What Is Building Work?
By Kim Lovegrove RML, FAIB, Senior Lawyer, Lovegrove & Cotton
Section 3 of the Victorian Building Act 1993 provides a definition of building work, describing it as “work for or in connection with the construction, demolition or removal of a building.”
The word “construct” is also a defined term.
Construct is defined as work involving:
- the build, rebuild, erecting or re-erection of a building
- the repair, alterations, enlargement or extension of a building
- the placing or relocation of a building
The definition of “building work” coupled with the definition of “construct” is of broad church import and gravitas. Those who are unfamiliar with the definition of building work are prone to making assumptions about that which requires a building permit and that which does not. Such assumptions can have a very deleterious impact upon the uniformed or unenlightened as it were, for a failure to carry out or undertake building work without a building permit can culminate in prosecution of the quasi criminal persuasion.
There are however some building work exemptions.
Schedule 8 of the building regulations 2006 traverses the exemptions. These exemptions are extensive and require very, very careful scrutiny, cross referencing and professional advice, as there is a plethora of considerations that are factored into the question of whether building work is exempt from the requirement to obtain a building permit. Some of these considerations are as follows:
- whether there will be an adverse impact upon the public
- whether there are Heritage Act restrictions imposed upon the site
- whether there will be any adverse impacts upon the structural integrity and soundness of the building or an increase to the size of the floor area
- whether there will be any adverse impacts upon the essential safety measures of the works
- whether the work will impact upon the underpinning or replacement of the footings or any element that provides support to the building
- whether the work projects beyond the street alignment.
There are also provisions that traverse temporary structures, fencing, relocatable swimming pools, wire fences, pergolas and the like.
I am at pains to labour the point that the above list is far from exhaustive and I cannot stress this caveat enough: before determining whether the building work exemptions apply, you must get expert advice, be it from a building surveyor or a construction lawyer.
As an aside, I used to be a prosecutor for local government and vividly recall prosecuting a gentleman who one weekend got a mate to help him demolish a decrepit outhouse to the rear of his abode. It was one hell of an eyesore and, apart from providing a home for vermin and antisocial Australian bugs, it provided zero benefit, value or use. In fact it could have been argued that the respondent was performing a social service of sorts in removing it.
Nevertheless, the council happened to uphold a zero tolerance policy for statutory breaches and determined that the guy should have gotten a demolition permit. I remember when I appeared before the Magistrate, she very hawkishly looked down at me and said “this is a bit like smashing a nail with a sledgehammer, isn’t it Mr ‘Lovejoy'” (she mispronounced my name); to which I said “section 16 is a strict liability provision your worship, a permit was required, was not obtained so the legislation was breached – period.”
I mention this point because it graphically illustrates the danger of assumption.
What are the consequences of carrying out work without a building permit?
I have begun to traverse this terrain. Section 16 of the Victorian Building Act is the most frequently used prosecution section under the Victorian Building Act. Section 16 would be the biggest fine-inspired revenue generation mechanism for many local government building departments because it is the section that is so frequently breached by property owners and builders whom assume that a building permit is not required.
Section 16 provides that you can’t carry out building work unless a building permit has been issued in accordance with the Victorian Building Act. If you build without a building permit, regardless of whether the infraction is carried out by a natural person (whether that be a person or corporation) you can be prosecuted and in all likelihood will. Furthermore, if the work is carried out without a building permit, then the work is illegal and a municipal building surveyor may issue a demolition order. If this occurs, the fine will be the least of one’s worries as demolition can be a game changer.
Natural persons (property owners and builders) can be prosecuted, as can companies that happen to own the land or employ people who do the illegal building work.
If perchance the illegal building work has been carried out by a building practitioner, then the recalcitrant can cop the prosecutor’s “hamburger with the lot” – the “indigestion special.” The ingredients will be a section 16 prosecution which in the case of a natural person may be a fine of up to $77,730. If the practitioner works for a body corporate, the body corporate may cop a fine of up to $388,650 and if the VBA gets wind of the matter, then the VBA may initiate an investigation into the building practitioner’s conduct.
But there may be more steak knives if the illegal work is of a magnitude that can endanger life then that can become an occupational health and safety matter, and Worksafe fines understandably can run into the hundreds of thousands of dollars. Were there to be a death, then it is not inconceivable that a prosecutor could argue that carrying out work without a building permit in circumstances where there was palpable risk to life and limb constituted an act of criminal negligence. I am not aware of a case in point in Victoria, but it is not beyond the realm of possibility.
With regards to land owner(s), subsection 5 of Section 16 of the Victorian Building Act 1993 states that if the owner has engaged a building practitioner or architect to carry out the building work, the onus does not fall on the land owner(s) to ensure a permit has been attained.
My advice on carrying out work without a building permit the take out is simple: don’t go there. If you have any doubts about whether a renovation, alteration or demolition that you are about to embark upon needs a building permit, then if you are going to make any assumption, assume that it will require a permit and engage a building surveyor or a construction lawyer to provide definitive advice. If the advice is that it does, then for God’s sake, get a building permit.
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.
The CVs of our senior construction and planning lawyers can be accessed by clicking the below