Remedying Unauthorised Building, Development and Use in New South Wales: Ireland, Buyozo and Goldcoral Reconciled — A Consolidated Procedure
Brett Daintry, Director, Daintry Associates Pty Ltd
12 August 2026
Some practitioners and councils continue to mishandle unauthorised building work by directing owners toward applications the law does not permit. A development consent or modified development consent can never retrospectively authorise development already carried out: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177. The only statutory mechanism addressed to the works as executed "WAE" is the building information certificate under Division 6.7 of the Environmental Planning and Assessment Act 1979 (NSW), assessed by reference to the "notional development application" test in Ireland v Cessnock City Council (No 2) (1999) 110 LGERA 311. Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 has now clarified that development consent may nonetheless be granted for prospective works that amend, upgrade or replace unlawful works, and for the future use of the building as remediated. This paper consolidates the authorities into a procedure — certificate for the existing fabric, consent for prospective remedial works, consent for future use — and reconciles Ireland with Goldcoral as complementary, not competing, doctrines. A closing section (Section 9) addresses how this framework will operate once the Building (Approvals and Practitioners) Act 2026 (NSW) — which replaces construction certificates with building approvals and occupation certificates with completion approvals, while retaining the building information certificate — is proclaimed. The paper also draws attention to a legislative reversal that appears to have gone unremarked in the commentary published to date: the new Act’s post-commencement authorisation reintroduces, in a controlled form, the post-commencement certification that former section 109F(1A) was enacted to prohibit when Parliament reversed Marvan Properties in 2006 (Section 9.3). The material provided represents a summary of the regulatory landscape as understood at the time of publication.
Building work carried out without approval, or otherwise than in accordance with an approval, and uses commenced without development consent, present one of the most frequently mishandled problems in New South Wales planning practice. Landowners are routinely advised to "lodge a development application for retrospective approval". That advice is wrong. A development consent can never retrospectively authorise development that has already been carried out: the point was settled beyond argument by the Court of Appeal in Ku-ring-gai Council v Buyozo Pty Ltd,1 and, as Section 2 demonstrates, it had been settled law for the better part of seventy years before that decision.
What the planning system provides instead is a set of forward-looking mechanisms by which unauthorised development may be "regularised". Two distinct subject matters must always be separated: the physical fabric of the building as executed, and the use of the building. The fabric is addressed through a building information certificate ("BIC") under Division 6.7 of the Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act") — a certificate of non-action, not an approval. Future physical works to amend, upgrade or replace the fabric are addressed through a development application ("DA") for prospective remedial works. The future use of the building is addressed through a DA (or, where a consent exists, a modification application) for that use. The streams engage different statutory mechanisms and different tests, and they may run sequentially or, increasingly, together.
Two decisions anchor the analysis. Ireland v Cessnock City Council (No 2)2 supplies the threshold test for the BIC: would consent probably have been granted had a proper application been made for the works at the time they were carried out — the "notional development application". Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council3 confirms that there is no legal principle preventing the grant of development consent for prospective works that amend, upgrade or replace unlawful works, and for the future use of the amended building. The two decisions are sometimes presented as being in tension. They are not: they operate on different statutory mechanisms at different points in the process, and the perceived tension is one of sequencing and strategy, not of legal principle (Section 6).
The paper proceeds as follows. Section 2 traces the prohibition on retrospective approval from Tennyson Textile Mills to Buyozo. Section 3 sets out the statutory framework and effect of the BIC. Section 4 explains the notional development application assessment. Section 5 examines the Goldcoral clarification. Section 6 reconciles the authorities. Section 7 consolidates the material into a six-step procedure, and Section 8 offers observations on fees, deterrence and reform. Section 9 considers how the procedure will change once the Building (Approvals and Practitioners) Act 2026 is proclaimed.
The requirement that approval precede work is as old as the approvals system itself. Section 311 of the Local Government Act 1919 (NSW) provided that a building was not to be erected or altered "unless the approval of the council [was] obtained therefor beforehand". In Tennyson Textile Mills Pty Ltd v Ryde Municipal Council4 Sugerman J held that the Court could make no order on a building appeal where the work had already been done: "The whole scheme of the Act is directed to the necessity for obtaining approval before work is commenced."
The principle was applied without material deviation for four decades. Consent could not issue for a building already erected: Lowe v Mosman Municipal Council.5 Unlawful works could not be cured by a later consent: Lux Motor Auctions Pty Ltd v Bankstown Municipal Council6 and Holland v Bankstown Municipal Council.7 There was no power of ex post facto validation: Waverley Municipal Council v Parker8 and Roeder v Marrickville Municipal Council.9 A partly erected unauthorised building could be approved only as to its uncompleted balance: Longa v Blacktown City Council.10
The transition to the Local Government Act 1993 (NSW) and the EP&A Act changed nothing of substance. In Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council11 Talbot J held that an application to amend a building approval lodged after the work was complete was misconceived, because the applicant "was no longer a person seeking to carry out the activity", and observed that "[i]t is nevertheless difficult to perceive a situation where prior approval of the council can be obtained to erect a building which is already in existence" (at 195). Significantly, his Honour identified the building certificate — the statutory ancestor of the BIC — as the remedy available to the applicant.
Handley JA affirmed the line of authority in Tynan v Meharg (No 2):12
"Development consent may regularise for the future what had hitherto been an unlawful use of land or buildings, but the line of authority in the Land and Environment Court or its predecessor which was analysed by Sheahan J in Herbert establishes that these powers were not available, prior to Act No 152 of 1997, to regularise the unlawful erection of a structure." (at 121)
See also Signorelli Investments Pty Ltd v Sutherland Shire Council13 and, in the context of activity already undertaken, Marshall Rural Pty Ltd v Hawkesbury City Council14 — a development consent operates prospectively only.
A complication arose in the modification cases. Under the 1919 Act, approval could be granted for additions that depended for their efficacy on unauthorised work (Hooper v Lucas15), but not for a reframing of a completed application as something different (Rancast Pty Ltd v Leichhardt Council16). Under former section 102 (later section 96, now section 4.55) of the EP&A Act, Connell v Armidale City Council17 and Herbert v Warringah Council18 held that there was no power to modify a consent where the works the subject of the modification had already been carried out. Jacklion Enterprises Pty Ltd v Sutherland Shire Council19 marked a turning point, holding that a condition controlling the impacts of a subdivision could be modified even though building work had been carried out contrary to it. Windy Dropdown Pty Ltd v Warringah Council20 and Willoughby City Council v Dasco Design and Construction Pty Ltd21 then adopted a broad construction of the modification power, holding it available even where the relevant works had already been carried out — decisions criticised by Dr Ian Ellis-Jones as giving tacit encouragement to unauthorised work.22
With respect, whatever survives of the Windy Dropdown line, Buyozo (n 1) now confines it. The Court of Appeal held at [41] that "the existing development consent cannot be modified to authorise retrospectively the erection of the already erected building", although a further consent, or a modification, may authorise the use of that building in the future. Some councils have obtained advice reading Buyozo as setting aside the once-common practice of purporting to remedy unauthorised building works through section 4.55 applications in reliance on Windy Dropdown. It is submitted that this reading is correct insofar as the modification purports to authorise completed building work: the modification power, like the consent power, speaks only to the future.
