PBS article

26 Aug 2016

Private Building Surveyors Risk Suspension by not Following up on Building Notices

Private Building Surveyors are charged with a critical role in the building process, being that of policing compliance. Each step of the building process must be done in accordance with the Building Act 1993 and the Building Regulations, if a Private Building Surveyor is not steadfast in seeing every phase through the consequences for them may result in suspension.

Issuing Building Notices

A Private Building Surveyor may issue a Building Notice under section 106 of the Building Act (Vic) 1993 (“the Act”) if it is of the opinion that the works are amongst other conditions, without building permits or in contravention of building permits, or in contravention of the Building Act and Building Regulations. The Building Notice is to be served on the owner of the land of which the Private Building Surveyor has been appointed as the authorised Relevant Building Surveyor of the building works.

While it is critical that the Private Building Surveyor promptly identify matters worthy of issuing a Building Notice, it is important to note that a Private Building Surveyors role in the matter does not end there.

The owner is enabled under the Act to provide a response to the Private Building Surveyor. In turn, if the Private Building Surveyor is satisfied that the original issue is no longer a concern due to the owner’s response, it may cancel the building notice (see sections 109 and 110 of the Act). Job done.

Trouble for Private Building Surveyors
On the other hand, Private Building Surveyors can find themselves in strife if the following occurs:

1. an owner does not allay the original concern of the Private Building Surveyor with a satisfactory response; or
2. the prescribed response time has not been met; and
3. no further action is taken by the Private Building Surveyor.
If the aforementioned event occurs, the Private Building Surveyor must follow up their initial action and issue a Building Order under section 111 of the Act, or risk the consequences of intervention by the Victorian Building Authority (“the VBA”)
Role of the Victorian Building Authority

The VBA, being the authority appointed by the Act, is charged with the responsibility under section 197 to enforce and monitor compliance with the Act and Regulations. Consequently, if a complaint or matter comes to the attention of the VBA, it has the power to, and is compelled to establish the facts of the matter and determine for itself whether its intervention is necessary.
Insofar as a reprimand, the VBA may determine that all the Private Building Surveyor warrants is a slap on the wrist or a firm shove in the right direction. However, for more negligent or serious incidents, the VBA will refer the matter to the Building Practitioners Board1 to conduct an inquiry into the matter. There is no doubt that this process will be a costly and stressful experience for any practitioner, and in some cases, will end in the suspension of the Private Building Surveyor.

In Summary
Private Building Surveyors are relied upon to uphold and maintain the required building standards & Building Code of Australia by ensuring that the building works they oversee are compliant. It should be said that they are not arbiters of good taste; if the building permit says white paint then pink paint with yellow spots is not compliant with the permit. This is often lost on people, however, the role of a Private Building Surveyor is to police compliant and up the enforcement anti until there is compliance with a Building Permit, Notice or Order.
If a Private Building Surveyor finds themselves under the microscope of either the VBA or an inquiry by the Building Practitioners Board, it would be prudent to seek the services of a Lawyer who is expert in the field of Construction Law.

What should a Private Building Surveyor do if under investigation?
1. engage a lawyer.
2. it is incumbent on the Private Building Surveyor to fully cooperate.
3. give serious consideration to request having the questions put to you in writing.
4. ask that the channels of communication be directed through your lawyer.