Retrospective approval – Windy Dropdown v Warringah Council

There are very limited pathways available to obtain approval for development that has already been carried out.

The scenario

Work is called “unauthorised work” if:

  1. it has been carried out; and
  2. it required development consent (and possibly other approvals) before being carried out; and
  3. those approvals were not obtained before the work was done.

Unauthorised work is said to be “regularised” once it has the appropriate approvals in place.

There are limited solutions available to “regularise” unauthorised work. One well-established solution was explained by the Court in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 (Windy Dropdown).

The “Windy Dropdown” solution

The “Windy Dropdown” solution involves two applications being made to regularise the unauthorised work:

  1. a modification application (section 4.55 of the EPA Act allows “modification applications” to be made to modify an existing development consent on land); and
  2. a building information certificate application.

Facts and findings of Windy Dropdown

In Windy Dropdown, development consent had previously been granted for subdivision of the land into various lots and construction of dwellings. An application was lodged for the modification of a development consent in relation to works already carried out in contravention of approved plans. The applicant was seeking approval for increasing the level of fill above the levels shown in the plans approved in the development consent. At the time the modification application was considered, the fill had already been placed on the land (that is, the works had already been carried out).

The power to modify a development consent allows consent authorities (such as local councils, or the Court) to assess and approve changes to a development, and Windy Dropdown confirmed that section 96 (now section 4.55) of the Environmental Planning and Assessment Act 1979 enables a consent authority (like a local council) to authorise works in situations where the works have already been carried out.

While any modification application has the effect of authorising development from the date of consent, it is also necessary for applicants to seek a building information certificate for the works. This ensures that, if the modification application is approved, the building works the subject of the building information certificate application can be considered against the relevant construction standards and would be consistent with the approved modification application.

Other solutions

The “Windy Dropdown” solution can only be considered in situations where there is an existing development consent on the land. This solution may not be suitable in all situations.

It is best to seek legal advice when dealing with situations involving unauthorised work. This is because the potential solutions will vary and will depend on the specific scenario.

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.