Building Works: You Need a Permit!

A sometimes-confusing area of Conveyancing is determining whether certain building works require a building permit, or what it means to complete building works without one. As property specialists, we see all too often clients preparing to sell their home only to realise the works they completed in the last couple of years actually required a permit!

As a rule of thumb: all building works require a building permit unless an exemption applies.

A building permit is essentially a written approval completed by a private builder or municipal building surveyor, which allows work to be completed in accordance with approved plans.

The Victorian Building Authority (‘VBA’) describes the phrase “to construct a building” to mean:

• build, re-build, erect or re-erect the building;
• repair the building;
• make alterations to the building;
• enlarge or extend the building; and
• place or relocate the building on land.

Whilst there are a range of applicable exemptions, the most common works we see, that home owners are not aware they need a permit for, include decks & verandahs, swimming pools & spas, and pergolas.

‍

Decks & Verandahs

Decks or verandahs that are attached to a building, such as a house or swimming pool, always require a permit, irrespective of size. In the case of a deck, a permit is also required where it is detached as part of the amenity to a building.

This means:

1. the 1mx2m deck you had constructed recently, on top of a concrete slab that was poured over 20 years ago, needs a permit;
2. perhaps you added decking around your old pool to spruce it up a little: you need a permit;
3. your open patio off the back door that you have decided to enclose and make into a verandah, needs a permit!

‍

Swimming Pools & Spas

If your pool, spa and barrier fencing is not temporary or relocatable then a permit is required. This means, the DIY permanent pool fencing that you have ordered from bunnings and installed over the weekend, actually required a building permit, and without one, the fence is technically now an illegal structure.

The VBA has provided specific parameters on what classifies a “pool or spa”. If you’re unsure whether your newly constructed pool falls within these parameters, see the VBA’s Building Practice Note for more information.

Pergolas

The Building Regulations 2018 defines a pergola as an open structure that is unroofed but may have a covering of open weave permeable material (material that allows water to pass through). A pergola is only exempt from having a permit if it:

• is not more than 3.6m in height; and
• is located no further forward than the front wall of other buildings, or, in the case of a pergola that is ancillary to a Class 1 Building is located no further forward on the allotment than 2.5m forward of the front wall of that building; and
• has a floor area not exceeding 20m squared.

It is important to note that there is no monetary minimum for the requirement of building permits. No matter how little it cost or how insufficient you believe the work to be, unless you can identify an exemption provided by the VBA’s Building Practice Note it is safest to assume a permit is required.

‍

Illegal Building Works

In preparing the Section 32 Vendor Statement, your Conveyancer or Property Lawyer will request permits issued within the last seven (7) years, and also whether there have been any works completed without a permit.  A lot of the responses we receive from homeowners is that the works they had done were minimal or they cost next to nothing and required little of their time to complete. Unfortunately, council don’t much care for this and the construction of these works without a permit, deems them Illegal.

If you have decided to sell your property and have completed some building works that you now realise required a building permit, as you cannot apply for a permit in retrospect, you will need to obtain what is called a Section 137B Owner Builder Defect Inspection Report, or simply, a 137B Report or Defects Report. These reports are required to be completed by a registered building inspector, surveyor, architect or structural engineer. Registered builders are not authorised to produce these reports.

If you’ve already read our Section 32 Blog Post, you’ll understand just how important it is to provide your Conveyancer or Property Lawyer with all relevant permits or the 137B report for any building works completed in the last seven (7) years, together with any required insurance. This will protect you against having a defective Vendor Statement.

If you’re a Purchaser looking to buy a property that appears to have new building works completed but the Vendor has not provided you with any permits, seek immediate advice from your Conveyancer or Property Lawyer. One of the main risks with having illegal building works on the property you’re about to purchase is you run the risk of Council coming by and issuing you with a notice to demolish these works. This can be quite a costly and inconvenient process to complete, especially if you have innocently inherited these works as a result of non-disclosure by the previous owner.

Building works can be a complex and often confusing area of property law. If you’re about to start building works at your home and are now wondering if you should obtain a permit, contact a surveyor or registered builder now! If you are thinking about selling but are unsure if any of your building works required a permit, call our office, or head to our website and book an appointment online to speak to one of our Conveyancers today.

‍

‍

Disclaimer: The information in this post is general in nature. This does not constitute legal advice and should not be relied on as such. Please contact one of our Lawyers if you are seeking advice about a specific legal matter.

‍