Presentation by Adjunct Professor Kim Lovegrove MSE, RML.

The Victorian Municipal Building Surveyors Group 2022 Conference, Yarrawonga Country Club 30/11/2022 – 1/12/2022

This firm has had conduct of a number of matters where situations revolve around the most effective ways by which non-compliant building works can be brought into line.   

The experience involves approaching the issues from two sets of lenses; local government, and respondents that are intent on bringing their affairs back into compliance with The Building Act 1993.

Change of use

There have been a number of settings where property owners have carried out work that is not in compliance with the Building Act. A common example is the change of a shed or barn which is classified under the Building Code of Australia as 10a to a use that is more in keeping with a residential application ie 1 or 2- Building Code of Australia.

Where this occurs, the property owner contravenes section 16 of the Building Act, in that work had been carried out beyond the auspices of the authorized use of the building permit.   

In such circumstances, it behoves the municipal building surveyor ‘MBS’ when seized of this knowledge to issue building notices and orders under the Building Act pursuant with s177D.  The appropriate building order form is Form 12.

If a private building surveyor ‘PBS’ is seized of knowledge that building work is being carried out in contravention of the permitted use under the Building Act, it likewise behoves the PBS to issue compliance notices and orders to, on one part stop the continuation of non-compliant work in progress and on the other part insist upon the bringing to bear of measures to reinstate the permitted use.  

Note however: if the PBS issues notices and orders and there is non-compliance, the matter must be referred to the Victorian Building Authority.   

As the audience will be aware, the MBS has power to go beyond this, in that the municipal building surveyor can issue emergency orders under s102 in accordance with the obligation to ensure that those that come within the municipal hinterland are protected in accordance with s122.   

The way the notice and order provisions assume trajectory is if a building notice is not complied with, a building order must be issued. In circumstances where there is potential prejudice to life and limb then the emergency order can be issued as these are emergency circumstances.   

Considerations that need to be at top of mind when the MBS is seized with the knowledge of material non-compliance of building work.  

When the MBS assumes jurisdiction, in a compliance and regularization setting, the MBS has at their disposal the powers to issue building orders and if need be emergency orders.   

Great care must be taken with respect to the drafting of said statutory instruments and exercising discretion on which to use.

This synopsis of the process is as follows with regards to the building order dynamic:  

1. The order must be carefully and realistically drafted.  

2. It must comply with the strictures of good building order drafting practices  

3. The sections of the Building Act 1993 specific contravention(s) should be stipulated   

4. A description of the conduct (practices) that have contravened and the relevant sections should be stipulated.  

5. A directive may be enunciated in accordance with section 111 to carry out building work or other work required by the regulations.   

6. Good practice will dictate that realistic timeframes will be stipulated with respect to complying with enforcement directives.   

7. The timeframe will be governed by the urgency of the dynamic, and the discretion in regard to whether a building order is issued, or an emergency order.   

8. An emergency order is a self-explanatory instrument, and it requires an immediate concentration of energies to remove the palpable threat. Once the threat is removed the MBS may elect to lift the EO and then have regards to the operation of other statutory instruments, such as the building order.   

A Case Study

The presenter used to be the principal prosecutor at the city of Maribyrnong a couple of decades ago.  
On one particular day the MBS rang him and appraised him of the below facts:  

• A property developer had excavated a large section of a hillside immediately adjacent to the road that bordered the Maribyrnong river   
• Adjoining property owners contacted the council because they felt structural movement on their adjoining properties  
• The MBS hurriedly drove to the compromised site and saw that a large chunk of the land had been illegally excavated, absent the existence of a building permit.   
• No protection works notices has been served.  
• A boulder from the site (according to an adjoining property owner) had rolled down the hill and across the road and ended up in the river.   
• It was fortuitous that a car was not hit by the boulder  

The advice given 

• The writer immediately visited the site with the MBS and advised that the council would urgently need to facilitate the engagement of a structural and geotechnical engineer to immediately advise upon ways by which the integrity of the site could be remediated to alleviate the immediate risk of adjoining properties “capsizing” into the large hole.  
• An emergency order was issued to:   

• 1. Demand an immediate cessation of illegal excavation works,   
• 2. to bring to bear immediate measures to reinstate the integrity of the compromised hillside.  

• Time frames were stipulated on measures to be brought to ensure that the site could not be further compromised.  
• The emergency order had to be extended and amended from time to time to deal with the practical matters at hand ie:  

• The deployment of good engineers  
• bringing to bear an appropriate level of rigor to remove the risk of site collapse and moreover generate a setting where a building permit could be issued for future compliant work.
• The property owner sensibly and swiftly co-operated and a steel mesh curtain was placed on the compromised hillside “bite”. Shotcrete was sprayed on the hillside for reinforcement.   

The property owner cooperated with the council team to bring to bear measures that avoided potential site catastrophe. The respondent wielded an “A team” (if you will) of experts which needless to say gave some comfort to the MBS. 

The key takeout in this case study is that the MBS acted very quickly. The MBS issued statutory instruments with the assistance of our law firm which complied with the Building Act and announced that which needed to be done based upon engineering dexterity. A disaster was averted and the EO was lifted.  

Furthermore – a building permit was subsequently issued for the balance of the building work after protection works and notice had been served upon the property owners to satisfy them that future work in the post-emergency dynamic would not place them in position of prejudice   

The discretion to prosecute  

The MBS then must determine whether to prosecute the property owner. As this audience is aware there is a discretion here.   

