Advice for builders
Keep the neighbours happy! It is the little things that matter - make sure all workers:
- work within the permissible hours of work,
- use proper site toilets,
- refrain from swearing,
- limit noise,
- park their vehicles legally,
- keep the site clean, and
- keep the footpaths safe and clear of any material.
If you need temporary access to neighbouring land, consult with the neighbours, don't trespass. If damage happens, give them a written undetaking to fix it.
If your PCA is a private accredited certifier and that certifier doesn't act to Council's satisfaction to address breaches of development consent, Council can intervene - read our Private Principal Certifying Authority (PCA) Complaint Policy (43.99kB).
This normally occurs when your neighbours have given the PCA an opportunity to resolve breaches with you and nothing happens.
There should be no misapprehension; if you breach your consent honestly or otherwise and the issues are not resolved through compliance, an application to amend the consent or a building certificate application, is appropriate. Council can intervene, taking appropriate action under Part 6 of the Environmental Planning and Assessment Act and other environmental laws. In the first instance, breaches are routinely dealt with by Penalty Infringement Notices but more serious matters go directly to court.
Why do I need to comply with Council approvals?
It is a criminal offence if you don't comply with Council approvals and the conditions attached to such approvals. If prosecuted, you could end up with a criminal conviction.
When you execute any work as the Principal Contractor, or as a Sub-Contractor, you take the benefit of the Council approval to do the work lawfully.
Therefore you are liable to summary enforcement (fines and/or prosecution) or Civil Enforcement (injunctions or other court orders action) if you breach any Council approval. If your client asks you to do work not approved by Council, you should refuse to do such work until the required approval is acquired by you.
How does the Home Building Act require compliance with Council approvals?
If the work is subject to the provisions of the Home Building Act, contractors have a Statutory Warranty. See section 18B of the Home Building Act.
The Office of Fair Trading's Standard Contract provides contract clauses which require the contractor to:
- comply with all relevant Australian Standards, laws and the requirements of the relevant local Council and all statutory authorities with respect to the work (clause 3)
- comply with the Statutory Warranty including the work to be done in accordance with, and will comply with, the Home Building Act or any other law (clause 9)
- unless obtained by one of the parties prior to the date of the contract, the contractor must promptly apply for, and bear the cost of, all necessary application fees for approval of the work. The contractor must also apply for and obtain, at its expense, all approvals required from any public authority to occupy and use the completed work. The cost of doing so and all fees are included in the contract price. (clause 15)
- in carrying out the work the contractor must comply with the codes, standards, specifications and conditions of consent as set out in Clause 3. If, due to such a requirement, the plans or specifications have to be amended, the contractor must immediately advise the owner in writing explaining the reason for the change. Any agreement to vary the plans and specifications for the work must be in writing and signed by both parties. (clause 18)
- make good, at the contractor’s own cost, any damage to footpaths and kerbs to the Council’s satisfaction. (clause 18)
- must, unless otherwise stated, comply with the Building Code of Australia, to the extent required under the Environmental Planning and Assessment Act 1979 (including any instrument made under that Act), Australian Standards and relevant NSW legislation. (clause 18)
- must allow the owner, any person authorised by the owner [the Principal Certifying Authority or other person] or an authorised officer of the lending authority, if any, access to the site to view and inspect the work in progress. (clause 19)
- must effect and maintain public liability insurance and property damage insurance until completion of the work, (clause 22)
Will Council issue warnings about breaches?
Council may not give any warnings before taking legal proceedings or issuing fines for any breaches. Read more about Council's Enforcement Policy.