Articles

Building surveyors in Victoria hold significant authority under the Building Act 1993 to issue notices and orders to ensure safety and compliance. Non-compliance can lead to severe penalties. This guide will help you understand these powers and how to respond effectively.

1. Building Directions (Section 37E and 37F)

What They Are:

Directions issued to fix building work.

Purpose:

To ensure compliance with the Building Act 1993.

2. Building Notices (Section 106)

What They Are:

Initiating compliance to address building safety or compliance issues.

Purpose:

To initiate interaction between building owners and surveyors to make the building safer.

3. Building Orders (Section 111)

What They Are:

Issued if further action is necessary after considering the respondent’s response to a notice.

Purpose:

To require specific actions to rectify issues and ensure compliance.

4. Emergency Orders (Section 102)

What They Are:

Orders issued to address immediate risks to life or property.

Purpose:

To mandate immediate actions to mitigate dangers, such as evacuation or temporary measures to make the building safe.

Who Can Issue:

Only a Municipal Building Surveyor (MBS) has the authority to issue emergency orders.

5. Powers of Private Building Surveyors

What They Are:

Authority of private building surveyors to issue building notices and orders under the Building Act 1993.

Purpose:

To ensure compliance with the Building Act 1993 by private entities.

Non-Compliance Referral:

If there is non-compliance with an order, private building surveyors must refer the matter to the Victorian Building Authority (VBA) as per Section 115 of the Building Act 1993. They cannot take further action themselves.

6. Responding to Building Notices and Orders

Immediate Steps

1. Engage a Building Regulation Lawyer: Consult with a lawyer experienced in building regulations to guide you.
2. Hire a Consulting Building Surveyor: A consulting surveyor can assess the issues and help develop a compliance plan for the consideration of the municipal building surveyor.

Compliance Plan

1. Detailed Assessment: Review the building and identify necessary remedial measures.
2. Approval Process: Submit the compliance plan to the municipal building surveyor for approval.

Communication and Negotiation

1. Submit Your Plan: Present the plan to the MBS and negotiate extensions if needed, ensuring that the extension is negotiated before the expiration of the notice or order to avoid committing a statutory offence.
2. Appeal: Alternatively, lodge an appeal with the Building Appeals Board within the time limit.
3. Implement Remedial Actions: Prioritize immediate safety measures and follow through with long-term solutions.

Adhering to Dates and Deadlines

1. Compliance Dates: Ensure all dates in the notice or order are strictly adhered to.
2. Request Extensions: If more time is needed, request an extension from the MBS. Failure to comply within the specified timeframes can constitute a severe statutory breach.

Final Steps

1. Permits and Inspections: Obtain necessary permits and ensure all work is inspected.
2. Lift Notices and Orders: Once everything is regularized, your lawyer will work to get the MBS to lift the notices and orders.

Potential Prosecution

1. Discretion to Prosecute: The MBS retains discretion to prosecute non-compliance. Cooperative behaviour can sometimes influence their decision.
2. Mitigation: A cooperative and informed approach can help mitigate penalties even if prosecution occurs.

Conclusion: Seek Professional Help

Navigating building notices and orders requires prompt and informed action. By working with building regulatory lawyers and technical experts, one can increase one’s ability to facilitate compliance and be better positioned to avoid severe penalties.

Tsigereda Lovegrove, construction lawyer and practice manager of Lovegrove & Cotton, said the firm has been helping clients regularize matters for 30 years and is able to assist clients with legal representation in terms of their interactions with the council in the notice, order, and compliance realm.

Disclaimer:

This article is for informational purposes only and does not constitute legal advice. For specific legal advice, please consult with a construction lawyer.