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In Victoria, building compliance is governed by a robust framework under the Building Act 1993 (Vic) and the Building Regulations 2018 (Vic). Building notices, building orders, and emergency powers are statutorily correlated tools utilized by building surveyors to address non-compliant building work and ensure public safety.

This article explores the processes involved in issuing these legal instruments, the distinct roles of private and council building surveyors, and the implications of non-compliance.

1. What Are Building Notices and Building Orders?

Under the Building Act 1993 (Vic) (“the Act”), building surveyors are authorized to issue building notices and building orders when they detect non-compliant building work (section 106 of the Act). These instruments are used to address situations where building work has been carried out in violation of the Act and/or the Building Regulations 2018 (Vic) (“the Regulations”).

The relevant building surveyor can issue building notices and building orders.
When a building surveyor is appointed to a particular building project, he or she is referred to as the “relevant building surveyor” (RBS).
The RBS holds the authority to issue building permits, carry out or delegate inspections to a registered building inspector, issue occupancy permits or certificates of final inspections, and enforce compliance with the building standards under the Act and Regulations.

2. Notice of Entry

Section 228D of the Act grants the power of entry to an authorised person, such as the relevant building surveyor (RBS), to inspect a building or land for illegal building works.

Typically, the property owner is notified in advance through a letter from local council officers, explaining the reasons for the proposed inspection.

3. Building Notices

Building notices may be issued by the relevant building surveyor if an inspection uncovers any of the following situations:

Building work requiring a permit has been carried out without or in contravention of a permit.
The building’s use violates the Act or the regulations.
Safety or emergency services installations have not been maintained as required.
The building or place is unfit for occupation or use as a public entertainment venue.
The building work, land, or place poses a danger to public safety or health.
It is important to clarify that the municipal building surveyor (MBS) is a statutory position with specific powers under the Act, along with the general powers of the relevant building surveyor (RBS).
The MBS has broader enforcement powers, including the ability to initiate prosecutions and issue emergency orders.

4. Building Orders

A building order, under section 111 of the Act, is a legal directive requiring the property owner to comply with specific instructions within a stated timeframe.

Non-compliance with a building order constitutes a serious statutory offence and may result in prosecution in the Magistrates’ Court.
Building orders can be served on anyone who is apparently in charge of the building site, including the builder, contractor, or owner, or all of the above.
It is an offence not to comply with a building order under section 118 of the Act, and can result in 500 penalty points for a natural person or 2500 penalty points for a body corporate.

5. Emergency Powers

In certain situations, immediate action may be required to address significant safety risks. Under Section 102 of the Building Act 1993, an emergency order can be issued by a municipal building surveyor (MBS).

This order, known as an Emergency Order, allows for urgent measures to be taken to prevent or address dangers to life, health, or safety.
Important Note: Private building surveyors do not have the authority to issue emergency orders; this power is reserved exclusively for the municipal building surveyor.
An Emergency Order is used when:

There is an immediate risk to life or safety due to the condition of a building or land.
There is an urgent need to protect public health or safety.

The Emergency Order is served in accordance with Section 236(4A) of the Act, and under Section 236(7), it is an offence to “remove or deface an order” without prior consent from the relevant building surveyor, municipality, or the Victorian Building Authority.
Penalties for such an offence are significant, with a maximum of 500 penalty units for individuals and 2,500 penalty units for corporate bodies.

6. Appeals to the Building Appeals Board

Under Section 142 of the Act and regulation 271, property owners can appeal to the Building Appeals Board (BAB) to challenge a building notice, order, or emergency order.

Appeals must be lodged within 30 days of receiving the notice or order.
The BAB will review whether the notice or order was correctly issued and can uphold or set aside the relevant building surveyor’s decision.

7. The Critical Importance of Compliance

Compliance with building notices, orders, and emergency orders is mandatory.

Failure to comply can lead to severe consequences, including prosecution, substantial fines, and difficulty in presenting any mitigating arguments in magistrates court respondent proceedings.
Moreover, in circumstances where there is a death on a site where orders have not been complied with, it could be regarded as reckless indifference and may result in charges of potential criminal negligence.
If one is served with a building notice, order, or emergency order, it is imperative to act immediately.
If a PBS discovers that work is being carried out in violation of a notice or an order and the compliance orders are not carried out, the matter must be referred to the VBA.
As held under section 115 of the Act, the PBS must then have nothing further to do with the matter once it has been referred to the VBA.
The regularization of matters should be undertaken with tailored expertise on point, ensuring that all necessary steps are taken to comply with the order to ameliorate the risk of danger to life, limb, and property.

Conclusion

Building notices, orders, and emergency orders are vital mechanisms for ensuring compliance with Victoria’s building regulations.

Understanding the roles of private building surveyors, municipal building surveyors, as well as the critical importance of prompt compliance with these legal instruments, is essential for property owners and those that are respondents to the serving of statutory instruments in this setting.
Seeking professional legal advice is the best course of action to address any compliance issues effectively.
Choice of lawyer is critical as the lawyer will need to be au fait with the provisions of the Building Act 1993 and the civil hybrid area of the law that governs practitioner misconduct.

Legal 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.

For more information on building regulatory compliance, visit Lovegrove & Cotton’s website or contact us directly at (03) 9600 4077 or via email at enquiries@lclawyers.com.au.