The certification regime was aligned with the same principle by legislative intervention. In Marvan Properties Pty Ltd v Randwick City Council23 Talbot J held that a construction certificate ("CC") could lawfully issue under former section 109F of the EP&A Act notwithstanding that the work had commenced. Parliament promptly reversed the decision: former section 109F(1A), inserted with effect from 3 March 2006, provided that a CC has no effect if issued after the building work to which it relates is physically commenced, for the reasons explained in Planning Circular PS 06-004.24 The same integrity principle underlies Over Our Dead Body Society Inc v Byron Bay Community Association Inc,25 in which Bignold J held that demolition and building work carried out ahead of the issue of a CC contravened former section 81A(2). Certification must correspond with, and precede, the approved work. The current significance of section 6.6 of the EP&A Act should also be noted: a person who commences building work without appointing a principal certifier is liable to prosecution, and the subsequent work is unlawful, with potentially far-reaching consequences — including that work carried out in breach of section 6.6 may not qualify as building work for the purposes of preventing the lapsing of a development consent. It is worth flagging at this point — and the paper returns to it in Section 9.3 — that the Building (Approvals and Practitioners) Act 2026 will, once proclaimed, qualify this very prohibition, reintroducing in a controlled form the post-commencement certification that former section 109F(1A) was enacted to forbid.
The Court of Appeal in Buyozo (n 1) stated the governing principle in terms that admit of no exception, at [39]:
"This essential characteristic of the grant of development consent means that a development consent cannot be granted to authorise development that has already been carried out, such as the erection of a building that has already been erected, the carrying out of a work that has already been carried out or the demolition of a building or work that has already been demolished. A development consent can never retrospectively approve the carrying out of development, but can only prospectively approve the carrying out of development. In the examples given, this would mean that development consent could be given for the use in the future of an already erected building or already carried out works or the use of the land on which a building or work was demolished."
Consent and certification therefore operate prospectively only. The sole statutory mechanism presently addressed to the works as executed is the building information certificate, to which the paper now turns. (As to the position once the Building (Approvals and Practitioners) Act 2026 is proclaimed, when a "post-commencement authorisation" will also engage building work already carried out, see Section 9.3.)
A BIC is issued by a council under Division 6.7 of the EP&A Act. Its effect, under section 6.25, is to prevent the council, from the date of issue, from making an order (or taking proceedings for the making of an order or injunction) under the EP&A Act or the Local Government Act 1993 (NSW) requiring the building to be repaired, demolished, altered, added to or rebuilt, and from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council. "Building" is defined broadly and includes part of a building and a structure or part of a structure (section 1.4 of the EP&A Act).
A point of precision is warranted here, because the received shorthand — that a BIC "protects the building for seven years" — is inexact. In relation to matters existing or occurring before the date of issue, the certificate operates indefinitely (section 6.25(3)); the seven-year operation applies only to matters arising from the deterioration of the building as a result of fair wear and tear (section 6.25(4)).26
What a BIC is not must be stated with equal precision. It is not an approval, and it is not a certificate of compliance in any respect. It does not approve the building retrospectively, does not make unlawful work lawful, does not authorise the use of the building, does not entitle the owner to an occupation certificate, and does not preclude the council from prosecuting the person who carried out the unlawful works (section 9.50 of the EP&A Act). Nor does it prevent development control orders in the nature of fire safety orders, or building product rectification orders under the Building Products (Safety) Act 2017 (NSW).26 It is, in substance, a certificate of non-action: the council, having considered the application, certifies that it will not take the specified enforcement action in respect of the building as it stands. An application may be made — making no admission as to any existing or ongoing breach of the EP&A Act — with respect to all or part of a building, and BIC appeals concerning unauthorised works have long been a staple of the Court’s Class 1 list.29
An application may be made by the owner of the land (or another person with the owner’s consent), by a purchaser under a contract for sale (or the purchaser’s legal practitioner or agent), or by a public authority that has notified the owner. The application must be lodged through the NSW Planning Portal under the Environmental Planning and Assessment Regulation 2021 (NSW) ("EP&A Regulation"), and the content of the certificate itself is prescribed by section 289 of the EP&A Regulation. Two procedural rules are unforgiving. First, a BIC application cannot be amended once lodged; if the scope is wrong, the application must be withdrawn and a fresh application made: Scarf v Shoalhaven City Council.27 Secondly, the lodgement requirements must be strictly complied with: Malass v Strathfield Municipal Council.28 The practical lesson is clear: the works the subject of the application must be identified exactly, and before lodgement (see Step 1 in Section 7).
The council may require the applicant to supply such information — building plans, specifications, survey reports, engineering certificates — as is reasonably necessary for proper assessment (section 6.26(2)). If the council refuses to issue the certificate, its notice of determination must state reasons sufficiently detailed to inform the applicant of the work that needs to be done to enable the certificate to issue (section 6.26(4) and (5)). Section 6.26(7) then confers a mechanism of considerable practical utility:
"Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building information certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work."
An applicant dissatisfied with a refusal, a failure to determine, or a notice to supply information may appeal to the Land and Environment Court under section 8.25 of the EP&A Act within six months. A deemed refusal arises forty days after the application is made, or forty days after information is supplied in response to a notice under section 6.26(2) (section 248(2) of the EP&A Regulation). On appeal the Court may direct the council to issue the certificate on such terms and conditions as it thinks fit, and may "make any other order that it considers appropriate" — a deliberately broad discretion.26
Finally, a council cannot insist on a BIC application being made, whether as a term of dealing with unauthorised works or by condition of consent; the choice lies with the landowner, although the council retains its statutory discretion and enforcement options (Echt)40 if no certificate is obtained.26
The statutory question on a BIC application is set by section 6.25(1): the council must issue the certificate unless there is a "matter discernible by the exercise of reasonable care and skill" that would entitle the council to make one of the specified orders or take the specified proceedings — or, where there is such a matter, the council may nonetheless issue the certificate if, in the circumstances, it does not propose to act. The assessment therefore proceeds through two lenses: a planning lens, directed to whether the building is acceptable in planning terms, and a technical lens, directed to structural adequacy, safety and compliance with the National Construction Code ("NCC", incorporating the Building Code of Australia).
The planning lens is supplied by the notional development application. In the first Ireland v Cessnock City Council decision30 Bignold J stressed that the focus of a building certificate appeal is on planning considerations — structural safety and impacts — and not on punishing past unlawful conduct; any punitive function belongs to a different class of proceedings. In Ireland (No 2) (n 2) his Honour framed the hypothetical inquiry at [31]–[32]: would consent probably have been granted if a development application for the works had been lodged at the time they were carried out? The inquiry is a broad planning judgment — zoning, height, setbacks, privacy, overshadowing, bulk and scale, streetscape, environmental impacts, and the building’s general fit with the applicable controls. It is not a full merits assessment of the kind required for an actual development application: Mineral Wealth Pty Ltd v Gosford City Council31 confirms that no de novo section 4.15 evaluation is required, and further that where an actual development application is before the council there is no need for the notional exercise at all.
The notional approach has been applied consistently: Taipan Holdings Pty Ltd v Sutherland Shire Council at [60]–[61];32 Lee v Randwick City Council at [18];33 Griffis v Tweed Shire Council at [9]–[10];34 Chhabra v Ku-ring-gai Council at [69]–[79];35 Arriguetti v Georges River Council [2025] NSWLEC 1814 at [128];36 and Walker v Queanbeyan-Palerang Regional Council at [75].37 The Department’s Building Information Certificates Practice Note (October 2022) adopts the same framework.26
The manner in which the discretion is to be exercised was settled in Ireland (No 2) (n 2), where Bignold J stated at 316 [38]:
"The proper approach to be taken to the available discretion will generally be that outlined in the judgment of King CJ of the South Australia Supreme Court in Kouflidis v Salisbury City Corporation (1982) 29 SASR 321; 49 LGERA 17, namely to leave to the criminal law, the punishment of the unlawful conduct involved in the erection of the building and to determine the present application on the merits, but taking care not to allow the wrongdoer to benefit from his wrongdoing."
