Finding out that a deck, garage conversion or extension went up without approval is unsettling, whether you built it, inherited it or are about to buy it. NSW has a fairly clear set of options for dealing with it. Which one fits depends on what the work is and whether it needed approval in the first place.
Step one: did the work need approval?
Some minor work is exempt development. That means it can go ahead without a planning or building approval, provided it meets every relevant standard in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. Garden sheds, some decks, carports and fences can fall into this category. The work must also be structurally adequate and follow manufacturer instructions that comply with the Building Code of Australia.
The catch is that every standard must be met. If a shed is slightly too big, too tall or too close to a boundary, it is not exempt and needed approval. It is also worth searching council records before assuming the worst. Sometimes an approval exists but the paperwork never reached the current owner.
Why it cannot simply be approved now
In NSW, a complying development certificate (CDC), development consent or construction certificate is issued for work that is yet to be carried out. None of them can be issued for a building that is already standing. That means neither a private certifier nor the council can sign off finished unapproved work through the normal approval pathways.
A development application can still play a part. It can authorise the future use of a structure, such as using an enclosed area as a habitable room. It does not, however, approve the building work after the event.
Your main options
Apply to the council for a building information certificate
For most owners, a building information certificate (BIC) is the practical route. Only the council can issue one. Once issued, it limits the council's ability to order the covered work to be demolished, altered or rebuilt. The work stays unauthorised, and the certificate does not prevent penalties for having done it. Expect the council to want a survey, drawings of what was built and evidence that the work is sound. It may also require repairs before issuing anything. Our guide on Building information certificates: what they do covers this in more detail.
Change the work or take it away
Sometimes the simpler path is to alter the work so it fits within the exempt standards, or to remove it. Demolition can itself need approval, so check before you start pulling anything down.
Modify an existing consent
If the work departed from a project that already had development consent, a modification application may be suitable, sometimes alongside a BIC. The council decides whether the change is acceptable.
What happens if you do nothing
Under the Environmental Planning and Assessment Act 1979, councils have several enforcement tools. These include penalty notices, development control orders (for example, orders to stop work, demolish, restore or comply) and prosecution. Unapproved work can also complicate a sale, because buyers and their solicitors often ask questions about structures that do not appear in council records.
If the work is still in progress, stop and get advice before going any further. Adding to unapproved work tends to make the eventual fix harder.
Where we fit in
We certify Class 1 and Class 10 work, such as houses, granny flats, garages, sheds, pools and decks. Where unapproved work falls into those classes, we can review what was built against the Building Code of Australia. We can also explain which reports a council is likely to need, and help you put together an application through our building information certificate service. If you would rather replace the structure with something compliant, a plan assessment tests new drawings before you lodge. Our CDC or DA: picking the approval your home project needs guide compares the two approval routes if you want more background.
Local help across NSW
CertifiBuild certifies Class 1 and Class 10 work in 39 council areas. Local rules on these council pages are a good place to start: Campbelltown City Council, Hunter’s Hill Council, City of Canada Bay, City of Sydney, Inner West Council, Waverley Council.
Suburb pages with local planning notes: Abbotsford, Annandale, Balmain, Bondi Beach, Bonnyrigg, Bulli, Burwood Heights, Cabramatta West, Wedderburn, Woolwich. You can also browse every service area.
Sources
- Building information certificates practice note, NSW Planning Portal
- Exempt development, NSW Planning Portal
- Post-consent certificates, NSW Planning Portal