I\u2019ve received a couple of calls recently from residents who have discovered only when they came to sell their property, that all the relevant approvals were not in place.<\/p>\n
There are several reasons why this may have happened. The most obvious, of course, is that the owners themselves had built a structure without the appropriate approval. The less obvious, perhaps, is that their conveyancing lawyer was not as thorough as they could have been at the time of purchase. A third possibility is that, unfortunately, some people are a little too casual about the need to ensure that structures on a property they purchase are covered by the required building approvals, only to discover when they come to sell that property that prospective buyers are not as relaxed about the situation.<\/p>\n
In an earlier post (Building Approvals<\/a>) I went through the building approvals process. The upshot of this was that, on completion of a correctly approved and constructed structure, the Principal Certifying Authority<\/a>, usually council, will issue an Occupation Certificate<\/a>. If a structure has not been the subject of development approval<\/a>, or it has not been subjected to the required inspection schedule, an Occupation Certificate cannot be issued\u2014ever<\/em>. Most people proposing to buy a property, however, will want to see the Occupation Certificates for significant structures on that property.<\/p>\n It is important to appreciate that it is impossible to get retrospective development approval, and hence an Occupation Certificate, for an existing, unapproved structure. Apart from the legal impediments<\/a>, it will not be possible to verify the integrity of a structure without the relevant inspections (which must necessarily be carried out during<\/em> construction).<\/p>\n What can be done in such cases, however, is that council can issue a Building Certificate<\/a> under Section 149D<\/a> of the Environmental Planning & Assessment Act<\/a>. A Building Certificate does not operate to give consent to the structure or its use, either retrospectively or prospectively. However, pursuant to Section 149E<\/a>, a Building Certificate does allow an unauthorised structure to continue to exist to the extent that the owner is protected against any action being taken by the Council, specifically any requirement to demolish, alter or rebuild the structure, for a period of seven (7) years from the date of the Certificate. To this extent, a Building Certificate may be considered to \u2018regularise\u2019 such a development.<\/p>\n Before council will issue a Building Certificate, however, it must be satisfied that the building is at least structurally sound. To this end, the building will need to be certified by a suitably qualified person, generally an engineer, prior to the issue of a Building Certificate. Note that a Building Certificate is only valid for seven (7) years, so for peace of mind it\u2019s a good plan to ensure that any Building Certificate and associated structural certification is current.<\/p>\n Typically, in the absence of development consent, or an Occupation Certificate, prospective buyers (and\/or their financial institution) will require a Building Certificate so that they can be assured that the building they are buying will not be the subject of subsequent action (e.g. demolition order) by council.<\/p>\n