The author has always interpreted "not to allow the wrongdoer to benefit from his wrongdoing" as reducing, in the BIC context, to a single question: had the proper development application and construction certificate application (or complying development certificate application) been made, would a reasonable consent authority have granted approval to the works as executed?38
The irrelevance of past unlawfulness was definitively addressed by Preston CJ in Jonah Pty Ltd v Pittwater Council:39
"The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however, that past use — without any consideration of its unlawfulness — cannot ever be relevant. … The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant." (at [37]–[38])
The principle admits of compressed statement: past unlawfulness informs impacts only. His Honour also cautioned that "[n]o assumption should be made that the Council will be successful in establishing the unlawfulness of the past use or, if unlawfulness is established, that the Court would restrain that use". Where proposed works support a continuing use, the question is accordingly not whether the proposal increases the impacts of the use — even a proposal that reduces impacts must be assessed against the correct benchmark — but whether the cumulative impacts of the use, in its totality, are acceptable.
The council’s enforcement discretion frames the whole exercise. In Ryde City Council v Echt40 the Court of Appeal confirmed that a council has a "responsibility" to enforce the law, but immediately qualified the nature of that responsibility:
"However, in this context the word ‘responsibility’ has an allusive sense. It does not support anything in the nature of a legal obligation to act on statutory power which is enforceable at the insistence of a third party."
Councils accordingly have discretion as to what action, if any, they take, considering all the relevant effects of the unauthorised work, exercised in accordance with the council’s adopted compliance and enforcement policy. Where works have existed for decades without demonstrated environmental harm, and removal would impose cost and inconvenience with no demonstrable private or public benefit, the proper exercise of that discretion will often favour the issue of a BIC and no further action: demolition in such circumstances is disproportionate to the (non-existent or inconsequential) adverse consequences of the works remaining.
The technical lens requires the building to be structurally adequate and substantially compliant with the NCC: structure, fire safety, waterproofing, stormwater, glazing, balustrades, retaining walls, and health and amenity standards. Serious defects or safety risks constitute a discernible matter and will ordinarily lead to refusal or to deferral under section 6.26(7) (see Step 2 in Section 7). Where no occupation certificate has issued, councils will typically require evidence of the following kind in support of a BIC application:
● a detail and identification survey from a registered surveyor;
● works-as-executed ("WAE") drawings from an architect or registered building designer, showing any differences between the approved plans and the works as executed;
● structural engineering certification that the works as executed are structurally sound and adequate under the NCC, including ancillary elements such as balustrades and retaining walls;
● smoke detection and alarm certification (NCC and AS 3786);
● wet-area waterproofing certification (NCC and AS 3740);
● WAE stormwater drainage plans and engineering certification (NCC and the relevant AS/NZS 3500 series);
● glazing certification;
● termite management certification;
● a fire safety assessment, BASIX certificate and geotechnical report where applicable; and
● a quantity surveyor’s report establishing the value of the work as paid to the builder.
The stronger the technical evidence, the better the prospect of regularisation. The assessment criteria, and the correct legal approach to each, may be summarised as follows.
Assessment criterion | Correct approach | Authority |
Planning merit | Assess whether the building is acceptable against planning controls, safety standards and environmental considerations — not whether it was constructed without consent. | Ireland (No 1) (n 30); Ireland (No 2) (n 2) |
Unlawfulness of past works | Not determinative. The applicant must not gain an advantage from unlawful conduct, but refusal cannot rest solely on past breach. | Kouflidis (n 38); Ireland (No 2) (n 2) |
Public interest | Consider community impacts, precedent and the integrity of the planning system, within the council’s enforcement discretion. | Echt (n 40) |
Prospective compliance | The key question is whether the works, as executed, would probably have been approved on a proper application. | Ireland (No 2) (n 2); Jonah (n 39) |
Moral judgment or penalty | Outside the scope of the BIC assessment; punishment is for the criminal law in other proceedings. | Ireland (No 1) (n 30); Jonah (n 39) |
Retrospective approval | Not available. Development consent cannot retrospectively authorise completed works; the BIC is the mechanism for the works as executed. | Steelbond (n 11); Buyozo (n 1) |
Prospective amendment by DA | Consent may be granted for future works that amend, upgrade or replace unlawful works, and for future use, whether or not the applicant was responsible for the original breach. | Goldcoral (n 3); Jonah (n 39) |
Before Goldcoral (n 3), the orthodoxy was rigid. The "proper sequence" for regularising the unlawful erection and use of a building was to determine the BIC for the as-built work first, and only then to consider development consent for its ongoing use: Walker (n 37) at [75], citing Griffis (n 34) at [9]–[10]. Consent authorities frequently treated the very existence of unauthorised works as an impediment to any further consent touching them, relying on an expansive reading of the "no advantage from illegality" principle derived from Kouflidis (n 38) and pressed in cases such as Ralph Lauren 57 Pty Ltd v New South Wales Transitional Coastal Panel.41 Applicants, for their part, often withheld development applications for works associated with unlawful fabric, fearing refusal as an impermissible retrospective consent. While Buyozo (n 1) had confirmed that consent cannot retrospectively authorise unlawful works, uncertainty remained as to how legacy unauthorised construction could be accommodated within a lawful, forward-looking remediation pathway without being treated as indirectly validated.
Goldcoral resolved that uncertainty. The proceedings were a Class 1 appeal concerning the long-contested Iron Gates land at Evans Head, on which unlawful works — an internal road through littoral rainforest and a drainage channel, among others — had been carried out by previous owners decades earlier. The council submitted that consent could not be granted to development that would upgrade and make future use of that unlawful fabric, because the applicant would thereby gain an advantage from illegality. Preston CJ rejected the submission in emphatic terms, at [53]–[54]:
"The Council’s argument is misguided. There is no legal principle that development consent cannot be sought to carry out development to erect a building (which includes a structure) or to carry out works that would amend a building or works that are unlawful, and then to use in the future the new or amended building or works. That was recognised in Ralph Lauren at [128]. Contrary to the Council’s contention, development consent can be granted to the development proposed by Goldcoral to carry out works to upgrade the stretch of internal road through the littoral rainforest, to revegetate and use for conservation purposes the existing drainage channel in the littoral rainforest and to upgrade and use the road, bridge and infrastructure on Iron Gates Drive.
The granting of development consent for these works and uses does not allow Goldcoral to gain advantage ‘from having established an unlawful use’. As a matter of fact, Goldcoral did not establish the unlawful use either on the land or on the now dedicated public road, Iron Gates Drive. The works on the land were carried out by the previous owners of the land. Goldcoral purchased the land with those works already constructed. … Moreover, Goldcoral is not making any argument based either directly or indirectly upon the unlawful use of the works on the land or Iron Gates Drive."
At [55] his Honour disposed of the council’s counterfactual argument — that had earlier remediation orders of the Court been complied with, the drainage channel would no longer exist — as immaterial: the applicant sought to use the channel not as a drainage channel but as a revegetated buffer protecting the littoral rainforest, the very purpose the earlier orders in Oshlack v Iron Gates Pty Ltd42 had sought to achieve.
Goldcoral therefore establishes, or clarifies, the following;
First, a development application may be lodged, and consent granted, for prospective works that amend, upgrade or replace existing unlawful works, even while those unlawful works remain in place.
Secondly, consent may also be granted for the future use of the amended building or works.
Thirdly, the Buyozo principle stands untouched: the consent must seek approval for future physical works and future use, not for the past carrying out of the original unlawful work.
Fourthly, such a consent confers no advantage from illegality, because it operates prospectively and does not purport to legitimise the works as executed.
Fifthly, the culpability of the applicant is not determinative — and on the author’s reading, where the applicant committed no offence against the EP&A Act (as in Goldcoral itself, where the works were carried out by previous owners: at [54]), the "no advantage" submission has no work to do at all. Even where the applicant was the original wrongdoer, Jonah (n 39) confirms that moral judgment forms no part of the merits assessment; unlawfulness alone is not a ground of refusal, punishment being reserved to the criminal jurisdiction.
