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Why council rules can’t stop renovators getting what they want

Published 11 September 2012 06:17, Updated 13 September 2012 04:16

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Why council rules can’t stop renovators getting what they want

Contentious ... Plans for Lachlan and Sarah Murdoch’s $12 million upgrade to their mansion in Sydney’s Bellevue Hill have irked some of the power couple’s neighbours.

There’s a rebellious streak in the best of us. Sydney town planner Matthew Benson tells each one of his clients they should always get approval for a building or renovation, no matter how small. He adds, as an aside: “But I do advise people on what the consequences realistically may be in certain scenarios.”

Some people argue that the planning system has become so complicated it’s an incentive for doing work on the sly. Apartment developer Harry Triguboff says one of the greatest victories in his life was getting Pittwater Council into a fluster over a 450-unit apartment development in Sydney’s northern beaches. Despite the council battling in court to overturn a state government approval, Triguboff didn’t wait for the verdict. He figured the higher he built, the harder it would be for a court to order him to tear it down.

“It was my most pleasurable experience in 50 years, even if you win or lose, just to see them in my shoes,” Triguboff later said. “Usually it’s me whingeing about council but now I see them whingeing to the judge about me.”

But Triguboff, a billionaire, has the legal resources at his fingertips to take calculated risks. For regular consumers, defying the authorities is a greater gamble.

Benson the town planner has seen impetuous escapades go both ways.

He is aware of a case in Paddington around a decade ago where a man owned a terrace in a row of identical homes in a heritage conservation area. Without approval, he built a modern, curvy dormer window that was out of character with the house. The council took him to court and he was ultimately allowed to keep it. “He probably got fined but it would have been worth the money,” Benson says.

He is also aware of a Sydney petrol station owner who dug up the site, replaced the petrol tanks, demolished and re-built several buildings, and even blocked the road and brought in a crane, all without council approval. Nothing came of it. “It’s something I certainly don’t recommend,” Benson says. “But if someone does the right thing for a project like that they are put through the wringer.”

Nevertheless, ignoring council is risky.“These things carry enormous risks, including large fines and criminal charges,” Benson says. “The whole area of unauthorised works carries enormous uncertainty about how council will react and how it will go in court.”

A search through the NSW Land and Environment Court register yields plenty of examples of people being ordered to demolish illegal structures that pose a safety risk, or rile up the neighbourhood by having a blatant impact on nearby residents with affects such as overshadowing. But there are strikingly few examples of people being ordered to demolish well-built illegal works that have zero impact on the neighbours.

“We don’t really find out about things unless people complain,” says a council officer. “We don’t drive around looking for things, and tend to be defensive rather than proactive in this regard.”

Councils do not have the power to retrospectively approve illegal building works. But if they are safe and well-built, councils often issue building certificates for the works, allowing them to stay for a limited period such as five years. Another senior council officer said it was “unlikely” the matter would be taken up again after that period.

There are grey areas that some people exploit. A lot of inner-city areas have buildings that were constructed before the current planning rules were in place, and they are bigger and bulkier than the current laws allow. Some developers are able to get approval to exceed the limits of the current regime by arguing those other buildings set a precedent.

Others have success using a planning instrument known as a Section 96 modification, which sometimes can deliver approval for extra levels on an apartment block, or a greater number of smaller apartments within an approved building envelope.

People who own a separate structure on their land have every right to keep it in good order, but not to rent it out as a separate dwelling if it’s not certified as such. The way council often deems a structure to be a dwelling is the presence of a kitchen. So some people install a roller door that can be pulled down to conceal the cooking area, just in case a council inspector comes over for tea, and cite privacy as the reason for refusing to open it.

Storage is another ambiguous area. Lachlan and Sarah Murdoch sought approval for only a three-car garage in their renovation plans for their home in Bellevue Hill, Sydney, this year – very modest when you consider James Packer got approval for a 13-car garage in nearby Vaucluse. But some complainants against the Murdochs’ plans were suspicious the garage also had vast storage areas.

One Sydney architect created a storage area, not a bedroom, in the attic of his inner-city home, because the council doesn’t allow areas with ceilings under 2.4 metres to be habitable. “That’s where we store our eight-year-old,” he says. Because the attic was not designated as a bedroom, it did not eat into his floor space allowance, which he used to gain approval for another bedroom out back.

A senior council officer said it was common for people to double their approved excavation works. “The neighbours are none-the-wiser because there is already building work going on,” the officer said.

Sydney architect Angus Kell says one problem with illegal works is they are often not done properly. A home owner might take four weeks off at Christmas and build a new deck with products from the hardware store. It collapses during a party and people die, or there are serious injuries during construction because they aren’t familiar with the tools.

But he believes the system sometimes encourages illegal behaviour. He has often sat through council meetings where applicants argue successfully that they should be allowed to build far above local size limits.

“You can see why people do it,“ Kell says. “There’s a lot of frustration about how complex building regulations are, and about the process. We have councils where if you are doing any half-decent renovation, you are expected to wait 12 months for approval.”

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