Council Stop Work Orders on Residential Sites: How They Issue and How to Respond

What it is

A stop work order is a statutory direction from a regulator that requires building work on a residential site to stop, either across the whole site or on a specified part of the work. The mechanism is different in each state but the effect is the same. Work cannot lawfully continue until the order is complied with or revoked. Most orders also require the builder to take steps within a stated period to fix the underlying problem.

In NSW the source is section 9.34 of the Environmental Planning and Assessment Act 1979. Council, a private accredited certifier in some cases, or the Department of Planning can issue a stop work order where development is being carried out in a manner that the issuing authority considers will affect or is likely to affect the support, safety or stability of premises or the safety of the public. In VIC the mechanism sits in section 113 of the Building Act 1993. A building surveyor or the Victorian Building Authority (VBA) can issue a building notice or building order requiring work to stop, work to be removed, or steps to be taken to comply. In QLD, the council acting as enforcement authority can issue an enforcement notice under chapter 5 of the Planning Act 2016 and a show cause notice as a precursor. The Queensland Building and Construction Commission (QBCC) can also issue directions to rectify and stop-work directions on residential building work.

When an order issues

The triggers are consistent across jurisdictions. Building work being carried out without the required approval is the most common trigger. Work outside the scope of an approval, such as a footing position different from the approved drawings, is another. A site that is dangerous to the public, a neighbour or workers triggers a public safety order. A breach of a condition of an approval, especially heritage, tree protection or hours-of-work conditions, also draws an order. A complaint from a neighbour usually starts the file.

Examples that issue an order

Pouring footings outside the approved alignment. Demolishing more than the approval allows on a heritage-affected site. Working before 7 am in a residential zone in breach of a planning permit condition. Excavating closer to a boundary than the geotechnical report allows. Failing to install or maintain sediment controls during heavy rain. Continuing work after a private surveyor has issued a direction to fix that has lapsed.

What the order requires

A stop work order is in writing and specifies the work to stop, the reasons, the period it applies, the steps to comply, the appeal rights and the penalty for non-compliance. The order can be displayed on the site and copied to the owner, the builder, the principal certifier or relevant building surveyor and any subcontractor on site. Some orders are immediate. Others give 24 to 48 hours.

In NSW a stop work order under section 9.34 lasts up to two days unless extended by the Land and Environment Court. A longer effect is achieved by a development control order under schedule 5 of the EP&A Act, which can include a stop use order, a fire safety order or an order to demolish.

Penalties

Penalties are real and scale with corporate status. In NSW, breach of an order under schedule 5 carries penalties in tier 1 of section 9.50 of the EP&A Act, with maximum penalties for a corporation in the hundreds of thousands of dollars and ongoing daily penalties. In VIC, building offences under the Building Act attract penalties under section 250 and related provisions and can include orders for demolition at the builder's cost. In QLD the Planning Act sets maximum penalties for development offences with current values in penalty units that translate to substantial corporate fines. Personal liability for company officers can apply where the executive officer provisions are engaged.

How a builder should respond

Stop work and document the site. Photograph the order, the site state and any safety controls in place. Notify the owner, the principal certifier or relevant building surveyor, the project manager, the structural engineer and the insurer. Read the order carefully and diary every deadline. Take legal advice within 24 hours, especially if the order is contested or if the order would extinguish a key contract milestone.

Curing the breach

Identify what is needed to lift the order. A revised design and amended approval, a section 4.55 modification in NSW, a planning permit amendment in VIC or a change application under the Planning Act in QLD are common cures. Lift the order before resuming work. Resuming work in defiance of an order is a separate offence and is often what tips a regulator from warning into prosecution.

Prevention

Most orders are preventable. A clean set of approved drawings on site, daily setout checks, a signed list of approval conditions on the wall, scheduled regulator inspections and a single point of contact for neighbour issues remove most of the triggers. The cost of a one-day stop is usually higher than the cost of the documentation that prevents it.