Compliance & enforcement

General requirements

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.

Unauthorised development

It is an offence under the Environmental Planning and Assessment Act 1979 to carry out development (i.e. building work or change of building-use), without obtaining the following types of approvals and certificates (as applicable):

  • development consent from Council (unless the specific development meets the requirements for ‘exempt development’);
  • a construction certificate from a private-sector or Council Registered Certifier (in relation to building work encompassed in a development consent);
  • a complying development certificate from a Principal Certifier (in the case of complying development under the NSW Codes SEPP or other planning instrument);
  • an occupation certificate from a Registered Certifier (in relation to building work encompassed in a development consent or complying development certificate or change of building-use).

The relevant approvals and certificates must be obtained before commencing any demolition or building work or change of building-use, unless the specific work or use 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 Registered Certifier for the development.  This may be a private-sector Registered Certifier or the Council.  Details of the appointed Principal Certifier should be provided on signage at the front of a building site, or the contact details of the appointed Principal Certifier may be obtained from Council on 1300 722 542.

Residents or neighbours may request the Principal Certifier to carry out an investigation into the concerns about the development and to advise of the action taken in the matter.

The Principal Certifier is required to address any non-compliance matters and issue a Written Direction Notice to the builder/owner to address the non-compliance.

If the Principal Certifier issues a Written Direction Notice and it is not complied with, the Principal Certifier is required to refer the matter to Council for assessment and any appropriate regulatory action.

Council may carry out further investigations and issue a formal notice or order to remedy the non-compliance or issue a fine for any offence.

Prior to taking possible regulatory action, 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 or 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) should be referred directly to both the Principal Certifier and the Council on 1300 722 542, requesting an investigation as soon as practicable.

Illegal building work or building-use

Enquiries or complaints about illegal building work or use of a premises (i.e. building work or building-use which is not subject to a current approval and is not classed as ’exempt development’), may be referred directly to Council for investigation, via email to council@randwick.nsw.gov.au 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.

Accredited certifiers

An owner or developer may engage the services of either a private-sector or Council Registered Certifier to issue a Construction Certificate or Complying Development Certificate and to be the Principal Certifier for the particular development.

When a private certifier is appointed as the Principal Certifier, they take responsibility for the development site. Principal Certifier’s have statutory responsibilities and authority under the Environmental Planning and Assessment Act 1979 (EP&A Act).

The Principal Certifier 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 Principal Certifier 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 Principal Certifier has the authority to determine if the building work is considered to be ‘consistent’ or ‘substantially the same’ as the overall development.

The EP&A Act does not require a building or development to strictly comply with every aspect of a development consent or approved plans. The provisions, in effect, allow for a degree of variations to take place between the development consent and approved plans and the ‘as-built’ building or development, providing the development is considered overall to be reasonably consistent or substantially the same development.

Any enquiries or complaints about building work which is being or has been certified by a private-sector Principal Certifier, are required to be referred directly to the Principal Certifier for investigation and appropriate action.

The name and contact details of the appointed Principal Certifier 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, the Certifier is required to issue a Written Direction Notice to the owner or builder, which identifies the non-compliance and the period to remedy the matter/s.

If the non-compliant matters in the Written Direction Notice are not satisfied, the Certifier is required to refer the matter to the Council, for further investigation and possible regulatory action (e.g. issue a fine and/or a formal notice/order to remedy the matter).

If Council is notified of an alleged non-compliant matter, Council will refer the matter to the appointed Principal Certifier for investigation and to advise the customer and Council of the outcome. Council will not intervene in the investigation of alleged non-complaint matters, unless the Certifier has been unsuccessful in resolving the matter and has notified Council accordingly or, in the case of an emergency or matter of urgency (e.g. dangerous building or public safety).

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 NSW Fair Trading (Better Regulation Division, Department of Customer Service). More information on lodging a complaint about a private certifier can be found on the NSW Fair Trading website or by calling the NSW Fair Trading on 13 32 20.

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 Principal Certifier for the development can issue a Written Direction 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 the notice issued by the Principal Certifier 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 Principal Certifier 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.  Neither the Principal Certifier or the Council 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 Principal Certifier to advise of the matter and request the Principal Certifier 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 you have inadvertently carried out unauthorised building work at your premises, write to Council giving details and ask for advice to resolve the situation. In some cases, a building owner may seek to obtain a Building Information Certificate from the Council, to in effect, regularise the unauthorised building work.

Offences

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 and 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.

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