How to Respond to a Building Order
By Peter Micevski, Lovegrove & Cotton – Construction and Planning Lawyers
September 2014
When your local Council becomes aware of any illegal building works or building works that are not in compliance with the Building Act 1993 or the Building Regulations 2006, a Council building surveyor may carry out an inspection of your property, and subject to that inspection, he or she may serve a Building Notice on you, if in fact you are the owner of the property.
The Building Notice served on you will require you to show cause as to why occupation of your building should not be prohibited, or otherwise evacuated, or why certain building works to ensure compliance with the Act and Regulations should not be carried out at the property by you within a certain time.
When an owner fails to respond adequately to the Building Notice, the Council building surveyor will issue a Building Order on the owner to demolish any illegal building work, or to carry out certain works to ensure compliance with the Act and Regulations and otherwise to prohibit occupation of the building until these works are carried out.
Below I have outlined some pointers to help building owners make informed decisions about the best way that they should deal with their Building Order.
1. Immediately Engage an Experienced Construction Lawyer
Given that a Building Order is final unless the owner exercises its rights to appeal the making of that Order to the Building Appeals Board within 30 days from the date of the Order, it is important that you immediately engage an experienced construction lawyer to guide you through this process, including an assessment of the strengths of your case.
A construction lawyer with experience with these matters will have will have access to an array of experts, including structural engineers or fire engineers, to advise you of the best course to take with your matter.
2. Do not default to an Adversarial Approach
More often than not, Building Orders stem from home owners either carrying out or permitting the carrying out of building works at their property without a building permit. It is an offence under the Act to carry out building works without a building permit. In fact, the penalty for carrying out building works without a permit or in contravention of a permit is 500 penalty units for an individual (or a fine of $72,180.00), and 2,500 penalty units for a company (or a fine of $360,900.00).
Your local Council will generally take a cooperative approach and have the main objective of ensuring that the building is compliant with the Act and Regulations, rather than to punish you for illegal building works. However, if you unnecessarily take an adversarial approach with the Council, you will do yourself no favours and you could find yourself ‘poking a bear’ to the point that exposes you to excessive fines and costs.
3. Develop a Strategy
(a) Engage Experts
Engage a team of experts that can either establish a case for no further action under the Building Order where applicable, or to establish the requirements necessary to meet public community expectations regarding public safety.
(b) Be Realistic
It is crucial that through this process you are informed, honest and you “do not gild the lily”.
Your lawyers and team of experts are not “miracle workers”. If your building does not meet the requirements necessary to meet community expectations regarding safety, you need to put in the work.
(c) Negotiate at all costs
This process is about give and take. You will have strong points and weak points, know when to compromise and don’t “fight every battle”. Sometimes a Council may take an unreasonable line, and then you can take issue from an informed perspective.
Your experts may devise a more cost effective outcome to ensure compliance with the Building Order. Accept your experts’ advice to ensure that the Building Appeals Board does not determine an adverse finding for you and in addition (potentially) visit a costs award against you.
For advice and assistance with Building Notices and/or Building Orders you should swiftly contact a construction lawyer with expertise in this area.
