NSW – HENDRY building certifiers advise that in New South Wales, building legislation contains provisions that allow for an authority, namely the Land and Environment Court, to vary particular requirements of the building regulations and the Building Code of Australia (BCA)  in the case of existing building upgrades under the building appeals process.

The Land and Environment Court Act 1979 (the Court Act) vests power in the Court to determine environmental, development, building and planning disputes via building appeals. The Court is highly specialised, with the same status as the Supreme Court of New South Wales, and is subject to the supervision of the New South Wales Court of Appeal.

The methods adopted by legislation for building appeals include powers conferred on the NSW Fire Brigades, the lodgment of objections to a provision that a consent authority has made

[such as NSW local councils, the Department of Planning (DOP)], a court process, or through an authority or Building Certifier to make performance based decisions by qualified practitioners.

bca2011In New South Wales, a building decision appeal is effectively a court action against a municipal council.                                                                                                                                                                                                                                                                   The building appeals process through the NSW Land and Environment Court can be a lengthy procedure, and the quality of the building appeals submission and the expert advice portrayed within an application, together with the reasoning presented, can influence the end result.

The NSW Land and Environment Court has Assessors and Judges. Generally only Assessors hear building appeals unless the building appeal is against a decision of an Assessor or cases that raise important issues of law.

Legal representation is strongly encouraged at building appeals, since the municipal council will also have legal representation. Expert witnesses can be called in by either party to provide evidence and they will be subject to cross-examination.

Building owners, tenants, architects, builders and designers will need professional building surveying assistance with the building appeals process where an alternative solution has a basis for its acceptance.

Building Legislation Table

Refer to our Building Legislation Table for further information on the building control process, including Certificate Compliance and the Complying Development Certificate.