The Victorian Building Act 1993 includes numerous prosecutable offenses related to non-compliance with construction regulations. Many of these offenses are strict liability, meaning that if the offense occurred, guilt is presumed without requiring intent. Factors such as whether the offense was deliberate, committed out of ignorance, or influenced by surrounding circumstances are matters for mitigation.

In situations where an individual or practitioner is prosecuted for a prima facie offence under the Building Act, an effective plea bargain is critical if one wishes to encourage a magistrate to adopt a temperate approach in sentencing.

Strict Liability Offenses in the Building Act

Under the Building Act, certain offenses are classified as strict liability. Examples of these offenses include:

• Carrying out work without a building permit: The absence of a permit when building work is performed constitutes an offense.
• Occupying a building without an occupancy permit: Property owners can be charged if they occupy a structure before obtaining the required occupancy permit. Penalties include up to 120 penalty units ($23,710.80) for individuals and 600 penalty units ($118,554) for corporations.
• Unapproved change of use: Repurposing a building, such as converting a barn into a dwelling without obtaining a new building permit, constitutes a change of use offense.
• Carrying out work in contravention of a building order or emergency order: Performing building work that disregards an existing building or emergency order is an offense, emphasizing the need for compliance without a municipal building surveyors official directives.
• Failing to comply with a building order within the specified time: Not addressing a building order within the designated timeframe also qualifies as an offence, highlighting the urgency and importance of adhering to building act requirements.

Operational Compliance and the Role of Legal Representation

When facing prosecution under the Building Act, engaging a lawyer experienced in this jurisdiction is essential. A lawyer will evaluate the evidence, assess if the work violates the Act, and advise on how best to regularise the matter. Cooperation with local authorities and bring to bear efforts to bring the work into compliance can significantly influence the magistrate’s view during a plea. Conversely, failure to rectify illegal building work will likely result in a harsher sentence, along with a directive to bring the building work into compliance with the Act.

Key Elements of an Effective Plea in Building Act Prosecutions

• Recognition of Strict Liability: For strict liability offenses, acknowledging the liability without contest can lead to a more favorable resolution, avoiding a prolonged contest with potentially higher penalties.
• Genuine Admission and Responsibility: Taking responsibility for any breach and showing a willingness to rectify reflects positively on the respondent.
• Showing genuine remorse and contrition, impressing upon the decision maker that one is genuinely sorry, that the experience has been chastening, that one will not repeat offend and that it is aberrational and one is not a recidivist.

• Proactive Compliance Measures: Actions taken to regularize the work, such as obtaining proper permits or correcting an unauthorized change of use, demonstrate a commitment to regulatory standards.
• Absence of Harm and Reduced Impact: If the offense did not result in harm or significant impact, this can be highlighted to mitigate any perceived severity of the case.
• Commitment to Improved Practices: Implementing changes to prevent similar issues, such as adjusting processes or undertaking additional training, shows a proactive disposition toward compliance.
• Supportive Character References: References from reputable industry professionals and peers of good repute can attest to the respondent’s commitment to high standards, reinforcing the case for an appropriate decision.

Indictable and Criminal Offences Arising out of Breaching Section 16

Section 16B of the Act establishes indictable offences related to carrying out unauthorised building activities. Specifically, it is an indictable offence for a person who is in the business of building to carry out work that requires a building or occupancy permit, if they are aware that such a permit is not in force. In the case of natural persons committing this indictable offence, penalties enforced are up to 600 penalty units ($118,554), five years of imprisonment, or both. In the case of a body corporate or an entity engaging in said offence, fines of up to 3,000 penalty units ($592,770) may be imposed. 

The fact that knowingly carrying out work without a building permit can culminate in jail time speaks to the seriousness of engaging in conduct that is deliberate. In criminal parlence it would be called mens rea.

Conclusion

The Building Act 1993 has promulgated strict liability regulations for various offenses. When facing prosecution under this Act, a well presented plea can be very instrumental in influencing the outcome. Recognizing the gravity of strict liability offenses, demonstrating proactive compliance, and engaging skilled legal representation are all critical elements that can lead to a more favourable resolution. With the potential for significant penalties, including fines and even imprisonment for individuals, natural persons and companies alike must approach these matters with a high level of diligence as their building practitioner registration and livelihood is at stake. Hence the need for engaging lawyers with a high level of advocacy dexterity.

Lovegrove & Cotton Construction and Planning Lawyers

Lovegrove & Cotton Construction and Planning Lawyers have 30 years experience in representing building practitioners across various regulatory matters, the firm brings to bear decades of experience in this very specific hybrid jurisdiction.

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 construction lawyer.