Illegal development and building works


Section 126 of the Environmental Planning and Assessment Act 1979 provides that the maximum penalty for illegal development or building works under the Act is a fine of $1.1 million and a further fine of $110,000 for each day that the offence is continuing.

Generally speaking, all substantial building works carried out in NSW and many individual uses of land first require development consent or a complying development certificate (for complying development).

Section 76A(1) of the Environmental Planning and Assessment Act 1979 states:

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

  • such a consent has been obtained and is in force, and
  • the development is carried out in accordance with the consent and the instrument.

Similarly, if development is prohibited under an environmental planning instrument (either a State Environmental Planning Policy (SEPP) or Local Environmental Plan (LEP), section 76B provides that a person must not carry out that development.

An alleged failure to obtain such approval or to comply with any conditions imposed in connection with an approval may lead to criminal prosecution pursuant to section 125 of the Environmental Planning and Assessment Act 1979.

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