Options to Protect Your Interests if you have undertaken Illegal and Non-conforming Building Work

Protection for people in terms of illegal building works is available in New South Wales. It is something that should be considered to protect yourself and your property. This will likely be in the form of a building certificate.

A building certificate is essentially a ‘certificate of non-action’ from a local council in which the council states officially one or other of the following things, namely, that there is no entitlement on the part of the council to take certain specified action (eg issue a demolition or rectification order) in respect of the building or part of a building, or there is such an entitlement on the part of the council to take action, but the council does not propose to take any such action. Such a certificate, if it issues, has a ‘retroactive’ effect as respects past illegalities and non-compliances as well as a ‘prospective’ effect (that is, it protects you into the future) for not less than seven years from the date of its issue. Only councils can issue building certificates and this is an area where ‘certifiers’ have no role to play.

Without a building certificate in respect of the buildings (including structures) on your land, you are always liable to receive a demolition or rectification order from your local council in respect of any irregularities or non-compliances with planning and building laws. An issue may also arise when you propose to sell your home, as the purchaser will likely be interested to know whether all building works that have been undertaken, have been so undertaken, with the prior approval of the Council. In addition, the issue of a building certificate is an essential prerequisite to the grant of development consent in respect of the use of an otherwise unlawful building.

The chances of successfully obtaining a building certificate from a council in circumstances where there is a known irregularity or non-compliance with planning and building law, are much greater where the application for the building certificate is accompanied by a professionally prepared planning report which justifies why the building or structure ought to remain on proper planning grounds, despite the irregularity or non-compliance. Also required is a survey and ‘works as executed’ drawings. The council concerned, may also want a certificate from a structural engineer.

Turnbull Planning International has considerable experience and success in seeking and obtaining building certificates on behalf of clients and is only too happy to assist in that regard.

Complex rules and regulations can cause real problems when dealing with government agencies

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