OUT-LAW ANALYSIS 7 min. read
Terminology changes include replacing ‘construction certificates’ with ‘building approvals’. Iryna Melnyk/iStock.
13 Aug 2026, 9:30 am
A new system of building and completion approvals has been provided for in New South Wales under legislation passed earlier this month.
The Building (Approvals and Practitioners) Bill 2026 (‘the Bill’) will replace the current construction and occupation certificate regime when it is brought into effect and makes consequential amendments to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). At the same time, the existing Design and Building Practitioners Act 2020 (NSW) and the Building and Development Certifiers Act 2018 (NSW) will be repealed amidst a focus on simplifying what has historically been a fragmented regulatory landscape.
At a high level, the changes provided for are more a matter of form than substance. The fundamental architecture of the system such as obtaining further construction approval before commencing building work and further sign-off before occupying new buildings remains. Developers should, however, be alert to changing terminology and to several areas where the new regime introduces meaningful practical changes, particularly around documentary requirements, staged approvals, and appeal rights.
The new Building (Approvals and Practitioners) Act 2026 (‘the new Act’) will commence on a still-to-be-announced date and implementing regulations, including the transitional provisions, are yet to be published, creating some uncertainty for projects currently in the approvals pipeline. Developers with existing development consents and pending construction and occupation certificate applications in progress should monitor the transitional regulations closely once released.
The most immediately visible change is one of terminology. The Bill replaces:
These replacements are effected throughout the EP&A Act and across related legislation, including the Home Building Act 1989 (NSW). Developers should review all contracts, financing arrangements and project documentation for references to "construction certificates" and "occupation certificates" as these terms will need to be updated.
The fundamental trigger for requiring building approval will remain unchanged from that applicable to construction certificates currently.
Under the current EP&A Act, a construction certificate is required for building work, defined as any “physical activity involved in the erection of a building”. “Building” is defined under the EP&A Act to include a structure. Under the Bill, "building work" carries the same core definition, with "erection" expressly defined to include rebuilding, altering, and enlarging or extending a building. As a result, the practical scope of the trigger is not materially altered and developers remain required to obtain secondary approvals to authorise building work the subject of a development consent.
A development consent alone does not authorise building work. The new Act expressly codifies this at section 16(3) of Part 3, confirming that a development consent is a necessary but not sufficient condition for commencement of construction and that a building approval or complying development certificate is also required. An approval authority cannot issue a building approval unless the development consent is in force, the application is consistent with it, any applicable long service levy has been paid, required site inspections have been carried out, and the proposed work is deemed to comply with the Building Code of Australia.
Similarly, a development consent does not authorise occupation of new buildings or a change of use of an existing building, and a completion approval remains required in place of the existing occupation certificate regime. An approval authority cannot issue a completion approval unless all required inspections have been carried out, relevant development consent conditions have been complied with, and the building is suitable and safe for occupation in accordance with its building classification.
The approval authority, which can issue a building approval or occupation approval, remains either the local council or a registered private certifier.
Schedule 3 of the new Act inserts a new section 4.16A into the EP&A Act, clarifying that a building approval includes the plans and specifications issued with it and any variations made in accordance with the new Act. A building approval forms part of the development consent and can therefore clarify the detailed design of the works authorised under the development consent.
For most buildings, a building approval application will need to be accompanied by regulated designs, design compliance declarations, and, where a performance solution is involved, a performance solution report prepared by an appropriately registered practitioner. Approved designs and declarations will be embedded in the building approval itself.
The new Act brings core design and building declaration requirements from the Design and Building Practitioners Act 2020 (NSW) into the new building approvals system, with the result that approved designs and declarations will be embedded in the building approval itself.
For prescribed buildings involving a building element, a completion approval application will need to be accompanied by a building work compliance declaration made by the principal contractor. When it takes effect, this will be a new statutory requirement with no equivalent under the current occupation certificate regime. A completion approval cannot be issued unless all required inspections have been carried out, relevant development consent conditions have been complied with, and the building is suitable and safe for occupation.