The practical consequence is a clean separation of statutory functions. Prospective demolition, remedial and upgrade works required to bring a building to a lawful and occupiable state are authorised by a new development consent and implemented through a new construction certificate (building approval upon commencement of the Building (Approvals and Practitioners) Bill 2026) , with certification confined strictly to those remedial works — consistent with Buyozo (n 1) and with the principle that building work may not run ahead of its certification (Over Our Dead Body, n 25). The BIC is left to perform its proper and limited role in respect of the works as executed: preventing enforcement action against the existing fabric without approving, certifying or enabling occupation of it. An occupation certificate (completion certificate ) upon commencement of the Building (Approvals and Practitioners) Bill 2026) may then issue — but only for the building as remediated under the new consent and construction certificate. The pathway lawfully disentangles past unlawfulness from future authorisation.
Goldcoral also reshapes Class 4 enforcement practice. Because a development application for prospective remedial works is lawful and capable of resolving the mischief the subject of the proceedings, the Court may be persuaded to adjourn civil enforcement proceedings to allow such an application — or a BIC application, or both, running in parallel — to be determined, in the exercise of the power to adjourn to enable an application to be made (formerly section 124(3) of the EP&A Act). Councils, correspondingly, may be more willing to defer enforcement while a remedial application is assessed, rather than insisting on a BIC first. The rigid "BIC first" orthodoxy has been softened into a set of options. Each matter will turn upon its own facts.
Properly understood, Ireland and Goldcoral do not compete; they govern different statutory mechanisms and different inquiries. Ireland (No 2) (n 2) governs the BIC: the certificate is concerned with the existing fabric, and the notional development application is the test for deciding whether the certificate should issue. The inquiry is backward-looking in its subject matter — it examines the works as executed — but forward-looking in its impact assessment. It authorises nothing; it asks only whether the existing building is acceptable.
Goldcoral (n 3) governs the development application pathway: an application may be made for prospective remedial works that will amend or replace unlawful fabric, and it is assessed under the ordinary section 4.15 framework — not the notional framework — because it is a real application for new works. It does not cure the past; it provides a lawful pathway forward.
In process terms the reconciliation is this. Where both a BIC and a prospective development application are in play: first, apply the Ireland (No 2) notional test to decide whether the as-built fabric can stand as it is — if yes, the BIC may issue; if no, the BIC will be refused unless the council elects not to enforce. Secondly, if remedial works are proposed, assess them under section 4.15 in the ordinary way — Goldcoral confirms this is lawful and proper. Thirdly, as to sequence: the traditional order was BIC first, then a development application for use (Walker, n 37), but after Goldcoral the remedial application and the use application may run in parallel with the BIC, particularly where the remedial works will resolve the very matters preventing the certificate from issuing. Ireland supplies the threshold test for the certificate; Goldcoral defines the scope of the consent power. The tension between them is one of sequencing and strategy, not legal principle.
This paper seeks to consolidate the authorities into the following six-step procedure.
The steps are presented sequentially, but Steps 2, 3 and 4 may, following Goldcoral, run concurrently where that best resolves the matter. A word of caution a BIC cannot be amended once applied for (Scarf, n 27; Section 3). This affects timing.
The procedure below is stated in the terms of the EP&A Act as presently in force. Once the Building (Approvals and Practitioners) Act 2026 is proclaimed, references to a construction certificate should be read as a building approval, and references to an occupation certificate as a completion approval, issued by an approval authority (see Section 9).
Establish exactly what was approved, what was actually built, and what use is occurring. This requires a review of the historical approvals, a site inspection, a detail and identification survey from a registered surveyor, works-as-executed drawings, and a comparison against the approved plans. The typical questions: is the building larger or higher than approved; were retaining walls, decks, basements or additions built differently; is the current use different from the approved use; was work done under a complying development certificate but outside its scope; was work commenced without a principal certifier being appointed (section 6.6 of the EP&A Act, with the consequences noted in Section 2)?
Unauthorised building work takes three principal forms, and each attracts a different assessment focus: work not in accordance with the development consent, complying development certificate or construction certificate in its height, shape, bulk, scale, configuration or materials, including breach of conditions (statutory planning considerations); work that fails to achieve BASIX commitments (environmental sustainability considerations); and work not in accordance with the NCC (building defect considerations). The BIC process does not deal with contract disputes. Precision at this step is critical for two reasons: later applications must clearly identify the exact works and uses being assessed, and a BIC application, once lodged, cannot be amended (Scarf, n 27; Section 3).
Fix the scope of the application exactly, then run the two assessments described in Section 4: the notional development application (planning lens) and the NCC compliance assessment (technical lens), supported by the documentary evidence listed in Section 4. Three outcomes follow.
First, if a reasonable consent authority would probably have granted approval to the works as executed, and the building is structurally adequate, the statutory discretion should favour the issue of the BIC — subject to the separate regularisation of use under Step 4, where consent for the use is required (it is not always required).
Secondly, if approval would not have been granted as the works stand, but identified works would make the building compliant with the NCC and fit for lawful occupation in accordance with its classification, the council should employ section 6.26(7) of the EP&A Act to defer determination, setting out the work required (Section 3). It is submitted that a notice under section 6.26(7) should be treated in the same way as a development control order, attracting the benefit of the provision of Schedule 5 to the EP&A Act under which a person who carries out work in compliance with a requirement of a development control order does not need consent or approval to carry out that work — the most efficient and effective resolution in the majority of cases (see Section 8).
Thirdly, if a reasonable consent authority would never have granted consent — Malass (n 28) is a recent example — the council should refuse the certificate and proceed by development control orders (Division 9.3 of the EP&A Act) or civil enforcement (Division 9.5), as its adopted enforcement policy and the Echt discretion (n 40) direct.
On fees: the Environmental Planning and Assessment Regulation 2000 (NSW) was amended — on the author’s direct submissions to the then Department of Urban Affairs and Planning — to insert clause 260(3A) and (3B), requiring an applicant using the building certificate process to remedy unauthorised work to pay, in addition to the base application fee, the development application and construction certificate fees that ought to have been paid had proper applications been made, calculated on the value of the work. The express purpose was to remunerate the consent authority for undertaking the notional section 4.15 review and the retrospective NCC assessment. The EP&A Regulation 2021 contains no equivalent; councils presently rely on fees adopted under section 608 of the Local Government Act 1993 (NSW), and the Department has indicated an intention to re-insert a prescribed BIC fee.26 Section 8 returns to this.
Where the building as it exists cannot pass the BIC assessment — excessive height, non-compliant setbacks, unsafe retaining walls, stormwater failures, fire safety deficiencies, unacceptable privacy impacts — the owner may lodge a development application for remedial works: lowering roof heights, modifying balconies, rebuilding retaining walls, upgrading fire safety systems, redesigning stormwater, reducing bulk, partial demolition and reconstruction, or removal of unlawful additions. This application is not retrospective approval; it is an application for new, future works intended to fix the problem, and Goldcoral (n 3) puts its lawfulness beyond doubt (Section 5).
The application is assessed under section 4.15 of the EP&A Act in the ordinary way. Past unlawfulness is relevant only through the evidence it provides of impacts (Jonah, n 39); the applicant’s culpability is not determinative. Typical supporting documentation includes architectural, demolition and remedial works drawings, a statement of environmental effects, engineering plans, landscape plans, and — as the site and proposal require — arborist, acoustic and traffic reports, BASIX certificate, waste management plan, shadow diagrams and visual impact analysis. The consent is implemented through a new construction certificate confined strictly to the remedial works, opening the pathway to an occupation certificate for the building as remediated (Section 5).
Even where the fabric can remain, the use may still require consent. The law distinguishes between the building and how the building is used: a building may survive under a BIC while the use remains unlawful. Common examples include conversion of a dwelling to short-term accommodation, use of a shed for a business, a restaurant, childcare centre, gym, medical centre or boarding house operating without consent, and unlawful industrial uses. Whether consent (or modification of an existing consent) is required depends on the characterisation of the use and the applicable environmental planning instruments; a prohibited use cannot be approved at all. Buyozo (n 1) at [39] confirms that consent may be granted for "the use in the future of an already erected building".
