NO 02 Direction to Fix building works

Building Practice Note

Definitions and disclaimer

Purpose

This Practice Note provides guidance on the roles and responsibilities relating to a Direction to Fix (DTF) defective or non-compliant building work, and provides guidance to building surveyors and builders on the procedural requirements.

Building Surveyors should read this in conjunction with Practice Note NO 03 Enforcement Tool Selection Guide.

Overview

A DTF can take the form of an oral direction and or a written direction. It can only be issued before the occupancy permit (OP) or certificate of final inspection (CFI).

Under the Building Act 1993 (the Building Act), the DTF is intended as the primary tool for the relevant building surveyor (RBS) to ensure rectification of non-compliant building work. The DTF must be given after an inspection of building work (mandatory or other inspection) where the RBS believes on ‘reasonable grounds’ that the building work does not comply (Section 37A(1)(2)).

‘Reasonable grounds’ refers to whether the facts available would satisfy a reasonable person that the building work is non-compliant. It does not require the satisfaction beyond a reasonable doubt of the non-compliance.

Also under the Building Act, an Authorised Person (of the BPC) may give a DTF after inspection of the building work where they believe on ‘reasonable grounds’ that the building work does not comply (Section 37B(1)). For the BPC, the DTF is a discretionary power that can be used selectively to complement the primary regulatory role of the RBS.

For the RBS, a DTF can only be given because of an inspection by them or a person the RBS has given authority to inspect (Section 37A(1), in conjunction with Section 35B). A DTF cannot be issued by relying on other sources of information, including BPC inspection reports, alone.

The legislative framework for the different types of DTFs is summarised in Table 1.

Table 1: DTF framework

	Oral DTF	Written DTF
Who can issue	RBS Or A person who the RBS has given authority to, and is either a registered building surveyor or registered building inspector (s37A(3)) BPC: Authorised person (as defined)	RBS BPC: Authorised person (as defined)
Who is the required recipient	The builder And/or The person who is apparently in charge of the site, e.g. site manager, site supervisor (relevant person) (Section 37C(a))	To the builder Copy to the owner (Using the approved form)
Period for which the direction must be complied with	7 days Consideration of an earlier compliance date may be given, but assessment and possible escalation to written DTF is only allowed after 7 days.	As specified on the DTF (Reasonable time based on extent and  type of work to bring back to compliance)

DTFs are the primary tool for addressing non-compliant building works

Section 118A directs that Building Notices (BN) and Building Orders (BO) are a tool of last resort.

A BN or BO must not be issued unless it is clear that a DTF will not be complied with, or it is not possible or appropriate to issue a DTF.

Where the RBS determines that it would be inappropriate to issue the DTF, or it is clear that any DTF will not be complied with, they should proceed to a BN or BO process.

The intent of the ‘last resort’ provisions of the Building Act is to protect the consumer for costs associated with rectification of non-compliant and defective building works. It is aligned with Section 37H(2) that states a builder must not request or receive payment from the person for whom the building work was originally carried out (e.g. owner or their agent) for any costs associated with complying with a DTF.

A builder may be subject to disciplinary action or prosecution for breach of this provision.

The legislation puts obligation on the RBS to issue DTFs to require remedy for errors made in construction, however the contractual arrangements remain between the builder and owner.

These provisions place accountability on the builder. Bringing about compliance may introduce complexity or delay to the project, however, it is not for RBS to manage.

Expected compliance outcomes

The DTF can bring about compliance or substantial compliance

• Compliance refers to compliance with the Act, the Building Regulations 2018 (the Regulations), the National Construction Code (NCC) and the building permit (BP).
• Substantial compliance covers situations where there is a minor deviation from the permit, but the building work still meets the relevant standards and does not compromise the outcomes. It does not mean ‘generally in compliance’, or ‘close to compliant’ with minimum standards.

The DTF covers ‘work’ and stopping building work

The DTF may require:

• ‘work’ to be carried out to ensure that specified building work is wholly or substantially compliant. The meaning of ‘work’ is not limited to ‘building work’ and in some cases can include actions such as requiring reports to demonstrate that building work is compliant (see ‘requesting reports or documents’ below)
• building work is stopped (where it may prevent the relevant building work rectification being adequately inspected).

Scope and form of DTF

Legislative scope of the DTFs

The requirements of the DTF must be consistent with the requirements of the Building Act, the Regulations and the building permit, including all relevant referenced documents.

