Unauthorised development (structures, works or use of land) may cost you in relation to:
- health and safety, especially if there is a fire
- neighbourhood disputes
- delays in the provision of services
- breaching insurance policies meaning you are potentially uninsured
- fines and/or legal costs
- complications with property conveyancing
You also may be penalising the community if the unauthorised development means you should pay additional:
- rates or
- contributions for public infrastructure
Below explains some of the available options to resolve the issues concerned:
Unless the development meets the definition of Exempt Development under Section 76 of the Environmental Planning and Assessment Act 1979, then a form of approval is required.
Development standards for Exempt Development can be found in:
- Cooma-Monaro Shire Council Local Environmental Plan 2013
- State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
- State Environmental Planning Policy (Infrastructure) 2007
If your development does not meet the exempt criteria and does not have another form of approval then your development is an illegal development.
Examples include: sheds, carports, building alterations, extensions, new dwellings etc.
Option 1 - Apply to Council for a Building Certificate and Development Application
A Building Certificate may be issued by Council under Section 149E of the Environmental Planning & Assessment Act 1979. A Building Certificate prevents Council from making an Order, under this Act or the Local Government Act 1993, to repair, demolish, alter, add to or rebuild a structure that was erected prior to the issuing of the Certificate.
The application will need to include a survey, plans of the development, structural certification and possibly verification in relation to water supplies and effluent disposal systems.
In addition a development application (see below) will need to be lodged to approve the use of the structure.
- The Building Certificate fee is based on the costs of works (development application fee, plus construction certificate fee, plus inspections. The minimum fee for a Building Certificate is $250, but in the case of unauthorised development, this figure will likely be higher.
- Fees for the development application will be $285.00, plus any inspections that may be required.
In addition, certain types of development (for example, additional occupancies) are likely to require payment of Developer Contributions if they receive development consent. This money goes directly towards the provision of public infrastructure in the Shire. Please see Council's Fees and Contributions Plans for details or contact Council to discuss your Application
Option 2 - Demolish the Structure
You may choose to demolish the unauthorised structure, however note that demolition may require lodgement of a development application. You should speak to Council regarding requirements.
Fees for the development application are based on the cost of demolition, plus any inspections that may be required. Some indicative fees for demolition are shown below:
|Cost of Demolition Works
||Cost of Development Application
*Plus inspection Fees - $185 each (2015/2016 financial year)
This typically includes the use of a legal building or land for an unauthorised use.
Examples include: Residential occupation of a garage or shed, use of a shed or garage for residential or business purposes, where no works have occurred.
Option 2 – Cease using the structure for unapproved uses
You may choose to cease using the structure for the unauthorised use. This may require you to provide Council with evidence showing how the structure is being used legally.
If you choose this option it would be helpful to write to Council to tell us what your intentions are so that it can be retained in Council’s records.
Under the provisions of the Environmental Planning and Assessment Act 1979 Council can issues fines and/or Orders in relation to the unauthorised use of structures or for unauthorised construction. Council may also take enforcement action through the Court.
Council can issue Orders under Section 121B of the Environmental Planning and Assessment Act 1979 for items such as:
- cease using the structure for a specific purpose
- demolish the structure
- repair or make structural alterations
- doing such things that are necessary to bring into compliance with relevant development standards
Council can issue Fines under Section 125(1), Section 125(2), Section 146A(3) of the Environmental Planning and Assessment Act 1979 to individuals or corporations that:
- erect or use structures without approval
- fail to comply with conditions of consent
- fail to have the structure appropriately certified
- fail to comply with Orders issued under Section 121B of the Environmental Planning and Assessment Act 1979 or
- fail to comply with various other requirements of legislation
Under the Environmental Planning and Assessment Regulation 2000 these fines are now up to $7,500 for an individual and up to $15,000 for a corporation.
Council also has the ability to bring proceedings in Court against an individual or corporation for a breach of the Environmental Planning and Assessment Act 1979. Council may seek damages or costs for any Court proceedings.
Even if Council takes no action against you, you still bear the responsibility and risk from having an unapproved development on your land. This means you are personally responsible in the eyes of the law for any consequences that may occur as a result of the unapproved development.
Major complications can arise during the conveyancing processes where unauthorised development is discovered. The sale of the property can fall through, and unless a form of ‘legalisation’ of the unauthorised development is put in place, the value of the property can be significantly affected.