A User’s Guide to the Building Appeals Board (Victoria)
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 responsible for determining certain disputes, appeals and applications arising under the building control framework in Victoria. It plays an important regulatory role by providing a specialist avenue of review for decisions made under the Act and the Building Regulations.
The Board therefore functions as a specialist forum for resolving building control disputes, reviewing decisions made by statutory authorities, determining applications for regulatory modification, and resolving certain disputes between parties involved in building works.
Within Victoria’s building regulatory framework, decisions concerning building permits, compliance and regulatory determinations frequently involve the interpretation and application of the National Construction Code, making the availability of a technically specialised merits review body particularly important.
Unlike the courts, which are confined primarily to questions of law, the BAB conducts merits review and may reconsider the substance of the decision under challenge.
The Board is a specialist expert tribunal. Panels are made up of professionals amongst the building industry, who are selected upon the nature of the matter and the expertise required.[1] Typically, up to three members preside over a hearing.
Because of its specialist composition and procedures, the BAB is generally regarded as a more streamlined and less formal forum than the courts for resolving technical building control issues.
Legal representation is not mandatory, although parties frequently engage construction lawyers given the statutory and technical issues that may arise. In the view of the present authors, legal representation is often advisable. The Building Act 1993 has become a substantial and technically complex statute. In recent years, legal representation has become increasingly common in contested BAB matters.
Justin Cotton has nearly two decades of experience appearing before the BAB and advises that practitioners should not underestimate the rigour required for effective advocacy in this jurisdiction.
This article outlines the types of matters that fall within the jurisdiction of the Building Appeals Board.
Historical Context and Institutional Continuity
The Building Appeals Board is not a recent creation. Specialist building appeal mechanisms have existed in Victoria for several decades. The Board operated under the Building Control Act 1981 (Victoria) and was continued under the Building Act 1993 (Victoria) when that statute modernised Victoria’s building regulatory framework.
As a result, the BAB benefits from a long institutional lineage within Victoria’s building control system.
The longevity of the BAB has contributed to the development of a well-established specialist jurisdiction dealing with technical building control issues. Its continued operation reflects a longstanding policy decision in Victoria that regulatory building control disputes are best determined by a specialist tribunal with technical expertise in the building industry.
In international law reform work concerning building regulation and dispute resolution systems, Professor Kim Lovegrove has frequently cited the Victorian Building Appeals Board as an example of a specialist merits review mechanism that can contribute to effective regulatory oversight in building control systems. Specialist tribunals staffed by technically qualified members are widely regarded as good practice in the design of modern building regulatory frameworks.
Review of Decisions by Statutory Authorities
Part 10 Division 1 of the Building Act 1993 establishes the right to apply to the BAB for review of certain decisions made by statutory authorities under the Act.
These review rights ensure that parties affected by decisions made under the building regulatory regime have access to an independent merits review process.
Review of Decisions Concerning Building and Occupancy Permits
Section 138 provides that appeals may be brought to the BAB by either owners or purchasers of land[2] or reporting authorities[3] in relation to certain decisions concerning building permits and occupancy permits.
These review mechanisms are typically engaged during the pre-occupation stage of development.
Under s 138(1), an appeal may be brought against a decision to:
- refuse a building permit
- impose conditions on a permit
- amend or cancel a permit
- refuse an application to amend or cancel a permit
- fail to make a decision to amend or cancel a permit within a reasonable time.[4]
The BAB therefore has jurisdiction to review many decisions made by private building surveyors or municipal building surveyors in relation to building permits.
Subsection (2) also addresses situations where a reporting authority or building surveyor requires further information or amendments to permit documentation.
Reviews of Directions to Fix Building Work
Under Division 2 of Part 4 of the Act, a relevant building surveyor may issue a direction to fix building work where work does not comply with the Act, the Regulations or the National Construction Code.
A direction to fix may be reviewed by the BAB pursuant to s 138A of the Act.
Reviews Concerning Termination of Building Surveyor Functions
Section 140 of the Act provides a review pathway where the regulator refuses or fails to approve the termination of the appointment of a private building surveyor.
Following reforms to Victoria’s building regulatory framework, regulatory oversight is now exercised by the Building and Plumbing Commission, which replaced the Victorian Building Authority as the principal building regulator in Victoria.
Protection Works Appeals
A significant portion of BAB matters concerns protection works disputes under Part 7 of the Act.
These disputes may arise where building works have the potential to affect adjoining properties.
Under s 141, appeals may be brought by either:
- the owner undertaking the works; or
- the adjoining owner.
Protection works disputes are among the most common matters heard by the BAB.
Building Notices, Building Orders and Emergency Orders
Another common form of BAB proceeding concerns the review of building notices and building orders issued by a relevant building surveyor or municipal building surveyor.[5]
Emergency orders issued by municipal building surveyors may also be subject to review.
Building Regulation Appeals
Section 144 of the Act provides that where the Building Regulations confer discretion on a person or body to make a determination, an owner may appeal that determination to the BAB.
Examples include:
- projections beyond street alignment[6]
- construction within flood-prone areas[7]
- construction over easements requiring consent from a service authority.[8]
BAB versus VCAT – Choosing the Correct Forum
Practitioners and industry participants sometimes confuse the jurisdiction of the Building Appeals Board with that of the Victorian Civil and Administrative Tribunal (VCAT).
