WRITTEN BY Andrew Brickhill
A Building Information Certificate (BIC) is a certificate issued under the NSW Environmental Planning and Assessment Act 1979 (EPA Act) by a local council in relation to a building that operates to prevent the council from issuing an order (or taking court proceedings for an order) requiring the building to be repaired, demolished, altered or rebuilt because of matters existing or occurring before the date the certificate is issued, or in relation to any encroachment of the building onto Council land.[1] It has similar effect, for a period of seven years, in relation to matters arising only from the deterioration of the building from fair wear and tear. Building in this context is defined very broadly and includes part of a building and a structure or part of a structure.[2]
Because a BIC prevents a council from taking action to require a building to be demolished, it is often sought in circumstances where a building was erected unlawfully.
The erection of a building could be unlawful for a range of reasons. Common examples include where a building was erected:
It is not possible obtain retrospective development consent (or a retrospective construction certificate) for the erection of a building after it has already been built. In these circumstances, councils often require a BIC to be obtained to confirm that the building is structurally sound, as well as a development consent (or the modification of an existing development consent) to authorise the prospective use of that building. This process is sometimes referred to as ‘regularising’ unlawful development.
It is important that any application for a BIC accurately describes the building or structure that is the subject of the application. An application for a BIC cannot be amended.[3]
The primary matter that a council needs to assess when deciding whether to issue a BIC for an unlawfully erected building is whether the council is entitled to issue an order or take proceedings for the making an order for that building to be demolished and whether or not it proposes to do so.
A council has a wide discretion when assessing whether to issue an order or commence proceedings in relation to an unlawfully erected building, and this is no different in the context of a BIC application.
A key factor that will inform this decision is the structural adequacy of the building. This may involve consideration of the extent of compliance with the National Construction Code and the nature of any non-compliance. As part of this, the council may require the applicant for a BIC to supply it with such information (such as building plans, specifications, survey reports and engineering certificates) as may be reasonably necessary to enable the proper assessment of the application.[4]
There is no requirement in the EPA Act for a council to assess an application for a BIC by undertaking a merits assessment as would be required for a development or modification application. However, carrying out a hypothetical or notional assessment of the unlawful building under s.4.15 of the EPA can be useful exercise for the council to undertake as part of considering whether it intends to issue an order or take proceedings for demolition of the building. This is because the ‘notional assessment’ process facilitates an evaluation of the likely impacts of the unapproved building and consideration of whether it is likely that the Council would have granted consent to the erection of the building had the proper procedure been followed.
If a council refuses to issue a BIC, its notice of decision must contain reasons which are sufficiently detailed to inform the applicant of any work that needs to be done to enable the council to issue a certificate.[5]
While a BIC prevents a council from issuing an order or taking proceedings for a building to be demolished, it does not, of itself, authorise the use of that building or prevent a council from taking enforcement action to prevent it from being used.
Whether development consent (or the modification of an existing development consent) is required to authorise the future use of an unlawfully erected building will depend on a range of factors, including the nature or characterisation of the intended use and the requirements of the environmental planning instruments that apply. It may be that a particular use cannot be approved because that use is prohibited.
The Land and Environment Court of NSW has held that the “proper sequence” to regularise the unlawful erection and use of a building is to first assess an application for a BIC before considering whether development consent ought to be granted for its future use.[6]
An applicant who is dissatisfied with a council’s refusal (or failure) to issue a BIC may appeal to the Court. In an appeal, the Court can direct a council to issue a BIC on such terms and on such conditions as it sees fit. The Court can also make any other order that it considers appropriate.[7]
The Court has consistently adopted the “notional assessment” process outlined above when considering whether to direct a council to issue a BIC for a structure.[8]
Our specialist Planning, Environment and Local Government team regularly provide advice and representation in Court proceedings arising from unlawful development.
[1] Limited to orders issued or proceedings brought under the Environment Planning and Assessment Act 1979 (EPA Act)or Local Government Act 1993;sees.6.25(3) of the EPA Act.
[2] A building does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993; s..1.4 EPA Act.
[3] Scarf v Shoalhaven City Council [2021] NSWLEC 128
[4] s.6.26(2) of the EPA Act.
[5] s.6.26 (4)(5) of the EPA Act.
[6] Walker v Queanbeyan- Palerang Regional Council [2023] NSWLEC 1032 at [75] citing Griffis v Tweed Shire Council [2011] NSWLEC 1126 at [9] to [10]
[7] s.8.25(3) of the Environmental Planning and Assessment Act 1979.
[8] Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [60] -[61]; Lee v Randwick City Council [2021] NSWLEC 1200 at [18]; Ardill Payne & Partners v Byron Shire Council [2023] NSWLEC 1348 at [74]; See also discussion in Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009 at [69]-[79].
Please note that the information detailed in this Essential Guide is correct as of 15 July 2024. If you have a specific question regarding building information certificates, please call Andrew Brickhill from our Planning, Environment & Local Government team.
The content contained in this guide is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.