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Building notice for illegal works

Blog photo showing interconnectedness of regulation and enforcement in the form of building blocks

04/08/2021

Have you been served with a building notice for illegal building work?

If you have, you are probably wondering what to do next.  Please read on for information to explain the process and your options.

 

Why have I been served with a building notice?

Most building work in Victoria is required to be carried out under a building permit issued by a registered building surveyor.  Building permits are the mechanism that ensures regulatory compliance of the building work, with the appointed relevant building surveyor (RBS) checking that the drawings and specifications for the proposed work demonstrate compliance with the building regulatory framework and inspecting the building work at various stages during construction to ensure that compliance is achieved.

Section 106 of the Building Act 1993 (Act) outlines that a building notice can be served for a number of reasons, including if the municipal building surveyor (MBS) i.e. the head building surveyor of a municipal Council believes that building works have been carried out without a building permit.

 

What is a building notice?

A building notice is a show cause document, which is essentially a “please explain” request.

The intent of a building notice is start a discussion between the owner of the property and the MBS.  In the first instance, it does not require or permit you to carry out works but it does require you to demonstrate (i.e. show cause), usually in writing, why you should not carry out the specific actions that are nominated in the Council building notice.

A building notice will typically state what the nature of the illegal building work is and will require the occupant to show cause why they should not carry out certain actions.  These actions could include, but are not limited to:

  1. Ceasing occupation of a building.
  2. Demolition of the illegal building works.
  3. Carrying out the additional building work necessary to achieve compliance.
  4. Arranging for inspections by specific persons e.g. engineers.

This is your opportunity to make your case as to why the actions nominated in the building notice should not be carried out.  It could perhaps be that you disagree with the conclusions in the building notice, that there is a difference in interpretation, or that the action you propose is different to the action nominated in the building notice.

The building notice will stipulate a time period by which the show cause response must be provided.  The Building Regulations 2018 requires this time period to be a minimum of 30 days but the MBS can allow longer if the issues are more complex or where it is clear that 30 days is insufficient time for the owner to formulate a response.

 

What if I disagree with the making of a building notice?

If you disagree with the making of a building notice, and are confident of your reasons, you can appeal the building notice to the Building Appeals Board (BAB) www.buildingappeals.vic.gov.au

The appeal must be submitted within 30 days of the issue of the building notice and must outline the reasons for the appeal.

If the appeal is not submitted within 30 days of the issue of the building notice, the opportunity to appeal has then expired.

 

What happens if I do not provide a show cause response within the prescribed period?

If you need more time to prepare your response, MBS’ are generally accommodating of this, provided there is some evidence that progress has been made.  Submitting a request for more time in writing to the MBS, along with some supporting reasons, is typically met with a favourable response.

However, if you decide not to provide a show cause response within the timeframe nominated on the Council building notice, a minimum of 30 days (to allow for the appeal period described above) but sometimes longer, the opportunity to make your case has now expired and the MBS will likely issue a building order under Section 111 of the Act, which will require the carrying out of the actions nominated in the building notice.

 

What happens when I provide a show cause response?

If you provide your show cause response within the allowed time period i.e. the time period nominated on the building notice plus any extensions granted by the MBS, it will be assessed by the MBS or the MBS’ delegates.

If the response is found to be satisfactory, the MBS may elect to cancel the building notice.

If the response is found to be unsatisfactory, the MBS may elect to discuss the reasons with you and allow you the chance to amend your response, or the MBS may elect to issue a building order under Section 111 of the Act, which will require the carrying out of the actions nominated in the building notice.

 

Example

By way of example, let us consider a factory where some internal rooms have been constructed without a building permit. 

If the relevant Council becomes aware of the illegal building work, the MBS of that Council may choose to issue a building notice.  The Council building notice may require the owner to show cause why they should not demolish the building works that have been constructed without a building permit.

 

Option 1 - retention

If the factory owner wants to retain the illegally constructed rooms, they will need to submit a satisfactory show cause response to the MBS outlining why the rooms should not be demolished.  Typically, this would require an inspection of the illegal works by a registered private building surveyor who can assess the compliance of the illegal building works. 

If the illegal building works are found to be compliant, the report from the registered building surveyor can make this case and can be submitted to the Council with a compliance letter / statement as a show cause response.

If the illegal building works do not comply, the registered building surveyor can give advice on what works are necessary to achieve compliance and can then issue a building permit for those works.  For example, since the rooms were constructed without a building permit, there may be non-compliance issues with doors and door hardware, distance of travel to exits, access for persons with disabilities, ventilation and so on.  The owner can then prepare a show cause response to the MBS, which provides the building surveyor's report and states that the owner will arrange a building permit for the required works within a specified timeframe. 

 

Option 2 - demolition

If the building owner decides to demolish the illegal building work, they can submit a response to the MBS stating this intention, or they can decide to submit no response.  Either way, it is likely that a building order will then be issued requiring the demolition work to proceed.  The Council building order may or may not stipulate that a building permit is required for the demolition.

 

What to do on receipt of a Council building notice?

Since building notices are legal documents, the language they use can occasionally be confronting, they may use building industry terminology from legislation, with which you are unfamiliar and which may not necessarily have the same meaning in legislation as they do in everyday use.

As such, seeking professional advice from a registered building surveyor is strongly recommended, as this will enable your show cause response to the building notice to be accurate and will likely give the MBS confidence that you have sought appropriate advice before responding.  This is more likely to result in a favourable outcome.

The team at Ryan Building Consulting can assist you with:

  • understanding and interpreting the issues raised in the building notice;
  • requesting more time from the MBS on your behalf;
  • carrying out inspections of the illegal building works;
  • preparing your show cause response to Council;
  • issuing a compliance letter / statement where illegal works are found to be compliant;
  • issuing a building permit where it is found that further works are required to achieve compliance.

Contact us today to discuss your building notice and the ways that we can assist.