The BAB is a specialist statutory merits review tribunal established under Part 10 of the Building Act 1993. Its primary role is to review regulatory decisions made under the building control framework.
VCAT, by contrast, is a broad civil tribunal that resolves disputes between parties.
BAB matters commonly include:
- appeals concerning building permits
- directions to fix
- building notices and building orders
- protection works disputes
- regulatory modification applications
- building design compliance determinations.
VCAT matters commonly include:
- domestic building disputes
- contractual disputes between owners and builders
- claims for damages arising from defective work
- owners corporation (OC) disputes
- consumer disputes arising from building work.
Correctly identifying the appropriate forum at the outset is important, as commencing proceedings in the wrong jurisdiction can lead to delay and unnecessary cost.
Appeals Generally
BAB appeals are conducted “in the nature of a re-hearing.”
This means the Board may effectively step into the shoes of the original decision-maker.
Importantly, under s 146 of the Act, a decision that is subject to appeal does not take effect until the appeal period expires or the appeal is determined.[9]
The Act also provides a fast-track procedure under s 147.
Dispute Resolution at the BAB
In addition to appeals, the BAB also has jurisdiction to resolve certain statutory disputes between parties.
These disputes are outlined in Part 10 Division 3 and include:
- disputes between owners and building surveyors concerning inspection powers[10]
- disputes between owners and adjoining owners concerning emergency protection works[11]
- disputes concerning protection works insurance cover[12]
- disputes concerning dilapidation reports[13]
- disputes concerning the cost of supervision of protection works[14]
- disputes concerning building permit levy calculations[15]
- disputes concerning the application of building regulations[16]
- disputes concerning party walls.[17]
Determinations that May be Made by the BAB
The BAB may also determine matters including:
- compensation for adjoining owners[18]
- modification of building regulations[19]
- modification of disability access requirements[20]
- building design compliance determinations.[21]
Orders the BAB May Make
Section 161 of the Act provides that the BAB may make any order it considers appropriate in the circumstances.
Appeals from the BAB
A determination of the BAB is final on the merits.
However, decisions may be subject to judicial review by the Supreme Court of Victoria on a question of law.
Conclusion
The Building Appeals Board plays an important role within Victoria’s building regulatory system.
It provides a specialist and technically informed forum for resolving building control disputes and reviewing decisions made under the Building Act 1993 and the Building Regulations.
Although the jurisdiction is sometimes described as less formal than the courts, significant interests are often at stake and the preparation required for BAB proceedings should not be underestimated.
Levent Karaca reinforces Justin Cotton’s observation that strong technical evidence and expert analysis are often central to BAB proceedings, particularly in matters involving engineering, fire safety and compliance with the National Construction Code.
Author Biographies
Justin Cotton
Justin Cotton is a principal of Lovegrove & Cotton Construction & Planning Lawyers, a Melbourne law firm who have been experts in construction and planning law since 1993. He is also Chair of HIA Industrial Relations & Legal Services Committee.
Justin has more than two decades of experience in construction law and building regulatory matters. He regularly advises builders, developers, building surveyors and property owners on building disputes, regulatory compliance and risk management. He has extensive experience appearing before the Building Appeals Board, VCAT and the courts.
Levent Karaca
Levent Karaca is a construction lawyer at Lovegrove & Cotton Construction & Planning Lawyers. His practice focuses on building disputes, regulatory compliance matters and litigation arising under Victorian building legislation.
Levent has experience assisting in proceedings before the Building Appeals Board, VCAT and the courts, including preparation of pleadings, legal submissions and expert evidence in building defect disputes.
Author’s Note
This article is a revised and expanded edition of an earlier article titled “A User’s Guide to the Building Appeals Board”, originally published by Lovegrove & Cotton Construction & Planning Lawyers on 29 October 2024.
Footnotes
[1] Building Appeals Board, About Us.
[2] Building Act 1993 (Vic), s 138(4).
[3] Ibid, s 138(5).
[4] Building Act 1993 (Vic), s 138(1).
[5] Building Act 1993 (Vic), s 142.
[6] Building Regulations 2018 (Vic), reg 109.
[7] Ibid, reg 153.
[8] Ibid, reg 130.
[9] Building Act 1993 (Vic), s 146.
[10] Ibid, s 150.
[11] Ibid, s 151.
[12] Ibid, s 152.
[13] Ibid, s 153.
[14] Ibid, s 154.
[15] Ibid, s 156.
[16] Ibid, s 157.
[17] Ibid, s 158.
[18] Ibid, s 159.
[19] Ibid, s 160.
[20] Ibid, s 160B.
[21] Ibid, s 160A.
Disclaimer
This article is intended to be for general information purposes only and should not be relied on as legal advice. For expert construction law guidance for your own individual circumstances, don’t hesitate to contact experienced construction lawyers to assist you with dispute resolution, contractual and regulatory advice and related matters.
Image Acknowledgements:
The digital renders used in this article were developed collaboratively by Lovegrove & Cotton and ChatGPT.