In general, if you can describe a means of compliance then you must issue a DTF that specifies this.

A DTF cannot be used to:

• provide a mechanism for facilitating permit variations or significant departures from the BP
• facilitate compliance outcomes that depart from substantial compliance with the Building Act, BP, and relevant standards
• provide for the ‘show cause’ process (explanation by the builder as to the non-compliance), unlike in the BN process
• require, or direct amendments to, reports or documents not associated with building work being done or demonstrating the compliance of that building work e.g. reporting authority’s report and consent, adjustments to building permit
• request further information (if it is not related to the requirements given to fix the non-compliant work)
• direct a builder no longer contractually engaged by the owner
• act as a stop work order, while a DTF can stop work necessary to ensure the direction can be inspected, the RBS or MBS has scope to issue a stop work order for a broader range of purposes (Section 112).

A DTF can only be issued before the CFI or an OP for works relating to that permit. Where the OP is issued in stages, the DTF can be issued to the building works that are still undergoing construction.

Where a DTF is still operational and an OP has been requested, the RBS must determine whether the building is suitable for occupancy.

Refer to Practice Note BP-09: Issuing of an Occupancy Permit (PDF, 175.33 KB) for guidance on applying conditions to OPs. This practice note states that when issuing the OP, the RBS’s responsibilities and duty of care applies. Where a DTF may still be in play, the RBS must:

• assess whether the building is safe to occupy, and
• consider if any outstanding building matters addressed in the DTF do not risk the occupant’s health, safety (inclusive of, not limited to, structural works, fire safety, fall protection) and amenity.

In contrast, any DTF given for the building work must be complied with prior to the issue of a CFI (Section 38). This differs from a DTF given for building work where an OP will be issued, where that DTF can be complied with at a later date (after the issuance of the OP) to the RBS’s satisfaction.

In addition, a DTF is generally not appropriate for high-risk life safety issues that would be better managed by an MBS-issued emergency order (EO).

Oral DTF building work

An oral DTF is recommended when a compliance is expected within a 7-day time frame, and the issue is relatively minor and straightforward to resolve. When giving an oral DTF the following points must be clearly conveyed:

• the non-compliance (with reference to any legislative reference such as the BP, NCC or relevant standard)
• the outcome required
• the performance outcome and/or standard that must be met
• whether the builder or relevant person is required to stop any further work that may prevent the relevant work from being inspected
• that compliance is required within 7 days (a sooner date may be given, however escalation can only occur after 7 days)
• the consequence of not complying within 7 days is a written DTF, with a copy going to the owner.

Written DTF

A written DTF carries penalties if not complied with.

The RBS must proceed to a written DTF in each of the following circumstances:

• an oral DTF has not been complied with within 7 days
• it is not expected the matter would be brought into compliance in 7 days due to the extent and type of work required
• the supervisor or builder in charge are not available onsite at the time of inspection to issue an oral DTF.

A written DTF must be issued on the approved BPC form.

Where there is significant doubt that compliance will be achieved, a written DTF can be issued in conjunction with other enforcement tools, refer to Practice Note NO-03 Enforcement tool selection guide.

Contents and service of a DTF

As part of a written DTF the following points must be clearly outlined:

• the area of non-compliance that is the subject of the direction
• works required to be carried out to ensure compliance (primarily building work, but may also include other associated work e.g. production of a report to demonstrate that the specified building work complies)
• the date the direction must be complied with – considering what would be reasonable time frame based on the extent and type of work required to bring the non-compliance back into compliance
• whether the builder is required to stop any further work that may prevent the rectification work applicable under the DTF from being adequately inspected.

Drafting the DTF

A well-written DTF should be structured clearly to:

• describe the specific non-compliance, including the requirements or standards that are not met.
• relate the requirements to the grounds for the non-compliance
• capture all pertinent details so that it can be understood as a standalone document (supported by reference to the specific relevant standard or permit documentation/detail).

Table 2 provides suggested formats for how to generally express grounds or reasons for the direction, and requirements. These are required fields in the DTF template.

Table 2: DTF grounds and requirements

Grounds

Requirements

Follow a clear narrative structure that describes: what was contravened where the non-compliant work is located why the non-compliant work is a breach or what standard it contravened (e.g., the Act, the Regulations, BP, NCC, Australian Standard). Don’t rely on listing a breach of the Building Act (e.g. Section 16(4) alone. Set out the specific breaches of the Regulations or permit, as a list of items. Group, list and number requirements as appropriate to help the reader follow the issues. Consider splitting into multiple DTFs for extensive, multiple issues.

