Building order referrals
Building surveyors are obliged to issue building notices and building orders when necessary to bring about compliance with a provision of the Building Act 1993 (the Act), or the Building Regulations 2018 (the Regulations).
If you are issuing a building notice or building order, it must be in the prescribed form and must specify the date for compliance to be achieved. On request, you may grant an extension to the period for compliance to the owner. The building notice and order should clearly explain the building work to be rectified so that there is no ambiguity or confusion.
When a building order referral is received by the VBA, we first assess its enforceability. The legislation regarding building orders features specific requirements and if those requirements are not met, we may not be able to progress with prosecution of the offence.
When we are unable to take further action on the referral, we will write to you explaining why the referral is not enforceable. This information is intended to clarify the legislative requirements and to assist surveyors to progress with the enforcement process. You will have the option to discuss an unenforceable building order with a VBA Senior Technical Advisor if you have any questions.
Building Order Referral s.115 of the Act
Under s115 of the Act, if a person fails to comply with a building order made by you (the private building surveyor), you must refer the matter the VBA. You must then take no further action regarding the matter.
The VBA can only accept an order issued under:
- s 111 of the Act (Building orders – general)
- s 112 of the Act (Building orders to stop building work)
- s 113 of the Act (Building orders – minor work).
According to s115(2) of the Act, you must refer the building order to the VBA within 14 days after the final date for compliance specified in the order.
Written notice to the VBA
If you are referring a building order to the VBA, you should include the following information to help us assess whether it is enforceable:
- confirmation whether a building notice (s106 of the Act) has been issued
- confirmation that the time frame provided on the building order has expired and that the referral is being made within the required 14-day time frame. This should include details of whether any extensions of time for compliance with the building order were provided
- details of how the building order was served (i.e. by post, email, etc.)
- the information or documentation relied upon to confirm the current property ownership details (e.g. confirmation from Council, current rates notice, certificate of title).
The following documentation needs to be provided with the referral:
- the building order
- the building notice, if applicable
- any document demonstrating method and proof of service, such as a copy of any email, registered post receipts, or evidence of personal service
- the building permit (if applicable)
- any reference documents, including photographs (if applicable).
Please forward the referral in writing with the above information and documentation, to the referrals email. Include 'building order referral' in the subject line of the email.
For help with writing a building order referral to the VBA, please refer to the template letter: Draft referral letter template – Building Orders (DOCX, 13.57 KB).
What happens next
Once all the correct information is received, the building order will be assessed. During the assessment, we will take into account the applicable legislation, regulations and the specific requirements that make an order enforceable.
The assessment will result in one of the below outcomes.
Building order determined enforceable
If the building order is correctly issued in accordance with the Act and Regulations, it will be determined to be enforceable. The VBA will then take appropriate action according to the Act. This may include prosecution for failure to comply with the order. The maximum penalty for failure to comply with a building order is 500 penalty units in the case of a natural person.
If there is any change of circumstances regarding the site or the building work to which the building order relates, please notify us so we can take those matters into consideration.
Building order determined unenforceable
Only valid building orders referred to the VBA will be considered for enforcement. Building orders are reviewed by the VBA and if found to be unenforceable, will be returned to the PBS. Most common causes of invalidity are:
- a building notice that does not comply with circumstances specified in section 106;
- direction to owners are confusing, ambiguous or poorly worded.
- premature referrals such as the time permitted for making representations or completing the building work have not yet expired;
- incorrect owner details provided or not addressed to the owner of the building/land/place;
- the inspection was not conducted by the RBS personally;
- not referring to the year or publication when referring to the Act, Regulations, NCC or Standards;
- references to sections of the Act that do not relate to the process;
- the work described is not building work such as obtaining an endorsed building engineer’s report. Note, a building order may require testing of a material;
- not cancelling a building notice or building order before issuing a new one;
- building notice too general and not provided for in section 106;
- the inspection was undertaken months or years before the issue of the building notice; and
To be enforceable, all building notices and orders need to comply with Division 2 of Part 12 of the Regulations and include the prescribed information and be in the correct prescribed form.
If your building order is determined to be unenforceable, the VBA will be unable to take further action as we cannot proceed to investigation for potential prosecution. We will send a letter to you providing feedback, with a recommendation to cancel the building order and to recommence enforcement to resolve the situation.
If the VBA is concerned that the building work may be a life safety issue (e.g. swimming pool, swimming pool barrier, balcony, balustrade, egress issues, deficient smoke alarms/detectors, inadequately secured building elements, etc.), we commence action. This is regardless of the enforceability of the building order.
Compliance of building work after the referral of a building order
If the person who was subject to the building order has complied with the building order after it has been referred to the VBA, please advise us accordingly.
For more information
Refer to Practice notes and resources for further information and documentation, including prescribed forms.