NSW Planning law provides for four broad categories of development.

These are exempt development (ie. no approval required), complying development (ie. approval in 10 days), development that requires consent (ie. through the development application process) and prohibited development (ie. development that is prohibited in a particular land use zone).

Examples of unauthorised development may include the erection,  altering or adding to a building; the use of land; excavation or landfill; vegetation removal and non-compliance with conditions of development consent.

When unauthorised development occurs compliance action can include:

  • The issue of significant on the spot fines
  • The issue of a rectification, demolition or cease use order
  • The requirement to submit an application/s for retrospective assessment
  • Court action

When deciding what action is appropriate there are four main considerations:

  1. Likelihood of consent - is it likely the development would have been approved had an application been made prior to the development occurring?
  2. Environmental impact - is the development likely to result in significant environmental impact?
  3. Safety - is the development likely to lead to injury or create a liability issue?
  4. Rectification – the willingness of the person involved to rectify the situation by, for example, submitting the appropriate application/s for assessment or carrying out remedial work.

Residents can protect themselves from this action by checking what developments need approval and by following the approval procedure involved. Council staff are available to give advice on this matter.

NSW legislation does not permit the issue of a construction certificate, complying development certificate or occupation certificate for building work carried out without prior approval. A building certificate under Divisiion 6.7 of the Environmental Planning & Assessment Act is used in this situation. In NSW higher application fees apply when a retrospective approval is sought compared to following the correct approval process.

Buying property

When purchasing a property it is recommended that the legal status of existing buildings and uses on the property be checked - especially for rural properties. This can be done by submitting a request for information for past development approvals, plans and occupation certificates.

Alternatively an application for a Building Certificate under Division 6.7 of the Environmental Planning and Assessment Act can be lodged. When a building certificate is issued it indicates Council will not be issuing any demolition or rectification orders on the buildings referred to in the certificate.

If a property is purchased without these checks any subsequent issues resulting from unauthorised development become the responsibility of the new owner.

Dwelling Eligibility

The Clarence Valley Local Environmental Plan 2011 (the LEP) is the main planning document for our Council area. It sets out the land use zones and what development can occur in those zones. Not all rural properties have a dwelling eligibility as lot size, access to a Council maintained public road and other factors affect whether a dwelling can be approved on a property. A Dwelling Eligibility Application form is used to check the dwelling eligibility of a property.

10 Year Sunset Clause

Clause 4.2B(4) of the LEP contains a 10 year sunset period that means the dwelling eligibility of some properties without an approved dwelling will be permanently extinguished unless a Development Application is lodged for consent to construct a dwelling, before 23 December 2021. These properties are generally less than the minimum lot size for the zone. Further enquiries can be directed to Council’s Planning staff.  

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