Articles

By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers

Most construction practitioners will be familiar with the Mutual Recognition Scheme operating in Australia that allows practitioners with registration or accreditation in one State or Territory to also become registered, licensed or accredited in another State or Territory if there is equivalence between the two occupations. 

Pursuant to section 23(1) of the Mutual Recognition Act 1992 (“the MR Act”) a local registration authority in a State or Territory may refuse the grant of registration (or licensing, accreditation) if:  “…(c ) the authority decides that that occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.”

The MR Act is Commonwealth legislation that applies federally across the States.  Pursuant to section 29(1) of the MR Act it is stated:  “An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means on the imposition of conditions).”

From this we can glean that to achieve the bar of “equivalence” in order to take the benefit of the Mutual Recognition Scheme, the construction practitioner needs to be able to say that the activities carried out under each registration, license or accreditation are “substantially the same”.

 There has been much discussion recently in Victoria about applications for registration as a construction practitioner after becoming accredited or licensed in another State.  This is particularly so in regard to Builders and Building Surveyors.  For the purposes of this article, we will look at the nature and functions of the Victorian Building Surveyor – Unlimited (“BS-U”), and how that stacks up alongside Building Surveyors or Certifiers in some other States or Territories in terms of equivalent activities.

As can been seen there are differences and similarities, even if the overall concept of the certifying authority is largely the same.

 New South Wales – Building Surveying Grade 1 Accredited Certifier (“AC”)

There appears to be substantial similarity with the Victorian Building Surveyor (“BS-U”) because both ACs and BS-Us are similar in terms of issuing Building Permits (though a Building Permit is called a Construction Certificate in NSW), and in addition both carry out a final inspection and issue the final approval of completed works (though again the terminology is different; in Victoria the final approval is an Occupancy Permit and in NSW it is called an Occupation Certificate). These final certifications constitute a certification that the works are fit for occupation and use in accordance with their classification under the Building Code of Australia.

In addition, there are similarities between ACs and BS-Us, including that:

• Both inspect building works at mandatory inspection stages of the Works;
• Both can issue building notices requiring works to be brought into conformity with the building regulations, the Building Code and Australian Standards;

When issuing the initial building approval (ie Building Permit or Construction Certificate) the BS-U and the AC are checking for similar matters to be complied with, for example builder warranty insurance is in place for domestic/residential builders, the description of the works has the correct building classification under the Building Code, that the works if carried out in accordance with the plans will meet building standards and regulations and so on;

Both ACs and BS-Us are to ensure consistency between the initial building approval (ie a Building Permit or a Construction Certificate) and the original planning approval (called a Planning Permit in Victoria and a Development Approval in NSW);

Both are entitled to rely on certificates of compliance from other registered or accredited building practitioners in addition to relying on their own inspections of completed work, and can also have some immunity from prosecution when relying on compliance certificates (refer to sections 238 and 128 of the Building Act 1993 (Vic) and section 109P of the EP&A Act 1979 (NSW)); and

The roles and functions of a Relevant Building Surveyor (“RBS”) in Victoria and an Accredited Certifier who is the Principal Certifying Authority (“PCA”) in NSW are largely the same.

While arguably there are key differences in regard to building enforcement, it could also be said that the differences are not that significant.  In fact there are real similarities between ACs and BS-Us in regard to enforcement powers.  In neither State is the building surveyor / certifier the final “enforcer” (so to speak) or the final enforcement authority.

In Victoria, if the BS-U issues a Building Order for rectification that is then not complied with by the owner, the BS-U cannot take further enforcement action and must refer the matter of non-compliance to the Victorian Building Authority (formerly known as the Building Commission) for further enforcement (see section 115 of the Building Act 1993).

In NSW, if the Accredited Certifier as the Principal Certifying Authority (PCA) serves a Notice under section 109L of the EP&A Act 1979, the PCA can impose in that Notice the same requirements on an Owner that can be imposed in a Notice under section 121H(1) of that Act.  Section 109L reads:  “An accredited certifier who is the principal certifying authority for any development may, by notice served on a person on whom an order under section 121B may be served, direct that person to do anything that the consent authority could require that person to do by means of such an order.” 

 If the Owner then does not comply with the requirements in the Notice, then the PCA will refer the matter to the consent authority (normally the Council) to issue an Order under section 121B that deals with the same requirements.  This is similar to the Victorian BS-U referring a Building Order that has not been complied with to the VBA pursuant to section 115 of the Building Act 1993.

Arguably then the different enforcement systems are still largely similar and the AC in NSW does not have considerably weaker enforcement powers than does the Victorian BS-U. To reiterate, neither the AC nor the BS-U is the final enforcement authority if initial enforcement notices or orders are not complied with by an owner.  In addition, in Victoria it is not as if the BS-U’s role in enforcement is absolute, the Council can also issue Building Notices and Orders and only the Council can serve an Emergency Order.

