Unapproved Works/Unapproved development  

Most likely you are reading this because you have undertaken some construction work (or undertaken a use) without development approval and now Council is breathing down your neck… Either that or you are thinking of undertaking some work on your house and you want to know what the penalty/ramification would be if you did it without approval. 

This would be one of our top 5 most common questions from our clients and I thought I would take the time to provide some information around unapproved works.

What is unapproved works

Unapproved works or unapproved development is development that has been undertaken without formal approvals. Examples of common unapproved works are provided below:

• Construction of large residential shed
• Replacement of a first floor balcony
• Removal of internal walls
• Installation of a spa or a swimming pool
• Construction of a retaining wall within 1m of a boundary or with a height greater than 600mm.
• Installation of an air-conditioning unit on a room or wall.
• Use of a business premises as a dance studio/gym
• Home based businesses for food production
• Conversion of existing building to a secondary dwelling/granny flat.

Council has sent me a letter about unapproved works and wants an inspection

If you have received this letter it is for one of two reasons:

1. One of your neighbours (or a disgruntled friend/family) has contacted Council and informed them of some unapproved works on your property. 
2. Council officers have been our in the area and just happened to have noticed some new development works at your property.

From our experience it is normally the first of the two options with most of our enquiries being from people that have not had great dealings with their neighbours.

The first thing to do if you receive a letter asking for an inspection is to understand that the Council officer is just doing their job and they are not out to “get you”. The best way to deal with something like this is to be calm and rational to the Council officer. When clients have called me and informed me that they have had a yelling match with the Council officer I already know that we are on the back foot for this future approval. PLEASE do not yell at the Council officer as it will make our job just that little bit harder to get them on our side. If you feel that you will be emotional about the matter then I would suggest just sending an email or perhaps ask a friend to talk on your behalf.

The next step is to contact Council and arrange an inspection. There is no avoiding Council inspecting your premises and they do have powers under a few legislations to enter your premises without your permission if you repeatedly deny them access. The sooner they come to the site, the sooner it will be to have it resolved.

When the Council officer attends the site be friendly and oblivious that any approval was required. If you received advice from anyone (such as a builder) prior to undertaking the works then please let the officer know about so that they know that this is not your fault (please note that this is not a get our of jail free card but it often goes a long way in helping you either obtain approval or at least in delaying the removal of the structure).

Following the meeting the Council will put together a letter known as the Notice of Intent to Serve an Order…

I have just received a “Notice of Intent to Serve an Order” or something similar

We normally refer to this is the “scary Council letter” and often it is at this point that we receive the phone call from new clients in a panic as the letter often asks for the development works to be demolished within 28 days and will also mention fines if the order is not actioned.

If you have received a letter like this…. take a moment and have a deep breath…. Everything is ok, you do not have to demolish the structure (or cease use of your business) within the time frame…. 

This is a standard letter in a standard format that is almost identical across all Councils. The “Notice of Intent” is the equivalent of a “first warning” at high school before you receive detention. In the case of Council this is often one of many warnings before you receive a fine or any real ramifications. 

The notice of intent is often our starting point in working towards an approval as this will outline what Council has concerns about and will often give us a clearer understanding of an avenue towards approval (or a way to delay if an approval cannot be achievable).

Once you have received your notice please email Council (there is no rush as long as it happens before the deadline) and advise that you will be engaging a town planning firm to review and assist with a future development application and will need additional time to review and prepare the development application and let them know that your town planner (once appointed) will contact Council to update them about the application.

What are my options for my unapproved works?

Below are the following options for your unapproved works:

1. Demolish, or cease use of, the unapproved works.
   Comment: People will often take this option of the works undertaken is minor in nature or if some minor changes can rectify the situations.
2. Obtain development approval via a development application and/or building information certificate
   Comment: Please note that not all unapproved works can be approved! Sometimes unapproved works have been undertaken that are either not permissible or constructed in a way that does not comply with the development standards or the BCA. 
3. Delay Delay Delay
   Comment: Most of the time, after our chat or after review of the development we will know that your development will not be approvable. If you don’t want to remove it straight away then a common pathway is to delay Council. This can involve several things which are discussed later.

Obtaining Development Approval for Unapproved Works

MOST unapproved works can be remedied through a development application and then the submission of a building information certificate once the DA is approved. Every Council is different as the Act is not black and white about the pathway to approving unapproved works.

As a MINIMUM the following information is required for a development application:

• Development drawings (this usually consists of a site plan, elevations, sections, flood plans)
• Survey plan (normally an ID survey will suffice)
• Statement of environmental effects (this can be prepared by Outlook Planning and Development)

The following information MAY be required by Council

• BCA Report (normally required for bigger developments or for change of use applications)
• Engineering Drawings (Required for development that would normally need to be engineered such as retaining walls)

Obviously the additional reports depend on the type of development so please feel free to contact us or Council to check what information may be required.

Delay tactics if Approval cannot be achieved

Sometimes delaying Council is all that can be done for unapproved works as the development will never be approved by Council. In this case then delay is the best bet…

The following delay tactics can be utilised:

• Initially inform Council that you are searching for assistance with the approval and require additional time. This can sometime provide a few months delay but don’t push it too much.
• Once Council is at its limit for the first delay then advise Council you have finally engaged a town planning firm to prpeare your development application. Have Outlook Planning and Development contact Council to advise Council that we are acting on your behalf and need some time to put together a development application. 
• Following this we fill attempt to delay further by suggesting that we are waiting on the plans or survey to be completed. This can last months without any ramifications.
• Sometimes it is worthwhile submitting a development application as a delay tactic but also as a Hail Mary pass in the hopes that you get a Council officer with a good mood that will approve the development application. If refused then at least this has delayed you further.
• If you lodged the development application then you can often get further delays after a refusal by claiming you are submitting an appeal on the decision.

At any point you can conceed to Council and advise them that the development has been removed or the use has been ceased. 

How Can Outlook Planning and Development Assist with the Unapproved Works

We can assist throughout the whole process and assist with the gameplan on how to proceed with the project. We can advise if Council approval is possible and if not then we can advise of possible delay tactics to assist. Get in contact with us and one of our planners can contact your and let you know if your development can be approved.