Why were the residents ordered to evacuate?
In the wake of the Lacrosse building fire in November 2014, combustible external claddings present in many high rise buildings have been deemed to pose a serious safety issue to residents. In Victoria, high risk cladding products have been banned as of 1 February 2021. Municipal building surveyors have commenced issuing orders to evacuate buildings in recognition of the fire danger.
When is a building surveyor allowed to issue building notice under the Building Act?
Section 106 of the Building Act 1993 (Building Act) allows a municipal building surveyor or a private building surveyor to inspect buildings and issue owners with a building notice if the building surveyor is of the opinion that (amongst other things):
- the building work has been carried out on the building in contravention of the Building Act or building regulations;
- the building work on the building is a danger to the life, safety or health of any member of the public, or of any person using the building; or
- a building is unfit for occupation.
What do you need to do if you receive a building notice or building order?
Upon receipt of a building notice the owner has an opportunity to make representations to the building surveyor about the matters contained in the notice, or may appeal the notice to the Building Appeals Board.
The building surveyor may choose to either cancel the building notice, if the building surveyor considers it appropriate to do so after considering the representations made by the owner, or may make a building order under section 111 of the Building Act.
A section 111 building order may:
- direct an owner or occupier to evacuate a building, or any person to vacate a building, within a specified time, as was the case in the above circumstances;
- prohibit any person from entering, using or occupying a building for a specified period, unless permitted by a building surveyor;
- direct the owner of a building to carry out building work, protection work or other work required by the regulations in relation to the building;
- require the owner of a building to cause an inspection of the building or test materials used in it by a specified person within a specified time; or
- require the owner of a building to arrange for a building product or material used in the building to be subjected to destructive testing conducted by a prescribed testing authority, if the building surveyor believes on reasonable grounds that the use of the building product or material is connected with a contravention of the Building Act or regulations, and the owner must provide the results of the destructive testing of the building product or material to the building surveyor or relevant authorised person.
Why is it important to comply with the building order?
Failure to comply with a building order can attract significant penalties of up to $454,350 for corporations and $90,870 for natural persons.
How can HWLE help you?
Building notices and building orders may be appealed, at the applicant’s cost, to the Building Appeals Board although strict timelines apply. The appeal must be made within 30 days of the building notice or building order being served, after which the Building Appeals Board no longer has jurisdiction to hear and determine the appeal. Unless an emergency order has been made, building notices and building orders that have been appealed will not take effect until the decision is affirmed on appeal.
This article was written by Paul Graham, Partner, Julie Charles, Senior Associate and Kai-Yang Goh, Solicitor.
