Unauthorised building work: options when a past job was never approved

Most builders have, at some point, been asked to do a job that was not quite approved, or to finish one started without approval by someone else. A deck enclosed into a room, a granny flat built without a council consent, a shed converted into a studio. The work is often finished and in use, and the owner is content, until the house is sold, an insurer asks a question or a neighbour lodges a complaint. Then the question is what can be done, and who carries the cost.

This article looks at the remediation path for work that was built without approval. It explains, in principle, how a building information certificate works, when disclosure becomes unavoidable, and how the matter affects a builder’s own exposure. It is general guidance, not legal advice. Every case turns on the planning and building rules of the council area, the contract and the facts, and the owner should get advice from a solicitor or a building surveyor before acting. The point for a builder is to understand the route well enough to stop a bad situation getting worse.

Why unapproved work does not go away

Work built without approval does not become approved because time has passed or because the owner has lived with it. Planning and building rules apply to what was built, and the question is always whether the work as it stands is acceptable. Whether the work needed approval at all, and what kind of approval it needed, is covered in the article on complying development certificates for builders. In practice, the problem usually surfaces at one of a few moments: a sale, where a buyer’s conveyancer or inspector notices something; a refinance or an insurance claim; a neighbour complaint; or an inspection for some other purpose. The longer the work stays undisclosed, the less control the owner and the builder have over the timing and the cost.

A builder’s view of this is shaped by the commercial reality. A small job that was never approved can turn into a large cost when it is found at the point of sale, because the buyer’s price is reduced, the sale is delayed and the work has to be assessed under the pressure of a deadline. The cost of the assessment, any upgrades and the time lost is usually much higher than the cost of dealing with the matter early. That is the main reason disclosure, handled properly, is almost always the better path.

Working out whether the work needed approval first

Before any certificate is discussed, the first question is whether the work needed approval at all. Some work is exempt, some can proceed as complying development under a certificate from a council or an accredited certifier, and some needs a full development application. The answer depends on the type of building, the scope of the work, the site and the planning controls that apply to the land. A builder who assumes that small work never needs approval is making a guess, and the guess has a cost if it turns out to be wrong.

The check is a short one, and it should be done in writing. Look at the scope, the site and the controls, and compare them against the exempt and complying development rules that apply in the council area. Where the answer is unclear, ask the council or a certifier before the work starts, and keep the answer on file. A written answer obtained at the time is worth far more than a memory of a conversation held in a different year.

That check matters for the builder as well as the owner. A builder who gives a view on whether approval is needed is giving advice on the job, and the basis for that advice should be recorded. Where the builder was not asked and did not check, the file will show it. Where the builder checked and recorded the answer, the position is much easier to defend, whatever the outcome.

How a building information certificate works in principle

A building information certificate is an application to the council for a certificate covering building work that was carried out without the approval it needed. In principle, the owner applies, the council assesses the work as it stands, and the council may issue the certificate if it is satisfied with the work. The assessment is the heart of the process. The council looks at what was built, compares it with the standards that apply, and decides whether the building is acceptable. It can ask for changes before it issues anything, and that is where the cost usually lies.

The certificate does not approve the work in the way an original approval would. It records the council’s position on the building as built, at the date it is issued. It does not remove the need to fix defects, and it does not change what a buyer is entitled to know about the building. Builders who treat it as a way to close the matter, rather than as one part of a complete response, are likely to be disappointed.

The practical steps are straightforward in outline. Gather the evidence of what was built, have a suitably qualified person assess it, agree the changes the assessment requires, and make the application with the assessment attached. The detail depends on the council and the work, and the council’s own requirements should be checked before the application is prepared. Some work may also fall under the exempt development rules for builders in NSW, which is worth checking before assuming any approval was needed at all. Speaking to the council early, before the application is lodged, often saves time.

What the assessment has to answer in plain terms

A useful assessment answers the questions a council will ask, in the order it will ask them. What was built, and where. Whether the structure is sound and has been built to the standard expected of that type of work. Whether the fire safety, the weatherproofing and the services are adequate for how the building is used. Whether anything in the work affects a neighbour, such as a boundary, a drainage path or a window overlooking a private space. The answers should be plain, specific and tied to what was actually inspected.

The assessor should say what could not be inspected, because a report that does not state its limits is harder to rely on. Where a wall has been lined or a footing is buried, the report should say so and explain what the assessor relied on instead. Where the assessor recommends a change, the recommendation should say what the change achieves, not only what it involves. A council is more likely to accept a clear, honest report than one that tries to cover every gap.

