A building development approval (sometimes called a building permit) is an approval granted by local authorities for specific construction works and is needed before construction begins for the majority of domestic building types.
Understanding when you need a building approval/permit and the consequences of building without one is vital for anyone planning construction projects. This article explains the criteria for needing a permit and the risks of non-compliance.
When Is a Building Approval Required?
In Australia, a building approval is generally required for most structures, including, but not limited to:
- New buildings: Construction of any new residential, commercial, or industrial structure.
- Extensions or renovations: Major alterations or expansions to existing structures.
- Structural changes: Modifications affecting a building’s structural integrity, such as removing load-bearing walls.
- Change in building use: Transitioning a space’s purpose, like from residential to commercial.
- Demolitions: Tearing down structures, ensuring safety protocols are observed.
- Retaining walls: Specific walls, depending on height or proximity to boundaries, often require permits.
- Swimming pools and fencing: Approvals focus on safety standards, barrier requirements, and placement.
- Garage usage: Converting or using a garage as living space.
- Living in a caravan: Especially if it’s for an extended period or on a permanent basis.
- Carports and garages: Building or modifying these structures.
- Gatehouse construction: Building entrance structures or security posts.
This is a non-exhaustive list just to demonstrate that you need an approval for most types of work, however, the specifics vary between jurisdictions. Always consult local regulations or contact a building certifier like Porter Consulting before commencing any construction activity.
When Do You NOT Need a Building Development Approval?
Certain types of building work in Australia are categorised as accepted development, either because they are considered minor or because they are exempt from particular provisions. Here’s a breakdown:
1. Accepted Development (Self-Assessable) – Schedule 1:
Small structures: This includes a tool shed, stable, or similar up to 10m², but not in a tropical cyclone area.
Retaining walls: Walls that are 1m high, provided no additional loads, like a building or driveway, are imposed above them.
Fences: Those that are no more than 2m high, excluding swimming pool fencing.
For this category, owners must still ensure that the work adheres to relevant standards, such as structural integrity, size constraints, and boundary setbacks. There might also be local government planning schemes to consider, so be sure to perform your due diligence.
2. Other Accepted Development (Exempt from Relevant Provisions) – Schedule 2:
Minor attachments: Things like a sunhood attached to an existing building, as long as the sunhood’s area doesn’t exceed 2m².
Temporary structures: Erecting a tent with a floor area of no more than 100m².
Playground equipment: Construction of playground structures that don’t surpass a height of 3m.
For this type of work, a building development permit is not needed, and the owner isn’t bound by minimum building standards. However, other local council planning schemes might still apply.
It’s imperative to check local regulations and planning schemes before commencing any work, even if it falls into the categories listed above. For more information, take a look at Schedule 1 and Schedule 2 (respectively) of the Building Regulation 2021.
What Happens if You Build Without Council Approval?
Building without council approval can lead to significant repercussions, both immediate and long-term. Here’s what could happen if you bypass the necessary permits:
1. Resale implications: Future buyers may be wary of properties with non-approved structures. It could decrease your property’s value or make it more challenging to sell.
2. Insurance rejections: If there’s damage or an incident related to the non-approved structure, your insurance claim might be denied, leaving you to shoulder the costs.
3. Council intervention: The council may order the removal or modification of any structures built without approval, resulting in unexpected expenses and hassle.
4. Accumulated costs: Retrospectively seeking approval can be costly. You might face expenses for drafting plans, paying council fees, and undergoing inspections by private certifiers and structural engineers.
5. Modification costs: If the existing structure doesn’t meet building codes or council requirements, you may need to hire tradespeople to modify it. This can be a significant unforeseen cost and might even surpass the initial construction cost.
6. Fines and punitive action: We talk more about this below.
Always seek the necessary approvals before commencing any building project. The immediate convenience of skipping this step is far outweighed by the potential future complications and expenses.
Fines for Building Without Council Approval
Building without the necessary council approvals is not a minor oversight; it’s a legal violation that can result in severe penalties.
Types of Offences
Carrying out development without a permit: Embarking on a building or development project without the necessary approvals.
Failure to comply with a development approval: Not adhering to the conditions or stipulations outlined in an already granted permit.
Carrying out prohibited development: Engaging in building activities that are explicitly forbidden.
Chapter 5 of the Planning Act 2016 details the maximum penalties associated with each of these offences, which can include a maximum term of 2 years in prison and fines of 4,500 penalty units (1 QLD penalty unit = $154.80 as of October 2023, 4,500×154.80=$696,600 – a heavy price to pay)!
Exceptions to the Rule
In some cases, exemptions may be granted, especially for emergency development. This is usually to prevent imminent danger to life or to ensure a structure’s adequacy and safety.
Enforcement Measures
Show cause notice: If an assessing authority has reason to believe someone is committing (or has committed) a development offence, they can issue a show cause notice.
Enforcement notice: This document instructs the offender to cease their offence or rectify the situation. Non-compliance with this notice can attract fines.
Legal proceedings: Anyone can initiate enforcement proceedings in a Magistrates Court to prosecute an individual for a development offence. However, there’s a one-year limit to begin such proceedings.
Halt proceedings: Proceedings can also be initiated in the Planning and Environment Court to prevent further offences from occurring.
Moreover, the Planning Act grants specific entities, like the State Assessment and Referral Agency, powers to enter and investigate suspected offences.
It’s crucial to understand the potential legal and financial ramifications of building without council approval. Always ensure you have the required permits before beginning any construction project. Contact Porter Consulting today for peace of mind – we are leading building surveyors operating in SE Queensland and we can save you a lot of headaches and money in the long run.
