What are Building Notices and Building Orders in Victoria?
Under the Building Act 1993 (Vic) (“the Act”) building surveyors can issue building notices and building orders if after carrying out an inspection of a building or land, they ascertain that non-compliant building work has been carried out in contravention of the requirements of the Act and/or Building Regulations 2018 (Vic) (“the Regulations”).
Notice of Entry
Section 228D of the Act grants the power of entry to an authorised person i.e; a relevant building surveyor (“RBS”),[1] and provides access to all parts of the subject building or land for the purpose of carrying out any inspection concerning illegal building works.[2]
Usually, the property owner is served with a letter explaining the reasons for the proposed inspection by officers from the local council.
Building notices
Building notices may be issued and served on the registered owner of the property or land by a municipal building surveyor (“MBS”) or RBS, if the initial inspection reveals that any of the following circumstances exist:[3]
- building work for which a building permit is required under the Act has been carried out without or in contravention of a building permit;
- the use of the building contravenes the Act and the regulations;
- safety or emergency services, installations or equipment have not been maintained in accordance with the occupancy permit and regulations;
- the building or place is unfit for occupation or for use as a place of public entertainment; and
- the building work, land or place is a danger to life, safety or health of any member of the public or any person using the building or land.
Show cause process
Once an owner of a property is served with a building notice, he or she will have the opportunity to show cause or make representations within a specified period (usually 30 days), in the manner set out in the notice i.e; in writing.
The response to the show cause notice should address the reasons (if any) why the property owner does not have to comply with the directions set out in the notice. Depending on what has been alleged, this may include:
- Why the owner should not be required to carry out the building work, protection work or work required by the regulations identified in the notice served on the owner.
- Why entry or the use or occupation of the building, land or place should not be prohibited or the owner should not evacuate the building.
- Why the owner should not be required to demolish and reinstate a particular structure or building conversion.
- Why the owner should not be required to obtain the relevant planning approval from the local council’s town planning department etc.
You must respond within the show cause period. Your response may be to undertake the works required by the direction in the building notice served on you or disagreeing with the directions in the notice. However, the later will need to be considered very carefully, because the RBS has discretion to consider all written statements provided by the property owner (if received within the show cause period) and cancel the building notice or issue a building order.
It is prudent to engage a lawyer provide assistance to the drafting of notices or orders.
Building orders
A building order is issued requiring the property owner to undertake the directions of the order within a stated time. The owner must comply with the order, as non-compliance constitutes a serious statutory offence and may result in prosecution in the Magistrates’ Court.
Appeals to the Building Appeals Board
Pursuant to section 142 of the Act, the owner of a building or land can apply to the BAB to have councils’ notices and orders set aside if there are lawful grounds to do so. For instance, if the subject building or building works fall within the building permit exemptions under Schedule 3 of the Regulations or if a building notice or order should not have been issued by the council in the first place.
The prescribed appeal period is currently 30 days after the date the Building Notice is served on the owner.[4] The BAB may determine that the notice or order has proper basis for being issued and affirm the council’s decision to issue the notice or order.
What do I do if I am served with a Building Notice or Order?
Take the matter incredibly seriously as the consequences of any dereliction are likely to be dire.
As a great deal is at stake, prudence will ordinarily dictate that the services of construction lawyers familiar with the Building Act 1993 are deployed.
Please see our further articles on building notices, building orders, the show cause process or the Building Appeals Board:
Building Notices and Orders: The Regularisation of Non-Compliant Building Work in Victoria
How to Respond to a Building Order Issued by a Building Surveyor
Shout Rock Cafes case study
This is a Lovegrove and Cotton publication, authored by Tsigereda Lovegrove.
Disclaimer
This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.
Lovegrove & Cotton Compliance and Regularisation Lawyers
For thirty years, Lovegrove & Cotton have provided advice and represented property owners, builders, and building practitioners in building and planning regularisation matters. Please see our building regulatory compliance page for more information. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.
[1] Building Act 1993 (Vic) s228
[2] Building Act 1993 (Vic) s228D
[3] Building Act 1993 (Vic) s106
