Illegal building work occurs when a building permit is not issued on construction work that required a building permit to be issued.

Legislative requirements

Part 16 of the Building Act 1993 states:

A person must not carry out building works unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the Building Regulations and the permit.

A building permit cannot be issued retrospectively for the works already carried out.

Where illegal building work has occurred Council can issue a Building Notice giving you the opportunity to show cause (indicate in writing) why the works were carried out without first obtaining a building permit. You have 30 days from the date of the Notice to respond.

Options to legitimise the illegal building works

Once you have decided to retain the structure and you have responded to the Building Notice advising Council of your intention, you will need to engage the services of a Registered Building Practitioner to prepare a report to the Municipal Building Surveyor advising on the adequacy of the illegal building work. This will require the practitioner to inspect the works and he/she may then request additional information to support the retention of the work. In order to do so, you may be required to engage other consultants – registered building practitioners to prepare the architectural, structural plans, fire engineering reports, and/or others to justify/verify the illegal work. (Again no works can be carried out at this point and all costs associated with the above will be your responsibility.)

The report returned to the Council (Municipal Building Surveyor) will need to include relevant plans showing the location and construction of the work (similar to plans required to be submitted with a Building Application). It will need to detail compliance with the Building Act, Building Regulations, National Construction Code (NCC) and Australian Standards. The Registered Building Practitioner will also need to provide a signed Certificate of Compliance – confirming inspection dates and compliance with the relevant NCC and Australian Standard(s). Should rectification work be required/recommended, a list of works will also need to be submitted for review, by the Municipal Building Surveyor. (Again all costs incurred to achieve the above will be your responsibility.)

Upon receipt of the above report prepared by the Registered Building Practitioner the Municipal Building Surveyor will review the information and make a determination as to whether the illegal building work can be retained. If it is considered that the works are satisfactory then the Building Notice will be cancelled. If the illegal building work require rectification or are deemed unsuitable, the Municipal Building Surveyor will issue a Building Order to carry out a program of works. Any cost incurred to carry out the building work nominated on the Building Order will be your responsibility.