Building a Shed without approval

What happens when you build without obtaining approval first?

First things first, you might not even need approval but you need to check first…

 There are plenty of excuses to build your shed without going through the approval process. We get it. We often see “expert” advice in online forums suggesting “don’t worry about approval –just build it”. This is something that is said by professionals in the industry to get you locked in for construction at their convenience. We also see people with no build experience at all say the exact same thing because “my mate down the road did it and it was fine”. Most illegal builds occur for two reasons:

1. Rushing to complete the works due to personal and/or external pressures.

2. A lack of understanding of requirements. 

Whatever the case, poor planning is the main contributor to illegal builds, and if council ever finds out, you can be liable to pay fines and even take down the shed entirely if what has been built isn’t within council’s guidelines.

The best option is to buy a PlanDAT (www.plandat.com.au) report and talk to a draftsperson, certifier or town planner first. They can tell you the requirements you need to meet to avoid the approval process entirely, as well as the largest size shed you can build, how close to your boundaries etc.

There are 5 key reasons to reconsider building without approval:

1. The building code is legislated. It is illegal to build anything without assessment and declaration of compliance. Your local council are within their rights and legal authority can take action if they discover your build is without an approval.

 2. The cost of engaging a draftsperson to draw plans and submit the application is in nearly all cases less than the fine for building an illegal structure. This doesn’t even factor in the cost of demolition if council ultimately refuse the build.

3. You can be issued a fine or ‘stop work notice’ which can create additional costs with your builder who will have to pick up where he left off when the approval is(hopefully) issued. Most councils are notorious for their slow turnarounds with illegal builds so this can be a stressful and costly process, which can be avoided by simply arranging the approval prior to construction.

4. It can impact on the sale of your property when the time comes to sell and it is identified by the purchaser’s conveyancer that the structure is not approved. At best, they will try to reduce the price to cover the cost of getting it approved and or removed retrospectively, and at worst a retroactive approval may be required before the property can be sold for its market value.

5. If it is built in a position or design that can’t be approved for any reason, you will be issued a demolition order by your council. This is the worst case outcome and the only way to make sure this doesn’t happen is to arrange an approval before the shed is built.

So what happens if I have already built?

Illegally built structures can cause significant stress when identified. Illegal building works are those undertaken without a valid Construction Certificate issued specifically for the works being completed. This also includes building work where a Construction Certificate (Building permit or BA13 Certificate in WA) has been issued and certain conditions under the Development Consent have not been met.

Where illegally built structures are identified, council can:

• Issue a ‘Stop work notice’ to projects underway.
• Issue illegal build fines Normally $1,200 – $2,000 for sheds. This varies from council to council so please check your council’s website for their current price guides.
• Issue demolition orders.
• Provide the owner and/or builder the option to demolish or modify an existing development application.
• Pursue Land and Environment court proceedings.

The only way to rectify an illegally built structure is to apply for a Building information certificate (BIC). Put simply, the BIC process is the standard approval process in reverse, but with more reports required because building inspections cant be completed due to connections being covered by finished building materials.

The process involved is a typical planning process to review the structure’s compliance with the guidelines for your site, however some of the steps are not able to be undertaken because work is already completed and as such, additional professionals are required to be engaged to confirm that the work has been conducted in accordance with all relevant building codes. A private certifier cannot approve building work retrospectively, only a Council building inspector and engineer.

Potential steps and costs required to complete a BIC application:

*The above pricing is estimated and aggregate based on the course of business operations by the companies detailing the article. Pricing does not guarantee current or future pricing obtained for such reports due to variables on a per site, per council and per individual basis.

It’s extremely unlikely that all of the above reports and assessments will be required, however because the structure has been built illegally, council generally place the application at the bottom of their priority list, and get external professionals to take the risk on the job instead of them (essentially pushing the cost back to you).

When are ‘Demolition orders’ placed on illegal builds?