The use application is an ordinary merits assessment directed to operational impacts: noise, traffic, parking, hours of operation, loading, odour, waste and neighbourhood amenity, evaluated — per Jonah (n 39) — with the benefit of the actual experience of the past use, and against the cumulative impacts of the use in its totality. Typical documentation includes a statement of environmental effects, plan of management, acoustic report, traffic and parking report, waste management plan, fire safety statement, accessibility assessment and operational management documents.
The traditional sequence is BIC first for the existing building, then the development application for use: Walker (n 37) at [75], citing Griffis (n 34) at [9]–[10]. After Goldcoral, the remedial works application may be lodged immediately — before or alongside the BIC — and the use application may run in tandem, particularly where the remedial works will cure the matters preventing the certificate from issuing (Sections 5 and 6). In Class 4 enforcement proceedings, the respondent may rely on Goldcoral to seek an adjournment to allow a remedial application, and not only a BIC, to be determined, where that application could render the enforcement action unnecessary. The choice of sequence is now a matter of strategy: the state of the fabric, the urgency of any safety issues, the council’s enforcement posture and the applicant’s commercial position will dictate the order.
If unlawful works or uses are not addressed, the council may issue penalty infringement notices; make development control orders under Division 9.3 and Schedule 5 of the EP&A Act, including stop work, stop use, demolish works, restore works and compliance orders; prosecute in the Local Court or in Class 5 of the Land and Environment Court; or commence Class 4 civil enforcement proceedings. The council’s discretion is broad (Echt, n 40) and is ordinarily exercised in accordance with its adopted compliance and enforcement policy. Early investigation and proper documentation are the best protection.
A building affected by unauthorised works is incapable of attaining an occupation certificate as defined by the EP&A Act, because an occupation certificate depends upon a construction certificate that preceded the work. The only route to occupation is prospective: a new development application for remedial works or for alterations and additions, a construction certificate for those works, completion under the supervision of a principal certifier, and then the interim or final occupation certificate for the building as so completed. The commercial consequences of proceeding without certification were illustrated in Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd,43 where buildings of up to nine storeys had been constructed without a construction certificate; although the interlocutory injunction was refused on the balance of convenience (Craig J noting at [18] the significant financial impact on the workforce), the episode underscores the practical exposure: difficulty obtaining insurance, the prospect of purchasers rescinding contracts, and the inferior marketability of buildings lacking an occupation certificate.
It should be acknowledged why unauthorised work proliferates. The privatisation of certification from 1 July 1998 under the Environmental Planning and Assessment Amendment (Private Certification) Act 1997 (NSW) introduced a commercial relationship between certifier and developer that has generated well-documented conflicts of interest; councils have substantially reduced their building-surveying capacity since that date, leaving enforcement largely reactive; and the complexity of the Codes SEPP, environmental planning instruments and development control plans is itself an inducement to proceed without approval and deal with the consequences later. These systemic issues are documented in the Campbell Inquiry into the quality of buildings in NSW, the Shergold–Weir Building Confidence report (2018), the Audit Office of NSW report on building regulation (2019) and the NSW Legislative Council inquiry into the regulation of building standards (2022), and have been answered in part by the NSW Building Commissioner, the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), the Design and Building Practitioners Act 2020 (NSW) — including the statutory duty of care in section 37 (that Act is repealed by the Building (Approvals and Practitioners) Act 2026, which re-enacts the statutory duty of care and, on the reporting, extends it to certifiers: see Section 9.4) — and the iCIRT ratings framework. None of those reforms, however, addresses the regularisation pathway itself.
Three reforms are submitted to be necessary. First, fees. The EP&A Regulation 2021 should restore, and strengthen, the former clause 260(3A) and (3B) structure: where a BIC is used to remedy unauthorised work, the fees should comprise an uplifted BIC application fee; a value of work determined by a quantity surveyor engaged by the council at the applicant’s cost; the development application and construction certificate fees calculated on that value; applicable development contributions or levies; the long service levy under the Building and Construction Industry Long Service Payments Act framework; and the principal certifier’s fees — capped, except where prescribed, at the council’s adopted schedule of fees as at lodgement. Such a scale "takes care not to allow the wrongdoer to benefit from his wrongdoing" (Ireland (No 2), n 2) by removing the fee advantage otherwise gained by avoiding the lawful approval path, and operates as a genuine deterrent alongside penalty notices, orders and prosecution.
Secondly, the section 6.26(7) notice should be given statutory teeth. A notice deferring determination and specifying the work required should be deemed a development control order for the purposes of the provision of Schedule 5 to the EP&A Act under which work carried out in compliance with an order requires no separate consent or approval. This would make the BIC process self-executing in the common case where limited rectification works stand between the building and a certificate, and would end the wasteful practice of requiring owners to lodge development applications that must, as a matter of law, be rejected insofar as they seek retrospective approval.
Thirdly, guidance. The Department’s Practice Note26 was a welcome start, but council practice remains inconsistent between councils and between officers within councils. The Practice Note should be settled in terms that direct councils plainly: the BIC is the only lawful remedy for unauthorised building work as executed (Steelbond, n 11; Buyozo, n 1); development applications and section 4.55 applications are for prospective works and future use only (Goldcoral, n 3); the stop work order is the proper trigger of the BIC process while investigation proceeds; and nothing prevents penalty infringement notices or prosecution where the nature of the breach and the attitude of the offender warrant it. Telling owners to lodge a DA or a section 4.55 application to fix completed building work is wrong — unless consent for the use, or for genuinely future works, is what is required.
The doctrinal architecture set out above rests on the certification provisions of the EP&A Act as presently in force — the construction certificate, the occupation certificate, the principal certifier and, above all, the building information certificate under Division 6.7. That framework is on the point of significant change. On 4 August 2026 the Building (Approvals and Practitioners) Bill 2026 (NSW) passed both Houses of the NSW Parliament, the Legislative Assembly having on that day agreed to the amendments made in the Legislative Council.44 At the date of writing the Bill awaits assent, and the majority of its provisions will commence on a day to be appointed by proclamation; a limited number of amendments to the EP&A Act — including the treatment of manufactured homes as buildings — commence on assent. A good deal of the detailed operation of the new scheme, including its savings and transitional provisions, is left to regulations not yet made.45 What follows is necessarily provisional. It identifies, on the basis of the Bill as passed, how the procedure described in this paper will operate once the new Act is proclaimed, and it should be revisited when the Act commences and the regulations are published. The Bill as provided has been reviewed for this section; consistently with proper practice for a professional paper, the reform is described as the Bill until assent and commencement are confirmed.46
The Bill enacts a new Building (Approvals and Practitioners) Act 2026 and repeals the Building and Development Certifiers Act 2018 (NSW) and the Design and Building Practitioners Act 2020 (NSW), together with the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (NSW). It consolidates building approvals, practitioner registration and the regulation of regulated designs into a single statute. Two features matter most for present purposes. First, the construction certificate is replaced by a "building approval", and the occupation certificate by a "completion approval", each issued by an "approval authority" — a registered certifier or a council. Secondly, Part 6 of the EP&A Act, presently titled "Building and subdivision certification", is confined to subdivision works certificates, subdivision certificates and — of central importance to this paper — the building information certificate, the construction and occupation certificate provisions being removed to the new Act.
