Appealing Cladding Related Building Notices Under the Building Act 1993 (Vic).
When a building surveyor (whether private or municipal) considers there to be noncompliance with provisions of the Building Act 1993 (Vic) (“the Act”) or it’s subordinate statutory instruments, that building surveyor may choose to issue a “Building Notice” under s106.[1]
A Building Notice is intended to “start a conversation between building owners and the Municipal Building Surveyor (MBS) about issues identified and detailed in the notice”[2]. Effectively, Building Notices are “show cause notices”, often worded in such a manner that building owners’ are required to ‘show cause’ as to why something should or should not be done – ie: remove combustible cladding from the façade of a building. Building Owners are afforded the opportunity to respond to the notice in writing and within the period of time specified under the notice. Non-compliance or an inadequate response can escalate this to the issuance of a “Building Order”,[3] or on in the most serious cases, an “Emergency Order”.[4]
Our firm is often briefed to address building notices issued by Municipal Building Surveyors for the regularisation of buildings which have been caught up in the combustible cladding ‘rift’.
There are mechanisms under the Act that allow building owners to appeal decisions of a MBS’ if they are considered ‘unfavourable’.
Section 160A Application
An MBS may request that a building owner may make an application for determination in respect of building design under section 160A of the Act. Section 160A reads:
“(1) An application may be made to the Building Appeals Board for a determination that a particular design of a building or an element of a building complies with this Act, the building regulations or any document applied, adopted or incorporated in the building regulations.”
Applications of this kind are assessments of compliance with the Building Code standards to meet minimum benchmarks. In effect, the BAB would act as a peer reviewer, stepping in to the MBS’ shoes to make a decision as to building conformity.
A section 160A application however calls for more “heavy-lifting” as it were, in terms of the standard of proof required to satisfy the BAB in the exercise of it’s discretion, as building owners are tasked with the job of convincing the BAB that the building overall complies with the Building Regulations as well as having to deal with potential cross-examination issues that may arise with expert witnesses. The heavy-lifting aspect, as one would envisage, also usually correlates with added costs to bring such an application. Further and among other things, it is a voluntary application by the building owner.
The BAB gives a guide to the the information which should be submitted with a compliance assessment application. This includes, but is not limited to (where relevant):
- Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
- Recent register search statement (title search) (less than 3 months old) and a plan of subdivision/lot plan;
- Details of any proposed performance solution/s;
- A report detailing the proposed alternative method (if any) and/or material, prepared by an expert in the relevant field;
- Test reports, CodeMark certificates, building product accreditation certificate issued by the Authority;
- Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
- Detailed work methodology for the proposed alternative method; and/or
- Written submissions to describe how the proposed material and/or method of construction meets or exceeds the relevant performance requirements.
Section 160 Appeal
A s160 application is for a determination that a provision of the building regulations does not apply; or applies with the modifications or variations specified in the application.
S160 reads:
“(2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations-
(a) does not apply; or
(b) applies with the modifications or variations specified in the application –
to a building or land specified in the application.”
Filing an application under s160 means you are asking the Board to make a determination that the relevant regulation which prohibits the use of a potentially combustible cladding material either does not apply or applies with modifications. You must satisfy the Board that the provision applying to that building or land is inappropriate in the particular circumstances (s160(2)(a)). [5]
The BAB gives a guide to the information which should be submitted with a modification application. This includes, but is not limited to:
- Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
- Recent register search statement (title search)(less than 3 months old) and plan of subdivision/lot plan;
- Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
- Comments from adjoining property owner/s, if affected, for matters that relate to modification of a siting regulation (the siting is where the building will be constructed, which can effect the property’s setbacks from boundaries, fence heights, overlooking/overshadowing);
- Details of any proposed measures to mitigate the risk of any adverse consequences of non-compliance with the relevant provision of the building regulations; and
- Justifications why the provision of the building regulations applying to the building or land is inappropriate in the particular circumstances or why it is reasonable and not detrimental to the public interest to modify or vary the provision of the building regulations.
Section 142 Appeal
An alternative to the above would be an application to the BAB under Section 142 of the Act which proffers a different method of review.
This section reads:
“(1) The owner of a building or land, may appeal to the Building Appeals Board against—
(a) a decision to serve a building notice on the owner under Division 2 of Part 8; or
(b) the failure within a reasonable time, or refusal to cancel a building notice on being requested
to do so by the owner.“
Section 142 of the Act allows a building owner to appeal to the BAB on the grounds of whether the notice or order should have been issued in the first place or the building or it’s works fall within Schedule 3-Exemptions for Building work and buildings. This, in effect, means that the owner applies to have the councils’ notices and orders set aside if there are lawful grounds to do so.
The prescribed appeal periods under this section are 30 days, pursuant to Regulation 271(1)(o)-(s). This is opposed to seeking a determination that a building complies with the performance requirements under section 160A.
It also means that the burden of proof is flipped onto the MBS who will be tasked with proving why the building is in fact “un-safe” in light of evidence (usually expert witness evidence brought by the building’s owner(s)) that it is not. This is a significantly higher benchmark to meet.
Conclusion
In conclusion, the BAB may issue a determination under the above sections for cladding to remain in its current state without rectification works if it can be shown that those works can fit comfortably within the Act and the Regulations through performance solutions or otherwise, or if the Board is satisfied that the building is not a threat to the safety of it’s occupants.
Every case is heard on its merits and turns heavily on the building owner’s expert evidence. In a recent case our firm has been involved in, it was the recommendation of the expert fire engineer that partial removal of the cladding façade be replaced with non-combustible material as that would bring the risk profile of the building down significantly to meet the requirements. Electing to use experienced construction lawyers to provide advice during your application to the BAB is prudent in saving time, money and increasing your chances of a positive outcome.
This is a Lovegrove and Cotton publication.
For related articles on cladding please see:
How to Respond to Cladding Rectification Notices and Orders in Victoria
Appealing cladding related building notices under the Building Act 1993 (Vic)
Cladding safety Victoria funding and demands for cladding regularisation – the interplay
Disclaimer
This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.
Lovegrove & Cotton Cladding Compliance and Regularisation Lawyers
For thirty years, Lovegrove & Cotton have provided advice and represented property owners, builders, and building practitioners in cladding regularisation matters. Please see the cladding section page for more information.
Please see our page for more information. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.
[1] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s106.html
[2] https://www.vba.vic.gov.au/cladding/building-rectification
[3] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s111.html
[4] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s102.html
[5] https://www.buildingappeals.vic.gov.au/how-to-commence-a-proceeding/modification-and-compliance-assessment-proceedings
[6]https://www.vba.vic.gov.au/__data/assets/pdf_file/0019/123058/Cladding_guide_to_councils_medium_risk_buildings.pdf
