When Should You Appoint a Subdivision/Strata Certifier?

April 5, 2024
Gordon Wren

In this article, Gordon Wren explains what a subdivision or strata certifier is, and when you should appoint one.

I PREVIOUSLY WROTE this article a few years ago, and I am now updating this in light Of the introduction of the Low Rise Housing Diversity Code (LRHDC), i.e. Part 3B of the Codes SEPP.

What is a Strata Certifier

Firstly, a Strata Certifier can issue a streta Certificate for a Strata Plan. This then allows the Strata Plan to be lodged at the Land Titles Office (LRS)for registration. A strata certificate can be issued by a Strata certifier or the local council. A Strata Certifier is registered by the NSW Government through the Building Professionals Board (the Board) [NSW Fair Trading].

PCA and AC

Secondly, in my experience, there has been some confusion about whether the appointed Strata Certifier is a PCA (Principal Certifying Authority). The Strata Certifier when acting in the role to issue a strata certificate is not a PCA, A PCA is a Registered Certifier that issues an occupation Certificate (ie building certifier) or a subdivision certificate where there are subdivision Construction works to be carried out(ie subdivision certificate).

Subdivision/Strata certificate

Another area Of confusion I have encountered is the applicant understanding the difference between a subdivision certificate and a strata certificate.

A subdivision certificate allows a Deposited Plan prepared by a registered land surveyor to be lodged at the Land Titles Office for registration, resulting in what is commonly referred to as a Torrens Title, This plan is for the subdivision of land. The subdivision certificate is issued by a Subdivision Certifier. The issuing Of a subdivision certificate is governed by the Environmental Planning & Assessment.

Act (EP&A Act)

As I mentioned before, a strata certificate allows a Strata Plan prepared by a registered land surveyor to be lodged at the Land Titles Office for registration. The titles in the Strata Plan are for defined cubic spaces within or adjacent to a building. The issuing of a strata certificate is governed by the Strata Schemes (Freehold Development) Act or Strata Schemes (Leasehold Development) Act.

When should you appoint a strata certifier?

The advice that I give to applicants is that it is good practice to appoint a Strata Certifier when you "start to dig the hole".    

I give this advice, because once a hole has started to be dug for the project, the DA has issued, the Construction Certificate has been issued, and in my experience, the developer/builder then concentrates on the building works, and may not revisit all the DA conditions until the end Of the project.

In my experience, there may be certain DA conditions that could be amended, but if these conditions are flagged at the end of the project, there is no time to request any amendments through a Sec a.55 modification. Any Sec 4.55 modifications would be best applied for well before the end Of a project.

Is there a Strata DA?                                

There have been many instances where an applicant has applied for a strata certificate at the end Of the project, only to be advised by the strata certifier that there is no development consent for strata subdivision for their project This can result in very costly delays. With amendments to the SEPP (Exempt and Complying Development Codes) [also known as the Codes SEPP], Strata subdivision can be complying development under certain conditions. This means that a suitably Registered Certifier (with Subdivision category), can issue a complying development certificate (CDxC) for strata subdivision. If a CDC can be issued, then a development consent from council for Strata subdivision will not be needed. Generally, the conditions are:

  • The building DA is less than five years old.
  • The project is not a dual occupancy (see Comments about LRHDC)
  • There are no heritage issues

If the applicant appoints the Strata Certifier early, then costly delays incurred by applying for a council development consent at the end Of the project can be avoided.

Conditions of DA

There have been many examples where badly worded conditions, or unnecessary conditions, have not been addressed and deleted at the start of the project. Once again the applicant can be faced with costly delays. These delays do not only equate to additional financial holding charges, but also risk purchaser contracts being rescinded due to time overruns.

One such condition some councils impose is that a final occupation certificate is required to be issued before a strata certificate can be issued. This requirement could add an unnecessary delay of up to four to six weeks to a project. This condition should be deleted by a Sec 4.55 modification. This has been reinforced by Practice Advice issued by the Building Professional Board in its Bulletin, Issue 8, Nov 2009.

"A number Of councils are imposing-conditions on the development consent for strata subdivision requiring the completion Of associated building works prior to the issue of a Strata certificate.

The Board's view is that an occupation certificate is the approp iate mechanism for ensuring the building work is completed and suitable for occupation and that the strata certificate should not perform this role."

Once again, if the applicant Contacts the Strata Certifier at the end of a project, there simply is not enough time to try a Sec 4.55 modification to remove unnecessary conditions.

Low Rise Housing Diversity Code(LRHDC)-Part 3B Codes SEPP

As the name implies, this Code deals with approving Low Rise Housing, Dual Occupancies, Terraces, Manor Houses. It is a means of allowing these projects to be approved by CDC (Complying Development) if:

  • Certain elements Of the development complies with the legislated parameters
  • Compliance with relevant council LEFs

So an applicant can (if all Conditions are met) build a Dual Occ or Terraces by obtaining a Building CDC from a Registered Building Certifier (without applying to council). The applicant can then proceed to get a Torrens Title (Subdivision Certificate) or Strata (Strata Certificate) Plan from a Registered Subdivision or Strata Certifier, and lodge the Plan for Registration at ultimately (without applying to council).

In this article, I am not going to dive into What those conditions are, and how they are different in the many council LEPs.

Rather, this article focuses on when to appoint a Subdivision/Strata Certifier.

In relation to LRHDC, this timing is even more important. In LRHDC, the Building CDC is the planning approval, and allows theconstruction to commence.

The Subdivision or Strata CDC is the planning approval for the subdivision. This document is very important for the applicant when dealing with the service providers (water/sewer, electricity, NBN)

In my experience, the Subdivision/Certifier or Strata CDC should issue their CDC about a week after the Building CDC, In areas controlled by Sydney Water, two (2) Sec 73 Complying Certificates are required:

  • One for the Building, and ultimately the Occupation Certificate
  • One for the Subdivision, and ultimately Subdivision or Straca Certificate.

I hope this discussion contributes to a smooth and efficient process for the Subdivision/Strata Certification project you may be involved with.

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