Following on from the initial updates to the Building Act 1993 (the Act) introduced through the Building Amendment (Enforcement and Other Measures) Act 2017 which commenced on 23 May 2017 (see details here), a further raft of new provisions and amendments came into operation on 16 August 2017.
Many of the changes which came into effect on 16 August 2017 impact on the enforcement measures available to Councils, including:
- New powers for Municipal Building Surveyors pursuant to an Emergency Order including:
- to direct any person to vacate a building or land or place of public entertainment;
- to prohibit any person from entering, using or occupying any building, land or place of public entertainment
- to require the owner to cause an inspection to be conducted by a specified person within a specified time; and
- to require the owner or builder to cause specified material used in a building or place to be tested by a specified person within a specified time.
- To allow for the issue of a building notice if the relevant building surveyor considers safety or emergency services, installations or equipment (essential safety measures) have not been maintained in accordance with the occupancy permit and the Regulations.
- To provide that, pursuant to a new section 146(2A), unless the Building Appeals Board otherwise directs, an appeal against the making of a building order prohibiting the occupation of the building or place, does not stay the operation of the decision under appeal, if the order was made following the making of an emergency order in respect of the same matter.
- To provide that an emergency order, a building notice, or a building order, may be served upon a person by putting the order up in a conspicuous position on the building or land or place of public entertainment to which it applies, pursuant to section 236(4A).
- That it is an an offence for a person to remove or deface a notice or order put up pursuant to sections 236(4) and (4A).
- To provide that if a building notice or building order is to be served upon an owner of a lot affected by an owners corporation, the notice or order may be served upon the owners corporation, and, if so served, be taken to be served upon the owners of the lots, pursuant to section 236(4C).
- Under a new section 251A:
- an owners corporation, should it be served with a building notice or order, may authorise a person to enter a lot or building on a lot on its behalf to carry out any necessary building works as required by the building notice or order; and
- a new offence is created for an owners corporation which fails to comply with a building order which it is served.
There are still many more reforms to the Act which have not yet come into force, which include substantial changes to the entry and information gathering procedures available to Councils when conducting enforcement inspections.
If you have any further queries with respect to how the amendments impact upon Council investigation procedures and prosecutions, please contact Matt Barkla and the Local Government Team at Beck Legal on 5445 3333.
Written by Matt Barkla, Director at Beck Legal
mbarkla@becklegal.com.au