Street of the Fishing Cat Pty Ltd v Wingecarribee Shire Council [2026] NSWLEC 1631

In this decision, which is the first of its kind, the Court found that an occupation certificate can be validly issued even if there were changes to an approved building design, which were not reflected in a modified construction certificate.

Introduction

This matter concerns the approval, construction and certification of a dwelling house. Street of the Fishing Cat Pty Ltd (the applicant) obtained development consent for a dwelling house and began to build it following the issue of a construction certificate (CC) by Wingecarribee Shire Council, which was acting as principal certifier. However, during construction, changes were made to the design through a modification application approved by the Council (the Modified Consent). Importantly, a modified CC was never obtained.

The Council, as principal certifier, refused to issue an occupation certificate (OC) approving the use of the dwelling house, because a modified CC reflecting the changes to the plans was a precondition to the issue of an OC. The applicant appealed the refusal and commenced these proceedings.

Issue 1: whether the OC application was formally “made”

The Council contended that the application for the OC was never “made”, including due to the applicant’s failure to pay the relevant fee. The Council relied on the principles applicable to the lodgement of a development application, which requires that a fee be paid.

The Court found that the requirements for lodging an OC application (s 37 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (Certification Regulation)) differ from the requirements for lodging a development application (s 24 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)). The Court found that the OC application was made and subsequently refused, meaning the appeal was competent.

Issue 2: whether the OC may be lawfully issued without a modified CC

Statutory requirements

A CC is required for the erection of a building (s 6.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act)), and the CC must be issued prior to the building work commencing (s 6.8(2)).

An OC is required for the use of a building (s 6.9(1) of the EPA Act). Under s 6.10(2)(b) of the EPA Act, an OC must not be issued unless:

“… (b) in the case of a building erected pursuant to a development consent (other than a complying development certificate), a construction certificate has been issued with respect to the plans and specifications for the building (or part of the building) …”

Application

In the circumstances of this case, where the consent was formally modified during construction and the dwelling house was built accordingly, but without a modified CC, the issue was that a modified CC could not be granted retrospectively. Council argued that under s 6.10(2)(b), an OC could also not be granted – because there was no CC which reflected the amended plans – for the use of the approved building. This was despite there being no issue with the development on the merits, including structural stability or suitability for occupation (at [37]).

Commissioner Washington applied Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, where the Court held that statutory construction should avoid “capricious or unjust” results. The Commissioner favoured the applicant’s construction of s 6.10(2)(b), which was that the “building” referred to in the provision was the building for which a CC was required under s 6.7(1) (i.e., the original approved building). This meant that if a CC was granted against the original consent, a modified CC was not required as a matter of law against the Modified Consent. Accordingly, there was no impediment under s 6.10(2)(b) for the Court to grant an OC for the use of the building.

The Court made orders requiring that the parties file the relevant OC for the Court’s review, and, presumably, approval under final orders.

Key takeaways

This Commissioner decision is a test of the certification requirements under the Certification Regulation and Part 6 of the EPA Act. Specifically, the Court found that a modified CC is not a precondition to the grant of an OC, in circumstances where a development consent has been modified after the issue of the CC, and the building has been erected in accordance with the amended plans.

The Commissioner took a practical approach to the provisions, in a circumstance where a perceived administrative non-compliance (failure to secure a modified CC) would have precluded the use of the building for its approved purpose.

Regardless of outcome, the case is also a reminder of the importance of following the requirements for the issue of an CC and an OC when acting on a development consent, and the key role of Council when acting as principal certifier.