From our experience, Demolition orders or demands to demolish an illegal structure are normally issued if the planning items can not be complied with or the building sets a poor planning precedence. For example:

• Building over a registered easement.
• Building in a flood storage area.
• Building significantly over the maximum size allowable in your zone.
• Building significantly over the height permissible in your zone.
• Building on the boundary without any fire protection measures.
• Attaching to an existing building without fire protection measures.
• Building over a property boundary.
• Building too close to a sensitive water way.
• Building in a sensitive biodiversity area, especially where tree removal has occurred.
• If the structure is deemed to be structurally inadequate (engineer won’t sign off).
• Building in a Mines Subsidence area. The Mines subsidence board cannot issue retrospective approvals outside their exempt development list.

Some councils will only issue temporary Building Certificates if a planning matter is likely to change; meaning further inspections and reports will be required over time to keep the building in its built location.

What if I’m building a new building and I have existing structures on site that aren’t approved?

When the draftsperson details the plans, the draftsperson can not determine what is approved and what is not approved. The draftspersons job is to detail existing buildings and their current use (i.e habitable, storage, garaging, stables, pergolas etc).

If the application is submitted to council, they can review the existing approvals on the property and from time to time they will pick up an illegally built structure that needs to be assessed, however this is not the priority of their assessment. If you wish to, an illegally built structure can be drawn on the same plan set as your new development and a separate application submitted if requested by the council assessing officer in charge of the assessment.

Private certifiers are also unlikely to know what is approved and not approved, and are normally unable to comment. Private certifiers are engaged to review new developments however do consider existing structures to calculate floor space, roof space, landscape space etc for their own assessments of compliance.

How long does a Building certificate application take?

It depends on how many planning items are affected by the development, as well as the council’s capacity during the assessment period. We often see them take over 12 months – nearly 4 times longer than the average for a standard Development Application through council for a proposed building.

One of the biggest reasons we encourage our clients to go through the right process to obtain an approval is due to the timeframes around getting a Building certificate for an illegal build. BIC applications are dealt with when council get to them. There is no legal obligation for them to approve it within any particular period of time. There are often many different external professionals required to assist the approval and council often provide short turnaround times for the owner to have the assessment and report completed and returned to council before they close the application and issue a demolition order.

The most stressful circumstances we see are when an individual is selling the property after illegally building, the purchasers conveyancer has identified the unapproved building work (which is part of their job), then the seller has to submit a Building certificate application or reduce the price to cover the purchaser to potentially remove and re-build. It’s pretty uncommon to get a BIC approved within a cooling off period. It has been achieved but is uncommon.

BIC’s – the itchy footed renovators.

The most common time that we see people building illegally is when there are promotions ending,  price rises and seasonal influences (such as Christmas). Drafty’s, designers and architects can smell these clients coming from a mile away; they have a design in their heads and get itchy feet wanting to see it come to fruition immediately. They all ask questions based around timing, they cut you off when you try and talk about the approval process and they have often already made commitments to others. The most frustrating client is the one who gets half way through the approval process then jumps the gun and gets the build underway, rendering most of the work completed useless.

When this happens we have to pull back the application, redraw what’s now ‘existing’, get it inspected and modify the application to either an approval with part BIC (such as an existing slab) or a full BIC. We are often told that their concreter or tradesman mate who has never had anything approved suggests to them to “just build it”, take photos and get it approved after “we do it all the time mate”…

So before becoming the itchy footed renovator and having to pour out additional unexpected costs later; just ask your learned trade mate to quickly review the above list of potential reports required along with local and state planning guidelines and ask him for his absolute confidence that none of these items need to be considered because that’s what you as the property owner may be asked to provide if caught.

Two things that are guaranteed to cost you money in the building industry is time and indecision. Rushing now will cost you later – the approval process for a new build may feel long now, but it takes so much longer and costs much more doing it after it’s built…

Reviewing a PlanDAT report for the property, speaking to a draftsperson, town planner or certifier, and understanding your guidelines will help you understand your rights and risks to building on your property.