) a temporary structure.

Annual fire safety statement

88 Annual fire safety statement

(1) An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that—

(a) each essential fire safety measure specified in the statement has been assessed by an accredited practitioner (fire safety) as capable of performing—

(i) for an essential fire safety measure specified in the fire safety schedule—to a standard no less than that specified in the schedule, or

(ii) for an original measure within the meaning of section 81—to a standard no less than that to which the measure was originally designed and implemented, and

(b) the building has been inspected by an accredited practitioner (fire safety) and was found, when it was inspected, to be in a condition that did not disclose grounds for a prosecution under Part 15.

(2) A person must not issue an annual fire safety statement unless the assessment and inspection have been carried out within the previous 3 months.

(3) The owner of the building may choose a person to carry out the assessment or inspection.

(4) The person who carries out the assessment referred to in subsection (1)(a) must inspect and verify the performance of each essential fire safety measure being assessed.

Maximum penalty (subsection (4))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

Duties of building owners in relation to annual fire safety statements

89 Duties of building owners in relation to annual fire safety statements

(1) The owner of a building to which an essential fire safety measure applies must give the council an annual fire safety statement for the building.

Maximum penalty (subsection (1))—

(a) for a corporation—800 penalty units, or

(b) for an individual—400 penalty units.

(2) The owner must give the annual fire safety statement to the council within the later of—

(a) 12 months after an annual fire safety statement was previously given to the council, or

(b) if a fire safety certificate has been issued within the previous 12 months—12 months after the certificate was issued.

(3) Failure to give an annual fire safety statement to the council within the time required by subsection (2) is a separate offence for each week that the failure continues after the expiry of the required time.

(4) As soon as practicable after an annual fire safety statement is issued for a building, the owner of the building must—

(a) give a copy of the statement and a copy of the current fire safety schedule to the Fire Commissioner, and

(b) ensure a copy of the statement and a copy of the current fire safety schedule are prominently displayed in the building.

Maximum penalty (subsection (4)(b))—55 penalty units.

(5) Subsection (4)(b) ceases to apply to an annual fire safety statement only when each essential fire safety measure specified in the statement has become the subject of a later fire safety certificate or fire safety statement.

(6) A requirement in this section to give a fire safety statement to a council is a requirement to give the statement to the Minister, if the statement relates to premises in the Alpine Region under State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 4.

s 89: Am 2022 (790), sec 4.

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

2 Commencement

(1) This Regulation commences on 1 January 2022, except as provided by subsection (2), and is required to be published on the NSW legislation website.

(2) Schedule 3[7]–[9] and 4 commence on the day on which this Regulation is published on the NSW legislation website.

3 Definitions

(1) The Dictionary in Schedule 2 defines words used in this Regulation.

Note—

The Environmental Planning and Assessment Act 1979 and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Words used in this Regulation have the same meanings as in the Standard Instrument, unless otherwise defined in this Regulation.

(3) A reference in this Regulation to building work does not include a reference to physical activity involved in the erection of a temporary structure.

(4) A reference in this Regulation to an existing building does not include a reference to a temporary structure.

(5) In this Regulation, a reference to a class 1a or 10 building is a reference to—

(a) for the erection of a new building—a building that will be a class 1a or 10 building when completed, and

(b) for the alteration of an existing building—an existing class 1a or 10 building, and

(c) for the change of building use for an existing building—an existing building that will be a class 1a or 10 building as a result of the change of building use.