Clearly specify the compliance requirement using a clear approach such as: verb e.g. remove and replace, install, alter, adjust, relocate, brace noun e.g. lintel, slab, frame, footings standard, permit requirement e.g. to achieve/meet/comply with Group, list and number requirements to clearly match the listed items under grounds or reasons for issue. Include the requirement to stop work where relevant.

Ask yourself: How would the reader know what was non-compliant? And how exactly would I determine that this requirement has been met?

The minimum threshold for any requirement is that you, or any other technically competent person, should be able to verify compliance based on the information provided.

If the grounds or the requirements are not specific enough to allow verification, include additional details, such as referencing the relevant area of the plans or the applicable section of a standard.

Multiple issues

Where non-compliance or defects are unrelated or have different processes, complexities or logistics to resolve – resulting in vast differences for time frames to achieve compliance, issuing multiple (separate) DTFs may be more appropriate. This may enable easier administration by the builder and the RBS to monitor, report and close out certain activities.

Other benefits of separate DTFs may include:

• relating directions to different areas of the site, stages of the build, or building elements
• allowing efficiencies to close out certain areas of work whilst others still being rectified.

Legal issuing and service requirements

A written DTF must be validly served or given to the recipient in line with the requirements of Section 236. Refer to Practice Note NO-01 Building Notices and Building Orders for information on service, including use of postal delivery or delivery in person. If not validly served, the DTF is not lawful and cannot be enforced.

In most cases, the RBS will communicate with the builder via e-mail. However, to align with the provisions of the Electronic Transactions Act 2000 for email service of documents, the RBS needs to take certain measures.

Practices to ensure reliability of email service include:

1. use of an email expressly confirmed as appropriate for service of notices and directions: when commencing an engagement or otherwise early in the project, establish in writing that the builder agrees for formal correspondence including directions to be given by email
2. for additional assurance, confirm receipt of the email by the recipient by:
   1. using a read receipt feature in the email
   2. not relying on electronic service when an email is undeliverable or there is a delivery failure notification
   3. obtaining an acknowledgement email from the recipient
   4. obtaining a verbal or written confirmation of receipt during a follow-up interaction
3. proper record-keeping where the RBS documents the details of service, including the time, date, recipient’s email, and any confirmation received.

Ultimately, service by the methods set out in the Act may still be required.

There is some overlap in the contents of a DTF and of a record of inspection. However, they serve different purposes and usually both must be issued.

An RBS may aim to use the DTF for dual purpose by it also acting as the record of inspection under Section 35.  The prescribed information required for a record of inspection under Regulation 173 is similar subject to the stage of building work (where applicable) being clearly identified, and the outcome of the inspection recorded.

The risk however, is that the DTF will only serve to identify the matters that failed to comply. All other aspects/areas that were satisfactory will not be documented in the written DTF.

It is equally important and expected to record the building work inspected and considered satisfactory or compliant.

An RBS is responsible to ensure proper inspection records are kept. Refer to Section 35, Regulation 173 and rule 6 of the Code of Conduct for Building Surveyors.

Requesting reports or documents

The DTF is not a ‘request for information’ tool and must be used to bring building work into compliance.

However, the scope of ‘work’ within a DTF is not limited only to ‘building work’ – it can, in some cases, include making and providing documents or reports, such as an engineer’s assessment.

The following guidance outlines the considerations for when requesting reports may be valid, and important limitations.

Requiring documents as an alternative to the substantive requirement

There can be cases where you:

• have formed the basis to issue the DTF (you believe on reasonable grounds that the building work is non-compliant), based on your inspection
• set out the actions required to fix the building work
• choose to provide an alternative way for the builder to satisfy you of compliance, by providing an installation certificate, report or document relating to the compliance of the in-situ building work.

This approach can be valid:

• where building works appear non-compliant, but there may be information about the state of compliance that cannot be determined from the inspection alone
• you can set out what information would persuade you that compliance, or substantial compliance, has been met through the in situ works.

However, it cannot be used:

• to enable or facilitate permit variations to accommodate in situ works that deviate from the permit – this must be done through the BN process
• to require actions such as opening or cutting into building elements to assess compliance – the RBS has inspection powers under Section 228D to require such actions

Requiring reports to satisfy that the specified building work is complete and compliant

Another situation where you may require a report or document is in connection with the requirement to fix the building work. For example:

• to take actions (to install, replace and other)
• report on the completion of that work and the performance standard being met (especially where a technical assessment of that building work is required).