As regards protection works, while the BS-U has more of a role in Victoria, the BS-U still has some limits on their responsibility or power in this realm.  The BS-U is not responsible for preparing or serving the Protection Works Notices and is not responsible if the Owner or their agent fails to carry out the actual Protection Works properly.  If an adjoining owner does not reply within time to a Protection Works Notice then they are deemed to have agreed and again the BS-U has no further role in protection works.

There are still some similarities with NSW because there is a limited role for a NSW Accredited Certifier in regard to protection works type assessments as regards effects on adjoining properties, prior to a Construction Certificate or Complying Development Certificate being approved.

Therefore one could mount an argument that the activities involved with the two occupations (AC and BS-U) are indeed substantially the same.  The only substantial dissimilarity would appear to be in protection works, which is only a limited aspect of a BS-U’s role when a BS-U’s functions are viewed holistically.

ACT – Principal Building Surveyor (PBS)

The occupations of PBS and BS-U are similar in that both can issue permit approvals to allow start of works (commencement), both inspect buildings and works (inspection), and both can give directions in relation to building and safety standards (enforcement).  In the ACT, a PBS can serve a “Stop Notice” if works are not compliant, akin to a Building Oder to Stop Work served by a Relevant Building Surveyor in Victoria.

One key difference is that a PBS cannot issue the final approval after a final inspection in the same way that a BS-U would approve an Occupancy Permit.  Instead the Construction Occupations Registrar (an arm of the ACT Government) must issue a Certificate of Occupancy and Use.

In doing this though the Registrar would largely rely on a Certificate of Completion that had first been issued by the PBS, so we would argue that the PBS’ Certificate of Completion has more force and gravitas than say a compliance certificate produced by an engineer in Victoria.

With regard to Victoria, the BS-U only gets immunity when relying on a compliance certificate if that was reliance in “good faith”, and it would be expected that the BS-U would also carry out their own inspections.  There is no absolute immunity for a BS-U when relying on a compliance certificate (as was seen in the case decision of Toomey v Scolaro).

As regards enforcement, the PBS can give directions in regard to building and safety standards and can serve a Stop Notice (see above).  While it seems that only the Registrar can give further Notices relating to Stop Notices, we reiterate our comments above to the effect that the BS-U is not the final enforcement authority in Victoria either.

Western Australia – Building Surveying Practitioner Level 1 (BSP-1)

It is conceded that there are significant differences between a BS-U and a BSP-1; and for one thing, in Western Australia the concept of mandatory inspections at critical stages of the Works has not gained traction.  That said, there could be some conceptual similarities as follows:

The certificate of design approved by a BSP-1 states that the Building Code requirements have been satisfied in the design.  This is something a BS-U would check with the plans in a Building Permit application.  In this sense the certificate of design is akin to the initial building approval to allow works to commence (like a Building Permit in Victoria);

The certificate of construction approved by a BSP-1 must state that the building work has been completed in accordance with the plans and specifications contained in the certificate of design.  This is similar to key aspects certified by the BS-U when issuing an Occupancy Permit or a Certificate of Final Inspection (“CFI”);

The certificate of compliance approved by a BSP-1 must state that the building is safe to occupy and can be used in the way proposed by the building approval application.  Again, this is similar to the main certification made by a BS-U in Victoria when issuing an Occupancy Permit or CFI, namely that the building is fit and safe to occupy and use in accordance with its classification under the Building Code.  The Occupancy Permit or CFI in Victoria is not certifying that the works have necessarily been fully completed in accordance with the regulations or the Building Code (ie the BS-U is not certifying the works as ‘defect free’);

BSP-1s do still have some limited ability to conduct inspections of building works.  There are mandatory inspections required by regulation following the installation of safety systems.  The existence of some mandatory inspections, as there are in Victoria, is another similarity between the two jurisdictions.  However, it is more likely that the limited nature of the inspection regime in WA would be seen as prime point of difference when making an application under the Mutual Recognition Scheme;

In Victoria the BS-U is mainly inspecting for structural stability, health and safety and compliance in a general and holistic sense with the Building Code and only needs to do so at mandatory inspection times.  Further, the BS-U is able to delegate out most inspections to other building inspectors.

As discussed above, a Building Certifier would only need to demonstrate that the activities in the respective occupations are substantially the same between Victoria and the other State(s) where they have gained earlier registration or accreditation.

While there are differences in detail between the role of building surveyors or certifiers in distinct jurisdictions across Australia, there are conceptual similarities when it comes to their role and function.  We would expect that a practitioner who has experience across a range of jurisdictions would have a well-rounded breadth of knowledge of the building surveying industry and would therefore be a valuable member of that industry in Victoria.

Furthermore, the local registration authority when considering an application under the Mutual Recognition Scheme, can also consider whether the registration could be allowed with conditions to ensure equivalence, rather than automatically refusing registration.

If in doubt about your rights and responsibilities in these matters, do not hesitate to engage expert advice and assistance from lawyers well versed in Victorian building regulation.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Council, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy.

If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.