Can an SA Council Make You Pull Down an Unapproved Shed?

Can the council make you pull down an unapproved shed in South Australia?

Yes, within limits. Under the Planning, Development and Infrastructure Act 2016, no development may be undertaken unless it is approved, and building work, including putting up a shed, is development. A shed that needed planning consent or building consent and never got it is a breach of the Act, no matter how long ago it was built.

A council is a designated authority under the Act, so if it has reasonable grounds to believe the Act has been breached it can give an enforcement notice (section 213) that:

• directs a person to stop the act that is the breach, for a set period or until further notice
• directs a person to make good the breach in a way and within a time the notice sets out, which for a shed can mean altering it, getting it approved or taking it down
• allows the council to take urgent action where the breach creates an urgent situation

If a direction to make good the breach is ignored, the council can arrange the work itself and recover its reasonable costs as a debt. Unpaid costs can become a charge on land the person owns, and failing to comply with a notice is a separate offence. You can appeal a notice to the Environment, Resources and Development Court, but the appeal must be started within 14 days of the direction unless the Court allows more time.

Not every shed needs approval. Small garden sheds that meet the size, height and siting limits in the planning rules can be exempt, so the first question is always whether approval was required at all. If you are buying, our contract review checklist for buyers shows where building approvals fit into your other checks.

How many years before the council can't make you remove it?

There is no fixed number of years after which a council loses all power over an unapproved shed. The Act sets different time limits for different enforcement tools, and one of them can be extended with no outer limit.

In practice, the risk of being forced to remove an old shed falls with time. A council relying on its own notice power has to act within about a year, and court action after three years needs the Attorney-General's approval. The Legal Services Commission's Law Handbook notes that this three year limit can entrench long-standing illegal developments.

That is not the same as the shed being legal. It stays unapproved development, it can still come up in a buyer's checks when you sell, and if it becomes unsafe an emergency order can still be made. Working out when a breach happened can also be arguable, for example where a shed was built in stages or its use changed later, so get advice on the dates rather than assuming the clock has run out.

What to do if the council contacts you about a shed

Act quickly and in writing, because the appeal window on an enforcement notice is short.

• Read the notice closely. It must set out what you are directed to do, the deadline and your appeal rights.
• Check the approval history. Ask the council for its records on the property and find out whether the shed needed approval, whether any approval was granted, and whether what was built matches it.
• Consider applying for approval now. You can lodge a development application for a structure that is already built. It may need changes to meet the Building Rules, and a building certifier or the council can tell you what is involved. If court proceedings are already running, the Court can adjourn them so an application that should have been made can be lodged.
• Decide on an appeal within 14 days if you think the notice is wrong, for example because the shed was exempt or the 12 month limit had passed.
• Do not ignore it. Non-compliance is an offence with a daily default penalty, and the council can do the work and recover the cost from you.

A planning lawyer is the right adviser if the matter is heading to court. A conveyancer is the right person if the shed has come up during a sale or purchase.

Is it your problem if a previous owner built the shed?

Often, yes, in a practical sense. The Act aims enforcement at the person who breached it, and whether a later owner can be ordered to remove a structure someone else built depends on the facts. But the shed stays with the land. Anyone with an interest in the land is entitled to be heard in court enforcement proceedings about it, and the current owner is the one who has to deal with the council, a future buyer's questions and any building work that touches the structure.

That is why an unapproved shed is far easier to deal with before you buy. Our guide to unapproved structures found during due diligence covers the options when a buyer finds one, from retrospective approval to special conditions and price adjustments.

What buyers in South Australia should check

Do not rely on the Form 1 alone. The vendor's statement (Form 1) must disclose enforcement notices and court enforcement orders affecting the land, emergency orders, and any building indemnity insurance still in force for building work on the land. It only shows notices and orders that have actually been issued. A shed the council has never looked at will not appear, and the council's answers in the Form 1 are not a complete history of approvals.

• Get the approval records. Ask for copies of approvals and approved plans for the property, and compare them with every shed, garage, carport and outbuilding on site.
• Use the building inspection. A pre-purchase inspector can point out structures that look newer than the approvals or do not match the plans. See how to read a building and pest report.
• Ask the seller in writing, through your conveyancer, whether any work was done without approval.
• Use the cooling-off period. In SA a buyer can usually rescind within two clear business days after signing or after the Form 1 is served, whichever is later. There is no cooling-off at auction, so do these checks before bidding.
• Negotiate before you are bound. A special condition can require approval before settlement, or the price can reflect the cost of fixing or removing the shed.

Our South Australian conveyancing guide explains the rest of the local process, and the SA first home buyer checklist puts these checks in order. A conveyancer handling your purchase orders the council searches as part of the job.

What sellers should do before listing

Deal with it before the property goes on the market. Check the council's approval records for every structure, and if a shed was never approved, either apply for approval, remove it, or be ready to disclose it and price it in. A buyer who finds an unapproved shed late in the process has leverage, and one who discovers it after settlement may have a claim.

The Form 1 must be accurate when it is served. If it is not served or is defective, the buyer's cooling-off period does not properly start, and after settlement the buyer can ask a court to set the contract aside or award damages against the vendor, or against the agent where the agent's failure caused the problem. Our guides to vendor disclosure statements by state and illegal building work disclosure cover the seller's side in more detail, and a conveyancer preparing your sale can check the Form 1 before it goes out.

Frequently asked questions

This guide is general information, not legal or financial advice. Rules, fees and timeframes change and differ between states, so confirm your own situation with a licensed conveyancer, settlement agent or solicitor.