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  • Writer's pictureBrett Daintry

Unauthorised Building Work - Why? - What is the remedy?

The concept of the building application and building approval process (development consents & construction certificate or complying development certificate in NSW) is simple, approval is required by law (if it is not exempt development) before you do any building work.


In reality, there is nothing simple about the system for obtaining building approval.


The biggest change to the building approval process in NSW occurred on 1 July 1998 when private certification was introduced, repealing the old Building Application process..


On 15 November 1997 the NSW Legislative Assembly's Hansard records the second reading speech of The Hon. Craig Knowles (Moorebank - Minister for Urban Affairs and Planning, and Minister for Housing), justifying the need for private certification:


"The most often stated problems with the system are that it is over-regulated; it is full of duplication; separate approval processes sometimes conflict with one another; there is a lack of certainty; there is a lack of transparency; no-one is accountable; there is little co-ordination; the process and scale of assessment is often out of proportion to the environmental impact; and it all takes too long."


In March 2013, The Hon. Paul Stein, AM, QC, observed, in delivery of the inaugural Marla Pearlman Oration:


"The EPA Act was an elegant piece of legislation and I pay tribute to the drafters and the Government of the day that steered it into law. As the Minister for Planning acknowledges in the 2012 Green Paper, the Act was reforming and innovative. However, it lasted intact only until 1985. Since then, there have been around 150 amendments, usually preceded by the pronouncement that the amendment would make planning decisions speedier, cheaper and easier and, of course, “cut red tape.” We all know that the result was the opposite. The EPA Act has become such a complex web, such a mish-mash, that decisions have become more difficult, slower, and more expensive. The Act has become a statute as complex as the Income Tax Assessment Act. It is very difficult for participants and decision-makers alike to navigate."


This oration was almost a decade ago!


What has occurred since?


In the last decade there have been hundreds more amendments, usually preceded by the pronouncement that the amendment would make planning decisions speedier, cheaper and easier and, of course, “cut red tape.”


I observe that the system since 1 July 1998 has not evolved to fix:

  • over-regulation

  • duplication

  • conflict in approvals

  • certainty

  • transparency

  • accountability

  • co-ordination

  • proportional assessment

  • delays

The system is not efficient or effective. The system is not speedier, cheaper and easier than it was when Council's had control under the Building Application process under the Local Government Act 1993. The system is the antithesis of speedier, cheaper and easier.


The two-stage development application and construction certificate applications process is failing. The detailed assessment, that should be left to the construction certificate, is dragged into the development application stage. That adds to the costs and complexity in the development application stage. This is no better demonstrated by the last round of regulatory amendments where the old advice that; "The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted." has been removed.


It is clear that Councils are increasingly obliging the applicant to provide more construction details up-front, with no certainty that development consent will be granted. These increased costs cannot be avoided as the consent process becomes more onerous.


In fact, when one looks at the current backlog of Applications under assessment, that is if the Councils don't reject them before get reported as outstanding, the delays are untenable and the system is a shambles. Successive governments have failed to fix the system.


What has the approval system got to do with unauthorised building work?


When people are faced with a system that is so dysfunctional, and costly, to the point of being broken, people balance compliance, cost, and risk.


In my opinion, the current system actually encourages unauthorised building work. Albeit for the further deterrent that is now the NSW Building Commissioner dealing primarily with the bigger issues like Opal Tower and Mascot Tower, which I will not cover here.


In my observation, most people seek to carry out minor building works as exempt development or utilise the complying development certificate process under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.


Most people do not seek to carry out unauthorised works that are not capable of approval nor do most seek to do substandard building work. Most people simply seek to avoid the approval system because the delays and costs are untenable to them.


Nevertheless, absent proper oversight, there is a propensity for unauthorised works to have higher rates of non-compliances with planning and building requirements.


Also, some genuinely believe that what they wish to build is exempt or complying development, but many mums and dads end up carrying out unauthorised building work, misreading the complex exempt and complying development provisions under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.


The effects of not gaining consent and building approval for building work include:

  • avoidance of building designers, architects and consultant costs,

  • avoidance of Council contributions,

  • avoidance of Home Owners Warranty Insurance,

  • avoidance of Long Service Levy,

  • avoidance of Council damage security,

  • avoidance of Council development application fees,

  • avoidance of registered certifier fees (CC or CDC and OC),

  • avoidance of critical stage building inspections,

  • avoidance of delays in the system. and

  • finally, the inability to obtain an Occupation Certificate.

