The key phrases of the judgment reference “substantial non-compliant excavation and building works,” yet, like many similar cases, it leaves the full extent of these issues open to interpretation.

Facts

The case centered on a property in Earlwood where alterations and additions, including a swimming pool, lift, and other works, were proposed for a partially constructed dwelling. A Clause 4.6 variation request addressed a significant height non-compliance, where the proposed building exceeded the 9.5-meter height limit by 62.1%, reaching 15.4 meters. The Court accepted the variation, recognising the steep nature of the site and its alignment with planning objectives.

However, the broader reference to “substantial non-compliant excavation and building works” raises questions about what occurred on-site. Was this merely a technical non-compliance related to height, or did it involve unauthorised excavation or construction beyond approved plans? The judgment does not explore these details, leaving the full picture of non-compliance unclear.

The challenge of understanding unauthorised works in NSW

Cases like this highlight a broader issue in the NSW planning landscape. It is often difficult to ascertain the extent of unauthorised works across the state. Judgments that resolve disputes frequently focus on immediate planning controls or agreements between parties, leaving the specifics of non-compliance unaddressed.

For local councils and applicants this presents challenges. Unauthorised works can range from minor deviations to significant breaches of planning controls, and the method for resolving these matters can be very different between different local government areas. This makes it harder to enforce compliance and for the broader public to understand the limits of acceptable conduct.

What This Means for the Industry

Without comprehensive reporting or clear identification of the extent of unauthorised activities, it remains unclear how widespread these issues are and what they mean for planning enforcement.

While judgments like Urch provide valuable outcomes for the parties involved, they also remind us that non-compliance often exists in a grey area that deserves closer attention.

Detailed insights into unauthorised works can help inform better decision-making, prevent future breaches, and build trust in the planning system.

The Urch case offers a resolution for the parties, but it also prompts an important discussion: how can the NSW planning system ensure that unauthorised works are properly identified and addressed? For those involved in development and compliance, this remains an ongoing challenge.

Further reading

You can access a copy of the full judgment below.