The Accused was charged with a breach of section 118(1) of the Building Act 1993 (Vic) (Building Act) for failing to comply with a Building Order dated 1 September 2021.
Section 118(1) provides as follows:
A person to whom an emergency order or building order is directed must comply with that order.
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 subject property was a corporate accused who purchased the property in December 2018 for approximately $28.5 million. The property was the former Melbourne headquarters for a Research Board.
On 31 March 2021, Council became aware of two fires that had occurred at the Property. One fire occurred within the office building and caused fire damage to the third (3rd) upper most floor, the sheet metal roof and structural steel work supporting the roof resulting in structural compromise. The second fire occurred within the services building and caused fire damage to the sheet metal roof and steel work supporting the roof. Additionally the installed essential safety measures were not operational.
On 12 April 2021, the Municipal Building Surveyor (MBS) of Council, issued a building notice to the Accused requiring the company to show cause within thirty (30) days why it should not amongst other things bring the essential safety measures at the property into compliance including:
- reinstate/replace the Fire Detection and Alarm System to the buildings;
- reinstate/replace the brigade calling device to the Fire Detection and Alarm System (smoke detection system) to the buildings;
- undertake works to restore the fire hydrant system to all installed buildings to an operable state; and
- undertake works to ensure that all installed fire hydrants are provided with stortz hermaphrodite coupling fittings;
On 1 September 2021, after the show cause period specified in the building notice elapsed and as satisfactory cause had not been showed, the MBS issued a building order to the Accused to carry out the work comprising the show cause requirements set out in the building notice by 8 December 2021.
On 23 December 2021, Council wrote to the Accused advising that the building order had expired and providing an extension of time to comply with the order to 1 March 2022.
On 1 March 2022 an inspection of the Property revealed that a majority of the buildings openings had been hoarded. Otherwise, it was observed that no repair work had commenced and that the building order remained not complied with.
On 29 March 2022, Council again wrote to the Accused providing a final warning as to non-compliance with the building order and extending time to comply to 24 May 2022.
On 24 May 2022 a further inspection of the Property revealed no change.
On 27 June 2022, Russell Kennedy Lawyers, acting on behalf of Council, sent a letter to the Accused advising that if the building order was not complied with by 25 August 2022, prosecution proceedings would be commenced.
On 22 August 2022, Council provided a ninety day extension of time to the Accused to comply with the building order after submissions from their legal representatives provided certain items were addressed within 30 days.
On 28 September 2022, a further inspection revealed no change and prosecution proceedings were commenced.
Magistrates’ Court Decision
After numerous adjournments the matter proceeded as a plea at the Ringwood Magistrates’ Court in September 2023 before His Honour Magistrate Foster who found the charge proven.
The Accused had no prior matters. Russell Kennedy Lawyers submitted to the Court the following amongst other things in relation to the charge:
- the offending was serious and the court should have regard to the main purpose of the Building Act to provide for the regulation of building and building standards and to provide an efficient and effective system for enforcing related building and safety matters;
- also have regard to the objectives of the Building Act including to protect the safety and health of people who use buildings and places of public entertainment;
- specific and general deterrence were particularly important sentencing considerations for the Court to have regard to when sentencing an Accused for an offence which exists on this occasion to primarily protect the public;
- the maximum penalty is 2500 penalty units which equated to $462,300.00;
- that compliance in full had still not been achieved;
- a significant amount of Council’s resources were tied up with the failure of the Accused to comply with the building order to the detriment of other work the building department could have been undertaking; and
- the Accused had been given multiple opportunities and time to comply with the building order and did not do so.
The Accused through their Counsel submitted that they were aware of the seriousness of the incident and due to the directors of the company residing overseas and the lockdown period there were issues in complying. The sole purpose of the company was to hold the priced of land to potentially develop. The fires at the Property were a result of vandalism. His Honour remarked that it appeared Council bent over backwards not to initiate proceedings and it was not until the charge-sheet and summons was served that some action occurred.
The Magistrate accepted there were ongoing issues with vandalism and noted the significant delay and that compliance had still not been achieved (although around 70%).
The injunction proceeding was adjourned to a later date which may not be required due to compliance.
His Honour also noted that the Accused had no prior history, accepted responsibility and entered a plea of guilty.
His Honour imposed a fine and costs order without conviction totalling $49,221.60 which was referred to the Director of Fines Victoria for collection and management.