An application for a Building Information Certificate (BIC) is typically made when a building or structure has been erected unlawfully.
As it is not possible to obtain development consent or a construction certificate for a building that has already been erected, a BIC is generally the only option available to “regularise” building work that has been carried out unlawfully. An application for a BIC is often made in conjunction with a development application to authorise the continued use of the building for the purpose for which it was erected.
While not the same as obtaining development consent, if obtained, a BIC operates to prevent a council, for a period of 7 years, from issuing an order (or taking civil court proceedings for the making of an order) requiring the building or structure to be repaired, demolished, altered or rebuilt.
One of the key matters that a council needs to assess when deciding whether to issue a BIC therefore is whether the council wishes to take proceedings requiring the building or structure to be repaired, demolished, altered or rebuilt. This short guide has been prepared to assist councils in completing this task.
It is important to keep in mind from the outset that, if a council refuses to issue a BIC, the applicant can appeal against that decision to the Land & Environment Court of NSW. If this occurs, the Court can then direct the council to issue a BIC on such terms and on such conditions as the Court thinks fit. The Court can also make any other order that it considers appropriate.
The Court’s approach to determining previous BIC appeals provides guidance on how councils should approach their own assessment of a BIC application.
Councils may consider that issuing a BIC for an unlawfully erected structure will be viewed by the public as the council condoning a breach of the law, rewarding wrongdoing, setting a bad precedent, or undermining the public interest in upholding the provisions of the Environmental Planning and Assessment Act 1979. However, despite these legitimate concerns, the Court has attributed little weight to these matters by pointing out that the ability to apply for (and issue) a BIC as a means of regularising an unlawful structure has long been a legitimate part of the statutory planning scheme of the State. In light of this, the Court has consistently held that an appropriate manner for the Court to exercise its discretion in relation to a BIC appeal is to undertake an assessment of what it has described as a ‘notional’ or ‘hypothetical’ development application for the relevant structures. This is the case even if there is a separate development application made for the future use of the structure (with that application being dealt with separately).
Given the Court’s adoption of assessing a notional development application, a council would do well to undertake its own assessment of a notional development application for a building or structure which is the subject of a BIC application. The assessment of a notional development application would involve completing a s.4.15 assessment in the normal way as if the building or structure had not already been erected.
In completing a notional 4.15 assessment it is important to keep in mind that, in the ordinary course, the fact that the building or structure may have been erected unlawfully, of itself, is not relevant to the determination of the application for the future use of that structure. However, the fact that the structure is already in existence can be used in evaluating the likely impacts of the structure (for example, existing overshadowing, view loss etc.).
If the Council decides that it cannot support the approval of a notional development application, it will then need to decide whether to issue an order or take proceedings requiring the building or structure to be repaired, demolished, altered or rebuilt.
A council has a wide discretion when assessing whether to issue an order, or commence proceedings, in relation to an unlawfully erected building or structure and this is no different in the context of a BIC application.
If a Council is contemplating Court proceedings, the utility of those proceedings needs to be considered. This is because the Court has a wide discretion in deciding whether to order an unlawfully erected building or structure to be repaired, demolished, altered or rebuilt. Where the proceedings involve an application to restrain the use of a building or structure that has been erected without development consent, the EP&A Act also expressly allows for the adjournment of the proceedings to allow an application to be made for that consent.
Some of the keys things that the Court will consider in deciding whether to grant a BIC or instead to issue an order requiring an unlawful building or structure be demolished etc. are:
If, after considering these matters, a council does not intend to take proceedings or issue an order in relation to the building or structure, the BIC should be granted.