Responding to Building Orders under the Building Act 1993 5

Thursday, October 8th, 2015
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The Building Act 1993 gives building surveyors the ability to issue building notices and building orders to enforce breaches of the Building Act.

Council and private building surveyors can issue building notices and building orders. Only municipal building surveyors can issue emergency orders.

Building surveyors are obliged to issue notices and orders when there is an instance of non-compliance with a provision of the Building Act or the Building Regulations. Where there exists the risk of imminent prejudice to life and limb and this is brought to the attention of a municipal building surveyor, it would be a dereliction in duty for a council building surveyor to fail to issue an emergency order.

As property owners own the land or the units, ordinarily the notices and orders would be served upon the registered proprietors of the realty. It is then incumbent upon the registered proprietor to comply with the order or, in circumstances where it is considered impossible or unreasonable to comply with a building order, the matter can be appealed to the Building Appeals Board.

Upon receipt of a building notice or building order, regardless of whether one is an owner or building practitioner, it would be remiss of one not to engage a lawyer who is au fait with the Building Act. It is a very serious state of affairs when a building notice or order is issued and great care and technical dexterity is required to ensure that matters are “regularised.”

A failure to comply with a building order in certain scenarios can occasion harm to the public. Furthermore, a statutory breach of the Building Act would crystallise if the recipient of the building order or emergency order failed to comply with the order in circumstances where an appeal has not been lodged.  The recalcitrant could then be prosecuted. Even when an appeal is lodged, the Building Appeals Board can still find that there was non-compliance of the building order or insufficient grounds to appeal, in which case prosecution can still be pursued by the relevant statutory authority.

Both councils and the Victorian Building Authority have the power to prosecute through the mediums of the relevant statutory officers which in the case of council will be a municipal building surveyor. Prosecutions occur in the Victorian Magistrates’ Court.

Strict Timelines

Notices and orders must be complied with within the time lines stipulated in the notices and orders, but it is not unusual for a bona fide recipient to engage with the statutory officer to negotiate an extension for the time and the methodology by which one complies with the statutory instrument. Remember, the only avenue for an appeal is the Building Appeals Board and if one wishes to utilise this avenue, the appeal must be lodged within the statutory time period. Again. one is well advised to use a lawyer to draft the appeal documentation.

Powers of Building Surveyors

Building surveyors can request a number of things to be done in the furtherance of compliance, including but not limited to: notice of show cause, stop work orders, directions that safety mediums be installed in addition to orders that matters are brought into compliance with the Building Code of Australia.

Cooperation is paramount as a failure to cooperate will not bode well if the matter is prosecuted and will be at odds with the dictates of those of a law-abiding citizen. Furthermore, if an order is served upon a building practitioner, failure to comply may culminate in both Magistrates’ Court prosecution and a misconduct referral to the Building Practitioners Board.

Directors of companies can also be implicated in prosecutions under the “those knowingly concerned provision of the Building Act.”

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  1. R. Jones

    Professor K. Lovegrove. Your article reads well. I paid to have a house built my plans & specs. and all that we wanted written down heating/cooling quoted on and explained to builder before contract was signed. This is our last house. The builder did what he wanted altered window heights display fire box 40cm. off centre of wall. Used wrong cornice and architraves put in cheap heating system no evaporated cooler when asked put in cheap one again after house plastered all vents now wrongly placed, no silisation paper under tin roof heater to small to heat evap/cooler doesn't work.Lights not placed in correct positions or put in. A consumer affairs inspection with Building Comm. Inspector Robert Karkut. was a JOKE the so called Inspector did not have the ability to assess a job to a trade standard could not make a decision only saw it the builders way. The builder ignored the only direction he was ordered to do by Consumer Affairs. Then went to VCAT and builder lowered double doors ( that were ordered by Consumer Affairs who notified VCAT) only one door opens not two and builder still has not completed VCAT order. If Government departments won't do there job as all builders know they can ignore them in red tape. I can't get a letter answered by the Victorian Building Commision. R. Jones.

    • Branko Mladichek0

      A very poor and sad experience for you but I need to clarify issues for you for a better understanding.
      Firstly, Kim's article is concise, informative and educational as usual and it deals with issues of compliance under the building Act.
      Your issues deal with builder's non-conformance with the building contract and that is the entirely different animal. Building Act does not care what you contracted with the builder or whether you are getting delivery as promised, Building Surveyor will not care if the workmanship is poor, your building is out of square and if the builder has substituted specified brands for the cheaper alternative. it merely deals with the issues of: safety, health, and amenity. (in the public interest).
      So it follows that you are entirely unprotected against builder's nonconformance unless you have your own independent stage inspections for verification. I have carried out thousands of building stage inspections for owners building with builders and I typically pick up issues of non-conformance as well as of non-compliance. I have seen your situation countless times before because some owners come to me when it is too late and they have had not their build independently monitored either through ignorance or stinginess.
      As much empathy as I can give you does not change the brutal reality that when you build you are on your own. If you don't get your own independent inspector you will walk alone and for some, it will turn out to be walking the financial plank.

  2. Mark

    Thankyou for your article. If a person was prosecuted for not complying with a building order and was directed to pay a fine & costs, then still did not remedy the works, would a new building order be served and the process commence again? Or can they be prosecuted a 2nd time under the original building order?

  3. Kim Lovegrove FAIB

    Interesting question and difficult to be definitive with the answer and if the matter is live the law firm that was engaged in the first case should be redeployed. Nevertheless until work that is the subject of the building order is rectified the order will not be lifted and the respondent will still be in default. The prosecutor would be at liberty to refer the matter of non compliance back to the court for the deliberations of the magistrate. If costs remain unresolved that too would need to be referred back to the magistrate alternatively one could sue for the costs absent payment of same. If the work is left in a dangerous condition the council may be compelled to utilise its "emergency" powers and carry out rectification works and then revisit those costs on the recalcitrant but before doing so again I stress close regard should be had to the Building Act and I reiterate this is one where deployment of legal counsel is an imperative before action is taken and I can't labour this point enough.

  4. Jim Ploumis

    Great article, it should also be noted to the readers that since the article was originally produced there have been some changes to the Building Act (July 4th 2016 amendments), particularly Notices, Orders and Section 37 Directions.
    Owners now will only be served with a Notice or Order from the building surveyor if the surveyor has already issued a direction to the builder and it is not complied with or the surveyor is satisfied that it is either not possible or not appropriate to give a direction to fix the building work.
    Notices and Orders are to now be used as a last resort by building surveyors as per SECT 118A of the Building Act.