The enforcement of building compliance and standards in Victoria involves a range of statutory authorities and is effected by a range of statutory processes. When a building surveyor (whether private or municipal) considers there to be noncompliance with provisions of the Building Act 1993 (Vic) (the Act) or its subordinate statutory instruments, that building surveyor may choose to issue a “Building Notice” and thereafter a “Building Order”, in the most serious cases, certain building surveyors may issue an “Emergency Order”. This article discusses appropriate approaches to dealing with these situations and stands as a pertinent reminder as to why owners, building practitioners and other industry stakeholders should do their level best to avoid any circumstance that could give rise to the issuing of a building notice, building order or emergency order.

Statutory authority to issue notices and orders

In Victoria the relevant building surveyor has the power to issue building notices and building orders under the Act. The building surveyor can either be a council building surveyor or a private building surveyor.

As touched on above, there are three key types of enforcement instruments (amongst other powers available to statutory authorities under the Act):

Building notice
Building order
Emergency order

Private building surveyors (PBS) can issue building notices and building orders. They do not have the power to issue emergency orders. That statutory power is the exclusive remit of the municipal building surveyor.

If a notice respondent fails to comply with a building order issued by the PBS, the PBS must refer the matter to the VBA and have nothing further to do with the matter. The VBA will then assume the compliance jurisdiction

When are building notices and orders issued?

Notices and orders will be issued when the respondent has breached a provision of the Act.

A typical but not exhaustive list of breaches are:-

Carrying out work without a building permit
Carrying out work that is at odds with the approved use of the building permit
Failure to comply with a building notice
Safety measures have been neglected and not properly maintained
In the case of an emergency order the carrying out of work, or occupation of the building, is dangerous or ruinous and poses a threat to life or limb

Ordinarily, a building order will be issued after a building notice. Emergency orders do not require a building notice to have been issued.

Who can the notices and orders be served on?

The person in charge of the site which could be the builder, the contractor or the owner or all of the above. Parties should be mindful of which particular actor a building notice or order is directed to, as there must be relevant authority to respond and make submissions, lest an offence crystallise under the Act.

Building Notices

Building Notices are effectively show cause notices (they are often worded such that a recipient is required to show cause why something should or should not be done) and afford the recipient the ability to respond to the notice in writing, within the period of time specified in the notice.

The RBS will have the discretion to either decide that the answers to the show cause notice are satisfactory, in which case the notice can be withdrawn. If the RBS is not satisfied, they may “up the ante”, as it were, and issue a building order.

Building Orders

Parties should do all they can to avoid being issued a building order. These instruments are very serious, and noncompliance crystallises an offence under the Act. Building orders are generally more resolute than building notices and command the recipient to take certain action by a certain time.

Appeal Rights

If a respondent wishes to appeal a building order the Building Appeals Board (BAB) is the appellate jurisdiction. There are a range of ways to appeal a building order or notice to the BAB.

If you are served with either a building notice or order what should you do?

If you receive one of these instruments, take the matter incredibly seriously. Time will run from the date the notice or order is issued. Whilst a notice does not necessarily require a response if the recipient accepts the proposed requirements, a failure to comply with a building order will culminate in risk of serous fines and convictions and in certain instances forced demolition.

For noncompliance with a building order, the fines in the case of natural persons are very high and in the case of corporations much higher.

Natural person fine being 500 penalty units ($90,870.00 as at May of 2022)
Corporation fine being 2500 penalty units ($454,350.00 as at May of 2022)

It is the writers’ recommendation that a construction lawyer well versed in the intricacies and application of the Act be retained from the get go to assist with the regularisation of matters at hand. Furthermore, this firm typically recommends the retention of a consulting building practitioner, be it a building surveyor or a fire engineer. Reason being the solutions do in the main require a technical dexterity.

Sometimes it will be close to impossible to comply with the time frames articulated in a building order, in which case the respondent should apply for the order to be extended prior to the compliance deadline. The RBS in the writers’ experience will typically entertain an extension as long as the grounds for that accommodation are sound and in good faith. Generally, if a recipient can show they are making good progress to regularise matters and taking the matter seriously, the private or municipal building surveyor will afford some flexibility.

Building orders require compliance by the deadline outlined in them. If the respondent fears, or is on notice, that an extension will not be forthcoming then it is paramount that the respondent lodge an appeal with the Building Appeals Board.

It is also very wise for the respondent to, as far as practicable cooperate with the responsible authority mindful of the fact that in circumstances where there has been a breach of the Building Act a prosecution may ensue. Councils do not always prosecute breaches but their resolve will no doubt harden if the respondent is indifferent or opposed to regularisation of matters that are at odds with the legislation.

Further, if a recipient fails to comply with a building order but has done everything reasonably practicable to regularise matters, even if a prosecution eventuates, if the respondent is therefore able to depose that matters were dealt with in good faith and with alacrity, then the Magistrate will be more likely to factor this in as being a positive, in deliberations over penalty.

Conclusion

If you are issued with a building notice, it is important you speak to a construction lawyer. If you are issued with a building order or emergency, it is absolutely essential you speak to a construction lawyer. Regardless of what stage you are at, considered advice will be important having regard to all of the circumstances of the specific case.

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 team 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.