The Accused was charged with a breach of section 16(3) of the Building Act 1993 (Vic) (Act) for being the owner of the land and failing to ensure that a building permit had been issued for building work carried out, namely, a multi-level extension to the front of the existing dwelling at the land.
Section 16(3) provides as follows:
(3) An owner of land must ensure in relation to building work carried out on that land that a building permit in relation to the work has been issued and is in force under this Act.
Penalty: 500 penalty units, in the case of a natural person.
2500 penalty units, in the case of a body corporate.
The registered proprietor of the land, which was located in Caulfield South, was a women (the Accused) who purchased the property in 2009 for approximately $1,258,000.
On 17 August 2022 Council received a complaint from a neighbour in regards to building work being carried out at the land.
A search of Council records revealed Council had received a letter from a building consultant in September 2016 advising they will be doing building works at the land and enclosed a protection work form, a soil report, a title re-establishment survey plan, a feature & level survey plan and architectural and structural drawings.
The protection work notice nominated the proposed building work as alteration and addition to the existing dwelling at the land and noted the details of the relevant building surveyor and the agent of the owner being the husband (at
that time) of the Accused.
The architectural drawings showed a proposed addition at the front of the existing dwelling. A section 80 notification was not provided to Council.
Council had no record of a building permit having been issued by or lodged at Council for any building work at the land since a building permit in 2010 permitting minor alterations.
On 18 August 2022 Council Building Inspectors drove past the land and took a photograph showing extensive building work being carried out including the construction of additional levels to the existing dwelling without a building permit.
On 25 August 2022 Council’s Municipal Building Surveyor issued a Building Order to Stop Building Work to the Accused, as the registered proprietor of the Property because additions and alterations were under construction at the front of the existing dwelling without a building permit.
On 15 September 2022 a Council Building Inspector carried out an inspection and observed that significant and structural building work had been carried out comprising a multi-level extension to the front of the existing dwelling.
The husband of the Accused advised that a structural engineer inspected the building work at all mandatory stages for concrete, blockwork and framing. This remains unverified with Council
On 30 September 2022 Council’s Municipal Building Surveyor issued a building notice to the Accused because of the significant building work carried out without a building permit. A resolution is still currently being worked through.
Both the Accused and her husband (at the time) refused to be interviewed.
Prosecution proceedings were commenced against the Accused in December 2022 in her capacity as the owner of the land. After six adjournments a plea proceeded on 4 October 2023.
Magistrates’ Court Plea
The matter was before Her Honour Magistrate MacCallum at the Moorabbin Magistrates’ Court. The Accused was represented and entered a plea of guilty to the charge.
The summary was read to the court and accepted along with photographs of the building work.
The court was advised that the Accused had no prior history.
Russell Kennedy Lawyers made extensive submissions in relation to the objective seriousness of the offending with reference to the purpose (s1) and objectives (s4) of the Act.
The court was urged to take into account general deterrence and the nature and gravity of the offence and that the conduct must be denounced.
The lawyer for the Accused outlined her personal circumstances.
Her Honour adjourned the matter to allow the Accused to bring evidence into court regarding her financial circumstances.
The matter continued on 19 October 2023 and the lawyer for the Accused submitted the following documents:
- details of recent bank account transactions showing the borrowing of money from friends;
- current loan documentation;
- her Centrelink concession card;
- a list of building work which she says is in compliance; and
- an appraisal from a real estate company advising the property is about to be placed on the market and was estimated to be sold between $4,100,000.00 - $4,510,000.00.
Her Lawyer also submitted in relation to the Accused:
- accepted a fine was warranted and urged the court to take in the account all the above circumstances including her dire financial situation; and
- requested the court use discretion and not make any order in relation to costs.
Russell Kennedy Lawyers responded briefly as follows:
- it was not accepted that the work in the list is complied with and Council will work through that process with the Accused;
- there was still a real possibility that demolition might be ordered if compliance cannot be achieved;
- a new owner will be left to deal with any consequences and that the building notice would and it has assumed it has been provided in a section 32 statement; and
- reiterated the 2009 purchase price of $1,258,000.00 and that at worst a gain of $2,842,000.00 would be made or at best based on the appraisal a gain of $3,252,000.00.
Magistrates’ Court Decision
Her Honour stood down and came back a short time later with her decision as follows:
- the charge was read including that a plea of guilty was entered;
- the maximum penalty was advised;
no prior matters was confirmed;
- that the summary was read to the court and accepted;
- the matter was at the more serious end of the scale due to the size and duration of the breach;
- Russell Kennedy Lawyers written submissions on sentence and costs were summarised with a focus on the purpose and objectives of the Act;
- accepted general deterrence and denunciation relevant sentencing factors;
- agreed that specific deterrence unlikely to be a factor as the Accused is unlikely to breach again;
- Outlined the mitigating circumstances including:
o age of the accused
o married now separated;
o covid ruined the family financially;
o property currently on the market;
o considered financial documents handed up;
o accepted Accused suffering from some depression and acted on mistaken belief 2010 building permit allowed this work;
o Council still has reservations re outstanding work;
o took note of borrowing off friends;
o her plea of guilty showed remorse and contrition; and
o noted the Accused is on social security payments.
- the sentencing process is a balancing act and consideration given to the above circumstances but outlined the breach was serious;
- obliged not to impose a sentence more sever then necessary; and
- the Accused was in a precarious situation but she had to balance that out with the seriousness of the breach.
Her Honour ultimately imposed a fine of $35,000.00 with conviction and ordered the Accused to pay costs in the sum of $7.953.90 (being the legal costs and the costs of a private investigator engaged by Council).
Her Honour said that had the Accused cooperated the investigator’s costs may not have been necessary. The court outlined that the plea of guilty had a utilitarian benefit in saving court time and witnesses attending and that but for her plea of guilty, at a contested hearing she would have imposed a fine of $50,000.00 with conviction.
The fine and costs were referred to Fines Victoria for collection and management.