Building notices and illegal building work.
Received a building notice from your council's municipal building surveyor for work built without a permit? Our Registered Building Surveyors inspect the work, tell you what it needs, and issue the building permit and certification that your response to the notice relies on.
What a building notice is
A building notice is a show cause notice served under section 106 of the Building Act 1993, on Form 11. It asks the owner to explain in writing why they should not have to do what the notice describes, such as demolishing and removing the work, or carrying out building work to make it comply.
For illegal building work, the notice is served by the municipal building surveyor: the registered building surveyor each council appoints to enforce the Building Act in its municipality (sections 212 and 213). A building surveyor can serve a building notice when they are of the opinion that one of these applies:
- building work was carried out without a building permit, or not in line with the permit, the Act or the Building Regulations
- the building or place is being used in a way the Act or the regulations do not allow
- safety or emergency services, installations or equipment have not been maintained as the occupancy permit requires
- the building or place is unfit for occupation
- the building, land or building work is a danger to the life, safety or health of the public, the people using it, or any property
A building notice does not give permission to carry out building work, demolish or remove anything. Building work that needs a permit still needs one.
The municipal building surveyor
Building notices for illegal building work are served by the council's municipal building surveyor (MBS). The council is responsible for enforcing the building notice and order provisions of the Building Act in its municipality, and its MBS, or a deputy, inspects the work, forms the opinion that a notice is needed, and serves it. The MBS's name, registration number and the council's address are on the notice.
A private building surveyor can also serve a building notice, but only for a building or land they are appointed to as the relevant building surveyor, and that power continues after the final inspection or occupancy permit (section 107).
The notice is served on the owner, not a tenant. Whoever serves it must give the council a copy within 7 days (section 125), and the council keeps a register of building notices and orders that anyone can inspect during office hours (section 126). If you are buying a property, ask the council whether it has a notice or order on it.
Illegal building work
Illegal building work is building work that needed a building permit and was carried out without one, or not in line with the permit, the Building Act or the Building Regulations. Section 16 of the Act makes it an offence to carry out building work without a building permit in force. It also makes the owner of the land responsible for making sure a permit is in place, unless the owner engaged a building practitioner, endorsed building engineer or architect to carry out the work. The maximum penalty is 500 penalty units for a person and 2,500 penalty units for a company.
The work we see most often:
- decks, verandahs and pergolas
- sheds, garages and carports
- retaining walls
- garage conversions and rooms built in under the roof
- extensions and outbuildings used as living space
Not all unpermitted work is illegal. Some minor work is exempt from needing a permit under Schedule 3 of the Building Regulations 2018; our guide to whether you need a building permit sets out the limits.
Illegal work usually comes to light through a neighbour's complaint, a council inspection, or when the property is sold. You do not have to wait for a building notice. We can inspect the work now and take it through the same steps, so it is dealt with before the council asks.
What a building notice sets out
- who served it and under which section
- the address, lot and plan of the property
- the date of the inspection
- the reason it was served, such as a deck, verandah or shed built without a building permit
- what you must show cause about, for example why you should not demolish and remove the work
- the date by which you must make your representations
- how to make them: by post, by email or in person
The time allowed is set by the municipal building surveyor who serves the notice and is printed on it. The Act does not set a minimum.
Making representations to cancel your building notice
Representations are your written reply to the municipal building surveyor who served the notice (section 109). They are your opportunity to have the notice cancelled (section 110) before a building order is made, and the municipal building surveyor must consider them before making any order (section 111).
Representations that lead to a notice being cancelled usually include:
- the building notice number, the property address and your contact details
- a reply to each item in the notice, in the same order, saying what you have done or will do about it
- a report from a registered building surveyor on the work as built
- the building permit for any rectification work, with the drawings and engineering it was issued on
- the certificate of final inspection or occupancy permit, once the work is complete
- photos of the work
If you believe the notice is wrong, say why and attach the evidence: for example a copy of a building permit already issued for the work, or the reason the work did not need one.
If the report and permit will not be ready by the date on the notice, the municipal building surveyor who served it needs a written request for more time before that date. We can make that request on your behalf, with your written authority: we set out what is under way, the steps still to come and when we expect them done. Whether to allow more time is the municipal building surveyor's decision.
Send your representations by the date and in the manner printed on the notice, and keep a copy and proof that you sent them. We prepare the technical part: the inspection report, the building permit, the inspections and the final certificate, with a letter explaining each item that you can send with your reply.
Missing the date does not stop the process. Once the time allowed has ended, the municipal building surveyor can make a building order without your input.
What happens after you respond
You make representations to the municipal building surveyor in the manner the notice specifies (section 109). After considering them, the municipal building surveyor can cancel the notice (section 110).
If the municipal building surveyor is not satisfied, or nothing arrives in time, they can make a building order once the time allowed has ended (section 111). The order can direct you to carry out building work or other work, or to stop using the building. It must stay within the matters in the notice, and it binds anyone who later buys the property.
Not complying with a building order is an offence under section 118, with a maximum penalty of 500 penalty units for a person and 2,500 penalty units for a company.
Building notice certification: how we help
To keep work that was built without a permit, the municipal building surveyor will usually want a report on the work and a building permit for any rectification work, from a registered building surveyor. That is the work we do.
- Inspect the work as built and report on what complies with the Building Regulations and what does not.
- Tell you which documents are needed, such as drawings of the work as built and an engineer's report or design for any rectification work.
- Assess the documents and issue the building permit for the rectification work.
- Carry out the inspections, then issue the certificate of final inspection or occupancy permit when the work is complete.
- Give you the report and permit to include with your representations.
- Make a representation on your behalf to extend the time allowed by the notice, if the work needs longer.
If you need more time to gather reports and drawings, we can write to the municipal building surveyor on your behalf and ask for an extension, before the date on the notice. Whether to allow more time is their decision.
Appeals
You can appeal to the Building Appeals Board against the decision to serve a building notice, or against a refusal to cancel one, under section 142. The appeal period is 30 days from when the notice was served.
Common questions
A show cause notice under section 106 of the Building Act 1993. It asks the owner to explain in writing why they should not have to carry out the work or action it describes, such as demolishing work built without a permit.
The council's municipal building surveyor, the registered building surveyor the council appoints to enforce the Building Act. A private building surveyor can also serve one, but only for a property they are appointed to.
Once the time to respond ends, the municipal building surveyor can make a building order. Not complying with a building order is an offence under section 118 of the Act.
Often, if it can be shown to comply or be made to comply. That usually means a report on the work and a building permit for any rectification work from a registered building surveyor, sent with your representations.
Make written representations to the municipal building surveyor who served it, by the date on the notice. Show that the work complies or will be made to comply, usually with a report and a building permit from a registered building surveyor. The municipal building surveyor can then cancel the notice.
No. A building notice does not authorise building work, demolition or removal. Work that needs a building permit still needs one.
Building notices by council
- Building notices in Macedon Ranges
- Building notices in Melton
- Building notices in Brimbank
- Building notices in Wyndham
- Every council area we work in
The Building and Plumbing Commission explains how building surveyors use notices and orders in its Practice Note NO-01 Building Notices and Building Orders.
Request a quote
Request a quote online, or email what you have to info@cortekgroup.com.au. Send us:
- a copy of the building notice, every page
- photos of the work
- any drawings, engineering or permits you already have for it
- a copy of the title and plan of subdivision