Certificate of occupancy for a new house in SA

What section 152 requires

Section 152(1) provides that a person must not "occupy a building on which building work is carried out after the commencement of this section unless an appropriate certificate of occupancy has been issued for the building, or the building is of a type excluded by the regulations from the requirements as to certificates of occupancy", or occupy a building in contravention of a certificate of occupancy.

Under section 152(2) a certificate of occupancy is issued by a council. Section 154 lets a building certifier exercise the council’s powers under this Division in relation to, among others, a building for which that certifier issued the building consent; regulation 103G(4) reads references to a council in the certificate of occupancy Division of the Regulations (regulations 103 to 103G) the same way, except in regulations 103A(3), 103E(1)(b), (2) and (3) and 103F.

Section 152(6) requires the certificate to be issued if the council is satisfied "that the relevant building is suitable for occupation and complies with such requirements as may be prescribed by the regulations". Under section 152(12) a certificate may apply to the whole or part of a building.

Section 152(7) is one sentence: "A certificate of occupancy does not constitute a certificate of compliance with the Building Rules."

The exclusions in regulation 103

Regulation 103(1) is made under section 152(1)(a). In the current text it reads that a certificate of occupancy is not required in respect of "(b) a Class 10 building under the Building Code" — the Building Code’s class for non-habitable buildings and structures such as sheds and carports.

There is no paragraph (a) in the current text. The legislative history table in the same version records paragraph (a) as expired, with the date 30.9.2024. What it said is not reproduced here, and nothing is inferred from its absence, although regulation 103G(3), below, still refers to it ("despite regulation 103(1)(a)"). Regulation 103G deals with Class 1a buildings directly, by reference to dates.

Class 1a from 1 October 2024: documents and requirements

Class 1a is the Building Code’s class for a single dwelling, such as a detached house. Regulation 103A(2) provides that an application for the issuing "on or after 1 October 2024" of a certificate of occupancy for a Class 1a building "is only required to be accompanied by" two things: a copy of a Statement of Compliance duly completed under regulation 104, with any documentation required under regulation 57(8)(c); and, if the development was approved subject to conditions, such evidence as the council may reasonably require that any conditions relevant to the suitability of the building for occupation have been satisfied.

Regulation 103B provides that, on and after 1 October 2024, the requirements set out in "a statement of building occupancy requirements for Class 1a buildings" published by the Chief Executive on the SA planning portal are prescribed requirements for Class 1a buildings for the purposes of section 152(6). The content of that statement is not reproduced here.

• The Statement of Compliance at the end of an SA build

Regulation 103G: three rules that turn on dates

Regulation 103G contains three date-based rules for Class 1a buildings, each made under section 152(1)(a). All three need to be read together; none of them is the whole rule. Under 103G(1), a certificate of occupancy is not required where approval of the building work was granted under the repealed Act (the Development Act 1993) before 19 March 2021 and the work is to be completed on or after the commencement of the Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2021.

Under 103G(2), if an appropriate notice for an application for building consent for a Class 1a building is provided under regulation 31(1)(d)(iii)(B) before 1 October 2024, a certificate of occupancy is not required, "but a certificate of occupancy is required in respect of the building if such a notice is given on or after that date". Regulation 31 deals with a relevant authority’s verification of an application; paragraph (d)(iii)(B) is the notice it provides via the SA planning portal.

Under 103G(3), "despite regulation 103(1)(a)", a certificate is required where approval was granted under the Act (the 2016 Act) before the commencement of those 2021 Variation Regulations and the notification of intended completion under regulation 93(1)(f) was given before that commencement.

The regulation does not state how these three subregulations interact for a building whose dates could engage more than one of them, and this note does not attempt to.

Regulation 103H then applies to a Class 1a building "for which a certificate of occupancy is not required in accordance with these regulations".

Under 103H(2), a person must not occupy a Class 1a building, or an addition to one, that has not been fully completed in accordance with a development authorisation unless it is structurally sound and weatherproof; all approved health and amenity facilities have been installed in accordance with the Building Code; it conforms with the relevant Building Rules for bushfire protection; all smoke alarms required under the Building Code have been installed and tested; and all service connections referred to in regulation 104(8) have been made in accordance with the requirements of the relevant service provider and relevant regulating authority.

Temporary occupation, and who decides

Section 153(1) allows a person, with the approval of a council, to occupy a building on a temporary basis without a certificate of occupancy. Under section 153(2), approval may only be given if the council is satisfied the building complies with any requirements prescribed by a practice direction for that purpose, and may be given on conditions. A refusal must be notified in writing with the reasons and the applicant’s right of appeal, and any appeal must be commenced within 28 days unless the Court allows an extension.

Which of these provisions applies to a particular house depends on that application’s own record — under which Act and when it was approved, when the regulation 31 notice was given, when completion was notified. This note does not answer that for any house. The council, or a building certifier acting under section 154, is the body to confirm how they apply to a given building.

• When council must be told during an SA build
• New builds