The above general list demonstrates, assuming that the building work is otherwise well executed by a competent builder in compliance with relevant Environmental Planning Instruments, Development Control Plan, National Construction Code (NCC) - Building Code of Australia (BCA) and relevant Australian Standards, that the negatives to unauthorised building work are:

  • the lack of any Home Owners Warranty Insurance, (this may affect the future sale of the building)

  • the inability to obtain an Occupation Certificate (this may affect the future sale of the building), and

  • the risk of fines, prosecution for numerous criminal offences, notices and orders and possible civil proceedings by neighbours or Councils.

There are significant time and cost savings in avoiding the dysfunctional approval system and other statutory requirements. However, ..........


Unauthorised Building Work is a Criminal Offence


I am not condoning or seeking to be an apologist for unauthorised building work. I am drawing a factual observation. If the application and approval system was more efficient and effective there would be less unauthorised building work.


We will never eliminate unauthorised building work because those that wish to carry out unauthorised works, that are not capable of approval, will still carry out unauthorised building works knowing that they could not get approval for what they want and still proceeding despite the possible criminal and civil enforcement actions that may take place..


A recent and ongoing example of where it can all go wrong is:

  • Malass v Strathfield Municipal Council [2020] NSWLEC 168

  • Strathfield Municipal Council v Malass [2021] NSWLEC 112

  • Malass v Strathfield Municipal Council [2021] NSWLEC 115

  • Malass v Strathfield Municipal Council [2022] NSWLEC 116

  • Malass v Strathfield Municipal Council [2022] NSWLEC 131

  • Strathfield Municipal Council v Malass [2022] NSWLEC 132

  • Malass v Strathfield Municipal Council [2022] NSWLEC 1160

This is a real deterrent, as one must not assume that unauthorised works, that are not capable of approval, are capable of remedying under a BIC - see: Malass v Strathfield Municipal Council [2022] NSWLEC 1160 in particular.


What is the extent of Unauthorised Buiding Work?


The extent of unauthorised building work is very significant. In every conversation I have with Council officers, from the young Building Surveyors in Council Compliance Departments to Directors and General Managers, they openly admit that they do not have sufficient resources to deal with all the unauthorised building work. In fact, most Councils turn a blind eye to it and only intervene at the insistence of neighbours.


What is the remedy to Unauthorised Building Work?


What the NSW Land and Environment Court and the NSW Court of Appeal judgements tell us about remedying unauthorised building work is that you cannot gain retrospective development consents and construction certificates or complying development certificates, for building works already undertaken.


It follows that because there is no "building approval" there cannot be any Occupation Certificate (OC). Again, the absence of an OC may make selling a building problematic.


The only remedy to unauthorised building work is to obtain a Building Information Certificate (BIC) from the consent authority. This is not an approval and this does not authorise a Registered Building Surveyor to issue any Occupation Certificate.


A BIC is, in effect, a certificate of non-action to the effect that the Council will not issue orders for seven (7) years from the date of the BIC.


The courts have recently reinforced, in their judgements, that retrospective approval of building work is not available, not even through the amendment of a current development consent during the construction period. (Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177; (2021) 248 LGERA 300)


I am reliably informed by senior Council officers, that they have seen a surge in BIC Applications. I have seen a surge in inquiries through my practice from solicitors seeking assistance remedying unauthorised building work.


In summary,


The important thing to take away from this system is that no matter how bad the application and approvals processes are, it is a criminal offence to carry out unauthorised building work.


If you are caught, set aside the potential to be fined or prosecuted, the BIC process can be more complex and more expensive. Councils will require fees to be paid equivalent to the original application fees and it is often more costly, as most of the plans and documents you would have had to provide to get approvals, will likely be required during the BIC process.


In the worst case events similar to the Malass v Strathfield Municipal Council above will play out.


Finally, without an occupation certificate and homeowners' warrantee insurance, it is more difficult to sell your building.


NSW Department of Planning and Environment Practice Note


On 18 November 2022, the NSW Department of Planning and Environment Published a Practice Note: Building Information Certificates specifically addressing the use of BICs relating to unauthorised building works.


Note: This is not legal advice. If you need legal advice I recommend that you find a Local Government and Planning Law/Planning & Environment Law expert accredited by the Law Society of NSW under their Specialist Accreditation Scheme.

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