A User’s Guide to the Building Appeals Board

A User’s Guide to the Building Appeals Board

15 Jul 2020

By Lovegrove & Cotton – Construction and Planning Lawyers[1]

The Building Appeals Board (‘BAB’) of Victoria is an independent specialist merits review tribunal established under Part 10 of the Building Act 1993 (VIC) (‘the Act’). The BAB is tasked with making determinations about building control matters under the Act. The BAB serves an important function as a review avenue for decisions made by statutory authorities under the Act, for certain disputes, for modifications in relation to certain regulations, and for certain determinations.

The board is a merits review tribunal of which there are many examples throughout the numerous Australian jurisdictions (i.e. the AAT and VCAT), but its distinguishing factors are that it is bespoke to the building industry and the fact that it is expert-led tribunal with board members usually either builders, building surveyors, fire safety engineers, quantity surveyors, structural and services engineers, access consultants, architects, town planners, construction lawyers or consumer planners.[2] The BAB is a less formal and faster alternative avenue for building matters than the Court system, and has jurisdiction to review the merits of matters, unlike courts which are confined to matters of law. Construction lawyers are recommended for proceedings at the Building Appeals Board although are not mandatory.

This piece will digest what matters go to the Building Appeals Board, or what lawyers refer to as “the jurisdiction” of the Building Appeals Board.

Review of Decisions by Statutory Authorities

Under Part 10, Division 1, the Building Act outlines several grounds for application for review to the Building Appeals Board of a decision by a statutory Authority.

Review of Decisions in Relation to Building and Occupancy Permits

Section 138 provides that appeals may be brought to the BAB by either owners and purchasers of land[3] or reporting bodies[4] (such as the Metropolitan Fire Brigade) for certain decisions or actions taken by statutory authorities in relation to building and occupancy permits – this appeal mechanism is therefore relevant at stages prior to occupation.

Under Section 138, specifically, subsection 1, an appeal may be brought to the BAB for a decision to refuse, impose conditions on, amend or cancel, refuse an application to amend or cancel, a building permit, or a failure to take make a decision to amend or cancel a permit within a reasonable time.[5] It follows that the BAB has jurisdiction with regards to most building and occupancy permit related decisions by a private or municipal building surveyor or the VBA acting in lieu thereof.

Subsection 2 concerns requests by building surveyors or reporting bodies to amend a permit application or to provide more information in regards to a permit. This provision would be relevant in cases where a RBS or reporting body considered the existing permit application fell short in some regard. An example would be adequate access for Metropolitan Fire Brigade or the positioning of fire hydrants in multi-residential complexes.

Reviews of Directions to Fix Building Work

Under Division 2 of Part 4 of the Act, an RBS or the VBA may issue a direction to fix building work on the grounds there is failure to comply with the Act, Regulations or Building Code of Australia. A failure to comply with a direction gives rise to a pecuniary penalty. Such a direction is reviewable by the Building Appeals Board pursuant to Section 138A of the Act.

This review avenue would be of relevance where a builder has been served with a direction to fix but considers on reasonable grounds that the works are compliant and there has not been a breach of the act, regulations or code.

Reviews of Termination of RBS

As noted in an earlier article, which also discussed transfer of functions, a decision in regards to the termination of private building surveyor functions by the VBA under the Building Act 1993 is a reviewable decision pursuant to Section 140 of the Building Act 1993. The Building Appeals Board has jurisdiction in the event of a refusal, and an RBS or the relevant owner may apply for review of a refusal or failure of the VBA to allow the termination of RBS functions.

Protection Works Appeals

A common form of appeal at the BAB is in relation to protection works determinations by building surveyors regarding protection works or emergency protection works, or requests for further information by adjoining owners. An appeal made under Section 141 may be made by either an owner or adjoining owner.

Building Notices and Orders, and Emergency Orders

Another prevalent appeal is in regards to the service by either an RBS or MBS of a building notice or building order in relation to building works or an existing already complete building.[6] Review is also available in regards to Emergency Orders issued by Municipal Building Surveyors.

In the current environment with the proliferation of building compliance related building notices and orders, including those concerning cladding, these appeals may be made in tandem with applications such as those under Section 160a for determinations in respect to building design, although often a cladding notice will contain a clause that it will not be enforced whilst a s160a application is on foot (without that clause, prudence would dictate a combination of a s142 appeal [so as to stay the effect of the BN or BO] and s160a application for determination).

Building Regulation

Section 144 of the Building Act provides that where the Building Regulations 2018 leave a matter to be determined by, or confer discretion on, a body or a person, an owner of a building or land may appeal to the Building Appeals Board in regards to the exercise of that discretion or the making of that determination.

For example, the Building Regulations, provide that a report and consent is required from a relevant council in the event components of a building are proposed to project beyond street alignment[7] or a septic tank is proposed or building is proposed in an area prone to flooding,[8] or from a service authority (such as a water supply authority) if a building is proposed to be constructed over an easement,[9] and so forth. All of these determinations under the regulations are reviewable by the BAB pursuant to Section 144 of the Act.

Other Appeals

Other reviews include the refusal by an RBS or MBS for a person to be able to temporarily occupy a building, and the refusal of the VBA to appoint an adjudicator for purposes of the Building and Construction Industry Security of Payment 2002 (VIC).

