Illegal building works

Illegal building work occurs when a building permit is not issued on construction work that required a building permit to be issued.

Legislative requirements

Part 16 of the Building Act 1993 states:

A person must not carry out building works unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the Building Regulations and the permit.

Penalties for such breaches can range from 500 penalty units ($79,285) for an individual to 2500 penalty units ($393,925) in the case of a body corporate.

A building permit cannot be issued retrospectively for the works already carried out.

Where illegal building work has occurred Council can issue a Building Notice giving you the opportunity to show cause (indicate in writing) why the works were carried out without first obtaining a building permit. You have 30 days from the date of the Notice to respond.

Included in your response above, should be an indication of whether you wish to retain the works or alternatively wish to demolish/remove the works carried out without a building permit.

At this point you are not permitted to do any further works including the demolition/removal of the illegal works. You must only respond in writing to the Municipal Building Surveyor within the 30 days.

Demolition or removal of illegal works

The Council (Municipal Building Surveyor) will issue a Building Order giving you directions as to what works need to be done to reinstate the building/land to its original condition. No work can be carried out until you have received this Building Order.

Options to legitimise the illegal building works

  1. Once you have decided to retain the structure and you have responded to the Building Notice advising Council of your intention, you will need to engage the services of a Registered Building Practitioner to prepare a report to the Municipal Building Surveyor advising on the adequacy of the illegal building work. This will require the practitioner to inspect the works and he/she may then request additional information to support the retention of the work. In order to do so, you may be required to engage other consultants – registered building practitioners to prepare the architectural, structural plans, fire engineering reports, and/or others to justify/verify the illegal work. (Again no works can be carried out at this point and all costs associated with the above will be your responsibility.)
  2. The report returned to the Council (Municipal Building Surveyor) will need to include relevant plans showing the location and construction of the work (similar to plans required to be submitted with a Building Application). It will need to detail compliance with the Building Act, Building Regulations, National Construction Code (NCC) and Australian Standards. The Registered Building Practitioner will also need to provide a signed Certificate of Compliance – confirming inspection dates and compliance with the relevant NCC and Australian Standard(s). Should rectification work be required/recommended, a list of works will also need to be submitted for review, by the Municipal Building Surveyor. (Again all costs incurred to achieve the above will be your responsibility.)
  3. Upon receipt of the above report prepared by the Registered Building Practitioner the Municipal Building Surveyor will review the information and make a determination as to whether the illegal building work can be retained. If it is considered that the works are satisfactory then the Building Notice will be cancelled. If the illegal building work require rectification or are deemed unsuitable, the Municipal Building Surveyor will issue a Building Order to carry out a program of works. Any cost incurred to carry out the building work nominated on the Building Order will be your responsibility.

Registered Building Practitioner Reports

You will be required to engage a Building Surveyor to prepare the above report.

The Building Surveyor you choose will need to be registered with the Victorian Building Authority and any illegal building work must fall within the category for the ‘limitation’ attached to the Building Surveyor’s registration. Information is available from the Victorian Building Authority and the restrictions are associated with ‘Limited’ and ‘Unlimited’ Building Surveyors.

Registered Building Surveyors

Registered Building Surveyors are available as per one of the following options:

  1. Registered building surveyors who can be contracted through the Building Permits Section to act as a consultant on your behalf. You will receive an independent review of the illegal works and report as required above. You can engage our Building Surveyor to act as your consultant by completing an application form attached. The consultancy fees can be obtained either in person or by calling the offices on 03 5272 4450.
  2. Alternatively you may engage a ‘Private’ Building Surveyor to prepare the above report on your behalf. You can find them in the yellow pages, through the Victorian Building Authority or the Australian Institute of Building Surveyors. The costs for their services will vary and so we recommend you obtain three quotes.

Report submission

The report and supporting information will need to be submitted within 30 days from the date on the initial Building Notice.

If you do not provide the above within the specified time frame the Municipal Building Surveyor may issue a Building Order to remove/demolish the illegal building works. However, if you have a legitimate reason for not being able to meet this time frame, you will need to request an extension of time in writing, from the Municipal Building Surveyor.

Registered Building Practitioner means registered through the Victorian Building Authority.

You can check the registration of a practitioner by checking the Victorian Building Authority website.

Each person engaged in building work needs to be registered for their appropriate discipline for example Building Surveyor, Structural (civil) Engineer, Fire Engineer, Draftsperson.

Page last updated: Thursday, 4 March 2021