What Is A Building Information Certificate

 

 

 

 

 

 

 

 

What Is A Building Information Certificate?

When building work has been done without proper authorization, a Building Information Certificate (BIC) application is usually made as a means to regularize the situation. This is because obtaining a development consent or a construction certificate for a completed building is not possible, and therefore, a BIC is typically the only solution available to legalize the unauthorised building work.

A local council is responsible for issuing a Building Information Certificate (BIC) upon receiving an application made under Division 6.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The application is made to the council of the local government area where the unauthorised building works took place and the council must decide whether to grant or reject the certificate.

A Building Information Certificate (BIC) is a certificate that protects the building from actions by the council, such as issuing an order or taking legal proceedings to repair, demolish, alter, add to, or rebuild the building, or taking civil proceedings in relation to any encroachment by the building onto land controlled by the council. The BIC is effective indefinitely for unauthorised building works carried out prior to its issuance. However, the BIC is only valid for 7 years for matters arising only from the deterioration of the building due to normal wear and tear. The BIC can be applied to the entire building or just a portion of it.

What is the purpose of a (BIC)?

A Building Information Certificate (BIC) does not legitimize unapproved building works. Instead, it provides assurance that the local council will not take any compliance actions related to these works. BICs are commonly requested by buyers or sellers of property before the settlement to ensure that the building being sold or purchased will not be subject to compliance action by the council. BICs are usually requested if there is suspicion that building work has been done without obtaining the necessary approvals from the council or a registered certifier.

Can a development application or modification application be used to legitimise unauthorised building works?

When building work is carried out without the proper approvals, it cannot be retrospectively approved through a development or modification of an existing development consent. Approvals can only be granted for future use of the already erected building. In Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, it was stated that a development consent or modification of an existing consent cannot authorize the past construction of a building, but it can be granted or modified to authorize the future use of the building.

In such cases, the only option available to regularize the unauthorised building works is by obtaining a BIC (Building Information Certificate). A BIC, issued by the local council, provides assurance that the council will not take certain compliance actions regarding the unauthorised works. It is commonly requested by buyers or sellers of property before settlement to ensure that the building will not be subject to compliance action by the council.

In addition to a BIC application, an applicant may also submit a development application or modification application for prospective alterations or additions to a building, or to authorize its future use.

Who can apply for a Building Information Certificate?

A BIC can be applied for by the following individuals or entities:
• The owner of the land where the unauthorised building works were carried out or someone with the landowner’s consent.
• A prospective buyer of the land who has entered into a contract of sale or the buyer’s legal representative or agent.
• A public authority, after giving notice to the landowner.

How do I apply for a BIC?

Contact us!

What information will be required for a BIC application?

To process a BIC application, a local council may require certain information from the applicant. This may include building plans, specifications, survey reports, and certificates. The council may request this information in order to make a decision on the application.

What matters does Council need to consider when determining whether a BIC should be issued?

A council can issue a BIC provided there is no matter discernible by the exercise of reasonable care
and skill that would entitle the council, under the EP&A Act or the LG Act to

    1. Order the building to be repaired, demolished, altered, added to or rebuilt
    2. Take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt
    3. Take proceedings in relation to any encroachment by the building onto land under the control of the council
    4. There is such a matter but the council does not propose to make any such order or take any such proceedings

The council assesses the application based on its merit, taking into account the relevant considerations of the EP&A Act and EP&A Regulation. Considerations in deciding whether to issue a BIC:

    1. Whether the building meets relevant building standards and has structural adequacy
    2. Whether development consent would have been granted had consent been sought for the building (the notional DA) where no prior consent has been obtained.

What if a BIC is refused and what are an applicant’s appeal rights?

If a council refuses to issue a BIC, it must inform the applicant of its decision and provide detailed reasons for the refusal. The applicant may have the right to appeal the council’s decision, as specified in section 8.25 of the EP&A Act. The appeal can be made to the court if the council refuses to issue a BIC or fails to issue it within the specified timeframe.

If a council refuses to issue a BIC, it must inform the applicant of the decision and the reasons for the refusal. The explanation must be clear enough to let the applicant know what needs to be done to secure a BIC. The applicant has appeal rights according to section 8.25 of the EP&A Act, which include the right to appeal to the court if the council refuses to issue a BIC, if the council fails to issue a BIC within the time prescribed by the EP&A Regulation 2021, or if the applicant is dissatisfied with a notice from the council to supply information for the BIC.

An appeal must be made within 6 months of receiving notice of the council’s decision or at the end of the deemed refusal period of 40 days, depending on the circumstances. The court may direct the council to issue a BIC, revoke or alter a notice to supply information, or make any other appropriate order.

What are the enforcement actions for unauthorised building works by consent authorities?

Enforcement actions for unauthorised building works may lead to significant fees, fines, and delays. They may include:

  • Issuing penalty infringement notices
  • Development control orders, including stop work orders, demolish work orders, restore work orders, and compliance orders, under Division 9.3 and Schedule 5, Part 1 of the EP&A Act
  • Criminal prosecutions through either the Local Court or the Land and Environment Court

What is an Occupation Certificate (OC) and is it a requirement of a BIC?

An Occupation Certificate (OC) authorizes the use and occupation of a new building or part of a building. A Principal Certifier issues an OC after ensuring that the development meets various regulatory standards, such as consistent design and construction with the development consent, completion of all pre-conditions, issuance of a construction certificate, and suitability for occupation. An OC cannot be issued if these standards have not been met.
A Building Information Certificate (BIC) can be issued for buildings without an OC. If there are unauthorised building works at a site that are hindering the issuance of an OC, the council will decide through the BIC process if any action should be taken regarding those works.