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Carry Out Work Without a Building Permit

The Building Act 1993 (the Act’) and Building Regulations 2006 (‘the Regulations’) prohibit you from carrying out certain building works without a building permit, unless an exemption exists for the proposed works under the Regulations. Therefore, a person or body corporate cannot carry out building work without a building permit unless one has been issued and is in force under the Act.If you carry out work without a building permit then you may have committed an offence under section 16(1) of the Act.

A guilty finding for this offence may also have effects on your registration as a builder.
This is a summary offence and therefore any summons for this charge will be handled by the Magistrates’ Court.
 
Elements of the offence
The Prosecution must prove the following elements:

  1. The accused has carried out building works as defined in the Act and building regulations; and
  2. During the time when the work was performed, the accused did not have a building permit
What are ‘building works’?
The Act defines ‘building work’ as ‘work for or in connection with the construction, demolition or removal of a building’. Examples of constructing in relation to a building is defined to include work done in connection with the construction, demolition, or removal of a building.1

Examples of Carrying out work without a building permit
  • Building an extension without a permit
  • Demolishing part of a building a load bearing wall without a permit
There are some exemptions that apply:
Schedule 3 of the Regulations lists some building works which can be carried out without a builder’s permit. The following is an example of some of the works:

  • Building a pagoda as long as it does not exceed the prescribed size
  • Repair, renewal or maintenance to an existing building structure
  • Building a car port, garage or shed as long as it does not exceed the prescribed size
  • Small excavation works
Legislation
The offence of building without a permit is governed by section 16(1) of the Building Act 1993 (Vic).


[1] Building Act 1993 (Vic), section 3.
 
Some of the defences to this charge that might be available are:

  • honest and reasonable mistake of belief
  • necessity
  • lack of intent
  • sudden or extraordinary emergency
  • incorrect factual matrix
Questions in cases like this
  • Do you have a permit?
  • What did you build?
  • Does what you built exceed the limits prescribed by the Regulations?
  • Is what you did covered by the exemptions in the Regulations?

The maximum penalty the Court may impose for a charge of Carry Out Work Without a Building Permit (s16(1) of the Building Act 1993) on an individual is a fine of 500 penalty units (around $80,500).

The maximum penalty the Court may impose on a company is a fine of 2,500 penalty units (around $402,900). The sentenced received will depend on the severity of the breach.

Sentencing in the Magistrates’ Courts
The Victorian Magistrates’ Courts heard a total of 292 cases of Carry Out Work Without a Building Permit from 1 July 2013 to 30 June 2016. This involved 345 charges which led to financial penalties (80.1%), adjourned undertaking/discharge/dismissal (19.5%), and Community Correction Order (0.3%).

The highest amount of fine given for a charge is $20,000 or more and was imposed to 5.3% (aggregate) and 2.1% (non-aggregate) of the charges that led to fines. Majority however received a much lower penalty at $5,000 < $10,000 (13.5% for aggregate and 7.8% for non-aggregate).2

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.3


[2] SAC Statistics – Building Act 1993 (Vic) : s 16(1) – carry out work without building permit <https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/93_126_16_1.html>
[3] Suspended Sentence | The Sentencing Advisory Council <https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence>