Building Practice Note - Direction to Fix, Building Notices and Building Orders
This Practice Note provides guidance to Relevant Building Surveyors (RBS) on the principal enforcement tools for addressing non-compliant building work. It outlines the roles of the Direction to Fix (DTF), Building Notices (BN), Building Orders (BO) and Emergency Orders (EO) and how they may be applied in context.
The Building Act 1993 (the Building Act) provides the RBS with a set of enforcement tools to bring building work into compliance. Table 1 below provides an overview of these and their application.
These tools support the overall powers and functions of the RBS in relation to building work, including:
The RBS will engage with the building owner, design team, project manager and builder in these contexts, which give opportunities to state expectations for compliance and require materials to enable compliance assessment, which may not always rely on the use of a specific enforcement tool.
| Enforcement tool | Issue to | Purpose | When issued | Escalation pathway |
|---|---|---|---|---|
| Direction to fix | Builder | Ensures accountability for the person/entity charged with the carrying out of building work and protects the owner from the costs of rectifying non-compliant building work. Intended to be a tool of first resort, when before OP or CFI. Can direct work to be stopped to enable inspection. | After inspection (mandatory stage or otherwise). | Referred to BPC if not complied with. |
| Building Notice | Owner | Allows owner to respond before a BO is issued. Allows owner to consider any consequences from resolution of the matter such as immediate and ongoing costs | Concurrently with a DTF and/or Where a DTF is not appropriate. | May escalate to a BO. |
| Building Order | Owner *Builder | Requires action to be carried out which may sit outside the existing building permit (BP). | After a BN. | Referred to BPC if not complied with, when issued by a PBS. |
| Building Order Minor Work | Owner *Builder | Requires action to be carried out which may sit outside the existing BP. | After inspection (mandatory stage or otherwise). | Referred to BPC if not complied with, when issued by a PBS. |
| Emergency Order (A private building surveyor (PBS) must refer to the municipal building surveyor (MBS) if considered to be a danger to life or property.) | Owner, Builder & if relevant Occupiers | Requires immediate action to be carried out to alleviate the danger. | Where MBS agrees there is a danger to | Failure to comply is an offence which carries penalties. |
*Builder – In limited circumstances under Section 111, the BO can be issued to the builder to allow them to undertake certain works (such as destructive testing) to demonstrate compliance.
Upon identifying a non-compliance during an inspection, the RBS must determine the most appropriate compliance action. This may involve issuing an Oral Direction to Fix (DTF), a Written Direction to Fix (DTF), or a Building Notice (BN). If an Oral DTF is considered the course of action, the RBS should turn their mind to how sufficient and defendable records are kept.
The RBS should issue a DTF in the first instance, wherever feasible, before considering the issue of a BN or BO. The Building Act directs that the building notice and order are a ‘last resort’ (s118A of the Building Act).
Whilst the DTF should be applied where feasible, it may not always be appropriate or possible to issue. The RBS will need to consider the context and apply a problem-solving approach, which may involve the issue of a BN or BO.
Figure 1 provides a structured guide for RBS for issuing either an oral or written DTF and BN, accounting for some of the limitations of the DTF. The following Sections guide on the key inputs, process steps, and expected outputs associated with the enforcement tools pathways.
The following advice provides an overview of the DTF in the context of the BN/BO. Refer to Practice Note NO-02 Directions to fix building work for specific advice on grounds, timeframes, content, amendment, revocation and escalation of non-complied DTFs.
Where suitable, the RBS may issue an Oral DTF, if the builder is able to rectify the non-compliant work within 7 days. Under Section 35A, the RBS must ensure that a record (such as a file note) of the Oral DTF is made in writing, including inspection information, as required by Regulation 173. A follow-up inspection should then be conducted to confirm that the work has been brought into compliance. If compliance is achieved, the RBS should issue a new Regulation 173 compliant inspection report.
A written DTF may be issued where:
The RBS must consider whether the proposed rectification work aligns with the BP. A DTF can only direct work that complies or substantially complies with the BP. If it's not possible to issue a DTF to resolve the non-compliance, then moving directly to a BN/BO may be required.
The time nominated on the written DTF should be reasonable, based upon the extent of work required. Builders have rights to seek an amendment to a DTF, including an extension of time. Refer to Practice Note NO-02 Direction to Fix Building Work on how to manage amendments, using the DTF to stop associated building work, and re-inspection of work.
If the builder fails to comply with the DTF in part or wholly, the RBS must refer the matter to the BPC within 7 days of the compliance date, using the referrals portal and webforms.
If the builder is unable to meet compliance with the requirements of the DTF (other than timing alone) or wishes to propose an alternative pathway for compliance, the RBS may:
This extension to the DTF safeguards the owner, by ensuring the written DTF remains a valid compliance option whilst and until the BN process is resolved and avoids a situation where the RBS must refer a non-complied DTF to BPC.
Once the non-compliance matter has been satisfactorily resolved through representations made and managed through the BN process, the RBS may proceed to revoke the written DTF and cancel the BN simultaneously. Otherwise, if the BN is escalated to a BO, the DTF may also be revoked upon issue of the BO.
For works already done outside of the permit, the DTF may also lead to issuing a BN to facilitate amendments to the building permit, if appropriate.
The builder wishes to propose other means to verify the works already done whether through a performance-based solution or by minor design changes not inconsistent with the permit, relating to structural works that do not change the outcome of the building.
By initially issuing a DTF with a direct compliance requirement (to bring back to the permit) and then exploring alternative approaches through the BN 'show cause' process, the RBS ensures that the owner is made aware of the proposed changes.
In some situations, it might be appropriate to start with a BN/BO rather than a DTF. This includes:
The intent of this DTF is to protect the consumer against costs associated with rectification of non-compliant and defective building work, hence it must always be considered wherever it could play a role.
When a DTF is referred to the BPC, the BPC will engage with the builder and consider appropriate enforcement action. This action may include partial suspensions, to focus the builder on completing the DTF before taking on other work. In some cases, an injunction may be considered.
BPC investigations, and subsequent enforcement actions, are focused on addressing the shortcomings of the builder, and supporting the RBS, but may not immediately resolve the state of non-compliance.
There remains a role for the RBS to address this non-compliance, whether assessing actions done by the builder following BPC intervention, or addressing the outstanding issues through a BN or BO.
Form 11 (BN) (PDF, 27.59 KB) includes ‘non-compliance with a DTF’ as grounds for issue for this reason.
The RBS should always consider the suitability of a BN for addressing the outstanding non-compliance, when making a DTF referral. The ‘show cause’ process can help resolve matters e.g. where the owner is the impediment to compliance, such as not providing access. It may also lead to the owner electing to engage another practitioner.
It may not always be necessary to issue a BN, such as where the non-compliance can be resolved later without affecting the next mandatory stage, or progression to occupancy or final inspection, and the owner has no influence on the compliance outcome.
The DTF remains in place once referred to the BPC. The DTF sets a compliance date but does not expire when compliance is not met.
The DTF requires the builder to do work to bring about compliance – principally this is building work, but may include associated reporting or validation, connected with that building work. Refer to the Practice Note NO-02 Direction to Fix Building Work for guidance on DTFs and requesting associated expert assessment or reporting
However, where the issue is unrelated the carrying out of building work, such as a standalone need to commission an expert assessment or report, the RBS may need to take other steps to secure a response. For example, one or more of the following may be appropriate:
During a final inspection, RBS identified the non-fire isolated stairway (G.01) located in the ground floor lobby is non-compliant as:
Given that the rectification was minor and expected to be completed quickly, the RBS issued an Oral DTF to bring the stairway into compliance with the existing building permit.
The RBS returned to the site within 7 days and conducted a re-inspection. It was confirmed that the stairway was now compliant, with the required tactile indicators and non-slip contrasting nosing installed.
Following confirmation of compliance, the RBS noted compliance with the Oral DTF in their inspection records, and no further enforcement action was required.
During an inspection, the RBS identifies in a Class 2 building >25m effective height, the following was not provided as per the BP documentation:
Given the many outstanding items and the expected timeframe is >7 days to rectify, the RBS issued a Written DTF with a timeframe of 14 days to bring the building into compliance with the existing building permit.
The RBS returned to the site within the 14 days period and conducted a re-inspection. It was confirmed all items within the Written DTF have been provided as per the BP documentation.
Following confirmation of compliance, the RBS noted compliance with the Written DTF in their inspection records and the builder and owner were notified to confirm that the Written DTF is closed, no further enforcement action was required.
In an inspection of an office, the RBS identifies that infill currently being installed between the risers of public stairs is a perforated material rather than the approved solid/opaque material, which was specified for safety and visual impairment reasons.
The RBS issues a Written DTF to bring the stairs into compliance with the permit. The builder, in consultation with the owner, provides information that the design variation had been put forward by the owner for aesthetic reasons and to allow natural lighting beyond the stairs.
Following the representations, the RBS extends the date of the DTF by 28 days and issues a BN to the owner to show cause why the permit requirements should not be met.
As a representation to the BN, the owner engages a disability access consultant, who demonstrates that the substituted approach meets visual access requirements via a performance solution. The RBS is satisfied with the representation and therefore cancels the BN and revokes the DTF.
The variation is appropriately recorded and documented on the OP.
Any practitioner not listed on the BP (for example a designer or engineer) must be listed on the Application for Occupancy Permit (Form 15) by the applicant, and the acceptance of any performance solutions must be reflected on the OP-Form 16.
It is also good practice to endorse any documents or variations accepted under the BN process for future clarity and to ensure appropriate records are developed/kept. These documents must also be sent to council with the OP documentation. This will be of particular importance for documentation to form part of the Building Manual where prescribed by the Regulations.
Documenting and maintaining records related to these instruments is of paramount importance for RBS. This is essential for demonstrating compliance with legal and evidentiary obligations, especially in cases of referrals or disciplinary actions, and is explicitly required by the 'Code of Conduct for Building Surveyors' in Victoria:
