Responding to Building Orders Issued by Building Surveyors Under the Victorian Building Act 1993
By Kim Lovegrove RML, FAIB, Senior Lawyer and Mediator, Lovegrove & Cotton
Building orders need to be treated like “sweating dynamite” as the consequences of not acting within the time speculated will be serious. Failure to abide by building orders will have a severe impact upon the respondent; be it an owner or a building practitioner. This piece explains processes and consequences of recalcitrant conduct.
The Victorian Building Act 1993 gives building surveyors the ability to issue building notices and building orders to enforce breaches of the Building Act.
Council and private building surveyors can issue building notices and building orders. Only municipal building surveyors can issue emergency orders.
Building surveyors are obliged to issue notices and orders when there is an instance of non-compliance with a provision of the Building Act or the Building Regulations. Where there exists the risk of imminent prejudice to life and limb and this is brought to the attention of a municipal building surveyor, it would be a dereliction in duty for a council building surveyor to fail to issue an emergency order.
As property owners own the land or the units, ordinarily the notices and orders would be served upon the registered proprietors of the realty. It is then incumbent upon the registered proprietor to comply with the building orders or, in circumstances where it is considered impossible or unreasonable to comply with building orders, the matter can be appealed to the Building Appeals Board.
Upon receipt of a building notice or building order, regardless of whether one is an owner or building practitioner, it would be remiss of one not to engage a lawyer who is au fait with the Victorian Building Act 1993. It is a very serious state of affairs when a building notice or order is issued and great care and technical dexterity is required to ensure that matters are “regularised.”
A failure to comply with a building order in certain scenarios can occasion harm to the public. Furthermore, a statutory breach of the Victorian Building Act 1993 would crystallise if the recipient of the building order or emergency order failed to comply with the order in circumstances where an appeal has not been lodged. The recalcitrant could then be prosecuted. Even when an appeal is lodged, the Building Appeals Board can still find that there was non-compliance of the building order or insufficient grounds to appeal, in which case prosecution can still be pursued by the relevant statutory authority.
Both councils and the Victorian Building Authority have the power to prosecute through the mediums of the relevant statutory officers which in the case of council will be a municipal building surveyor. Prosecutions occur in the Victorian Magistrates’ Court.
Notices and orders must be complied with within the time lines stipulated in the notices and orders, but it is not unusual for a bona fide recipient to engage with the statutory officer to negotiate an extension for the time and the methodology by which one complies with the statutory instrument. Remember, the only avenue for an appeal is the Building Appeals Board and if one wishes to utilise this avenue, the appeal must be lodged within the statutory time period. Again, one is well advised to use a lawyer to draft the appeal documentation.
Powers of Building Surveyors
Building surveyors can request a number of things to be done in the furtherance of compliance, including but not limited to: notice of show cause, stop work orders, directions that safety mediums be installed in addition to orders that matters are brought into compliance with the Building Code of Australia.
Cooperation is paramount as a failure to cooperate will not bode well if the matter is prosecuted and will be at odds with the dictates of those of a law-abiding citizen. Furthermore, if an order is served upon a building practitioner, failure to comply may culminate in both Magistrates’ Court prosecution and a misconduct referral to the Building Practitioners Board.
Directors of companies can also be implicated in prosecutions under the “those knowingly concerned provision of the Building Act.”
Penalties for non-compliance
Non-compliance with building orders may result in substantial fines for property owners. In circumstances where a building order has been made by a private building surveyor, the private building surveyor must refer the matter to the VBA within 14 days of the date of final compliance. When non-compliance is found with regards to a building order or emergency order, the relevant legal entity may be subject to fines of up to $77,730 for a natural person or $388,650 for a body corporate.
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing firstname.lastname@example.org.
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