Subdivision Development Consents and Certificates

Today we are going to take a step back and have a high-level review of the main Consents and Certificates involved with Subdivision Developement.

Development Consent (or DA)

More commonly know as a DA, which stands for Development Application, your development consent is the approval that you receive from the consent authority, which in most cases is Council, to say that in concept your development is permissible and has permission to progress to the next stages of your development, subject to conditions, which are referred to as your conditions of consent.

I use the term in concept as for majority of works involved with your development consent you will require further approvals, which are referred to as Certificates.

Given the current legislation you cannot obtain a DA from a Registered Subivision Certifier or building Certifier.

When Council is assessing your Development Application, they will be assessing what you are proposing to do against two main documents, as listed below.

Firstly, they will assess against the development standards within the Local Environment Plan, or LEP. The LEP is the rule book that your development must meet. These generally relate to lot size requirements, height restrictions, etc.

If you want to vary one of the development standards, or rules, you can ask Council via a section 4.6 variation, however these can be difficult to get approved and will often cause your DA to take longer to assess and can potentially be required to get approved by the Local Planning Panel. I will speak about the Local Planning Panels in future instalments. If you are proposing a section 4.6 variation you will need to engage a Town Planner and preferably one with experience in 4.6 variations with the Council you are working with.

Next your development will be assessed against the relevant development controls within the Development Control Plan, or DCP, that applies to the land you are developing. The DCP has further rules/guidelines around your development, like setbacks or private open space requirements etc. If you are proposing to vary these development Controls generally these can be approved by the Council Officer assessing your application, i.e. the Town Planner/Engineer/Tree Officer, and as long as you can show you are meeting the objective of the control you have potential to get these approved.

If Council is happy to support your development, then you will be issued with your Development Consent, which will refer to the relevant plans submitted (Architectural plans, tree removal plans, etc) as well as contain conditions that need to be addressed at the different stages of the development.

Construction Certificate (or CC)

A Construction Certificate is the Certificate you need to able to go ahead and start building your development.

You can obtain your Construction Certificate from a Registered Building Certifier or Council. The person who issues your construction certificate is called your Certifying Authority

Prior to issuing your Construction Certificate, the Certifying Authority needs to ensure that the plans to be stamped for construction are consistent with the plans referred to under your DA and all the conditions of consent that are required to be meet before the issue of the construction certificate have been address.

Subdivision Works Certificate (or SWC)

A Subdivision Works Certificate is similar to a Construction Certificate, however it specifically relates to works associated with the subdivision of land. If your Development Consent, or DA, from Council does not include any form of subdivision then you will not require a Subdivision Works Certificate.

For example, if you have a DA for a Knock-down rebuild, you won’t need a Subdivision Works Certificate as all your works, inside of your property boundary, will be approved under the Construction Certificate. Any works outside of the property boundary (i.e. your driveway/Vehicular Crossing) need to be approved by Council.

If your DA does include subdivision, for example a Battle-Axe Subdivision where one lot will sit behind the other, then often Council will condition you to construct the new driveway servicing the rear lot and the associated drainage prior to your Subdivision Certificate being issued. These works would then need to be approved via a subdivision works certificate as they are works that directly relate to the subdivision of the lot. The line between what is covered by the subdivision works certificate and construction certificates can get a little complicated if you are both subdividing as well as building on a lot. In these cases please contact SubCerts and we will be more than happy to provide advice and guidance.

Subdivision Works Certificates (or SWC's)can range for a small drainage line to service a corner lot subdivision all the way up approving roads, drainage and earthworks for subdivisions creating thousands of lots.

You can obtain your Subdivision Works Certificate from a Registered Subdivision Certifier or Council. The person who issues your subdivision works certificate is called your Certifying Authority

Occupation Certificate (OC)

Your Occupation Certificate is the certificate that states that either part of, or all of your dwelling has been completed in accordance with the conditions of your consent and is consistent with the Construction Certificate. Prior to occupying your new development, you will need to obtain your Occupation Certificate.

