A Guide to the Building Appeals Board (BAB) in Victoria: Appeals, Disputes, and Compliance Reviews.

19 Nov 2024

The Building Appeals Board (BAB) in Victoria is an independent review body under Part 10 of the Building Act 1993 (VIC) (‘the Act’). It is responsible for reviewing decisions made by statutory authorities on building control matters, facilitating dispute resolution, and issuing determinations as specified in the Act. This article outlines the BAB’s scope, including its jurisdiction over appeals, compliance reviews, and modification determinations. 

Understanding the Building Appeals Board (BAB) in Victoria 

The Building Appeals Board (BAB) powers are set out in Part 10 of the Building Act. Its main role is to review and make decisions on various building control issues covered by the Act. The BAB enables decisions made by statutory bodies to be reviewed, along with opening essential pathways for resolving disputes and issuing determinations outlined in the Act.  

What Issues Can the Building Appeals Board Hear? 

The BAB has jurisdiction under Part 10 of the Act to hear various building-related issues. These include: 

  • Appeals (ss 138–149). 
  • Disputes (ss 150–158). 
  • Compensation applications (s 159).  

Reviewing Statutory Authority Decisions at the BAB 

Under part 10, Division 1, the Act provides several grounds for application for review to the BAB regarding a decision by a statutory authority. Under section 138(2) of the Act, the BAB has authority to review disputes involving requests from building surveyors or reporting bodies to amend or supplement permit applications. This section applies to scenarios where a Relevant Building Surveyor (RBS) or another reporting body believes that the current permit application lacks necessary details or compliance elements. Additionally, Under Division 3 of Part 10 of the Act, the BAB can also consider disputes related to the exercise of the relevant RBS discretions under the act.  

Appealing Building and Occupancy Permit Decisions 

Section 138 of the Act outlines where appeals can be made to the BAB in relation to building and occupancy permits. Under section 138(1), appeals can be made if a:  

  • building permit is refused,  
  • conditions are imposed, or 
  • if there are amendments or cancellations that are disputed.  

Appeals can also address situations where an application to amend or cancel a permit is denied or unreasonably delayed. Therefore, the BAB’s jurisdiction includes decisions by municipal (MBS) or private (PBS) building surveyors regarding building permits.  

Challenging Directions to Fix Building Work: A Route Through the BAB 

The BAB offers pathways to review and challenge Directions to Fix Building works issued by an RBS or the Victorian Building Authority (VBA) under Division 2 of Part 4 of the Act. A Direction to Fix may be given after an inspection of building work, if the RBS believes on reasonable grounds that the work fails to comply with the act or permit.  

Non-compliance with a Direction to Fix may lead to financial penalties if the MBS elects to prosecute the matter of non-compliance in the Magistrates Court. However, under section 138A, a builder may appeal to the BAB if they believe the work in question is compliant and that there has been no violation of the Act, Regulations, or Code.  

It is important to note that Directions to Fix can be issued either written or verbally. The difference between the two directions is important, as they both carry different time limitations and penalties for breach. In the case of a verbal / oral direction to fix, the builder is given seven (7) days to comply with the direction before a written direction is issued. A subsequent written direction specifies a period of at least seven days to carry out the work, and failure to comply may result in penalties of up to 500 penalty units ($98,795) for natural persons, or 2,500 penalty units ($493,975) for corporate entities. 

Termination of Building Surveyor Services: Appeal Rights 

Under Section 140 of the Act, an owner who appoints a private building surveyor (PBS) or the private building surveyor themselves may appeal to the Building Appeals Board if an Authority fails to consent to or refuses the termination of the building surveyor’s appointment within a reasonable time.  

This decision may also be subject to review under Section 83R of the Building Act 1993 by the Victorian Civil and Administrative Tribunal (VCAT), which offers a merits review jurisdiction. VCAT has the power to affirm, vary, or set aside the decision, or to remit it back to the VBA for reconsideration. 

Protection Works Disputes: Appeals for Adjoining Owners and Builders 

A common form of appeal at the BAB is in relation to protection works determinations. Under Section 141 of the Act, an appeal to the Building Appeals Board can be made by either an owner required to carry out protection work or an adjoining owner.  

The appeal may concern a determination about the: 

  • appropriateness of protection work under Section 87,  
  • a declaration under section 89, a failure or refusal to make such determinations, 
  • declarations within a reasonable time, or 
  • a request for further information under section 87.  

The BAB reviews these appeals and can affirm, vary, or set aside the decision made by the building surveyor. 

Building Notices and Orders: Understanding Your Appeal Options 

Building notices and building orders are compliance measures to be wielded in response to non-compliant building work or risks in existing buildings, with appeal rights provided under the Act. Section 142 of the Act allows for an appeal against these notices or orders to the Building Appeals Board (BAB). This process is also available in cases of emergency orders issued by a MBS.  

Section 160 Applications in Building Design or Compliance 

When engaging in the appeals process, some complex compliance issues such as cladding may arise. In these situations, a MBS may request that owners apply under Section 160A for a determination regarding building design or compliance. This is an alternative that seeks a determination that a building complies with the performance and compliance requirements under the Building Code. It is a voluntary application by the building owner, and is associated with more costs. 

A section 160 application is for a determination that states a provision of the Building Regulations does not apply; or applies with modifications or variations as specified in the application.  

Appeals Involving Building Regulations and Municipality Discretion 

Under Section 144 of the Building Act, an owner may appeal to the Building Appeals Board if they disagree with a determination, approval, or discretion exercised by a person or body under the Building Regulations 2018. 

