Russell Kennedy Lawyers was recently engaged to prosecute a breach of the Building Act 1993 (Vic), with respect to building work carried out by a registered building practitioner without a building permit.

The outcome of the case highlights the significant penalties that can be imposed when registered building practitioners carry out building work without a building permit.

  1. The accused was charged with a breach of section 16(1) of the Act for carrying out building work without a building permit being issued or in force under the Act
  2. Section 16(1) of the Act provides that: (1) A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.
  3. A contravention of section 16(1) of the Act is a criminal offence which carries a maximum penalty of 500 penalty units (currently $92,460.00) in the case of a natural person and 2500 penalty units (currently $462,300.00) in the case of a body corporate.

Background Facts - the Illegal Building Works

  1. The accused is a registered building practitioner with the Victorian Building Authority in the category of Commercial Builder – Limited and has been registered for over 20 years.
  2. Council building officers carried out an inspection of the subject property, during which they observed that a large steel framed warehouse approximately 54 metres in length, 60 metres in width and 8.35 metres in height had been constructed and was being occupied. The total approximate floor area of the warehouse is 3240m2.
  3. A check of Council records revealed that a building permit had not been issued by, or lodged with Council permitting the building work. Council was not notified of the appointment of a private building surveyor until after the accused became aware the illegal building works had come to Council’s attention. A building permit (and an occupancy permit) was subsequently issued in relation to the entire warehouse with a total value of the work estimated at $1,200,000.00. Building permits cannot be retrospectively issued under the Act. The validity of the building permit is arguable in that a building permit was only capable of being issued for the completion of any outstanding building work or rectification work.

Magistrates' Court Decision

  1. The accused entered a guilty plea and Counsel for the accused made the following submissions in mitigation:

7.1 the accused was suffering from mental health issues;

7.2 the offence was an honest and unfortunate mistake;

7.3 the accused has no prior criminal record; and

7.4 the financial position of the accused has been significantly affected by COVID.

  1. Russell Kennedy Lawyers on behalf of the Council made the following submissions as to the aggravating factors surrounding the offending, namely:

8.1 the offending is towards the more serious end of the scale, in that the building work was carried out for a commercial purpose and was significant building work;

8.2 the accused has been a registered building practitioner for more than 20 years, on that basis it was not credible that the failure to obtain a building permit was an honest and unfortunate mistake;

8.3 the accused did not make efforts to regularise the building work until it was made known to him that Council became aware of the building work, noting that a retrospective building permit cannot be issued under the Act;

8.4 the building industry is a highly regulated industry and the offending contradicted various purposes of the Act, including (but not limited to) providing an efficient and effective system for issuing building and occupancy permits; and

8.5 principles of general deterrence are particularly important sentencing considerations to deter others from committing similar breaches and to promote an acceptance in the community that building legislation must be complied with.

  1. His Honour Magistrate Robinson found the charge proven and fined the accused $25,000.00. His Honour noted that if it was not for the early guilty plea he would have imposed a fine of $75,000.00. Given the age of the accused and that he had no prior convictions His Honour did not record a conviction.
  2. This matter demonstrates the importance of compliance with building legislation, including obtaining building permits, in particular when it comes to registered building practitioners.