The Occupation Certificate is issued by the Principal Certifier for your Building works. You can engage a Registered Building Certifier to be your Principal Certifier, or you can engage Council. The Principal Certifier is responsible for completing the mandatory inspections during the build or approving the inspection if completed by another suitably qualified person. The Principal Certifier must complete the final inspection though.

A "Part OC" is when part of the development is completed and can be occupied, however some items outside of the "part" of the development that can be occupied are not completed. Put into a real example, when your house is fully constructed and finished however your driveway and landscaping are not complete. By getting a Part OC in this instance you can move in and then finish the driveway and landscaping when time permits!

Subdivision/Strata Certificate (SC)

A Subdivision or Strata Certificate is a form set by NSW Land and Registry Services (or NSW LRS) that your Principal Certifier for your Subdivision or Strata Subdivision signs once all the requirements of your consent have been met.

You need this form to be signed before you can lodge your application with NSW LRS to register your new lots to allow them to be sold.

The actual form that gets signed varies depending on the type of subdivision, i.e. Torrens Title, Strata Title, however the process is similar.

The authority to sign the subdivision certificate is the Principal Certifier for the subdivision. Up until recently the Principal Certifier for Torrens title subdivision was always Council, however with the introduction of the Part-3B – Low-Rise Housing Diversity Code and the modification to Part 6 – Subdivisions Code within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means you can now use a Registered Subdivision Certifier, like SubCerts, to issue your Torrens Title Subdivision Certificate for developments that have been approved under Part 3B – Low-Rise Housing Diversity Code (i.e. Dual Occupancy, Terraces and Manor Houses)

For Strata Subdivisions you can use a Registered Strata Certifier, like SubCerts, to issue your Strata Certificate.

Complying Development Certificate (CDC)

A Complying Development Certificate is essentially a combination of both the Development Application and your Construction Certificate in one.

Instead of going to Council to obtain your DA and then a Registered Certifier to obtain your Construction Certificate, you can go directly to your Registered Certifier to obtain a Complying Development Certificate.

Once you have your Complying Development Certificate generally you are good to start construction.

For development involving subdivision, like dual occupancies, you will need two separate complying development certificates, one for the building and that will come from your Registered building Certifier and a second complying development certificate from your Registered Subdivision Certifier for the subdivision or strata subdivision of your building approved under your Building CDC.

Unlike Development Consents, where the development standards under the LEP or the development controls under the DCP can be varied with Councils approval, a Complying Development Certificate must meet all the requirements for that type of development. The development standards for Complying Development Consents are listed under the many Codes contained within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, or commonly known as the Codes SEPP.

Generally the development standards, or rules, under the Code SEPP override any similar controls within the individual Councils LEP’s, i.e setback requirements, however there are certain sections of the Codes SEPP which provide a development control, like minimum lot size to build a dual occupancy which is 400m2, unless the Councils LEP requires more and in that instance the Councils LEP must be followed, for example Parramatta LEP requires 600m2 for a dual occupancy to be constructed so the 400m2 stated within the Codes SEPP doesn’t apply.

Simplified down, the above clause which refers back to the Councils LEP is like asking Dad to borrow the car and stay out till midnight, and he says yes as long as its ok with mum. Whe you ask mum she says yes but be home by 11pm. You know the new curfew is 11pm, even though dad said midnight! Dad is the Code SEPP, but ultimately Mum has the final say (the LEP)!

Why go CDC vs DA? Because its faster. This is not a judgement upon Council but put simplying Registered Subdivision Certifiers, like SubCerts can focus our attention on providing the best level of customer service and do not have the same level of competing interests/priorities as Councils Officers. I speak from experience on this one!

We have breifly touched on the different peices of legislation involved with Development Consents and Certificates, however I will do a future installment on the different legislation and documents involved with assessment of DA's and CDC's

There or other certificates that can be used within the development process, like Compliance Certificates, however this are not as common and will be discussed in future instalments.

Craig Hopfe, The author of this content, is a Registered Subdivision and Strata Certifier and is a Subdivision Certification specialist having run subdivision development assessment teams, including Town Planners, Development Engineers, Construction Engineers and Subdivision Assessment Officers, in Councils for over a decade and been responsible for the review and issue of Development Consents, Subdivision Works Certificates and Subdivision Certificates for all scale of development.