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Fail to Comply With Emergency Order or Building Order

– section 118(1) of the Building Act 1993

A municipal building surveyor or a private building surveyor appointed to issue a building permit to a site, should inspect the site when specific stages of work are complete. If the works performed are not compliant with the permit in place, the surveyor has the power to enforce compliance by issuing either an emergency order or building order.

Failure to comply with an emergency or building order is an offence pursuant to section 118(1) of the Building Act 1993.
This is a summary offence and is heard in the Magistrates’ Court.
What is the legal definition of Fail to Comply with Emergency Order or Building Order?
The term ‘building’ includes ‘structure, temporary building, temporary structure and any part of a building or structure’.1

Examples of Fail to Comply with Emergency Order or Building Order
  • Failing to comply with Council’s order to replace footings with approved sized timber;
  • Failing to dig foundations to the required depth;
  • Failing to repair a structure that is at risk of collapsing.
The legislation for this offence can be found on section 118(1) of the Building Act 1993.

Elements of the offence
The prosecution must establish:

  • The accused is subject to an emergency or building order; and
  • Particulars of remedy or direction stipulated in the order were not adhered to within the time frame provided.

[1] Building Act 1993 (Vic), section 3.
Defences to this charge might be that you were not in fact subject to the order or that you have already performed the works. Often people will plead guilty, so it is important to explain the circumstances of the offending and explaining your personal circumstances to urge the Court to impose a modest fine.

Questions in cases like this
  • Have you received an order from Council?
  • Has the works already been done?
  • Do you still own the property, or have you sold it?
The decision on whether to plead guilty or not guilty to this charge can best be made only after a careful examination of the strengths of your case. Contact a defence lawyer to assess the strength of your case.
For a person, this offence carries a fine of 500 penalty units (around $80,500) as the highest possible sentence. For a body corporate, the maximum penalty is a fine of 2,500 penalty units (around $403,000). The sentence received will obviously depend on many factors including in relation to the particular case. It is important to remember that serious breaches of this provision will attract a higher penalty.
Sentencing in the Magistrates’ Courts
From 1 July 2013 to 30 June 2016, there were 305 cases (349 charges) of Fail to Comply with Emergency Order or Building Order that were heard in the Magistrates’ Court of Victoria. These resulted in only two sentences: fine (79.7%) and adjourned undertaking/discharge/dismissal (20.3%).

Of those who were sentenced to aggregate fines, the majority (9.3%) were sentenced to an amount that is more than $5,000 but less than $10,000. For non-aggregate fines, the majority (11.8%) were sentenced to an amount that is more than $1,000 but less than $2,000. The highest amount of fine imposed is $20,000 or more but this was given to only 5.7% (aggregate) and 1.4% (non-aggregate) of those who received financial penalties.2

[2] SAC Statistics – Building Act 1993 (Vic) : s 118(1) – fail to comply with building order < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/93_126_118_1.html >