The significance of the second feature should not be missed. The building information certificate survives the reforms and remains within the EP&A Act, keeping its present section numbers. Schedule 3 to the Bill renames the Part 6 heading (item [24]) and removes the construction and occupation certificates by omitting Division 6.3 (item [28]), but it does not disturb the building information certificate test. Section 6.25 is amended only consequentially: the enforcement immunity that formerly attached to orders under "this Act or the Local Government Act 1993" is recast to attach to "a relevant Act" (item [42]), and a new section 6.25(7) defines "relevant Act" to include the Building (Approvals and Practitioners) Act 2026 (item [43]) — so that, if anything, the certificate’s protection is widened, a building information certificate now also barring the specified orders under the new Act. Crucially, section 6.26 — the assessment, reasons and deferral provision, including the section 6.26(7) power relied upon in this paper — is not amended at all. The remaining Part 6 amendments are consequential: the owners building manual provision (section 6.27) is repealed (item [44]), the principal certifier’s directions power ceases to apply to building work (section 6.31, item [47]), and sections 6.32 and 6.33 are recast for subdivision work (items [48]–[51]). The Ireland notional development application test, which derives from the statutory question in section 6.25(1), is therefore untouched, and the doctrinal core of this paper continues to hold.
Once the new Act commences, the language of the six-step procedure in Section 7 will require updating, although its logic is unchanged. Where this paper refers to a construction certificate for prospective remedial works (Steps 3 and 6), the instrument will be a building approval; where it refers to an occupation certificate for the building as remediated (Steps 4 and 6), the instrument will be a completion approval. The prohibition on certification running ahead of the work — the integrity principle traced in Section 2 through Marvan Properties and former section 109F(1A), and reflected in Over Our Dead Body — is preserved and, indeed, widened. A building approval will be required not merely for the erection of a building but for any building work carried out under a development consent, a category the new Act extends to demolition and to physical site-preparation work. The trigger for approval is thus broader than the present construction certificate, which attaches only to the erection of a building; a practitioner advising on the demolition or partial demolition inherent in many remedial proposals (Step 3) will need a building approval for that work in its own right.
The most consequential change for the regularisation of unauthorised work is a mechanism with no analogue in the present Act. Under the EP&A Act as it stands, and consistently with Marvan Properties and former section 109F(1A) (Section 2), a construction certificate cannot issue for building work already carried out; the certificate is spent as to executed work, and the building information certificate is left to perform the enforcement-immunity function in respect of the fabric. The new Act preserves that prohibition — by section 26, an approval authority must not issue a building approval for building work that has already commenced, and an approval issued in contravention is void — but, for the first time, provides an exception. By section 27, the "decision-maker" may authorise an approval authority to issue or vary a building approval after building work has commenced (a "post-commencement authorisation"). The decision-maker is the Secretary, or another person or body prescribed by the regulations; the authorisation may be given subject to conditions, including a condition requiring rectification work to be carried out before it has effect (section 27(3)); and the decision-maker may recover all reasonable costs of giving it (section 29).
A distinction fundamental to this paper must be kept steadily in view. The post-commencement authorisation is a creature of the building-approval regime: it is directed to building work and to the issue of a building approval, not to development consent. It does not, and cannot, supply development consent for development that is prohibited, or that would be unacceptable, under the EP&A Act. The new Act therefore provides a statutory pathway for bringing unauthorised or non-approved building work back within the building-approval framework; it does not create a means of regularising unauthorised development in the planning sense. The separation of planning regulation from building regulation — the very separation on which this paper insists — is preserved, and indeed sharpened, by the reform. A three-storey dwelling built where a two-storey dwelling was approved remains, as to its planning departure, a matter for the EP&A Act; the post-commencement authorisation speaks only to the building work.
Nor does the mechanism operate as an amnesty. Consistently with the Buyozo principle (n 1), a post-commencement authorisation does not retrospectively approve the past carrying out of the work; what it authorises is the issue, going forward, of a building approval for work already commenced — a forward-looking approval, subject to rectification — rather than a validation of the historical act of building. The Bill puts the point beyond doubt: by section 28(2), authorising a building approval in accordance with a post-commencement authorisation does not prevent a person being found guilty of the offence of carrying out building work without a building approval (section 15), or other action being taken for that contravention — just as, under section 9.50 of the EP&A Act, a building information certificate does not preclude prosecution (Section 3). To that extent the authorisation is consistent with the prospective-only character of consent and certification traced in Section 2.
There is a further dimension to this that appears to have passed without notice in the commentary published on the Bill to date, and that deserves to be stated plainly. The prohibition in section 26 is, in substance, a re-enactment of former section 109F(1A) of the EP&A Act — the provision by which Parliament, in 2006, reversed Marvan Properties (n 23) and forbade a construction certificate from issuing for building work already commenced (Section 2). What section 27 then does, through the post-commencement authorisation, is to re-admit — in a controlled and conditional form — the very possibility that section 109F(1A) was enacted to close. On the commencement of the new Act, the certification of building work already carried out, which Marvan permitted and Parliament then prohibited, becomes available once more, this time through a supervised statutory gateway. The wheel has turned twice: from Marvan (certification may follow the work), to section 109F(1A) (it may not), to the post-commencement authorisation (it may, but only on authorisation and on conditions). It is submitted that the significance of this legislative reversal-of-the-reversal has not yet been drawn out, and that practitioners should attend to it closely.
It would nonetheless be wrong to describe the reform as a simple restoration of Marvan. Four features distinguish the new pathway. First, it is not the certifier’s own act: an approval authority remains prohibited by section 26 from issuing a building approval for commenced work, and may act only on the authorisation of the decision-maker under section 27 — an executive gatekeeper Marvan did not require. Secondly, the authorisation may be conditioned on rectification work being carried out before it takes effect (section 27(3)), so that it operates as a remediation pathway rather than a bare validation. Thirdly, it is not an amnesty: section 28(2) preserves liability for the offence of carrying out building work without a building approval. Fourthly, and fundamentally, it operates only at the level of building certification; it confers no development consent, and the Buyozo principle (n 1) that consent cannot be granted retrospectively is untouched. The better characterisation is therefore not that Marvan has returned, but that Parliament, having in 2006 closed the door with a blunt prohibition, has in 2026 reopened it as a supervised and conditional gate.
Because the detailed operation of the mechanism — the matters the decision-maker must consider, the procedure, the applicable timeframes and any rights of review — is left to regulations not yet made (section 27(4)), a full treatment of this legislative history and its consequences must await those regulations. The connection is recorded here, and developed no further, so that the analysis it warrants may be reserved for a later occasion.
The reform does mean, however, that once the new Act is proclaimed the works as executed will be engaged by two statutory mechanisms rather than one: the building information certificate, which prevents enforcement action against the existing fabric; and the post-commencement authorisation, which is a precondition to any building approval for building work already commenced, and which may compel rectification as the price of that approval. The proposition stated in Section 2 — that the building information certificate is the sole statutory mechanism addressed to the works as executed — will accordingly require qualification once the new regime commences. The certificate will remain the only mechanism that confers enforcement immunity for the fabric as it stands; but it will no longer be the only mechanism that engages with building work already carried out.
How the two are intended to interact is not spelt out on the face of the Bill, and is a matter on which the regulations and the Department’s guidance will be awaited. On one view they are complementary — the building information certificate addressing enforcement exposure for the existing fabric, and the post-commencement authorisation enabling a building approval for remedial works that touch or incorporate that fabric. On another, the post-commencement authorisation may come to occupy ground presently occupied, in practice, by the building information certificate, given that certifiers commonly (though not strictly correctly) require a BIC before completing work associated with unlawful fabric. It is submitted that the better view, and the one most consistent with Goldcoral, is the first: the building information certificate continues to answer the question of the fabric as executed, while the building approval — now available for already-commenced work through a post-commencement authorisation — provides the forward-looking pathway for remedial works and their future use. On any view, the new mechanism inserts a Departmentally administered step, with its own cost-recovery, into a field the EP&A Act had left to the council-issued certificate.
