The long-awaited findings of the coroner regarding the deaths of three people killed in the tragic Swanston Street wall collapse will have far-reaching implications for any landowners considering building works on their land without a valid building permit.
In the investigation into the Swanston Street wall collapse, the State Coroner found the site owner responsible to ensure the structural integrity of the boundary wall at its site.
The fatal collapse of the wall on 28 March 2013 has shone the spotlight on construction site safety. Significant media and public interest was seen in the prosecution of the site owner, developer and parties involved in the installation without a permit of timber cladding along the site boundary wall.
In considering recommendations for the prevention of future deaths in similar circumstances, the State Coroner found such ‘prevention matters’ were addressed by amendments to the Building Act 1993.
Section 16 of the Act prohibits building work (as defined in the Act) without a building permit. Prior to July 2016, section 16 was limited to making it an offence to carry out building work without a building permit or other than in accordance with the permit, the Act and building regulations. Special Counsel and accredited specialist in commercial litigation with Parke Lawyers, Roland Müller says the offence was generally considered to apply only to the person physically carrying out building work or (at most) their employer.
Mr Müller who has significant experience in representing parties in Coroners Court matters and in prosecutions arising from workplace fatalities said, “This meant a subcontractor who performed building work in contravention of that section was criminally liable, but a site owner, developer or principal contractor who had the power to control the work site avoided prosecution.”
“This was at odds with comparable laws, such as occupational health and safety legislation. Workplace safety laws require everyone to take steps to ensure safety, but in particular those who have control of a workplace,” he said.
Amendments to section 16 of the Building Act which came into effect on 4 July 2016 prohibit land owners allowing building work to take place on their land without a necessary building permit or other than in accordance with the permit, the Act and regulations. There is an exception where the owner has engaged a building practitioner or architect, each of whom has a specific obligation to ensure compliance.
Mr Müller observes that the amendments ensure that those who own the land, direct the building work and those carrying out work are now all covered by the permit requirements.
“This ensures those who have the power to control the work done and those carrying it out all have an obligation to ensure compliance. It is no longer left to workers ‘on the tools’ to police compliance when they have no real power to do so.”
While building permit requirements apply to major projects, they also apply to every day domestic building work at residential and commercial properties.
“While some minor works are excepted, failing to ensure that a building permit has been obtained and is being complied with can be costly. While most projects will not end in tragedy, owners who fail to comply with permit requirements may face prosecution by local government officers and may be required to rectify or demolish any non-compliant building work.
It is vital to ensure compliance throughout the building process.
“Seek advice from your local government’s planning and building department. Consult a registered builder, architect or surveyor. If you are investigated for potential non-compliance, seek legal advice early, as significant penalties can apply.”
The State Coroner’s findings emphasise that the permit requirements in the Building Act are intended to protect the public from unsafe building work. The Act creates onerous obligations on those covered and is likely to be applied rigorously by regulators and prosecutors. The onus is on those who may be required to comply to ensure that they understand and meet their obligations.