A new concept of "relevant conditions" has also been introduced via the approved bill, giving the approval authority discretion to issue a completion approval where a development consent condition is either incapable of compliance before the approval is issued or is not relevant to the work to which the approval relates.
The new Act provides for the revision of the complying development certificate pathway under the EP&A Act, so as to align with the new building approvals framework. Complying development certificates will need to expressly incorporate applicable building work standards under the new Act, and applicants for building work or a change of building use will need to identify or nominate an approval authority. Local councils will not be permitted to refuse such a nomination.
In practice, these changes are likely to increase the procedural rigour of the complying development certificate pathway and may reduce its utility as a rapid approval route. Developers that rely on complying development certificates for speed should factor in increased upfront documentation and design coordination requirements.
The new Act further provides for processes relating to building and occupation approvals for staged building work to be formalised. An initial application will need to include a staging schedule, and the approval authority will need to assess each stage in the context of the overall development. This is intended to facilitate early works and reduce delays.
A separate building approval application will need to be made for each stage of the staged building work. Each approval will only cover the work for that particular stage, assessed against the overall development.
Under the new legislation, a building approval will be able to be varied during construction with the approval authority's consent, provided the authority is satisfied that the building approval would still have been issued if the variation had been included as part of the application and the works that are the subject of the variation have not yet commenced. Separately, the approval authority will be unable to consent to a variation that covers building work which has already been carried out, unless a post-commencement authorisation has been obtained.
Under the new Act it will remain the case that a building approval cannot be issued to retrospectively authorise work which has already commenced without a building approval, or outside the scope of an existing building approval.
However, a new post-commencement authorisation pathway is provided for in the legislation to address the gap in the current framework and enable an alternative to obtaining a building information certificate, which only offers limited protection against enforcement action but does not provide a pathway to an occupation certificate. The new Act addresses this issue by enabling a post-commencement authorisation form of a building approval to be granted where the relevant works are confirmed to be Building Code of Australia compliant and the decision-maker is satisfied that authorisation is appropriate.
Post-commencement authorisations may be given subject to conditions requiring rectification work to be carried out before the authorisation has effect.
Whilst this new pathway should not be approached as a substitute for proper approvals management during construction, it represents a meaningful and practical improvement on the current position for developers that find themselves in circumstances where work has commenced without the requisite approvals in place.
Under the current construction and occupation certificate framework, there are broad rights to challenge decisions about whether plans and specifications are consistent with a development consent. Under the new Act, those rights will be substantially curtailed. In particular:
These changes constitute a material reduction in third-party challenge rights.
The new Act does not contain specific grandfathering rules for existing construction certificates, occupation certificates, or development consents for which a construction certificate has not yet been obtained. Schedule 1 confers a broad regulation-making power to make savings and transitional provisions on commencement, subject to a two-year window within which such regulations must be made.
Until the transitional regulations are published, important questions remain unanswered, including whether existing construction certificates will remain valid, whether building work already underway under a construction certificates can be completed without obtaining a building approval, and how partially completed staged developments will be treated. Developers with projects currently in the approvals pipeline should take note of this uncertainty and consider moving promptly under the existing regime where prudent.
While the fundamental architecture of the building approvals system has been preserved, and the core definitions and sequencing requirements are substantially unchanged, developers should be alert to the changing terminology across contracts, financing arrangements, and project documentation. References to "construction certificates" and "occupation certificates" will need to be updated, and any contractual milestones, conditions precedent, or warranty triggers referencing these terms should be reviewed.
The narrowing of appeal and challenge rights is, however, a genuine substantive shift, reducing third-party oversight of issued building approvals and effectively confining challenges to judicial review. This deserves careful attention, particularly for complex or contentious projects.
Co-written by Angie Quan of Pinsent Masons.
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