Such was the magnitude of the illegal building work that had been carried out as a matter of public policy, the MBS decided to brief our law firm to prosecute the respondent for carrying out illegal building work absent the issue of the building permit. 

Note however that there was no prosecution for any building order infringement because the property owner complied with the emergency order and subsequent orders in all material respects.   

In the respondent`s plea of mitigation in the Magistrates Court, he gave evidence that notwithstanding illegal building work had been carried out as soon as he was the recipient of the EO he fully complied with the same.  

Key take-outs:  

A disaster was averted because the MBS:  

• Acted quickly
• Facilitated the bringing to bear of a conclave of experts with alarity
• Found a swift solution to remove the imminence of the risk
• Gave realistic timeframes for compliance
• Facilitated an atmosphere where there was full cooperation

If a recalcitrant doesn’t cooperate and a significant risk is not removed than the council will be compelled to bring to bear compliance measures that will cost the council a great deal of money. It follows that it is best if this ‘spend’ comes out of the respondent pocket rather than the council.   

Rectification of building works carried out in contravention of prescribed use   

On several occasions in the last 3-4 years, our firm has been briefed by recipients of building orders that required works to be carried out for the purpose of reinstatement with prescribed use in accordance with the permitted use under the building permit. The regularization methodology that we deployed is along the following lines:  

• the client engages a consulting building surveyor   
• a zoom meeting to confer with the municipal building surveyor is convened. 
• the notice or order respondent then discusses the rectification methodology with the cooperation of a consulting building surveyor   
• sometimes this will involve the engagement of an architect or a draftsperson to prepare reinstatement drawings  
• normally a registered builder will be identified to carry out the remediation works in accordance with the curtilage of the building permit issued by the consulting building surveyor.   
• Often, we will ask the municipal building surveyor to extend the time-lines of the order if it is difficult to get the right people to bring to bear the right rigor.  
• Normally, the MBS is pleased with and comforted by the deployment of appropriate technical dexterity and matters proceed to a sound conclusion, the culmination of which is the lifting of the building order once the consulting building surveyor issues a certificate of final inspection.   
• Good practice dictates that the MBS carries out a final inspection in person once the certificate of final inspection has been issued to satisfy themselves that matters have been regularized.   
• It then behoves the MBS to determine whether to prosecute and this discretion will be motivated by many considerations such as the magnitude of the transgression, the level of cooperation, and the public policy considerations that are in play in the local government jurisdiction.   

Years ago, the presenter was the prosecutor for a zero-tolerance council.  

An owner and a couple of mates one weekend had taken it upon themselves to demolish a decrepit outhouse infested with cobwebs, spiders, and vermin. The evidence was that the task would have taken 4-5 hours and the debris was carted away.  

The firm was instructed to prosecute the offending party who happened to have a senior managerial position in an accounting house; the writer vividly recalls appearing in the Magistrates Court and the Magistrate remonstrated him by saying “interesting case Mr “Lovejoy”, aren’t you smashing an acorn with a sledgehammer?”  

To which the writer said looking the Magistrate in the eye: “it is a matter of public policy, it clearly has been a contravention that the work was carried out without a building permit.” The Magistrates` finding was inconsequential.  

This anecdote is mentioned simply to bring home the point that a Magistrate might form the view that certain kinds of prosecutions may not serve the public interest if they consider the magnitude of that which has occurred, is in the overall scheme of things, of little weight.

Appeals  

A respondent of the building order/emergency order can always appeal to the building appeals board in accordance with part 10, and common grounds for appeal are:  

-fraught drafting of building orders  

-impossible directives  

-unduly onerous compliance timeframes.   

Always have the above in mind when you are framing the content of a building notice, building order, or emergency order.   

Concluding remarks

When the Building Act is breached and work is carried out without a building permit or in contravention of it, it behoves the relevant building surveyor to bring measures to bear to regularize matters. This is a statutory requirement, regardless of whether the RBS is of the municipal building surveying or private sector vocation.   

The question of whether to prosecute depends upon the magnitude of the matter and often will occur in parallel with matters being regularized, but the critical priority is to ensure that matters are regularized as quickly as possible to invoke the integrity of the Building Act 1993, and ensure the public is protected.  

Regardless of whether they are a respondent or a municipal building surveyor, there is tremendous utility in a cooperative approach to the resolution of non-compliant building matters. For on the one part it will save the council costs and on the other part will ensure that there can be apposite expertise brought to bear to resolve the riddle of non-compliance.   

It is good practice for an MBS to promote the participation of well qualified individuals in the respondent team to ensure that all boxes are ticked.   

The above approach in this writer`s experience is the best practice approach, as the area of non-regulated and non-compliant building work is challenging. It will require new building permit issue for future building work that will ultimately culminate in the issuing of a certificate of final inspection.   

Remember that the legislation does not allow for any retrospective issuing of building permits. Compliance certificates can be issued by a prescribed practitioner in accordance with section 238 to technically verify that which has been built complies with the code, but a building official can never retrospectively sanction and approve illegal building work in the state of Victoria by way of issue of a building permit that purports to right a past wrong.   

For other articles on notices and orders, see below:

Shout Rock Cafes case study

Building Act Prosecutions, Regularisation of Non-Compliant Building Work, and Effective Plea Bargaining.

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 construction law firm. Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

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.