Victorian Building Order
Building Order System: Building Act 1993
The Building Surveyor under various sections of the Building Act 1993 has a significant role in the ‘enforcement procedures’ (building order) to ensure compliance is achieved or public safety and health are not endangered. A building surveyor can issue an emergency order, building notice, building order to stop work and a building order for minor works under the Building Act 1993.
A private building surveyor can issue all the above building notice and building order except for an emergency order, of which only a municipal building surveyor can issue. The building order process flow chart depicts four possible options under the Building Act 1993 for issuing a building order.
Building Order: Issuing
A building order is issued by a building surveyor under section 111 of the Building Act 1993, only when a building notice has already being served under section 106. The building order can only be issued to the current owner, directing them to do any one or a combination of items under section 111 (3).
The Building Act 1993 in section 111 covers a building order:
111 Building order – general
(1) Subject to section 107 of the Building Act 1993, a municipal building surveyor or a private building surveyor may make a building order under this section after the end of the time allowed by the building notice for making representations.
(2) Before making an order, the relevant building surveyor must consider any representations made by the owner concerned.
(3) A building order under this section may-
(a) prohibit the occupation of a building; or
(b) prohibit the occupation of a place of public entertainment or its use for public entertainment; or
(c) require the owner of a building, land on which building work is being or is proposed to be carried out or place of public entertainment to do either or both of the following things within a specified time or times-
(i) evacuate the building, land or place;
(ii) carry out building work, protection work or other work required by the regulations or to carry out a program of that work as directed in the order.
The serving of a building order on the owner by the building surveyor under the Building Act 1993 is definitely at the pointy end of enforcement procedures. This is serious for the owner. At this stage it would be in the best interests of the owner (consultants/contractors) to expeditiously and professionally respond to the building order with information and performance of works to allow the building surveyor to cancel the building order under the Building Act 1993.
Building Order: Serving
The Building Act 1993 in precise in the methods to be adopted in issuing a building order. Section 236 of the Building Act 1993 for serving a building order states:
236 Service of documents-generally (building order)
(1) Any document to be served on or given to a person under this Act or the regulations may be served on or given to the person by-
(a) delivering the document to the person; or
(b) leaving the document at the person’s usual or last known place of residence or business with a person apparently not less than 16 years of age and apparently residing or employed at that place; or
(c) sending the document by post addressed to the person at the person’s usual or last known place of residence or business or in any other prescribed manner.
(2) A building order made under section 112 may be served on any person apparently in charge of the site on which building work is carried out.
(3) If a document (building order) is to be served on or given to the owner or occupier of any land and the name of that person is not known the document may be addressed to “the owner” or “the occupier”.
(4) If a document (building order) is to be served on or given to the owner or occupier of any land, the document maybe put up in a conspicuous position on the land if the name and address of the owner are not known and there is no occupier of the land.
(5) If the owner has authorised a person to act on behalf of the owner under this Act or the regulations, any document (building order) served on or given to that person under this Act or the regulations is deemed to have been served on or given to the owner.
(6) If a document (building order) to be served on or given to an owner or occupier of any land is properly served on or given to the owner or occupier of the land the document is binding on every subsequent owner or occupier of the land.