The building process in Australia is heavy regulated, with aviation regulations significantly impacting building heights.
The Civil Aviation (Building Control) Regulations 1998 were passed under the Civil Aviation Act 1988, giving effect to a range of rules that – if not followed – can attract penalties.
You may not build a structure twenty five feet above ground level (AGL) in areas described in Schedule 1. This includes but is not limited to areas of land in the vicinity near:
– Sydney Airport (NSW)
– Bankstown Airport (NSW)
– Moorabbin Airport (Vic)
– Essendon Airport (Vic)
– Melbourne Airport (Vic) and,
– Adelaide Airport (SA).
The Regulations actually provide helpful pictures (or photocopies) of the Airport for guidance with building heights:
An offence against this regulation is an offence of strict liability. This means that if you are prosecuted for violating the rules, the prosecution does not need to prove that you had any intention, recklessness, negligence or knowledge of what you were doing wrong. All they need to prove is that you actually did the wrong thing.
This does, however, attract what is called the defence of “honest and reasonable mistake”. If you can prove that you honestly and reasonably believed that where you were building a structure higher than 25 feet above the ground was not within the prohibited bounds in the regulations, this will suffice to let you off.
Of course, this would be extremely difficult (if not impossible) to prove. The people who will be working with that build these buildings are professionals. You will probably become aware of these rules and there is little if any scope that they will not come up. There are many processes that would prevent this type of breach from occurring. Namely, Reg 7 of the Regulations prescribes that an application to construct a building which is prohibited elsewhere in the rules may be made. That application needs to be lodged with “the Authority” (for example, planning approvals can be submitted to Sydney Airport if you want to build there) and needs to state:
– The nature of the proposed situation of the building;
– Its height above the ground; and
– The purposes for which it will be used.
The Authority can grant or refuse any application you make, but they can only do it if they are satisfied the building will or might be an “obstruction, hazard or potential hazard to aircraft flying in the vicinity of the aerodrome”.
As you can see, aviation regulations have a significant effects on building heights. But we have not even scratched the surface. Please contact Avlaw Aviation Consulting for further information.