Is Victoria Making the Most of Council Enforcement Powers?

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Tuesday, November 3rd, 2015
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Recently, Manningham council took issue with the performance of one of the state regulators, contending that there are “currently no safeguards to ensure that surveying work is being properly performed or that the risk of injury or damage to any person is being minimised.”

I don’t know if the contention is entirely correct. In fact, there is a provision in the Building Act that states that councils enjoy very significant responsibilities for administration and enforcement under the Building Act.

Section 212 states that “except  where  otherwise expressly provided in this Act or the building regulations a council is responsible for the administration and enforcement of Parts 3, 4, 5, 7 and 8 the building regulations in its municipal district…nothing in this section limits a council’s power to act outside its municipal district.”

This is a surprisingly obscure provision of the Building Act and could be the elephant in the room in terms of local government having an overriding responsibility for enforcement within the municipality. Section 212 reflects the pivotal role that  municipal authorities have to pay regarding municipal administration and enforcement.

It is admittedly a little-known provision, particularly by the public, and it may well be the case that some councils have preferred to fly under the radar as budgets for building regulatory enforcement are constrained. But potent municipal powers do exist under the Building Act.

Private certifier responsibilities for enforcement

When  a private building surveyor is engaged to issue the building permit, the primary responsibility for enforcement resides with the PBS. The PBS has the power to issue building notices and orders upon recalcitrant property owners and building practitioners and is expected to do so. But in circumstances where the client refuses to comply with the conditions of the notice or order, the Building Act provides that the PBS must refer the matter to the VBA and have nothing further to do with the matter.  The wording of the legislation is unambiguous in this respect.

Council building surveyors have have to the power to issue emergency orders

Private building surveyors cannot issue emergency orders; this power is vested with councils. So when it comes around to palpable threats to life and limb – life-threatening scenarios – this is where the legislature envisaged local government would intervene.

The reason the legislature provided councils with this power rather than the private sector was because it knew that when it came around to matters of life and limb, it required the financial muscle and resources of local government to assume this watch. After all the ratepayer – the local resident – would no doubt consider the matter of protection of life and limb an inviolate, non-negotiable and non-assignable responsibility of local government. This is an implied term of the contract that the ratepayer has entered into with local government with respect to payment of council levies and rates. This community expectation is enshrined in the Building Act and has been so for more than two decades.

Councils can also prosecute and seek to visit sizeable fines upon those whom do not cooperate with enforcement officers in the Magistrates’ Court. Magistrates are typically well-disposed to council prosecutors, intent on ensuring that those citizens whom would otherwise have found themselves in harm’s way but for local government intervention. So there is an expectation harboured by the courts and the community that municipalities will  be very energised in discharging their enforcement obligations under section 212.

A couple of cases that illustrate the power that local government has with respect to statutory enforcement concern to matters where we were retained by council as a prosecutor. The first one was a situation where a property developer without a building permit excavated – or should I say took a large bite out of – the side of a hill abutting a road next to a river. Adjoining neighbours complained to the council about the “whopping great big chunk” that had been removed from the adjacent section. An emergency order was immediately prepared in accordance with the Building Act that dictated that works stop immediately and measurers be deployed to restore integrity to the compromised terrain. The respondents cooperated and massive amounts of concrete shotcrete were sprayed onto the affected area along with other means of stability fortification. Integrity to the site was restored and a worst case scenario where adjoining homes capsized into the hole was avoided.

The respondent was then prosecuted and a large fine was handed down by the Magistrate along with the reimbursement of the costs that the council had expended in the discharge of its Section 212 statutory obligation.

The second matter that comes to mind concerned renovation works to a multi-storey high rise where again demolition works where effected without a building permit. Elements of a concrete “honeycomb” façade had been jack-hammered and large chunks of concrete fell onto the narrow adjacent road. Again the council acted with allacrity. An emergency order was served upon the respondent with a stop work directive and an order for a stabilisation regime. In due course, the respondent was prosecuted and ultimately pleaded guilty, and the highest fine at the time was handed down along with close to full cost recovery.

In both cases, the council discharged the statutory obligations with consummate aplomb knowing full well that protection of life and limb was part of its raison d’être.

Ratepayers would be entitled to look forward to the same level of vigilance by building enforcement officers that is displayed by council car park officers in terms of their eagerness to fine parking infringers.

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