However, any request for this reporting must be reasonable and within the scope of that direction. This includes considering the:

• Grounds of the DTF: any reporting must be directly related to the non-compliance issue
• View that you formed to justify issue of the DTF: it is not legitimate to request a report merely to enable you to make the assessment of non-compliance.
• Substantive requirement: the reporting should be directly connected to completing this action and substantiating completion of it to required standards.
• Reasonableness: costs of reporting are carried by the builder and cannot be recovered by the owner. The scope should be managed to avoid unreasonable, excessive or disproportionate obligations, or to shift compliance assessment obligations from the building surveyor to the builder.
• Clarity and precision of requirements: avoid open-ended or ambiguous requirements or those where the standard of assessment or reporting is unclear.

Always consider the suitability of the ‘show cause’ BN process as an alternative pathway to making assessments of compliance. This may include accounting for the role of the owner or their agent in bringing about the state of apparent non-compliance.

Limitations – where a DTF may not be used

The DTF cannot be used:

• for other forms of information gathering or reporting such as obtaining material from an authority or regulator (or seeking an authority consent)
• to require statements or declarations by the builder or owner, for example if that they confirm that work complies
• to request a proposal or plan of action.

In any situation, it is not appropriate to use a DTF to make a request for documents without the grounds (reasonable belief) and requirements to address the non-compliant building works.

If these conditions cannot be met, such as if you cannot form the view that the building work is non-compliant based on your inspection, consider the BN process, which provides for the owner to ‘show cause’ .

Refer to the Practice Note NO-01 Building Notices and Building Orders for more information.

Managing compliance and escalations

Reporting on and assessing compliance

After the matters were raised through a DTF, the builder or other relevant person is expected to notify the RBS as soon as practicable, ideally ahead of the specified date in the DTF. This is to arrange a further inspection process, and to ensure the matter is not unnecessarily escalated. The approved DTF form instructs the builder to notify the issuer.

When notified that the rectification works has been completed, the RBS should inspect, verify the works and make a record of inspection in accordance with Regulation 173. This will ensure the proper completion of the mandatory notification stage and inspection process. Refer to Practice Note MI-01 Mandatory notification stages and inspection of building work for more information.

The RBS should provide written confirmation to the builder with a copy to the owner that the DTF has been complied with. Rule 7 of the Code of Conduct for Building Surveyors sets out RBS obligations to appropriately and promptly communicate compliance findings, including with consumers.

Assessing applications for extensions of time

A builder may request the RBS to extend the time to comply with the direction before the end of the period for compliance with the DTF. This application needs to be done in writing. The approved DTF form advises the builder on how to seek an extension.

Builders should provide sufficient reasons for why they need an extension of time, noting the RBS may refuse an unreasonable request.

In deciding whether to grant an extension to the time for compliance is appropriate in the circumstances, consider the following:

• if there are delays or complications arising from supply chain or labour constraints
• if adjustment is needed as the expected reasonable time frame was miscalculated, considering the extent/type of works being addressed
• actions and evidence demonstrating the builder will comply with the extension
• whether the builder has genuinely been working towards compliance
• whether or not previous extensions have been granted
• if an extension is needed to facilitate the BN process (refer to Practice Note NO-03 Enforcement tool selection guide).

If an extension is granted, the RBS must give written notice of the extension to builder (Section 37G(4)).

Appeals by the builder

In response to a written DTF builders have the right to appeal the direction to the Building Appeals Board (BAB) for review. They must appeal the decision within 7 days after the day they are given the written DTF (Regulation 271(h)).

The approved DTF form advises the builder on how to make an appeal.

If appealed, the issuing person may need to explain at BAB why the direction was issued (grounds) and the requirements of the DTF. The approved DTF form and the standards in this practice notice and associated educational materials support the RBS to issue defensible, clear DTFs that can be supported at BAB.

Staying the DTF

The RBS or the authorised person may stay the operation of a DTF if:

• the domestic building work is the subject of a domestic building work dispute
• the domestic building work dispute has been accepted for conciliation under Part 4 of the Domestic Building Contracts Act 1995 (Section 37HA).

A stay will result in the written DTF being put on hold until the outcome of the dispute.

Relevant building surveyor revocations of the DTF

The RBS may revoke a DTF at any time prior to expiry if they are satisfied that the recipient is not able to comply with the DTF (Section 37I).

