Articles

Contraventions of the Building Act

There are numerous offence provisions under the Building Act 1993. The most common transgressions that culminate in investigations and prosecutions by statutory authorities in Victoria are carrying out building work:

• Without a Building permit.
• In contravention of a Building permit.
• Carrying out work at odds with the permitted classification under the Building Code of Australia.
• In breach of Building notices and orders.
• Practising without the required insurance.

The fines for these breaches can be very high; corporate entities can attract a maximum of $462,300 (2500 penalty units) while individuals can be penalised $92,460 or (500 penalty units) as of 12/12/2022.

What to do when served with a charge

• Brief a construction lawyer experienced in this quasi-criminal domain immediately.
• Take advice on whether one is guilty of some or all of the charges.
• Ascertain whether any of the charges are duplicitous ie: do they double up?

If one has a case to answer, then what?

Your lawyer will make contact with the prosecutor. Often, concurrent communications will be made with the Municipal Building Surveyor ‘MBS’.

What if building orders have been issued for non-compliant building work?

If there are things that can be done to regularise matters of non-compliance, the lawyer will encourage the respondent to do this with alacrity:

• The MBS may insist that registered building practitioners are engaged at the respondent’s cost to rectify non-compliant building work.
• If the work has been carried out in contravention of the Act, it will be illegal building work. It will not be possible to obtain a retrospective building permit for the illegal building work as the Act does not permit any retrospective application of building permits.
• The MBS may also insist that a consulting building surveyor be appointed to issue a building permit for future building work that is required to regularise the non-compliant building work. For instance, there may be an order to carry out building work to bring a breach back into compliance with the regulations.

The respondent is advised to cooperate for two main reasons:

• If the work is non-compliant, the only way that the building order will be lifted is if the work is brought into compliance.
• If the work is rectified, it should bode well with plea bargaining and the Magistrate will be reassured.

This is likely to translate into a more moderate penalty censure.

Preparing for the plea

• There is always a mention date where the Magistrate presides over a directions hearing. Often pleas are entered at the first mention date.
• If there isn’t enough time to get one’s house in order before the first mention your lawyer will request an adjournment. Typically, it is given.
• The lawyer will also ask the prosecutor to provide a brief of evidence that will comprise all the material facts and evidence that the case relies upon well before the mention date.
• The lawyer will analyse the brief and will prepare an agreed summary of facts that will be jointly settled by prosecutor and respondent counsel.

The lawyer will advise that a plea will be entered at the mention date.

Elements of a good plea

• If non-compliant building work is in play, it is important that the non-compliant building work is rectified before the mention date.
• Fresh and apposite references will be obtained well before the mention date and will be tendered by defence counsel on the day.
• If the conduct is aberrational absent any recidivism, this fact will be made known by counsel.
• As will be the fact that the respondent is quick to fess up, be contrite, and acknowledge the seriousness of that which has occurred. 
• Representation will be made that the conduct unbecoming will not be repeated, is one-off, and out of character assuming that this is the truth of the matter.
• The respondent will turn up on the day respectfully groomed and respectful in demeanour.
• If no harm has been occasioned counsel will depose that fact.
• The respondent will also through their lawyer ordinarily advise that prosecutions’ reasonable costs will have been agreed upon and will be paid.
• Evidence of financials will be given to shed light on the respondent’s financial means and this will ordinarily be taken into account with penalty censure.
• If there are dependants, mention will be made of this fact.
• It will be the hope of the respondent that a conviction will not be applied. The respondent will need to persuade the Magistrate through counsel that a conviction in all of the circumstances will be disproportionately severe as it could have a deleterious impact upon the person’s name, reputation, and in some instances ability to work.
• This may be possible if the conduct is not egregious, no harm has been occasioned and the respondent presents without form (ie prior convictions).
• Counsel will submit that all things considered, censure should not be severe and will seek to persuade the Magistrate that reprimand, no recorded conviction, and light censure is the appropriate sanction.
• It is axiomatic that the respondent should ensure that there are no further repeat offences as repeat offenders are not well received by those charged with upholding the law when it comes to wielding punitive powers.

For other articles on notices and orders, see below:

Adjunct Professor Kim Lovegrove Presentation on Building Notices and Orders: The Regularization of Non-Compliant Building Work in Victoria.

Shout Rock Cafes

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.