Unauthorised work or unlawful activity can range from very minor technical breaches that cause little or no harm to major breaches that can cause significant harm to others or the environment.
Council relies upon the public to help in identifying and providing evidence to assist in the investigation of possible breaches.
What is it?
In general terms unauthorised work or unlawful activity is development that is being carried out:
- Without having the required approval ie development consent;
- Otherwise than in accordance with the conditions of an approval ie working outside specified hours stipulated in a development consent;
- Contrary to the relevant planning provisions ie conducting a business in an area where it is not permitted; vegetation/tree removal; OR
- Contrary to a relevant legislative provision ie unauthorised land clearing.
Planning laws allow for a wide range of minor works and various types of development activity to be undertaken without need to obtain approval. Certain types of work or activities, generally of a minor nature, that meet specified development standards may be classified as exempt development.
The types of work or activities that can be carried out as exempt development can be found in the State Environmental Planning Policy 2008 (Exempt and Complying Development Codes) (SEPP).
Examples of exempt development include;
- The construction or installation of an air conditioner;
- Home businesses, home industries and home occupations
Exempt development can also be found in various other State Environmental Planning Policy's such as the State Environmental Planning Policy 2007 (Infrastructure).
Prior to reporting unauthorised work or unlawful activity you can check Council's website to see any recent development consent has been granted. You can also check the State Environmental Planning Policy 2008 (Exempt and Complying Development Codes) to determine if the works meet the exempt development standards.
If you wish to report possible unauthorised work or a possible breach of the planning regulations you should contact Council to lodge a customer request. When lodging a customer request the following information will be needed by Council to investigate the matter:
- Your contact details;
- The property address where the works / activity is being undertaken;
- Details of the possible breach, including date of commencement;
- How the possible breach has impacted on you or your property;
- Whether you have contacted council about this issue previously;
- Any photographs or other documentation that may support your concern
Council compliance officers will undertake an investigation of any allegations of possible unauthorised works or unlawful activity and consider all relevant information.
Council action in respect to its findings may involve one or more of the following types of response:
- No action – for activity that is a technical breach only, when there is a lack of evidence, when no action is justified by the public interest or some other appropriate reason.
- Education – educating people on Council requirements where the unauthorised activity or development will cease immediately without any likelihood of reoccurrence.
- Negotiation - advising the person responsible as to the nature of the breach and Council requirements, followed up by a letter with expectations and responsibilities reinforced.
- Await Determination of Approval - This option is particularly relevant where it is likely that the development or activity could gain consent (approval).
- Fines - Penalty Infringement Notices may be issued where such provisions apply.
- Notices/Orders – Directions issued to an offender to undertake such measures as given within specified timeframes.
- Prosecution – Commence court action for failure to comply with an Order or where the breach warrants same.
In cases where unauthorised work could not have been approved or is not able to meet the relevant standards of construction, Council may require the illegal work to be demolished.
Council is required to exercise discretion when deciding how to deal with unauthorised work or unlawful activity and will take a range of factors into account in accordance with relevant legislation and Council Policy when determining what action should be taken.
Council's compliance officer will review the situation and where possible consider opportunities to 'regularise' the unauthorized work or activity.
It is not possible to obtain retrospective approval for unauthorised building work. However it may be possible to obtain approval for the continued use of a building or for the continued use of an activity if the use of the building or the activity could have lawfully been approved in the first instance. In such cases Council may request the submission of a development application to further consider the matter.
Council may also require the submission of an Application for Building Information Certificate if considered possible to 'regularise' the building work. In considering an Application for Building Certificate an applicant may be requested to provide supporting documents and reports to prove the suitability of the building work.