Appeals Generally

BAB appeals are, according to the Act, “in the nature of a re-hearing”. This essentially means that the BAB is at liberty to “step into the shoes of the original decision maker” and consider matters not originally brought before the original decision maker.

A decision which is subject to a right of appeal to the BAB does not take effect until an appeal is heard and the decision is affirmed or until the end of the appeal period if there is no appeal made.[10]

There is also an option pursuant to Section 147 of the Building Act for a fast-track appeal, where one making an appeal may apply to the BAB, where urgency dictates, for the board to hear the matter within 2 days of application for fast-track. The BAB may refuse a fast-track application.

Dispute Resolution at the BAB

The BAB also has jurisdiction to hear matters in relation to disputes as between certain parties. The kind of disputes in which the BAB has jurisdiction are outlined in Part 10 Division 3, and include:-

  • Disputes between owners and building surveyors in regards to the exercise by the RBS of inspection powers and powers of entry;[11]
  • Disputes between an owner and adjoining owner regarding the carrying out of emergency protection work;[12]
  • Disputes between an owner and adjoining owner regarding protection works insurance cover;[13]
  • Disputes between an owner and adjoining owner regarding a survey of the adjoining property (what is often referred to as a dilapidation report);[14]
  • Disputes between an owner and adjoining owner regarding expenses for the supervision of protection works;[15]
  • Any other disputes between an owner and adjoining owner in regards to the protection works regime under Part 7 of the Building Act 1993;[16]
  • Disputes between an owner and a relevant building surveyor as regards the building surveyor’s estimate of the cost of the work for which the permit is sought (building permit levy);[17]
  • Disputes concerning building works and the application and/or effect of building regulations as between owners, builders, building surveyors and/or the authority;[18] and
  • Disputes between adjoining owners in regards to the construction and/or costs of party walls.[19]

It follows there are a range of disputes for which the BAB has jurisdiction to resolve, with many of them related to disputes as between adjoining owners especially with respect to protection works.

Determinations that May be Made by the BAB

There other more miscellaneous kinds of proceedings under the BAB’s jurisdictions for which the BAB may make a determination and these include:-

  • Determinations for compensation for loss or inconvenience suffered by an adjoining owner in regards to protection works (this is a discretional power and compensation is often a contentious matter);[20]
  • Determinations concerning modifications of building regulations or local laws (such as overshadowing, height restrictions etc), which essentially are applications that certain regulations do not apply, or only apply with modifications, to the subject building;[21]
  • Determinations concerning modifications of access building regulations for persons with disabilities;[22] and
  • Determinations concerning building design compliance, on the application of an owner, purchaser, RBS or the VBA (which are often relevant in terms of alternative solutions under the BCA).[23]

Types of Orders the BAB may make

The BAB is not so confined in the kinds of orders it may make by virtue of the fact that it is able to ‘step into the shoes of the original decision maker’. It is essentially given all of the powers of the original decision maker. Importantly section 161 provides that the BAB may “make any order that it considers appropriate in the circumstances”.

Appeals from the BAB

A decision or determination by the BAB is final and has legal effect. It is subject only to the inherent jurisdiction of the Victorian Supreme Court for review on an issue or question of law. Essentially this means if the BAB erred in law such that it acted outside of jurisdiction, the Victorian Supreme Court would upon application be able to quash the decision of the BAB, require it act in accordance with law, prohibit it from acting contrary to law, issue an injunction, or make a declaration, depending on the circumstances of the appeal.

Conclusion

It follows there are a range of decisions and disputes that give rise to the BAB having jurisdiction, alongside certain matters for determination under the Building Act 1993 (VIC). It is a unique jurisdiction that serves a very important regulatory oversight function in Victoria and is playing a great part in the state’s efforts to address the cladding crisis.

Kim Lovegrove, Justin Cotton and Donna Abu-Elias all have many years’ of experience with matters at the Building Appeals Board in a range of different matters including multiple noteworthy cladding determinations, building order and notice matters, protection works matters, building and occupancy permit disputes and reviews of council decisions in regards to building regulation dispensations. In the emerging paradigm of a weaker economy and issues concerning building surveyor insurability, there is potential for reviews under Section 140 regarding RBS terminations to become more common.

If you are concerned about your options for review of decisions, like those discussed briefly in this piece, or if you are engaged in a building dispute, it is worthwhile discussing your options with an experienced construction lawyer.

Footnotes:-

[1] Research by Jordan Davies, Senior Paralegal, Lovegrove & Cotton – Construction and Planning Lawyers

[2] Building Appeals Board, About Us, accessed at <https://www.buildingappeals.vic.gov.au/about>

[3] Building Act 1993 (VIC), s 138(4).

[4] Ibid, s 138(5).

[5] Building Act 1993 (VIC), s 138(1).

[6] Building Act 1993 (VIC), s 142.

[7] See Building Regulations 2018, reg 109.

[8] Ibid, reg 153.

[9] Ibid, reg 130.

[10] Building Act 1993 (VIC), s 146.

[11] Ibid, s 150.

[12] Ibid, s 151.

[13] Ibid, s 152.

[14] Ibid, s 153.

[15] Ibid, s 154.

[16] Ibid, s 155.

[17] Ibid, s 156.

[18] Ibid, s 157.

[19] Ibid, s 158.

[20] Ibid, s 159.

[21] Ibid, s 160.

[22] Ibid, s 160B.

[23] Ibid, s 160A.