What Happens if I Build Without Council Approval in NSW?

Building Without Approval in NSW: Risks, Consequences and How to Fix It

Building without council approval is more common than many people realise. Extensions are built, garages are converted and structures are added without the correct planning and building approvals. Understanding the risks and the options for rectification is important for any property owner in NSW.

In short: Building without council approval is unlawful development under the Environmental Planning and Assessment Act 1979. Council has broad enforcement powers including orders to demolish, significant fines and the ability to take action in the Land and Environment Court.

What is Unlawful Development?

Unlawful development includes:

• Building works carried out without a Development Consent or CDC

• Carrying out a use without the required development consent

• Works that are inconsistent with an existing development consent

• Occupation of a building without an Occupation Certificate

Not all works require approval. Exempt development (works that meet specific criteria under the Codes SEPP) can proceed without consent. But works that do not meet exempt development criteria require approval, and proceeding without it is unlawful.

Council's Enforcement Powers

Under the EP&A Act, councils have broad powers to address unlawful development:

• Penalty infringement notices (on-the-spot fines): Can be issued to individuals and corporations

• Orders: Council can issue orders requiring works to stop, unapproved structures to be demolished or altered, or uses to cease

• Land and Environment Court action: Council can seek injunctions or orders in the Court for serious cases

• Development Control Orders: Formal orders requiring specific remediation actions

Fines for unlawful development can be substantial. Under the EP&A Act, penalties for individuals can reach $1.1 million, with additional daily penalties for ongoing breaches.

Options for Rectification

If you have unapproved works, there are several potential pathways:

1. Retrospective DA (Section 4.55 or new DA) If the works would have been approvable, a retrospective DA or modification application can be lodged to seek consent after the fact. This is sometimes called a "retrospective consent" or "paper DA."

2. Building Information Certificate (BIC) A BIC provides protection from enforcement for seven years. It does not grant development consent but prevents council from ordering demolition or alteration for that period.

3. Modify to comply In some cases, unapproved works can be modified or altered to bring them into compliance with the applicable controls, allowing a retrospective approval to be obtained.

4. Demolish and rebuild with approval In cases where the works are fundamentally non-compliant and cannot be approved or protected by a BIC, demolition and rebuilding with proper approval may be the only option.

Real-World Examples

Example 1: Unapproved garage conversion 

A homeowner converted a double garage into a rumpus room without any planning or building approval. The works are structurally sound and do not breach any development standards. A retrospective DA is lodged. The SEE demonstrates that the works would have been approvable at the time they were carried out. The DA is approved and a BIC is issued for the works.

Example 2: Unapproved secondary dwelling 

A homeowner builds a detached granny flat in the backyard without any approval. A neighbour complains to council. Council investigates and issues a development control order requiring the use to cease. The homeowner engages a town planner NSW and lodges a retrospective DA. The DA is approved and the use is legalised.

Common Misconceptions

"Council will never find out." 

Complaints from neighbours, aerial imagery analysis, building inspection programs and conveyancing searches are all common ways council identifies unapproved works.

"If I disclose it at sale, I am protected." 

Disclosure is a legal obligation but it does not remove council's ability to take enforcement action or the buyer's ability to seek orders requiring rectification.

"It has been there for years so council can't do anything." 

There is no statute of limitations on enforcement action for unlawful development under the EP&A Act in most cases. Time does not automatically protect unapproved works.

Frequently Asked Questions

Can I sell a property with unapproved works? 

Yes, but the works must be disclosed and the buyer takes on the risk of enforcement. A BIC can provide some protection and comfort to a buyer.

What is the time limit for council enforcement action? 

There is generally no limitation period for council enforcement action in relation to unlawful development. However, as a practical matter, councils tend to prioritise recent and active breaches.

Can a retrospective DA always legalise unapproved works? 

No. If the works are fundamentally inconsistent with the applicable planning controls (e.g. in the wrong zone, exceeding height limits significantly), a retrospective DA may be refused.

Do I need a solicitor if council takes enforcement action? 

Legal advice is strongly recommended if council takes formal enforcement action. Planning solicitors and the Land and Environment Court deal with these matters regularly.

What happens to unapproved works when I sell my property? 

Unapproved works remain on the property and the new owner inherits the risk of enforcement unless a BIC or retrospective consent has been obtained.

Can I get a mortgage on a property with unapproved works? 

Some lenders are unwilling to lend on properties with known unapproved structures. A BIC can sometimes address lender concerns, but this varies by lender.