QLD Uncertified Building Permit Dispute with Council - What to Do?

[Thorogood]

Hello

I'm hoping to get some help on a matter of uncertified buildings that has been going on now for almost a year...

About 10 years ago, we placed two demountable/portable buildings/dongas on our property. At the time, the men we had do the job claimed they placed the buildings according to standards -- they levelled the area and placed the buildings on stumps.

Since then, we have had a builder come and go over the years doing work to make these buildings suitable for a bed and breakfast. Once again, the builder claimed to be doing everything according to code. We approached council to enquire what approvals were needed for us to operate the B&B and they confirmed that as long as we met the criteria they gave us in regard to number of rooms, guests, etc. (which we did meet), then nothing else was needed from us and we could go ahead and operate. That was in June 2014.

About 12-18 months after opening, just under a year ago, we were reported to council and ordered to get the appropriate certifications. We approached just about everyone in the state, but we were unable to locate anyone who would come out to inspect the buildings and any advice given on the matter was that the buildings would need to be lifted and restumped. This is just not an option for us, as doing so would not only mean massive amounts of money but would destroy all the work done to the buildings.

Unable to find someone to do a retrospective certification for us, the council then ordered us to close and gave us until the end of March to "have the necessary building and plumbing applications finalised with Council". Still unable to find someone to do the job for us, we decided to simply remain closed and write it off.

However, today we received another letter from council stating that "a search of the building and plumbing approval history for this property by staff failed to identify permits as required". It goes on with: "The time granted for obtaining the relevant approvals under Council's consideration of your case has passed.

"The use of the premises for a host home facility must cease ... Further the unapproved buildings and plumbing works are to be dismantled and removed unless you obtain a building approval for other uses by 31 May."

Obviously, we are very concerned with this and are wondering at the legality of such a demand. We're asking for any insight as to how we can handle this matter, especially considering the tight deadline given.

Thanks in advance,

 

[Rod]

I'd be trying harder to find a builder that specialises in remedial work or renovations. Might have to offer more money to make it worth their while.

 

[Thorogood]

Hello Rod and thanks for your input.

Whilst we appreciate that it may, indeed, be more difficult to find someone who'll do the work at this stage, that's not our primary concern. As we said, we have thus far been unable to locate a building certifier who will do a retrospective certification, whether or not we have the builder to do the work.

We are, of course, still trying to find a certifier who'll do the job, but our concern now is the tight deadline Council has given us. Should we be unable to find a certifier, Council is telling us we need to dismantle -- to pull down -- the buildings. We don't particularly want to do this. The whole project has been a major investment for us and pulling it down is only going to cost us more.

What we would like is a solution to our problem. Is there some way we can avoid having to proceed with the so-called dismantling of the buildings?

 

[Rob Legat - SBPL]

This gets fairly complicated from a building and development standpoint, and isn't really my area. It also will depend on what your local council requires. However my understanding of what has happened from what you've said is:

- Your initial build was of a temporary nature. Temporary buildings generally don't have to meet the same requirements as permanent structures because of their temporary nature. Under the Building Act, temporary structures may only remain for a limited period and must be removed at the end of that period.

- You basically converted their use from 'temporary' to 'permanent' over time. Whether this was on purpose, or not, is up to you - but it doesn't change the outcome.

- The builder who converted them for the B&B use should have known better, and should have checked the current certifications before proceeding. This is especially the case if a development approval was needed for the zoning of the land.

- Councils don't generally check too much into whether what you've done in the past is correct - they shift that responsibility on to you, the owner.

- It can be incredibly difficult to get someone to sign off on something retrospectively - especially if they didn't do it, and doubly so if they can't see it. Things like plumbing and wiring can be hard to access. Foundations can be downright impossible. Even with a plan, if someone can't eyeball what's actually there then they can't legitimately sign off on it.

Any certifier who is willing to do so is not worth engaging.

- Councils will be absolute sticklers for compliance with the building codes. If they're not, and something happens, they're inviting a law suit.

- Councils can issue an enforcement notice under the Sustainable Planning Act requiring the removal or demolition of a building if it is not possible and practical to make the works compliant, or they are a danger. Given they were probably temporary in nature to begin with, and the Building Act requirements about removal, removal may be an ultimate requirement.

I suggest you go back through all the approvals from the beginning and see if you can see if and where the problems lay. Then, contact the person/business who did that certification and seek their help.

As part of all that, I further suggest you find a lawyer who is well versed in planning and development and get some advice, given the initial nature of the structures. It may be a long and tedious process, but otherwise you run the risk of council revoking any approvals you have for the existing structures.

 

[Thorogood]

Thanks, Rob, for your detailed answer.

As you say, yes, it is incredibly difficult to find someone to do a job like this, which is why we have yet to proceed with the certification.

As far as any previous certifications for the buildings... Unfortunately, as I explained in my OP, we were unaware that we needed any certification and were simply told that everything was to standard. As such, there were no previous certifications in place, just verbal communication that everything was in order.

As far as we are aware, it is common practice for a building certifier to request a Building Form 15—Compliance Certificate for Building Design or Specification under the Building Regulation 2006 for matters such as building design energy equivalence and energy efficient lighting. It is however not a mandatory requirement. The building certifier may then reasonably decide not to impose conditions for upgrading the existing part of the building in circumstances where they consider that applying the new building requirements would either not provide a level of benefit commensurate with, or exceeding, the additional costs, or otherwise be overly onerous or technically impractical.

Is this an aspect we are able to explore?

Finally, we are just not in a position financially to afford the legal costs involved in a situation like this. As you've said, it would be a long process. I suppose what we're asking is if there is any way for us to either get these buildings certified or, if we're unable to do that, avoid the dismantling of the buildings.

 

[Rob Legat - SBPL]

I doubt that will be an aspect you can look into, as missing any of the mandatory certifications (eg plumbing) is going to undo you completely.

While I can't recommend any certifiers (both in terms of liability and because I don't have any usable connections), you might want to Google "retrospective building approval qld" and have a look at the results.

 

[Thorogood]

As I said originally, Rob, we have exhausted our list of potential certifiers, both retrospective and otherwise.

However, as it happens, we have come across one last contact who we will be meeting with next week. So far, he is very confident that he will be able to assist us, so I'll let you know what happens.