It’s likely crossed most home owners’ minds: it might be nice to replace the front fence, or it’s time to upgrade to a bigger backyard garden shed. But before home owners get too excited, it’s crucial that any plans for any kind of development are submitted to the local Council. Omitting this step could result in not only a potential fine and conviction, but the demolition of that dream development.
Why do Home Owners need Council approval?
Home owners sitting on their deck admiring the view should be thankful that there are no high rise developments in their line of sight and for that they can thank their Council’s Local Environment Plan. Each Council’s Local Environment Plan sets out what each parcel of land in a suburb and community is zoned as and therefore what can or cannot be built there. So in a residential area, it may be prohibited for buildings taller than two stories to be built, or for a rubbish dump to be next to a child’s primary school. But these same regulations also limit what a home owner can and cannot do with their own land, from what kinds of home businesses they can run, to what kind of additions, renovations and developments can be constructed as well as what kinds of development require consent.
So, what can a home owner build without consent?
That is a difficult question to answer, because it differs depending on what their land is zoned as and what Council area they are located in.
Each Council’s Local Environment Plan interacts with state-based legislation, which adds another layer of complexity to what can and cannot be constructed without consent of their local Council. These laws are complex and difficult for most people to understand unless they’ve had regular exposure to them. Even when a home owner has approval to build something, it’s important that any construction plans do not deviate from what was approved.
A home owner in the Sutherland Shire learnt this lesson the hard way. Whilst he had approval to build a small garage, he ended up purchasing a larger shed. He had assumed that because he had approval for a small garage, the larger shed would be acceptable. Once he spent $40,000 on constructing a new shed, a neighbour complained to the Council, who came out to investigate. The home owner then attempted to seek retrospective approval of the development, however Council refused the application as the shed did not comply with the relevant building legislations, and ordered that the shed be demolished. The Land and Environment Court upheld Council’s determination that the shed should be demolished.
As the Court’s take the local planning laws seriously, it’s therefore very important that any decision to construct anything on a home owner’s land be done in development with the local Council, so that neither time nor money is wasted if their development is deemed to be unlawful.
So, what happens if a home owner’s development does not comply?
The state legislation makes it a criminal offence to construct unlawful development. This means that the Council can charge a landowner with a criminal offence.
In addition to the criminal penalties, the Council can also issue a landowner or occupier of land with a penalty infringement notice, requiring payment of thousands of dollars for breaching the planning laws.
Lastly, as explored above, Council can take the matter to Court, seeking an order from the Court for the landowner or occupier to demolish the unlawful or prohibited development. In a recent Land and Environment Court Case, a local Council issued a landowner with a notice requiring that a landowner’s new fence be demolished, as it did not comply with the suburb’s development control plan. The Council claimed that the landowner’s new fence was not high enough, was not setback far enough from the front boundary of the property, and encroached against the road reserve. The landowner took the Council to Court, appealing Council’s notice; however the Court sided with the Council and made an order that the landowner’s fence be demolished. This was a costly mistake for this landowner.
So how can a home owner avoid this?
Whilst it can be a headache having to worry about obtaining approval, in order to avoid dealing with the complexities of the planning legislation yourself it is recommended that any proposed development be run past the local council.
Whether it’s something minor like construction of a fence or a shed, to something bigger like an addition to the main dwelling, making sure a development complies with the local planning laws will provide a home owner with a sense of security that the dream development does not end with a conviction, a fine, and a pile of debris.
