All building work, demolition work and the use of a premise requires the relevant planning and building approvals to be obtained beforehand, in accordance with the requirements of the Environmental Planning and Assessment Act 1979, unless the particular work or use is of a minor nature and is classified as Exempt Development.
How to report illegal or non-complying building works
Non-compliance with development consent or complying development certificate
Enquires or complaints relating to non-compliance with a development consent or complying development certificate should be made directly to the appointed Principal Certifying Authority (PCA) for the development. This may be a private-sector accredited certifier or the Council. Details of the appointed PCA should be provided on signage at the front of a building site, or the contact details of the appointed PCA may be obtained from Council on 1300 722 542.
Residents or neighbours may request the PCA to carry out an investigation into the concerns about the development and to advise of the action taken in the matter.
The PCA has the authority to advise the builder/owner to address a particular matter or non-compliance. The PCA can also issue a Notice of Intention to give an Order, which requires the builder/owner to make written representations to the Council to provide reasons for the alleged non-compliance and to show-cause as to why Council should not issue an Order and/or a penalty notice (fine) for any offence.
Council is required to consider any representations made by the owner/builder and other parties and Council will assess the nature, extent and impacts of the non-compliance before determining whether or not to issue an order or a penalty notice (fine) or take other regulatory action.
Concerns about compliance with the approved working hours on a building site or external site management practices on a building site (i.e. site fencing, materials or debris on the footpath/roadway) may be referred directly to Council on 1300 722 542 for investigation by a Council Ranger.
Concerns about building work or development of an urgent nature (i.e. a dangerous excavation or building collapse) may also be referred directly to Council on 1300 722 542 (as well as the PCA), for investigation as soon as practicable.
Illegal building work or building-use
Enquiries or complaints about illegal building work or use of a premises, may be made directly to Council, via email to email@example.com or Council’s Call Centre on 1300 722 542. Council encourages that all complaints be provided in writing or email and include full details of the alleged illegal building work or use of premises and the impacts that the building work or use of the premises is having on their property or amenity.
An owner or developer may engage the services of either a private-sector Accredited Certifier or a Council Accredited Certifier to issue a Construction Certificate or Complying Development Certificate and to be the Principal Certifying Authority (PCA) for the particular development.
When a private certifier is appointed as the PCA they take responsibility for the development site. PCA’s have statutory responsibilities and authority under the Environmental Planning and Assessment Act 1979 (EP&A Act).
The PCA is required to carry out inspections of the development at specified stages, to check compliance with the relevant approvals and certificates and to issue an occupation certificate upon completion.
The PCA can also approve the design and construction of specified works in lieu of Council and, in the event of any minor variations which have been carried out during construction, the PCA has the authority to determine if the building work is not inconsistent with or is substantially the same as the overall development.
Any enquiries or complaints about building work which is being or has been certified by a private-sector PCA, should be referred directly to the PCA for investigation and appropriate action.
The name and contact details of the appointed PCA are required to be provided on a sign at the front of a construction site or the details may be obtained from Council.
If building work is being carried out which is not substantially in accordance with the approved plans and/or conditions of consent, a private certifier can issue a 'Notice of intention to give an Order' under the EP&A Act which sets out the terms of a proposed Order and the proposed period for compliance. A copy of any 'Notice of Intention' issued by a PCA must be provided to Council and the builder/owner may make written representations to the Council in response to the alleged non-compliances and to show-cause as to why Council should not issue an Order to remedy the non-compliance. The Council will determine whether it will issue an Order or take other regulatory action (i.e. issue a penalty notice/fine) after consideration of any representations.
If the matter is not resolved by the PCA and there is a breach of the development consent or complying development certificate, the matter may be referred to Council for further investigation, as detailed in ‘How to report illegal or non-complying building works’.
The Council is not the regulator of private certifiers. Any complaints about the conduct, actions or lack of action by a private certifier must be directed to the Building Professionals Board (BPB). More information on lodging a complaint about a private certifier can be found on the Building Professionals Board website or by calling the BPB on 02 8522 7800.
Damage to adjoining properties
When undertaking building work in close proximity of an adjoining property, in particular any excavations near the boundary or below the footings of a building on an adjoining site, it is essential that the works are carried out in a careful manner and in accordance with the professional engineers design documentation, to avoid any damage being caused to the adjoining property.
The person undertaking excavation work has a legal obligation to ensure that the adjoining land is adequately supported at all times, including during the excavation and construction work.
The PCA for the development can issue a Notice upon the builder/owner if the adjoining land is not adequately supported. And, Council can also issue an Order to carry out work to support an excavation if the builder/owner has not complied with a Notice issued by the PCA or the conditions of consent.
Regrettably, on some occasions, damage is caused to an adjoining or nearby property as a result of building work. And, whilst the PCA or Council can request a builder/owner to liaise with their neighbour to rectify any damage caused to their property, the resolution of any damage or payment of compensation or the like, is a private matter between the parties. Council does not have the power to issue an order to direct a person to fix any damage caused to a neighbours property or pay compensation.
Should any damage be caused to your property, it is recommended that you consider the following options:
- write to the builder/owner of the subject premises and request their cooperation or resolve the matter and to rectify any damage caused to your property;
- write to the PCA to advise of the matter and request the PCA to help resolve the matter with the builder/owner;
- write to the Council to advise if there is/has been an alleged breach of the development consent or if there are any urgent matters which may be investigated by Council;
- engage your own consultant professional engineer to advise you in the matter and to liaise with the builder or engineer for the subject property to resolve the matter;
- seek your own legal advice in the matter;
- write to or lodge a complaint with NSW Fair Trading or contact them on 13 32 20. NSW Fair Trading officers are able to investigate the work undertaken by a licensed building contractor and to resolve disputes about residential building work and damage caused to a neighbouring property.
Failure to comply may incur penalties
Failure to obtain the relevant planning and building approvals or certificates is an offence, which may result in significant penalties and issue of a notice and order by Council.
Before doing any building work or renovations, owners and building contractors must have the necessary approvals and certificates, and ensure that all conditions and requirements have been met.
If there is unauthorised development or building work at your premises, write to Council giving details and ask for advice to resolve the situation.
It is an offence to carry out building work or development without the necessary development consent, construction certificate or other approval.
It is also an offence to carry out building work which is not in accordance with the development approval, complying development certificate, construction certificate or conditions of consent.
These offences are taken seriously by Council, as they undermine the integrity of the approvals process, result in sub-standard construction and may have a detrimental impact upon the safety and amenity of the occupants, nearby residents and the local area.
Fines and orders
The Environmental Planning & Assessment Act 1979, sets penalties of up to $5 million for unauthorised or non-complying development. Alternatively, Council can issue an on-the-spot penalty infringement notice for each offence up to $3000 for an individual and $6000 for a company.
Council can also order demolition or removal of any unauthorised building work, or order full compliance with a development consent, conditions of consent and the approved plans.
Council’s authorised officers can also issue notices, orders or fines if there has been a breach of other regulatory requirements (i.e. a water pollution incident or placement of articles on a road/footpath without Council's approval).
Enforcement of non-compliance
Council's Compliance and Enforcement Policy provides details about Council’s regulatory and enforcement actions, considerations and processes. Our Compliance and Enforcement Policy helps us to carry out our regulatory activities in a consistent, transparent and appropriate manner. And, Council's regulatory actions or penalties are commensurate with the nature, extent and severity of the breach or offence.