I often hear clients and/or their advisors say – “it is better to ask for forgiveness, than consent” – in the context of carrying on development that requires consent. The thinking behind this is that a consent authority, such as a council, will take months to make a decision, so why not get ahead of the game. Who knows, the council may never even find out and you get off scot free.
Whilst the time taken by government bodies to make decisions can seem overly lengthy, the legal implications of the “ask for forgiveness” path are worth detailed consideration before you instruct the excavator driver to start their engine.
In a recent case in the Land & Environment Court, a Sutherland Shire resident, Mr Perdikakis, had a large shed constructed in his backyard. He knew at the time that he needed development consent, though decided not to obtain this approval. In ordering that the shed be demolished, Justice Pepper noted that Mr Perikakis was the “author of his own misfortune.”
Adding to that misfortune, Justice Pepper ordered Mr Perdikakis to pay Council’s costs. So, along with paying for the shed to be constructed, Mr Perikakis will have to pay for the shed to be demolished, the waste removed, his own costs and the Council’s legal costs which may run into the tens of thousands of dollars.
What could he have done differently?
Unlawful works can be regularised by way of a building certificate. In this case, Justice Pepper noted that Mr Perdikakis lodged a building certificate application and that the Council refused that application. However, he left that matter there. He could have appealed that application to the Court and if it was subsequently approved, the Council’s case to have the shed demolished would have failed.
No doubt one of the key reasons he didn’t go down that path was of the shed’s “manifest breaches of the planning controls”.
So, is it better to ask for forgiveness than consent? As a planning strategy it is fraught with risk. For mine, too much risk to even consider it.
If you need advice on the type and form of consent you need before undertaking any development work or if you are looking to seek “forgiveness” for work already performed, contact Nexus Law Group on +61 2 4961 0002.