Three further features of the new Act bear on the enforcement and reform themes of this paper. First, written directions given by an approval authority in respect of building work are to become binding, non-compliance being an offence (the reported maximum penalties being of the order of $33,000 for an individual and $165,000 for a corporation) and, unlike a development control order, carrying no right of merits appeal, so that judicial review is the only avenue of challenge; the issue of a building approval for work already commenced without authorisation is itself an offence (section 26). This materially strengthens the certifier’s position in precisely the situations canvassed in Section 2, where work has proceeded otherwise than in accordance with approval, and reinforces the observation in Step 6 that early, properly documented intervention is the best protection. Secondly, the statutory duty of care presently found in section 37 of the Design and Building Practitioners Act 2020 — relied upon in Section 8 — is not lost with the repeal of that Act: it is re-enacted in Part 8 of the new Act (section 179, "Extension of duty of care") and, on the reporting, extended to certifiers, and it remains a duty to which proportionate liability does not apply, consistently with the position confirmed in the Pafburn litigation. Thirdly, the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), also mentioned in Section 8, is amended rather than repealed, to establish a new building-work dispute-resolution scheme administered by Building Commission NSW, the enabling regulations for which must be made by 31 December 2026.
None of this displaces the reform proposals advanced in Section 8; if anything, the new Act sharpens them. The new Act does not restore the fee structure formerly found in clause 260(3A) and (3B) of the 2000 Regulation, and it does not confer on the section 6.26(7) deferral notice the status of a development control order (section 6.26, including subsection (7), being left untouched by the Bill). The case for both reforms is untouched by the enactment of the new regime, and the building information certificate — retained, but not itself reformed — remains without a prescribed fee. The post-commencement authorisation, moreover, introduces a further, Departmentally administered process, with its own cost-recovery, sitting alongside the building information certificate. Whether that process proves more efficient than an appropriately reformed BIC pathway, or merely adds a layer, remains to be seen. It is submitted that the reforms proposed in Section 8 are, for that reason, the more pressing once the new Act is in force: the coherent course would be to align the retained building information certificate, the reformed section 6.26(7) notice and the new post-commencement authorisation into a single, intelligible pathway for the works as executed, rather than to leave practitioners to navigate three mechanisms of uncertain interaction.
The planning system does not forgive unlawful works; it regularises them, through pathways that assess the building, fix its problems, ensure safety and compliance, and determine whether its future use is acceptable. The doctrinal architecture is now settled. Development consent and certification operate prospectively only: Tennyson through Steelbond to Buyozo. The building information certificate is the sole mechanism addressed to the "works as executed", and it is assessed on the Ireland notional development application — a planning judgment, not a punishment, exercised within the Echt enforcement discretion and without regard to the moral quality of the past conduct (Jonah). Goldcoral completes the structure: prospective remedial works, and the future use of the amended building, may be approved by an ordinary development application at any point, without conferring any advantage from illegality. The practical lesson is clear: identify the unauthorised works precisely, choose the correct stream for each element — certificate for the fabric, consent for the remedial works, consent for the use — and sequence them strategically. What can no longer be done, and never could be, is to approve the past.
The Building (Approvals and Practitioners) Act 2026, once proclaimed, will change the vocabulary of certification and add a Departmental "post-commencement authorisation" for building work already begun — a supervised reopening of the post-commencement certification that former section 109F(1A) closed after Marvan — but it leaves the building information certificate — and the Ireland, Buyozo and Goldcoral principles — standing; the pathway described here endures, and the reforms urged in Section 8 become the more pressing for the change.
Brett Daintry is Director of Daintry Associates Pty Ltd, a planning consultancy based in New South Wales. He is an experienced NSW planning and building-surveying practitioner with expertise in Land and Environment Court jurisprudence, building regulation and certification, and the remediation of unauthorised development, including building information certificate applications and appeals. He contributed to the drafting of building-regulation reforms for the Department of Planning, including the fee provisions formerly found in clause 260(3A) and (3B) of the Environmental Planning and Assessment Regulation 2000 and work on Chapter 8 of the Planning Bill 2013.
Every case relied upon in this paper has been verified against NSW Caselaw, AustLII or the Department of Planning and Environment’s Building Information Certificates Practice Note (October 2022) at the date of drafting. Hyperlinks are provided to NSW Caselaw where a decision identifier is available, and otherwise to AustLII. Early reported decisions that predate the online databases carry no direct link and are instead referenced through the verified online judgments, or the published survey, that cite them.
1. Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Basten and Payne JJA, Preston CJ of LEC) at [37]–[41]: development consent operates prospectively only; consent (or a modification) may authorise the future use of an already erected building but can never retrospectively approve its erection. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2021/177.html
2. Ireland v Cessnock City Council (No 2) (1999) 110 LGERA 311; [1999] NSWLEC 250 (Bignold J): the "notional development application" test at [31]–[32]; the discretion to be exercised on the merits, leaving punishment to the criminal law, at 316 [38], adopting Kouflidis (n 38). The two 1999 Ireland decisions are frequently conflated: see n 30. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1999/250.html
3. Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Preston CJ) at [53]–[55]: development consent may be granted for prospective works that amend, upgrade or replace unlawful works, and for their future use. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2024/77.html
4. Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231 (Sugerman J) at 232 — approval under Part XI of the Local Government Act 1919 must be obtained "beforehand". Not available online; quoted by Talbot J in Marvan Properties (n 23).
5. Lowe v Mosman Municipal Council (1953) 19 LGR (NSW) 193 at 194 and 197 — no consent for a building already erected. Not available online; cited in the retrospectivity survey at n 22.
6. Lux Motor Auctions Pty Ltd v Bankstown Municipal Council (1955) 20 LGR (NSW) 178 — unlawful works cannot be retrospectively validated. Not available online; cited in the retrospectivity survey at n 22.
7. Holland v Bankstown Municipal Council (1956) 2 LGRA 143 at 146 — the most favourable outcome for a use already commenced unlawfully is consent to the prospective use. Not available online; cited and applied by Bignold J in Ireland (No 1) (n 30) at 305 [77].
8. Waverley Municipal Council v Parker (1960) 77 WN (NSW) 243; 5 LGRA 241 — no power of ex post facto building approval. Not available online; cited in the retrospectivity survey at n 22.
9. Roeder v Marrickville Municipal Council [1972–73] LGATR 298 — retrospective approval barred; existing unauthorised works to be dealt with by the statutory certificate processes. Not available online; cited in the retrospectivity survey at n 22.
10. Longa v Blacktown City Council (1985) 54 LGRA 422 (Cripps J) at 426 — approval available only for the uncompleted balance of partly erected unauthorised work. Not available online; discussed by Talbot J in Windy Dropdown (n 20).
11. Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 (Talbot J) at 195–196 — no power to approve or amend an approval for completed work; the building certificate identified as the available remedy. Not available online; discussed in Windy Dropdown (n 20) and Marvan Properties (n 23).
12. Tynan v Meharg (No 2) (1998) 102 LGERA 119 (Handley JA) at 121. Sometimes miscited with the year 1988. Not available online; discussed by Bignold J in Dasco (n 21) at [93].
13. Signorelli Investments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 78; (2001) 114 LGERA 27. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2001/78.html
14. Marshall Rural Pty Ltd v Hawkesbury City Council [2015] NSWLEC 197 (Moore AJ) — consent cannot retroactively authorise activities already carried out. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2015/197.html
15. Hooper v Lucas (1990) 71 LGRA 27 (Hemmings J) — approval possible under the 1919 Act for alterations and additions dependent on unauthorised building work. Not available online; discussed in Windy Dropdown (n 20) at [34].
16. Rancast Pty Ltd v Leichhardt Council (Land and Environment Court of New South Wales, Bignold J, 17 November 1995, unreported) — approving only the unconstructed portion would approve something entirely different from that for which approval was sought. Unreported; noted in the retrospectivity survey at n 22.
17. Connell v Armidale City Council (Land and Environment Court of New South Wales, Pearlman J, 25 September 1996, unreported) — no power to amend an approval or modify a consent where the work has been carried out. Unreported; discussed in Windy Dropdown (n 20).
