Building Orders - a limitation on Municipal Building Surveyor powers

When a Victorian Council undertakes an inspection of a property, it may discover building works that do not comply with the Building Act 1993 (Vic) (the Act) and Building Regulations 2018'  (Vic) (the Regulations) and issue a building notice to the owner of the property in the prescribed form. If the owner does not respond to a building notice in the time required under the notice, a building order can be issued by Council's Municipal Building Surveyor (MBS). There are several types of building orders that can be issued:

• General Building Order

a general building order may be issued if the building notice has expired and the works required by the building notice have not been addressed (section 111).

• Building Order for Minor Works

a Building Order for Minor Works (BOMW) may be issued if the work required to be undertaken is considered minor and able to be remedied in a short time frame (section 113).

• Stop Works Order

a stop works order may be issued if the work cannot be corrected through a building notice or building order, and all works must stop until the issues are resolved (section 112).

• Emergency Order

an emergency order may be issued if the work is considered a risk to life or property and immediate action to make the property safe is required (section 102).

The recent Supreme Court decision of Shout Rock Cafes Pty Ltd v City of Port Phillip & Anor [2022] VSC 615 provides guidance on the limitations on an MBS's powers in issuing a BOMW.

Background

In August 2017, an MBS for the City of Port Phillip Council inspected a property and issued a BOMW, stating that the condition of an existing balcony structure had deteriorated and was considered a possible risk of structural failure. The BOMW required the owner to restrict access to the balcony by mechanically fixing shut the doors leading to it, with screws or other permanent fixings that could not be removed without the use of a tool. The owner appealed the issuing of the BOMW to the Building Appeals Board but was unsuccessful. The owner then applied to the Supreme Court for judicial review, arguing that the Building Appeals Board had made an error in accepting that the terms of the BOMW complied with section 113 of the Act.

Decision

The Court decided in favour of the owner, finding that the BOMW was void. The Court stated the power to issue a BOMW pursuant to section 113 of the Act is limited to work that is necessary under the Regulations and where one of the circumstances as set out in section 106 of the Act exists. These circumstances include:

• non-compliant building works;
• non-compliant use of the building;
• emergency equipment not being maintained;
• the building is unfit for occupation; or
• the building poses a danger to life, safety or health.

The Court found that a BOMW cannot be used for the purpose of evacuating, vacating or restricting use of a building. Rather, imposing restrictions on access to a building (where it is not an emergency) must be done through the building notice and subsequent building order procedure under sections 106-111 of the Act.

Conclusion

Council and MBS' should be aware that issuing a BOMW can only be used in limited circumstances '€“ where the works are of a minor nature and are required under the Regulations '€“ and not in a way that would restrict access in or to the building. In this case, the Court highlighted the steps that should have been taken where an MBS is concerned about an unacceptable risk to safety (in non-emergencies) in order to restrict access to a building:

1. The MBS must be of the opinion one of the circumstances in section 106 of the Act exists to justify a building notice (see above).
2. A building notice must have been issued in accordance with the content and form requirements in section 108 of the Act.
3. The building notice must provide a time period for the owner to make representations to the MBS regarding the issues.
4. After the time elapses, the MBS must consider the representations made prior to issuing a building order.
5. In the event the MBS is still satisfied one of the section 106 circumstances exists that justifies restricting access to a building, a general building order under section 111 of the Act may be issued to do so.

In the alternative, should an MBS determine there are building issues that pose a risk to life or property, an emergency order may be issued to restrict use of the building (without having to go through the general notice and order procedure as outlined above). The case is also a useful reminder to ensure that, except in the case of an emergency order or stop works order, a compliant building notice is first issued and any representations duly considered by the MBS. Have you received a building order from your local Council? Hunt & Hunt's Property Team can help you navigate the process and respond.

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~ by' Tayla Wescott, Lawyer