Offences Against the Building Act

Wednesday, July 20th, 2016
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As builders, you should be aware of various provisions in the Building Act (pertaining to Victoria) which provide for criminal-like penalties in cases of a breach.

The ‘trap’ is that often these offences apply even where the person who commits the offence doesn’t or didn’t know what they did was an offence, and so they didn’t actually intend to breach the Act. These facts can, however, result in lesser penalties than may otherwise be the case. When someone is guilty of a relevant offence, it is often best to then make a ‘plea in mitigation’ of penalty.

A plea in mitigation is where you plead guilty to the relevant offence but where you say that there are things the court should consider before it imposes a sanction. Relevant things to submit in such a plea are why you committed the offence, any prior criminal history, whether you are genuinely remorseful, your personal history and background, and you may also want to suggest a sentence for the court’s consideration.

The breadth of the things a court can consider in this context also includes whether you co-operated with authorities (the VBA), your age, your current occupation and its length in respect of time, and your health and financial circumstances. This is a non-exhaustive list.

It must be remembered that a lot of the penalty amounts in respect of fines increase from year to year, upon review by the relevant regulatory body in accordance with indexation. Sometimes a large increase in a penalty may occur in a particular year.

The offences which are being considered here are doing building works without a building permit, doing works without any or without adequate insurance, occupying a building without an occupancy permit, and carrying out works where protection works are required, but where they are not arranged or agreed prior to the commencement of the building works. There are other offence provisions as well, but these are generally the most common ones.

The most common penalty is a fine. Fines can be imposed for various more minor offences, as well, pursuant to infringement notices.

However, for registered building practitioners, there is a range of  ‘disciplinary’ type sanctions such as suspensions and disqualifications. There are changes in the law currently passing through which are relevant in that context, but to a large extent, the penalty that may be imposed in a particular situation is largely in the discretion of the court.

There have been some high profile cases of late involving breaches of provisions of the Building Act among other things, such as the Swanston Street wall collapse. There, in respect of one of the offenders, a fine of $7,500 was imposed (and costs of $26,275 were ordered to be paid by the offender as well). This was despite the fact that the offender didn’t deliberately evade their responsibilities and relied upon others (as he was entitled to do) to obtain the necessary permit. An assumption that the ‘other’ person obtained the necessary permit is, and was, dangerous.

Of course as always, if you are involved in, or know someone who is involved in a situation where you are alleged to have committed breaches of the Building Act, specialist lawyer advice should be sought. Even though such breaches have a lot in common with other criminal offences, there are nuances as a result of the breach or breaches involving the Building Act.

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