‘Not able to comply’ refers to legitimate constraints (such as compatibility of building materials with existing building fabric, significant supply chain impacts). It does not allow for a departure from achieving ‘compliance or substantial compliance’.

Reasons for revoking a DTF may include:

• new information, changed circumstances, or a revised technical option has changed the view on the requirement for a DTF (including dispute resolution order issued, dispute resolved by conciliation, dispute resolved via VCAT or subject to decision via a BAB appeal)
• a different solution is required to what was outlined in the original direction
• there is a change of builder, such as the consumer has terminated the builder’s contract
• there is evidence the builder is no longer able to practice
• other enforcement or instruments issued by the RBS, for example a BN or BO, has led to other solutions departing from the DTF therefore, revoking the DTF avoids unnecessary referrals to the BPC.

Prior to revoking a DTF the RBS or authorised person will need to keep records that they have considered all circumstances and are satisfied the builder is unable to comply with the DTF, or other reasons for its revocation. Written notice of the revocation must be provided to the builder with a copy to the owner.

Amendments by the RBS

A DTF can be amended in some narrow circumstances.

A DTF is issued based on the information available at the time. If a significant fact has been overlooked or later comes to light, which would have altered the content of the direction, this may be considered as a basis for amendment.

If there is a need to change the overall requirements or found that the DTF was not valid given this information, it may need to be revoked.

If a decision is made to amend a DTF, the requirements must be updated, setting out the new required course of action.

A DTF can only be issued prior to the issue on an OP for works relating to that specific permit.

Where a DTF is still operational and an OP has been requested – the RBS must determine whether the building is suitable for occupancy.

The DTF can only be issued prior to the issue of a CFI. A CFI is not able to be issued where a DTF has not been complied with.

When a BPC authorised person issues a DTF

If the BPC issues a DTF for the same issues covered by a DTF already issued by the RBS, the RBS issued DTF will cease to have effect (Section 37B(3)) in relation to the specific issues.

However, BPC action does not more broadly reduce the role of the RBS in addressing non-compliance. By issuing the direction, the BPC does not take on the responsibility for overseeing the site, or addressing issues beyond the scope of the direction it has issued.

A BPC-issued DTF does not reduce the overall functions and duties as detailed in the Building Act for the RBS including them continuing to carry out inspections, issue other enforcement and the finalisation of the building project through the OP or CFI.

Where the DTF addresses an example of a non-compliance (such as addressing one building element that is repeated across the building site), the compliance with the direction relates to that instance only of the identified non-compliance. However, the builder and the RBS are on notice that compliance must be attained across the building project

Steps when a written DTF is not complied with

Responsibilities of the RBS

Responsibilities include:

• the RBS must give written notice to the BPC and the relevant owner within 7 days after the end of the required period for compliance, where the builder has not fully complied with the DTF (Section 37K)
• although the DTF is referred to the BPC, the RBS is still responsible for compliance and enforcement.
• where the RBS is satisfied the DTF compliance has not been achieved within the nominated time:
  • the RBS may escalate the enforcement for compliance of the building work, via a BN or BO for minor works (subject to the RBS forming an opinion that rectification works are minor in nature)
  • the DTF remains active, albeit the time allowed for compliance has passed, refer to Practice Note NO-03 Enforcement tool selection guide
• the RBS may also choose to escalate the matters of the DTF, as per above, in situations where the builder has informed the RBS that they do not intend to comply, or where the builder has ceased to perform their functions
• if the builder completes all building work in accordance with the building permit including the works contained in the DTF and after the time allowed for compliance, an OP or CFI can still be issued. It is recommended that the RBS notify the builder, owner and the BPC that the matters contained in the DTF have been resolved.
  

What the BPC will do

When the BPC receive a referral, we:

• may communicate with the builder to let them know the matter has been escalated to us, and possible enforcement responses
• assess whether the DTF is enforceable, and the associated level of risk.

The Act and Regulations set out specific requirements. If those requirements are not met, we may not be able to take the matter further or progress with enforcement.

If the BPC cannot act on your referral:

• we will contact you explaining why the DTF is not enforceable. The feedback will help you understand the legislative requirements and support you to progress enforcement
• for administrative drafting or service issues, we may direct you to rectify the instrument to ensure its lawfulness
• if we can take any actions despite enforceability issues, we may discuss these with you.

RBS record-keeping obligations

Version history

Category

Notices

This version

2.0

This version published

24 December 2025