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Unauthorised development – what is Council’s liability and where is the balance?

A bucolic vista of Byron Shire. Photo Ziggi Browning

Aslan Shand

Further to Council’s aggressive plans to pursue unauthorised development in the Shire’s hinterland, The Echo spoke to Professor John Sheehan, a leading expert on property rights, who explained the issues that both Council and landowners face with regards to development and compliance.

‘Any Council has a balancing act to play between what is reasonable to ask a landholder to do, and the legislation,’ said Professor Sheehan.

He says Council can be liable if they knowingly allow unauthorised dwellings to be built.

‘Councils are very nervous at the moment as the recent fires have triggered the issue of public liability.

‘Buildings erected over the last 20 years are in trouble if they haven’t got a development application (DA), because they don’t have the excuse of saying they didn’t know they needed a DA.

‘However, Council could have discretion to say that basically you need to make these [specified] improvements. Owners and Council enter an agreement to [only require] certain minimal standards – because they have been approved in the past.

Estoppel

‘In relation to structures [built] in the 1960s and 70s that may originally have been basically unlawful in a sub-division, like multiple occupancies (MOs), there is the potentiality to use the principle of estoppel.’

Professor Sheehan said, ‘Council could be stopped, because those buildings have been around for 50 years, and they may not be able to enforce a demolition; but they could potentially ask for basic standards to be met.

‘They key here is that there has to be a balance achieved. Council may require some fire improvements for example, and then Council could negotiate these with the landowner if the Council chose’.

Professor Sheehan also points out that there are other avenues that councils can use to work with landholders who may have an illegal building or buildings, including a certificate of non-action, and looking at agreements over fire evacuation routes. 

‘A certificate of non-action recognises that there are aspects of the building etc that don’t comply, but Council essentially says, “We aren’t going to take action”. This reduces Council’s risk, while allowing the building to remain’.

In the leading case on such matters, Warringah Shire Council v Sedevic (1987), Justice Kirby declined to support Warringah Council’s order. That is because, ‘The Court has to be convinced there will be significant detriment if the order is not carried out,’ said Professor Sheehan.

‘This case is important in such matters where there is going to be significant financial and emotional disruption to the landowner, and there is no significant impact on the community overall [if the work is not carried out]. In which case, the courts can decline to support Council’s order’.

Draft unauthorised dwellings policy on exhibition

With Council’s Draft Unauthorised Dwellings Policy currently on exhibition until October 21, now is the time to have your say on how the policy can be developed equitably.

MARRA (Main Arm Rural Residents Association) President, Duncan Dey, is preparing a submission on the draft policy, and a proforma submission with instructions on how people who care to can lodge their own submission by selecting points from it that articulate their views.He said, ‘Council has every right to ignore anonymous or offensive submissions. MARRA suggests that, if a landowner or resident fears reprisal for what they want to submit on the policy, then they get a friend or relative to make the submission. Council has to consider and deal with legitimate points made in submissions, independent of who writes them’.

The policy is online at www.yoursaybyronshire.com.au/unauthorised-dwelling-policy. Anyone who has received Council’s letters can email MARRA on [email protected].

Councillors in ongoing discussion about response

Over the last several weeks, The Echo has attempted to collect comment from councillors on their position on the Draft Unauthorised Dwellings Policy, which is now on exhibition.

Councillor Michael Lyon told The Echo, ‘Many of us councillors are uncomfortable pursuing a course of action that could lead to the making homeless of dozens, if not hundreds, of our residents. There certainly aren’t that many places in the Shire for rent right now, so the consequences would be devastating,’ he said.

‘Discussions are ongoing as to how we ensure we compassionately navigate this balancing act between safety, compliance, and residents’ housing needs. For a lot of people it is simply a matter of cost, and in these instances we may have to be accommodating. Pun unintended.’


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