Unsafe and illegal buildings

1.Overview

Council has a responsibility to the community to ensure the built environment is safe for use and/or occupation.  This includes investigating unsafe or illegal buildings and issuing the appropriate Notice or Order to resolve the issues.

Unsafe Buildings

There are a number of factors that may make a building unsafe such as time, weather, natural disaster or an accident.  Council will inspect the works to determine the issue and work with the owner to repair or demolish the building to make it safe.

Illegal Building Works 

Illegal building works occur when a building permit is not issued on construction work that should have a permit. Carrying out works without a permit can compromise the safety of occupants and cause problems with insurance, reselling and other legal matters.

A building permit cannot be issued retrospectively for the works already carried out, therefore you cannot obtain an Occupancy Permit or Final Certificate to say the works are compliant.  It often costs more to resolve the illegal works due to the reports required to determine it is compliant than what it would have cost to get a Building Permit before starting the works.  Because works have been carried out without the required permits being in place, administration fees, structural investigations, engineer reports and building reports can be required, making the process quite expensive.

Reporting an unsafe building or illegal building works

While many people feel uncomfortable reporting unsafe buildings or works that may be or have been constructed without a building permit, it is important to notify Council so that we can work with the owners to ensure the issue is resolved and safety of the building occupiers or users is not compromised.

Once it has been determined there is an issue, Council will commence the appropriate enforcement and work with the owner to try and resolve the issue with a favourable outcome to all parties involved.

Please be assured any complaints or queries remain anonymous and your details are not provided to the property owners.

Building permits issued by a private building surveyor

Where works are issued by a private surveyor, any issues relating to those works should be referred to the relevant surveyor or the Victorian Building Authority.

2.Notices & Orders

Building Notice

A Building Notice is the first step in the enforcement process.  Where Council finds work carried out without a permit or any issue that affects the health and safety of the public, a Building Notice will be issued asking the property owner to ‘show cause’ why certain actions should not be carried out.

Building Order

Where an owner does not respond to a Building Notice or does not respond adequately, the Building Surveyor may issue a Building Order. This is the second step in the enforcement process. A Building Order is a direction to carry out work to ensure works comply with the building regulations.

Building Order to Stop Works

Where a Building Surveyor has reason to believe a building is not compliant with the Building Regulations, and this cannot be rectified through the issue of a Building Notice or Order, a Building Order to Stop Work may be issued.

For example, your Building Surveyor may be advised that a building project is proceeding without a permit and he or she would then issue a Stop Work Order. Failing to comply with a Stop Work Order may result in prosecution.

Emergency Order

Emergency Orders are issued by the Municipal Building Surveyor where a danger to life or properly exists because of the conditions or proposed use of a building, the land on which building work is being or is proposed to be carried out.

 Administration Fees

Administration of Building Notice $940.00
Administration of Building Order $590.00 Excludes Emergency Orders and Stop Work Orders
Infringement Notice $310.92 Non-Compliant Safety Barriers

 

3.Appeals & Disputes

Building Disputes

During a building project, a dispute may arise between the builder and home owner(s). If you become involved in such a dispute, you should attempt to resolve the issue directly with the other party before taking any further action.

If the issue remains unresolved after you attempted to resolve it on your own, you can visit the Domestic Building Dispute Resolution Victoria (DBDRV) website to lodge an online application for dispute resolution.

DBDRV provides building disputes resolution without the cost and time often associated with courts and tribunals, and has the power to issue legally binding dispute resolution orders and certificates.

For more information, please visit the DBDRV website or call the Building Information Line on 1300 557 559

Appeals

It is possible to appeal against the issuing of a Building Notice or Building Order.  Appeals are made to the Building Appeals Board and you can appear before the Board to present your case.

The decision of the Building Appeals Board is final and binding.

Prosecution

Where an owner fails to comply with a Building Order issued by a Municipal Building Surveyor, the Municipal Building Surveyor is empowered to initiate prosecution. This means that the matter does not have to be referred to the Victorian Building Authority.

A Municipal Building Surveyor also has the power to intervene on any project in the municipality, even if a private Building Surveyor is appointed for that project. This may happen where for example the Municipal Building Surveyor is advised of a serious breach of the regulations on a project.

Where a builder refuses to fix defective work, the Victorian Building Authority may refer the builder to the Building Practitioners Board for disciplinary action.

Building Advice and Conciliation Victoria (BACV)

Building Advice and Conciliation Victoria (BACV) is a service established by the Victorian Government to provide free advice and assistance to resolve domestic building disputes. The service is a joint initiative of the Building Commission and Consumer Affairs Victoria.

BACV provides individual advice, conciliation and technical inspections of building work with a view to preventing or resolving disputes between homeowners and domestic builders.

If you have any concerns about your building project, it is a good idea to contact BACV earlier rather than later, as issues are simpler to resolve before they are compounded by further work.

Domestic Building Inspections

If you believe that some of the building work on your project is defective, you can apply to the Victorian Building Authority for an independent inspection.

An inspector will come and have a look at the project and prepare a written report for the builder making recommendations for any corrective action. The inspector cannot direct the builder to rectify any work on the project but if the builder fails to follow the recommendations, he or she may be referred to the Building Practitioners Board for disciplinary action. The owner can also initiate a hearing at the Building Practitioners Board.

Applications for an inspection need to be made on a form available from the Building Commission. There is a fee for the service and there may be additional expenses if specialist investigations are required. 

Making a complaint about a building practitioner

Building practitioners include registered and unregistered builders, private and municipal building surveyors, demolition contractors and some other specialist contractors.

Anyone involved in a building project can make a complaint to the Building Practitioners Board or the Victorian Building Authority about the conduct of a building practitioner.  The Board and the VBA take all complaints seriously. The Board or VBA will assess your complaint and determine if a formal investigation is necessary. Sometimes the complaint will be referred to another government body. This is because different government departments are responsible for different types of issues. The Board or VBA will let you know if it is referring your complaint elsewhere.

To make a complaint about a registered practitioner’s professional conduct, you must write to the Building Practitioners Board and/or the Victorian Building Authority setting out the reasons for your complaint.

Victorian Civil and Administrative Tribunal

There is also an avenue of appeal to the Victorian Civil and Administrative Tribunal (VCAT). It is recommended that you first attempt to resolve issues through BACV, as this has been specifically established to provide quick and easy access to dispute resolution services.

The dispute can be heard by the Domestic Building List at VCAT, which will try to resolve the dispute and can order that defective work be rectified, terms of a contract are varied, or that compensation is paid.

Where disputes are for sums of less than $10,000, they will be heard through the Civil Claims List at VCAT. There is an application fee and application forms can be obtained from VCAT.