Referral of Building Orders to The VBA: It’s No ‘Leave Pass’ For Private Building Surveyors
By Justin Cotton, Director, Lovegrove & Cotton
The ability of a private building surveyor to delegate his or her enforcement powers to the Victorian Building Authority under section 115 of the Building Act 1993 is not as far reaching as some may think.
In fact, further reflection reveals that a Building Order that has not been complied with could still remain the private building surveyor’s problem, even after it has been referred to the VBA for enforcement. There are circumstances where, like a boomerang, a Building Order could be sent right back to the private RBS for further consideration.
Note that the industry regulatory body to whom such referrals were made in Victoria used to be the “Building Commission” but is now known as the Victorian Building Authority (“VBA”).
Section 115 of the Building Act says that if a person fails to comply with a Building Order made by a private building surveyor (who is the RBS), the building surveyor must refer the matter to the Commission (now, the VBA) and “must take no further action in respect of the matter under this Part”.
This is reinforced by Part 13 of the Act, which does not allow a private building surveyor to take legal action to prosecute for breaching a Building Order or to seek court orders requiring compliance.
However, Practice Note 2006-25 makes it clear that the world “matter” in section 115 “refers solely to the failure to comply with the building order”. This means that the private building surveyor remains the responsible entity charged with the general RBS functions under section 75 of the Act for which he/she was appointed, for the works at the site.
If the word “matter” and the right of referral only relates to the enforcement of that Building Order (ie the Order that has been breached or not complied with), then one can see that the referral is only limited and is not a general ‘hand ball’ of all the RBS functions for the relevant site.
Furthermore, when a Building Order is referred to the VBA under section 115, the VBA may direct the private building surveyor to take one of a few separate options, including:
(i) withdraw the Building Order if it is not valid;
(ii) amend or cancel the Building Order if there has been a change in circumstances since it was served; or
(iii) issue a new Building Notice and Building Order, where the Authority believes that either the Building Order or Building Notice is not valid.
The process of either withdrawing, cancelling or amending the Building Order is considered an administrative function and it remains with the private building surveyor, notwithstanding that the Order had been earlier referred to the VBA under section 115. The Building Order has been issued by the private RBS and that practitioner remains responsible for the administration of it, but not necessarily the enforcement function.
Given that withdrawal, cancellation or amendment of a Building Order is viewed as administration and not enforcement, it is also not seen as taking further action under Part 8 of the Act to address a non-compliance.
The Practice Note specifies that it is the VBA that may bring court proceedings for an offence against the Act or Regulations, and not the private building surveyor. This will include, before the initiation of court proceedings, performing an inspection of the site to find out whether a valid Building Order has been satisfied.
To reiterate, given the advent of the VBA in the last few years, a reference to the Building Commission is taken to be a reference to the VBA as the industry regulator. Practice Notes can be issued by the regulator that are a guide on how the legislation is to be interpreted and implemented, even though a Practice Note does not itself have the force of law.
Private building surveyors should note that only a valid Building Order may be referred on under section 115, and that all referred Orders will be reviewed by the VBA (including by an ‘in-house’ legal team). If found to be invalid, a Building Order will be returned to the building surveyor.
Some common causes of invalidity would include:
(i) an initial prior Building Notice has not been issued first where that was required by the section;
(ii) there is no requirement to do one or more of the matters referred to in sub-section 111(3) of the Act;
(iii) the Building Order is not properly addressed to the legal ‘owner’ of the building or land; or
(iv) there is a mis-description of the land, building or building works.
The private building surveyor retains a duty to report on their Building Order administration role to the local Council and to the VBA, and if the Order as amended and re-issued is not complied with, then it goes back to the VBA for enforcement.
Recent amendments to the Building Act 1993 now enable the issuing of a written direction by the VBA to compel the builder (not the land owner) to carry out rectification work. However, a Supreme Court decision in December 2017 found that a direction notice under the new s37B of the Act cannot be given after the Occupancy Permit or Certificate of Final Inspection has been approved.
A private building surveyor or any other party potentially affected by regulatory enforcement should not hesitate to contact a legal team with expertise in building regulatory advice, in order to ensure that legal rights, duties and process are properly understood.
Lovegrove & Cotton: Leaders in building practitioner legal representation
Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing firstname.lastname@example.org.