Prosecutable Offences under the Victorian Building Act 1993 (Vic)
Introduction
The Building Act 1993 (Vic) (‘the Building Act’) lays down a comprehensive framework for the regulation of building activities in Victoria. The Act includes a variety of provisions aimed at ensuring compliance with building standards and safety requirements, with many of these backed by enforceable penalties. While some breaches under the Building Act are dealt with through civil remedies or administrative actions, others attract criminal charges, necessitating adherence to criminal law principles like the “beyond reasonable doubt” standard of proof. This piece explores the prosecutable offences under the Building Act, offering a detailed look into key provisions and penalties that apply to practitioners, owners, and other relevant parties.
The Act encompasses various regulatory provisions, some of which enable enforcement powers like rectification and stop-work orders. In more serious instances, breaches can lead to criminal charges. These offences are subject to general criminal law principles, including the standard of proof—”beyond reasonable doubt“—and other legal requirements like actus reus (physical elements) and mens rea (mental elements).
The purpose of the offence provisions is to promote high standards in building practice and ensure adherence to safety and quality benchmarks. Key principles that shape these provisions include the necessity of building permits, compliance with orders, safeguarding building occupants, and maintaining oversight of construction activities.
What is Building Work?
As so much revolves around building work for purposes of offences under the Building Act, it is very important that owners and building practitioners alike are familiar with the legislative definition of building work, which is outlined in Section 3. “Building work” means work for or in connection with the construction, demolition, or removal of a building.
“Construct” is also a defined term, as Section 3 provides that construct includes:[1]
- Build, rebuild, erect, or re-erect;
- Repair;
- Alter;
- Enlarge or extend;
- Place or relocate.
Some Key Exemptions from Being Required to Have a Building Permit
Schedule 3 of the Building Regulations 2018 covers various exemptions.[2] These exemptions require careful scrutiny and professional advice to determine whether a building project is exempt from the requirement to obtain a building permit. Considerations include:
- Potential adverse impacts on the public;[3]
- Restrictions under the Heritage Act;[4]
- Effects on structural integrity or floor area;[5]
- Impacts on essential safety measures;[6]
- Effects on footings or building supports;[7]
- Work extending beyond street alignments;[8]
Provisions also address temporary structures, fencing, and other minor works.
It is advisable to consult a construction lawyer before determining whether exemptions apply to any specific project.
Penalty Units
Penalties in legislation are defined by way of ‘penalty units.’ A penalty unit’s monetary value varies according to inflation. The current value of a penalty unit in Victoria can be found at the Victorian Department of Treasury and Finance’s website: CLICK HERE. Throughout this article, penalties are presented in their penalty unit form, with any applicable prison terms also provided.
The final penalty imposed depends on enforcement actions, prosecutorial discretion, and ultimately, the sentencing decisions of judges if offences proceed to court.
Part 3 – Building Permits
Section 16 of the Victorian Building Act 1993
Section 16 of the Victorian Building Act 1993 prohibits building work without a valid permit unless a building practitioner or architect has been engaged for that purpose. Key requirements include:[9]
- A person must not carry out building work without a permit.
Penalty: Up to 500 penalty units for a natural person, or 2,500 for a corporate entity. - Work must comply with the Act, regulations, and permit conditions.
Penalty: Up to 500 penalty units for a natural person, or 2,500 for a corporate entity. - Owners must ensure building work on their land complies with all necessary permits and regulations under the Act.
Penalty: Up to 500 penalty units for a natural person, or 2,500 for a corporate entity. - Practitioners and architects must ensure that a building permit in relation to the work has been issued and is in force under the Act.
Penalty: Up to 500 penalty units for a natural person, or 2,500 for a corporate entity.
The amendments introduced in 2016 shifted the responsibility for obtaining permits from owners to building practitioners and architects, marking a significant change in compliance expectations.
Indictable Offence – Section 16B
Section 16B outlines an indictable offence for knowingly carrying out building work without a permit. [10]Unlike strict liability offences, this charge requires proof of knowledge, which could result in up to 5 years’ imprisonment or 600 penalty units for a natural person, or 3,000 penalty units for a body corporate. This provision serves as a deterrent against deliberate noncompliance.
Protection Works Offences
Protection works provisions ensure that building activities do not harm adjoining properties. Noncompliance with requirements for protection works agreements or insurance attracts penalties of up to 500 penalty units for individuals and 2,500 penalty units for companies.[11]
Conclusion
The Building Act 1993 (Vic) sets a clear standard for building compliance in Victoria, supported by a robust framework of enforceable penalties. The range of offences under the Act, from lesser breaches to serious indictable offences, emphasizes the importance of adhering to the prescribed processes and standards in building practices. Awareness and understanding of these offences are crucial for all stakeholders, as ignorance of legal obligations is no defence in the eyes of the law. Those facing allegations under the Act should seek experienced legal counsel to navigate the complexities of the regulatory framework and ensure that their rights and obligations are thoroughly understood. The Act’s emphasis on accountability underscores its role as a cornerstone in maintaining safety, quality, and integrity within Victoria’s building industry.
Disclaimer:
The information provided in this article is for general informational purposes only. It does not constitute legal advice. For specific legal advice related to building regulations and compliance, please consult a qualified construction lawyer.
Footnotes
[1] “construct”, in relation to a building, includes – (a) build, re-build, erect or re-erect the building; and (b) repair the building; and (c) make alterations to the building; and (d) enlarge or extend the building; and (e) place or relocate the building on land.” BUILDING ACT 1993 – SECT 3 Definitions and interpretation (austlii.edu.au)
[2] BUILDING REGULATIONS 2018 – SCHEDULE 3 (austlii.edu.au)
[3] Ibid, “2(c) will not adversely affect the safety of the public or occupiers of the building.”
[4] Ibid, “2(d) is not work carried out on, or in connection with, a building included on the Heritage Register within the meaning of the Heritage Act 2017.”
[5] Ibid, “3(a) will not adversely affect the structural soundness of the building…”
[6] Ibid, “3(d) will not adversely affect an essential safety measure relating to the building.”
[7] Ibid, “4(a)… ii) underpinning or replacement of footings; or (iii) the removal or alteration of any element of the building that is contributing to the support of any other element of the building;”
[8] Ibid, “4(b) will not project beyond the street alignment.”
[9] BUILDING ACT 1993 – SECT 16 Offences relating to carrying out building work (austlii.edu.au)
[10] BUILDING ACT 1993 – SECT 16B Indictable offences relating to carrying out building work (austlii.edu.au)
[11] s88,(1) “An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until… (a) the adjoining owner agrees or is taken to agree to the protection work; Penalty: 500 penalty units, in the case of a natural person. 2500 penalty units, in the case of a body corporate.” BUILDING ACT 1993 – SECT 88 Work not to be carried out until protection requirements met (austlii.edu.au)
