NSW – HENDRY building certifiers advise that in NSW, building legislation contains provisions that allows for an authority, namely the Land and Environment Court, to vary particular requirements of the 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 lodgement of objections to a provision that a consent authority has made
In 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 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 assistance with the building appeals process where an alterantive solution has a basis for its acceptance.