For example, the Building Regulations provide that a report and consent is required from a relevant municipality in the event components of a building are proposed to: 

  • project beyond street alignment1 or, 
  • a septic tank is proposed or building is proposed in an area prone to flooding2or, 
  • from a service authority (such as a water supply authority), or 
  • if a building is proposed to be constructed over an easement3.  

All of these determinations under the regulations are reviewable by the BAB pursuant to Section 144 of the Act. 

Fast-Track Appeals at the Building Appeals Board 

The BAB have established an expedited review process for urgent matters under the Act. Under section 147, any party in an appeal under Part 10, Division 2 of the act may request a fast-track hearing from the BAB.  

Said division allows appeals to be brought on various grounds, including building order disputes, compliance notices and protections works claims.  

Dispute Resolution Services Offered by the BAB 

The BAB also has jurisdiction over disputes between certain parties. The types of disputes that the BAB can address are specified in Part 10, Division 3, and include:  

  • Disputes between owners and surveyors arising out of the exercise of inspection powers by an RBS; 
  • Disputes regarding emergency protection works between an owner and an adjoining owner who cannot agree how or when said works will be carried out; 
  • Disputes between an owner and an adjoining owner regarding protection works insurance cover; 
  • Disputes between an owner and adjoining owner regarding the surveying of a adjoining property; 
  • Disputes between an owner and adjoining owner regarding the costs of supervising protection works; 
  • Any other disputes that fall into the category of disputes between owners and adjoining owners; 
  • Disputes between an applicant and an RBS’s estimate of the costs of the work for which the permit is sought; 
  • Disputes concerning building works and the application and/or effect of building regulations as between owners, builders, building surveyors and/or the authority; and  
  • Disputes between adjoining owners regarding the construction and payment of party walls. 

Powers to award costs in the Building Appeals Board 

The Building Appeals Board has specific powers to award costs, primarily governed by the Act. Clause 17 of Schedule 3 establishes that each party typically bears their own costs in BAB proceedings, creating a general presumption against cost orders unless the BAB decides otherwise.  

This default position differs from typical court proceedings, where costs are often awarded to the successful party. However, Clause 16(2) of Schedule 3 provides the BAB with the discretion to make a costs order if it deems it ‘just’ and this firm is aware of cases where costs have been awarded although such award is rare.  

In practice, the BAB may consider guidance from the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), particularly Section 109, which allows cost orders based on fairness considerations. Section 109(3) of the VCAT Act provides factors such as whether a party acted to disadvantage another or prolonged proceedings unnecessarily.  

Although the VCAT Act does not bind the BAB, it frequently applies Section 109(3), as it is ‘appropriate to have regard to the factors set out under s 109(3) of the VCAT Act when considering the making of any costs order’4

 The Scope of BAB Orders: Powers and Limitations 

The decision-making powers of the BAB are not solely limited to that of appeals and considerations in dispute resolution proceedings. That is, the powers of the BAB under section 161 of the act are extended to any matters that are referred to them under the Act, and they are able to make any order that ‘it considers appropriate in the circumstances. 

Typical Length of Hearings and typical Timelines for getting to Hearing  

From the time of filing an appeal, (unless the matter is a fast-track appeal) in this firms experience it will take anywhere between six months and two or more years. Typically, the matter would be heard within a timeframe of between six to twelve months. 

Once the matter gets to hearing, the matter will typically be heard within the day. The members are often part time members and are gainfully employed in fields such as engineering, building surveying, architecture, and law. Three members usually preside over each hearing. As such, members who are appointed to a hearing will have regard to the tailored skillsets for the matters under consideration. 

The strength of the hearing system is that when compared with the courts’, hearing times are more efficient and the multi-skilled level of decision-making dexterity makes for well informed decisions.  

Regrettably, it can take a significant period of time to get to hearing.  

Conclusion 

The Building Appeals Board (BAB) serves as a dedicated forum for handling a range of building-related appeals and disputes primarily to do with building permit delivery and related matters in Victoria. The BAB addresses appeals concerning building permits, compliance notices, Directions to Fix, and various disputes between stakeholders in the building sector, ensuring that regulatory issues are examined within the framework of the Building Act 1993. 

Why one needs construction lawyers that have expertise in the appeals board jurisdiction 

The jurisdiction is unique jurisdiction, typically a hearing is presided over by at least one lawyer with a couple of technical experts, with skills bespoke to the area of scrutiny. An experienced Construction Lawyer will know who to engage to compliment his or her expertise in this jurisdiction from the technical expert fraternity.  

Although the hearing system is more informal than that of a court of law, much is still at stake. Lawyers who are experienced in the ringcraft of the Building Appeals Board are best positioned to assume the role of advocacy.  

Lovegrove & Cotton have practiced in this discrete area for nearly three decades and bringing a high level of expertise and experience which needless to say culminates in a very good success rate. The lawyers are able to advise on whether or not to appeal a decision, the likelihood of success and the ways by which at law one can increase that likelihood.  

If you wish to retain the firm either contact Tsigereda Lovegrove or Justin Cotton by emailing them care of enquiries@lclawers.com.au  

Disclaimer 

The information provided in this article is for general informational purposes only. It does not constitute legal advice. For specific legal advice related to building regulations and compliance, please consult a construction lawyer. 

Articles referred to in this piece 

Appealing Cladding Related Building Notices Under the Building Act 1993 (Vic). – LC Lawyers 

  1. See Building Regulations 2018, reg 109 ↩︎
  2. Ibid, reg 153 ↩︎
  3. Ibid, reg 130 ↩︎
  4. Kelly v Milner [2023] VBAB;(27 February 2023) ↩︎