Monday 27 July 2026

Our Town Planning team often receive enquiries from clients who, for various reasons, need to have unlawful works that were previously undertaken without the appropriate approval rectified for legal occupation. We recently attended a webinar presented by Dentons Australia’s Sydney legal team to gain an understanding of the most recent legal requirements. 

Usually, the owner of a property will be made aware of unlawful works or usage on their property either during the sale or purchase of the property or after a Notice of Intent to issue a Development Control Order (DCO) from the consent authority (i.e. local Council). The DCO will outline the intention to issue an order, the terms of the order, a period for compliance and the opportunity to respond. 

A DCO can include requirements such as stop construction works, cease the unlawful usage of the site, demolition of works, stop demolition of works or restorative works. The DCO can be issued to either the owner or the person undertaking the works. There are very strict guidelines the consent authority must comply with as outlined in the Environmental Planning & Assessment Act 1979 (EP&A Act). If the person who is issued a DCO does not comply with the order, criminal or civil proceedings may occur. 

Mechanisms to regularise and rectify 

There are ways that you can regularise or rectify the works or usage to satisfy the consent authority. 

Building Information Certificate (BIC) – this applies only to unlawful construction works, not the usage of the land. Most BIC applications will provide plans to show the works undertaken, provide structural engineering plans and any other relevant plans or reports for the specific works. Once issued, the BIC will be valid for seven years, and further BIC’s must be lodged every seven years to ensure the validity of the BIC. 

Section 4.55 Modification (MOD) - A MOD to an existing approved DA consent can be made to change the usage of the site or building to the required use, as long as it is shown that it meets the ‘substantially the same’ test required by the EP&A Act. It cannot retrospectively approve unlawful construction works. 

New Development Application (DA) – A new DA can be made to change the usage of the site or building to the required use. Again, it cannot retrospectively approve unlawful construction works. 

Planning Proposal (PP) – A PP can be made to amend the Local Environmental Plan (LEP) to change the land use category and make the usage permissible without consent, however this process is quite complex and time consuming. 

The legislative requirements for unlawful works are quite complex and we recommend to engage with a Town Planning expert early to ensure deadlines at met and that the owner shows the consent authority that they are committed to rectifying the unlawful development.