Carry Out Work Without a Building Permit

– section 16(1) of the Building Act 1993

Building Work
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.

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

Call Doogue + George

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?
What are some of the possible defences to carrying out work without a building permit?

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

Magistrates' Court

Maximum penalty and court that deals with this charge

The maximum penalty the Court may impose for this offence 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.

As this is a summary offence, any summons for this charge will be handled by the Magistrates’ Court.

Legislation

The offence of building without a permit is governed by section 16(1) of the Building Act 1993 (Vic).

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
“Can they prove that you carried out works?”

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

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

Case studies related to Carry Out Work Without a Building Permit
Other Important Resources

 



[1] Building Act 1993 (Vic), section 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>