For the builder, the assessment is also a test of what the original work was. A builder asked to help with the upgrades should be careful not to put their name to a conclusion about work they did not supervise or cannot inspect. The builder can supply information, photographs and a description of what was done, and can price the works that are needed. The judgement about whether the building is acceptable belongs to the qualified person who carries out the assessment.

When disclosure becomes unavoidable

Disclosure is not always a choice in the way a builder might hope. A seller who is asked directly about approvals and knows about unapproved work has to answer honestly, and a silent seller in a sale process is taking a serious risk. The contract for the sale, the questions in the disclosure documents and the buyer’s enquiries all bring the question into the open. The obligations depend on the sale process and should be checked with a solicitor or conveyancer, but the direction is clear: the unapproved work will be asked about.

The same applies to a builder asked for a quote, a sign-off or a letter about the work. A builder should not write a statement that the work was approved if it was not, and should not produce a document that suggests a check was made when it was not. If a client asks for help keeping unapproved work out of a sale or a planning conversation, the builder should refuse. A misleading disclosure makes the problem worse for the owner and exposes the builder to a much more serious question about their own conduct.

The builder’s own exposure

The builder who carried out the unapproved work has an exposure of their own, separate from the owner’s. Whether that exposure is significant depends on what was built, who did it, what the contract said, whether the builder held the right licence for the work and how the matter is handled from the moment it is discovered. A builder who was asked to do work that clearly needed approval, and did it anyway, is in a different position from one who was told the approval had been obtained.

Builders often discover unapproved work in the course of a different job: a renovation that exposes an earlier enclosure, a new kitchen that sits against a structure nobody approved, or a site inspection for another trade. The first decision is whether to say something. In most cases the right course is to tell the client plainly what has been found, recommend that they take advice, and record the conversation in writing. A builder who finds the problem and stays quiet to keep the job is taking on an exposure much larger than the job itself.

Cover is part of the picture. Where residential building work attracts cover under the Home Building Compensation Fund, the terms of that cover and the circumstances in which it responds should be understood before any claim is considered. The builder’s records are central to all of this: the contract, the scope, the plans, the variations and the correspondence. Records that show what the owner asked for, and when, are the strongest protection a builder has, and they are the first thing to gather.

The builder should also think about what comes next. A licence holder who handles a matter of unapproved work openly, gets advice early and keeps the records is in a far stronger position than one who avoids the question. Regulators and courts often look closely at what a person did once they knew about a problem. That is the part of the matter the builder controls.

A worked example: the enclosed deck and the pre-sale inspection

Consider a builder in western Sydney who, some years earlier, had enclosed a deck for a homeowner. The work was done without a council approval, because the owner had been told it was minor and the builder had not checked. The owner later decided to sell. The buyer’s building inspector noticed the enclosure and asked for the approval. The owner rang the builder, worried about the sale.

The builder did not suggest that the owner say nothing. The builder gathered what existed: the original quote, the scope the owner had signed, photographs taken during the job and the invoices. The builder then arranged, with the owner, for a building surveyor to assess the enclosure as it stood. The assessment identified some items that needed upgrading, and the builder priced them plainly, without trimming the list to make the figure look smaller. The owner made the application to the council with the assessment attached, and the buyer’s solicitor was told the position in writing before settlement.

The sale was delayed, and the owner paid for the upgrades, which were less than the buyer had first asked for. The builder kept the file. Afterwards the builder changed one habit in the business: any work that might need approval is checked against the council’s requirements in writing before the client is told it can proceed, and the scope the client signs records whether approval was obtained. The lesson was that the timing of disclosure had shaped the cost more than the work itself.

What to gather before anyone makes a statement

Before the owner, a buyer or the council is given a view of the work, gather the evidence. Start with the plans, photographs, invoices and the contract, and note who carried out each part and when. Put the record together while memories are fresh, and do not rebuild it later from memory. Evidence created at the time is far more reliable than an account written to fit the facts, and the assessment will be shaped by what the evidence shows.

Then take advice on the position before the first statement is made. A solicitor can advise on the sale or the dispute, and a building surveyor can advise on what the work as built needs. The council’s own requirements for a building information certificate should be checked in writing. Where the builder is considering whether to notify a regulator, or whether a licence or cover issue arises, that is a question for specific advice, not a guess.

A builder who has to deal with this kind of matter once will want the next one to be simpler. The discipline is the same as for any other part of the job. Settle the approval question before the work starts, write it into the scope, and keep the record. The PointCPD guide to how NSW builder CPD works sets out the wider licence requirements a builder should keep in view when work is being planned.

Questions builders ask

• Approvals
• NSW Compliance
• Renovations

Published 28 September 2026. General information for builders, not legal, financial or engineering advice for a specific job. Check current requirements with the relevant regulator or standard before relying on them.