Section 9: Unauthorised building work

In general a person must not carry out building work without a building permit where one is required. However the Building Act allows a person to make an application to the relevant permit authority to approve unauthorised building work in relation to a building and/or incidental structure. This retrospective approval process may assist those who are buying or selling a property that has an unauthorised structure on it.

Even though a person may seek retrospective approval for unauthorised building work, this does not remove the offence and a local government may still take legal action under the Building Act to ensure that the unauthorised building work is approved or removed.

Applying for retrospective approval

Residential Properties - Class 1 and Class 10 buildings and incidental structures

A person may apply under s. 51(3) of the Building Act for a ‘building approval certificate’ for a building or an incidental structure in respect of which unauthorised work has been done. Applicants should use a BA13 form - Application for Building Approval Certificate. This type of application would also apply to a Class 2 to Class 9 building that does not require an occupancy permit.

Commercial Properties - Class 2 to Class 9 buildings

A person may apply under s. 51(2) of the Building Act for an ‘occupancy permit’ for a building in respect of which unauthorised work has been done. Applicants should use a BA9 form - Application for Occupancy Permit.

Other approvals administered by the permit authority (such as planning and health) may also be required. Applicants should contact the relevant permit authority on these matters before lodging their applications.

Seeking approval

When seeking retrospective approval for residential or commercial building work, a registered building surveyor must be engaged to issue a ‘certificate of building compliance’ (BA18) before an Application for a Building Approval Certificate (BA13) or an Application for an Occupancy Permit (BA9) can be made to the permit authority.

The retrospective approval process is not a mechanism to circumvent the need for a building permit.

The building surveyor must be satisfied that the unauthorised works comply with the building standards applicable at the time of applying for retrospective approval. The building surveyor will need to gather relevant information to be satisfied compliance with applicable building standards has been met. This will usually entail an inspection by the building surveyor, obtaining engineering certification where relevant and all other details to ascertain compliance with applicable building standards. The building surveyor will require plans and specifications that show how the as-constructed building or incidental structure complies with each building standard in accordance with r. 36.

It should be noted that the engagement of a building surveyor for certification services does not guarantee automatic certification. If the building surveyor is not satisfied that compliance has been met, the owner has the option of either:

  • removing the unauthorised structure;
  • carrying out further remedial works that may be required; or
  • face the risk of enforcement action by the permit authority.

Any demolition or remedial work may require a permit and should be referred to the relevant permit authority for advice.

What enforcement action can a permit authority take?

Whilst time limits apply under s. 133 of the Building Act in relation to when a prosecution can commence for an offence such as doing building work without a building permit, this does not prevent a permit authority serving a building order at any time to an owner in relation to unauthorised building work.

A building order may specify what needs to be done about a building or incidental structure, such as remedial works or removal of unauthorised works. This is a
matter the permit authority will consider on a case by case basis.

If you are concerned that a building or incidental structure on a property you own or are thinking about purchasing may not have the necessary approval contact the relevant permit authority to confirm what building approvals have been granted.

NEXT – Section 10: Processing applications

BACK – Section 8: Change of classification or use of building

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