Enforcement of building regulations, complaints and advice
Notification of building works
While many people feel uncomfortable notifying Council about building works that may not comply with the building Act or the Building Regulations, it is important to notify the building department, so that the correct processes can be put in place to ensure the building will generally meet all of the requirements and be safe for the occupants, both now and in the future.
There are a number of paths the building department can take to resolve these situations, however the best method is through the 'resolution of works' process, which aims to work with the owners to achieve a favourable outcome for the property owner and Council.
Please be assured that any notifications, complaints or queries remain anonymous and details are not provided to the property owners.
Resolution of works
A building permit should always be applied for and obtained because a building permit cannot be issued retrospectively for works already constructed.
Council does provide a 'resolution of works' process for building works that have been carried out without a building permit being issued. A significant administration fee is charged for this service as well as any building permit fee to authorise the required works to complete the project.
Because works have been carried out without the required permits being in place, structural investigations, engineer reports and section 163 agreements registered on the title for the land can be required, making the process quite expensive.
The process allows the owner to work with Council's Municipal Building Surveyor to resolve any issues and in some cases allows the building works to remain on site.
Although an occupancy permit or certificate of final inspection cannot be issued, a letter of 'no further action' can be provided stating that the works can remain and Council's building department are satisfied that they are generally constructed to an appropriate standard.
Building order for minor works
A building order for minor works is a process available to the building surveyor when the works required to rectify the situation are considered both minor and achievable in a fairly short time.
For example, the Municipal Building Surveyor may become aware of a timber front fence that has fallen out onto the footpath at the front of a property. A building order for minor works would then be issued to the owner of the property directing them to remove the fallen fence from the footpath and clean up the site.
A building notice is the first step in the enforcement processes available to the Municipal Building Surveyor at Council. Where the building department becomes aware of building works being carried out without the required permits, or existing condition on a property that could affect the health and safety of the public and/or occupiers, a building notice can be issued requiring the property owner to 'show cause' why:
- the building should not be demolished
- the use of the building should not be prohibited.
The owner of the property must then respond in writing, showing cause why the building should remain and be utilised.
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 available to the Municipal Building Surveyor at Council.
A building order is as it's name suggests, an order directing the owner to carry out certain works to make the building works comply with appropriate standards.
Failing to comply with both a building notice and a building order may result in a prosecution against the owner.
Building order to stop building works
Where the building surveyor has reason to believe a building project is being constructed without the required permits and the works are still in progress, a building order to stop building works may be issued.
For example, the Municipal Building Surveyor may become aware of a timber framed extension to an existing dwelling being constructed without the required permits being in place. Both a building notice and a building order to stop building works would then be issued to the owner of the property and any person who is considered to be carrying out the building works.
Emergency orders can only be issued by the Municipal Building Surveyor where it is considered that there is a danger to life or property because of conditions associated with etiher the use or proposed use of a building or land on which building works is being or proposed to be carried out.
An emergency order applies to more limited circumstances than a building notice and building order.
An emergency order should be issued where there is a sense of urgency in the situation and it would not be appropriate to allow for a 30 day 'show cause' period.
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.
Where an owner fails to comply with a Building Order issued by a Municipal Building Surveyor, the Municipal Building Surveyor is empowered to initiate the 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
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 Victorian Building Authority 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.
To initiate the process with BACV, you need to complete a complaint form. These are available from Consumer Affairs Victoria.
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 Victorian Building Authority. 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 Commission take all complaints seriously. The Board or Commission 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 Commission 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.
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