How to deal with a local council where you have been issued with a Building Notice or Order

Caroline Skeoch

Principal LawyerAitken PartnersView Profile

Kaylee Smith

Law GraduateAitken PartnersView Profile

If you are a property owner that is building an extension, conducting renovations or compliance work, there is a chance that you may receive a notice or order from you local council or private building surveyor.

These can include a Building Notice, Building Order, Stop Work Order, Minor Works Order or Emergency Order - we will explore each of these below and explain what happens next.

The enforcement of building compliance and standards in Victoria is highly regulated and effected by a range of statutory and regulatory processes. When a building surveyor, either a municipal or private building surveyor, issues a building notice or a building order, it means that the property may not comply with the various provisions of the Building Act 1993 (Vic) (the Act), the Building Regulations 2018 (Vic) (the Regulations) or the National Construction Code.

If you have been issued a building notice or order, it is important to know what to do and how to respond to avoid any potential legal proceedings and ensure future compliance.

What is a Building Notice?

A building surveyor may issue a Building Notice under s 106 of the Act. There are various ‘triggers’ which can be relied upon for the making of a Building Notice.

If you are issued a building notice, it means that the building surveyor considers that the works on your property are risks or dangers to life, safety or health of any person, or illegal because work has been, or is being carried out without a building permit, or without the right type of permit.

A building surveyor has a statutory duty to issue building notices where he or she forms the view that the building work is a risk or is being carried out with the required building permit. A building surveyor also has a duty of care to ensure known dangers that exist in the municipality are rectified.

Building notices ‘run with the land’ and as such they can only be issued to the owner of the land the building is on. Even if a building practitioner has been engaged to carry out the building work, the builders, developers or other contractors who may have conducted the work are not responsible for responding to a building notice.

Legally, a building notice is a ‘show cause notice’ which means it asks you to explain ‘why’ certain building work has or has not been carried out on the property. The recipient is asked to justify or ‘show cause’ as to why the building work should remain as is.

Accordingly, the building notice is not asking you to do something else, it is asking you about what has already been done and why it has been done.

A Building Notice will give the recipient a timeframe which to provide a response – which is called ‘making representations’. After that time, and after the building surveyor has considered any representations made in response to the Building Notice, they may issue a Building Order.

What is a Building Order?

A building surveyor may issue a Building order under s 111 of the Act.

If you are issued a Building Order, it means that the time allowed to rectify the issues identified under the building notice has ended. This is an escalation in the enforcement process by the building surveyor. A building order will outline the steps that the respondent needs to take to comply with the order.

S 118A of the Act states that the serving of a Building Notice or Building Order on an owner or occupier is a last resort. Where a building surveyor decides to serve a Building Notice or Building Order they must carefully consider the appropriate order.

There are three types of Building Orders that can be issued to a property owner without a building notice being required, these include orders for minor works, stop work and an emergency order.

Minor Works Order:

Minor Work Building Orders are outlined in s 113 of the Act.

A minor works order will be issued where corrective work is deemed minimal and minor in nature. A building surveyor can issue a Minor Works Building Order without first serving a Building Notice.

Stop Works Order:

Stop Work Building Orders are outlined under s 112 of the Act.

A stop work order may be issued where the building surveyors is of the opinion that the building work is:

1. Contravenes the Act or the Regulations; or
2. Is a danger to the life, safety or health of any member of the public or any person using the building, land or place or to any property; or
3. Affects the support of any adjoining property.

If you have been issued with a Stop Work Building Order by a building surveyor, you must stop the building work immediately.

The relevant building surveyor may exempt any part of the building work from a building order under s 112, if the building surveyor considers it necessary for the building work to be carried out:

1. In the interests of safety or security of the building, land or place on which the building work is being carried out; or
2. In the interests of the safety or health of any member of the public; or
3. To prevent a nuisance to members of the public or occupiers of nearby properties.

A building surveyor can issue a Stop Work Building Order without first serving a Building Notice.

Emergency Order:

A building surveyor may issue an Emergency Order under s 102 of the Act.

The key threshold for an Emergency Order is that the building surveyor considers it necessary due to a danger to life or property. Under ss 103 and 104 of the Act, an Emergency Order may impose obligations on owners, occupiers, builders, and other persons.

Section 103 empowers a building surveyor to require owners, occupiers, or any other person to evacuate, vacate, or refrain from entering a building, land, condition-altered land, or place of public entertainment that is subject to the Emergency Order.

Section 104 enables a building surveyor to require the owner or occupier of land, condition-altered land, or a place of public entertainment to cease or refrain from conducting public entertainment, stop building work, and secure the building, land, or place against access.

How to engage with the Private or Municipal Building Surveyor:

Section 111 of the Act also imposes an obligation on a building surveyor after issuing a Building Order, requiring the surveyor to consider any representations made by the affected owner.

Where compliance with the prescribed timeframe is not possible, the respondent should seek an extension of time, which the building surveyor must consider. In our solicitors’ experience, both private and municipal building surveyors will generally grant reasonable extension requests made in good faith. This is consistent with the obligation under s 111 to properly consider representations from affected owners.

It is important for owners or occupiers to cooperate with the building surveyors in good faith and be mindful where a breach of the Act has occurred, prosecution may be explored by the Council.

Where a respondent engages cooperatively and in good faith with the building surveyor, matters are generally resolved in a constructive and practical manner, with building surveyors often working with respondents to achieve compliance with the Act in a reasonable way.

Appeal Rights:

Owners and occupiers have appeal rights under s 142 of the Act; for specified reasons.

If a respondent wishes to appeal against the building order they have been issued, the Building Appeals Board (BAB) is the relevant jurisdiction.

S 142 of the Act outlines the areas for which owners and occupiers may appeal to the Building Appeals Board.

The owner of a building or land, may appeal to the Building Appeals Borad against:

1. A decision to serve a building notice on the owner under Division 2 of Part 8 (Building notices and building orders); or
2. The failure within a reasonable time, or refusal to cancel a building notice on being requested to do so the by owner.
3. The making or a building order under Division 2 of Part 8 (Building notices and building orders) applying to that building or land; or
4. The imposition of any condition in that order; or
5. A failure, within a reasonable time, to amend or cancel that order; or
6. A requirement under Division 3 of Part 8 (General) that the building order be fully complied with.
7. A refusal of the municipal building surveyor to cancel an emergency order under Division 1 of Part 8 applying to that building or land; or
8. A failure, within a reasonable time, to cancel that order.

If you are considering this action, you should seek advice from an experienced solicitor.

Penalties for Non-compliance:

Penalties for contravention of a Building Order or Emergency Order are under s 118 of the Act.

From July 1, 2026, the penalties for non-compliance with an issued building order have increased.

For natural persons the penalty is $104,550 (500 penalty units).

For corporations the penalty is $522,750 (2500 penalty units).

What to do if you are issued a building notice or order?

If you have been issued with a Building Notice, or in more serious circumstances a Building Order, it is important to seek legal advice as early as possible. Early advice can help you understand your obligations, respond appropriately to the issues raised, and protect your position throughout the process.

While this can be a challenging process to deal with, Building Notices and Orders are an important part of maintaining safe, compliant and consistent building standards across Victoria, and we are here to help you navigate the process of responding to one. If you require advice or assistance, please get in touch with our team at Aitken Partners on +61 3 8600 6000