Development incorporates a range of activities that can include use of land, the subdivision of land, the construction of a building or structure, works associated with an existing building or the demolition of a building. The majority of building and demolition work requires approval from Council or a Certifying Authority. There are some exceptions for minor development classified as exempt development.
Unauthorised works are regularly discovered through Council’s normal operations or could be brought to Council’s attention during the property exchange process or if a complaint is received by a neighbouring property owner or interested party.
Exempt Development generally relates to minor works and activities that are able to be carried out without the need for development consent. Development can also be undertaken as permitted without consent in the Land Use Table contained in Hawkesbury Local Environmental Plan 2012.
Exempt development controls are predominately listed in State Environmental Planning Policy (Exempt and Complying Development Codes)
2008 (Codes SEPP).
Certain other types of Exempt Development relating to solar energy generation and public infrastructure can be found in State Environmental Planning Policy Infrastructure 2007.
Works or activities that do not fall within the listed exempt development criteria require either Development Consent from Council or a Complying Development Certificate.
What works are considered to be unauthorised?
Unauthorised works are activities or works that:
- require approval before they are able to be lawfully undertaken and are carried out without the issue of a valid consent; or
- depart from a consent issued in relation to the land.
Unauthorised work can take various forms ranging from minor breaches that result in little or no environmental harm to significant breaches aimed at achieving an outcome where approval would never have been granted had the proper application been made.
What action will the Council take?
Once Council is aware of unauthorised works there are a range of enforcement actions that may be taken that can include:
- order or issue a notice to stop work, demolish, alter, repair or remove the unauthorised structure/work
- issue of fines (penalty infringement notices)
- commencement of legal proceedings in a Court to remedy or restrain unlawful activities
Council exercises discretion when deciding how to deal with unauthorised work, taking into account all relevant information including the available evidence, cost to the community of any action, the circumstances of the individual case and public policy and precedent considerations. How Council will apply its discretion is explained in Council's Enforcement Policy that may be found on Council’s Policies page.
What circumstances may allow an unauthorised work or structure to remain?
Council may give favourable consideration to a building certificate application allowing an unauthorised work or structure to remain. Significant factors in this consideration are:
- whether Council would have granted approval for the unauthorised works or structure if an application had been made; and
- whether the unauthorised works or structure satisfies relevant construction standards.
If these matters are able to be satisfied Council may permit the unauthorised works to remain. Should the unauthorised works not meet relevant planning controls or fail to satisfy relevant construction standards Council may require demolition.
Application for a building certificate
If an application for a building certificate is sought for unauthorised works the following information will be required:
- completed Building Certificate Application form
- payment of an application fee and additional fees (equivalent to application fees that would have been payable if a Development application,
Construction Certificate or Complying Development Certificate had been lodged prior to construction)
- site plan, elevations, floor plan and a sectional diagram of the structure
- structural engineer’s certification for the unauthorised structure and
- survey identification report prepared by a Registered Surveyor.
It is important to note that if Building Certificate is not able to be issued Council will take action to have the structure demolished.
What should you do if suspect unauthorised work is being undertaken?
If you suspect unauthorised works are being carried out or there appears to be a non-compliance with the terms and conditions of an approval you should report it to Council as soon as possible.
If the unauthorised works are associated with building works being carried out on a development site this will be required to be brought to the attention to the Principal Certifying Authority (PCA). It is the role of the PCA to investigate and respond to these concerns. Where Council is the PCA (or there isn't one) Council staff will investigate and respond to these complaints.
In instances where the PCA is a private certifier Council will:
- advise the PCA of the nature of the complaint and allow them to respond and
- advise the complainant of the name and contact details of the PCA.
More information can be obtained by either contacting Council’s Customer Service Centre on (02) 4560 4444 or via email: firstname.lastname@example.org
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