In order to carry out building works in NSW, whether it involves complete construction projects or building works on your own property, you need to ensure that you have first obtained the appropriate approvals before commencing works.
Whether you do the work yourself or engage contractors to carry it out for you, conducting building works on your land without the required approval comes with significant legal implications.
Below we discuss five different legal consequences that can arise in relation to unauthorised building works. If any of these apply to you, then we recommend that you contact us so that you can obtain specialist legal advice from the team at Hones Lawyers, full of planning and environmental law experience.
#1 Minor works
Even relatively small developments may require approval from your local council. In NSW, some minor building works are exempt under the State Environment Planning Policy 2008. However, you need to carefully read the fine print because these exemptions are strictly regulated. If you do not comply with all of the requirements, then your building work will be unauthorised unless you obtain approval from your local council.
#2 Development control order
If you are in the process of carrying out unlawful building works, your local council can issue a development control order requiring you to stop work. If you fail to comply with that order, the council may commence legal proceedings against you in court.
#3 Civil enforcement action
If you have commenced development works without first obtaining the required approval from your local council, then the local council (or any person) can commence proceedings against you in the Land and Environment Court, seeking orders to restrain you from proceeding with the works. It is also possible that court orders will be made requiring you to demolish any unauthorised buildings and to reinstate the land to the condition it was in prior to the works being carried out. In addition, if the proceedings against you are successful, then you will be ordered to pay the council’s legal costs (which can be very substantial).
#4 Prosecution proceedings
If you have commenced development works without first obtaining the required approval from your local council, you can be liable for prosecution. Fines for these types of offences are not inconsequential – some can range up to a million dollars with further penalties if you fail to comply. What many people do not realise is that, notwithstanding that the prosecution relates to unauthorised building works, if you are convicted, as well as having a penalty imposed, you will have a criminal record.
#5 Failing to comply with conditions of development consent
If you obtained development consent before you commenced works but construct your building in a manner which does not comply with the approved plans then, in so far as the non-compliant works are concerned, you will be basically in the same position as if you did not have an approval. Accordingly, if this occurs during your project, we recommend that you urgently seek our advice.
When unauthorised development works can expose you to such significant legal liabilities, you need to ensure that you get the right legal advice.