APPEAL — refusal to issue occupation certificate — single dwelling — no modified construction certificate
Quick Take
1An application for an occupation certificate under s 37 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW) is validly 'made' when uploaded to the NSW Planning Portal in the approved form with all required information and documents; the non-payment of fees — where no fee notice was ever issued — does not defeat lodgement, distinguishing the stricter requirements for development applications under s 24 of the EPA Regulation.
2Section 6.10(2)(b) of the Environmental Planning and Assessment Act 1979 (NSW) requires that a construction certificate has been issued with respect to the plans and specifications for the building; where a CC was validly issued for the original development consent and the consent was later modified without a corresponding CC modification, the original CC satisfies s 6.10(2)(b), because there is no statutory requirement to modify a CC and a contrary construction would permanently frustrate lawful occupation of a building built in accordance with a valid modified consent.
3Consistent with Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, a construction of a statutory regime that would render it impossible ever to lawfully occupy a building erected pursuant to a valid development consent yields capricious and unjust results and should not be preferred.