18. Herbert v Warringah Council (1997) 98 LGERA 270; [1997] NSWLEC 184 (Sheahan J) — former s 102 provides for prospective approval of works only. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1997/184.html
19. Jacklion Enterprises Pty Ltd v Sutherland Shire Council [1998] NSWLEC 152 (Pearlman J) — a condition controlling subdivision impacts may be modified although building work was carried out contrary to it. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1998/152.html
20. Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 (Talbot J) at [26]–[34] — broad construction of the modification power. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2000/240.html
21. Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; (2000) 111 LGERA 422 (Bignold J) at [93]–[94] — modification power available although works carried out. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2000/257.html
22. Ian Ellis-Jones, "Retrospective Approvals, Consents and Certificates in New South Wales" (paper, c 2008) — surveying the authorities and criticising the broad construction as contrary to the rationale of a prior-approval system. https://www.turnbullplanning.com.au/wp-content/uploads/retrospective-approvals-in-nsw.pdf
23. Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9; (2005) 138 LGERA 1 (Talbot J) at [28]–[35]. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2005/9.html
24. NSW Department of Planning, Planning Circular PS 06-004, 13 February 2006 — rationale for the prohibition on construction certificates issued after commencement (former s 109F(1A), inserted by the Building Professionals Act 2005 with effect from 3 March 2006). Superseded circular; not available online at the date of drafting.
25. Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125 (Bignold J); see also the further judgment at [2001] NSWLEC 211. The citation "[2000] NSWLEC 204" sometimes given for this case is incorrect. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2001/125.html
26. Department of Planning and Environment (NSW), Building Information Certificates Practice Note (October 2022) — including the statements that a council cannot insist on a BIC; that a BIC does not prevent proceedings under s 9.50; that fire safety orders and building product rectification orders are unaffected; and that the Department intends to re-insert a prescribed BIC fee in the EP&A Regulation 2021. Available via the NSW Planning Portal.
27. Scarf v Shoalhaven City Council [2021] NSWLEC 128 (Pain J) — no power, express or implied, to amend a BIC application. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2021/128.html
28. Malass v Strathfield Municipal Council [2022] NSWLEC 1160 — strict compliance with BIC application requirements; example of works to which a reasonable consent authority would never have granted consent. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2022/1160.html
29. Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 — Class 1 building certificate appeal concerning unauthorised works. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2001/60.html
30. Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 (Bignold J) at 305 [77] — the first Ireland decision: concurrent appeals under former s 97 (use) and former s 149F (building certificate); the focus is planning and safety, not punishment. Passages from the two Ireland decisions are often cited under a single medium-neutral citation; the Kouflidis passage at 316 [38] belongs to Ireland (No 2) (n 2). https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1999/153.html
31. Mineral Wealth Pty Ltd v Gosford City Council [2003] NSWLEC 153; (2003) 127 LGERA 74 (Pain J) — no de novo s 4.15 merits reassessment in a building certificate appeal; where an actual development application exists, the notional exercise is unnecessary. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2003/153.html
32. Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 (Bignold J) at [60]–[61] — the application assessed as a "hypothetical or notional development application". https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1999/276.html
33. Lee v Randwick City Council [2021] NSWLEC 1200 (Bish C) at [18]. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2021/1200.html
34. Griffis v Tweed Shire Council [2011] NSWLEC 1126 (Brown C) at [9]–[10] — structural adequacy under the certificate first; the use considered separately. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2011/1126.html
35. Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009 at [69]–[79]. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2021/1009.html
36. Arriguetti v Georges River Council [2025] NSWLEC 1814 (Espinosa C) at [128]. https://www.caselaw.nsw.gov.au/decision/19a9a0f8c7b4adc34e420388
37. Walker v Queanbeyan-Palerang Regional Council [2023] NSWLEC 1032 (O’Neill C) at [75] — the "proper sequence": determine the BIC before considering consent for the use. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/2023/1032.html
38. Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 (King CJ) at 324; 49 LGERA 17 — leave punishment to the criminal law; determine the application on the merits; take care not to allow the wrongdoer to benefit from the wrongdoing. The report is not available online; the passage is adopted and quoted in Ireland (No 2) (n 2) at 316 [38] and cited in the Practice Note (n 26).
39. Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 (Preston CJ) at [36]–[38] — past unlawfulness is not relevant; the impacts of past use are relevant for proper planning reasons; cumulative impacts to be considered. https://www.caselaw.nsw.gov.au/decision/549f82323004262463ab7037
40. Ryde City Council v Echt [2000] NSWCA 108; (2000) 107 LGERA 317 — a council’s "responsibility" to enforce imports no legal obligation enforceable by a third party; enforcement is discretionary. https://www.caselaw.nsw.gov.au/decision/549f9a453004262463b123b2
41. Ralph Lauren 57 Pty Ltd v New South Wales Transitional Coastal Panel [2018] NSWLEC 207; (2018) 235 LGERA 345 at [128] — consent may operate prospectively notwithstanding existing unlawful works; recognised in Goldcoral (n 3) at [53]. https://www.caselaw.nsw.gov.au/decision/5c16fbfbe4b0b9ab40212372
42. Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 — the earlier remediation orders discussed in Goldcoral (n 3) at [55]. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWLEC/1997/89.html
43. Council of the City of Sydney v Karimbla Properties (No 24) Pty Ltd [2014] NSWLEC 77 (Craig J) at [18]. https://www.caselaw.nsw.gov.au/decision/54a63da93004de94513dbf7e
44. Building (Approvals and Practitioners) Bill 2026 (NSW) — long title "An Act to establish a framework for the approval and oversight of building work; to provide for the registration of certain building professionals; and for other purposes". Introduced in the Legislative Assembly on 6 May 2026 by the Hon Anoulack Chanthivong MP (Minister for Building); passed both Houses on 4 August 2026; awaiting assent at the date of drafting; the majority of provisions to commence on a day to be appointed by proclamation, with limited amendments to commence on assent. Parliament of NSW, Bill details (pk=18895); First Print and Explanatory Note; text at legislation.nsw.gov.au (bill c8ce8c87-bb2c-455c-91b2-67b072823806); Legislation Review Committee, Legislation Review Digest No 45 (12 May 2026). https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=18895
45. NSW Government, "New building laws for a new era of approvals and modern methods of construction in NSW" (media release, 6 May 2026) and "A modern era of construction methods and approvals begins" (media release, on passage) — confirming that building approvals replace construction certificates and completion approvals replace occupation certificates, the consolidation of the certification and practitioner framework, the regulation of prefabricated (modern methods of construction) buildings, and increased conflict-of-interest penalties for certifiers. https://www.nsw.gov.au/ministerial-releases/reforms-introduced-supporting-modern-methods-of-construction
46. The operation of the Bill described in Section 9 is taken from the text of the Bill provided: the post-commencement authorisation in Part 3 (sections 26–29 — the offence of approving already-commenced work in section 26, the authorisation power in section 27, the non-amnesty rule in section 28(2) by reference to the section 15 offence, and costs recovery in section 29); the statutory duty of care in Part 8 (section 179, "Extension of duty of care"); and commencement in section 2 (Schedule 3 items [20] and [45] on assent, otherwise by proclamation). The amendments to the EP&A Act are in Schedule 3, including the Part 6 heading (item [24]), the omission of Division 6.3 containing the construction and occupation certificates (item [28]), and the consequential amendments to the building information certificate provisions — section 6.25 (items [42]–[43], extending the certificate’s enforcement immunity to the new Act through the definition of "relevant Act") — with section 6.26 (including section 6.26(7)) left unamended. Specialist commentary consulted: A Gadiel (Mills Oakley); C Jones (Holding Redlich); M Hawley (Lindsay Taylor Lawyers); and M Glynn (Swaab). References are to the Bill as provided; final wording should be checked against the Act as assented.
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