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Any building surveyor approached with plans and designs for the issue of a Building Permit, needs to adopt a high degree of caution and thoroughness, lest they fall foul of section 24(1) of the Building Act 1993.

This section of the Act prohibits the approval of a Building Permit unless the appointed Building Surveyor is satisfied of certain matters, including that the proposed building work and the Building Permit will comply with the Act and the Building Regulations.  One of the aspects is that the design in the Building Permit application must be consistent with any Planning Permit or other prescribed approval.

Regulation 301 of the Building Regulations 2006 prescribes that an application for a Building Permit must contain sufficient information to show that the building work will comply with the Act and the Regulations (including the Building Code, which is incorporated into the Regulations).

Regulation 302 then goes on to set out such matters as the required copies of drawings (eg elevations, sections) and specifications and the aspects that must be included on an allotment plan.

Also of note, regulation 303 applies where the works are for an alteration to an existing building, rather than entirely new works like a new home construction.  An application for a Permit for alterations to an existing building must include copies of drawings and allotment plans that clearly demarcate and differentiate between the existing structure and the proposed new works for which the Permit is sought.

You will note that regulation 301 refers to “sufficient information”.  While it is common that building surveyors will face misconduct inquiries where it is alleged that the plans lacked “sufficient information”, it is nevertheless true that the precise meaning of that phrase is open to interpretation on a case by case basis.  Further, questions of degree and the professional discretion of the qualified and registered building surveyor are involved.

After all, section 24(1) of the Act contains the words “unless he or she is satisfied that…” This is referring to the satisfaction or otherwise of the Relevant Building Surveyor (who has notified their appointment under section 80 of the Act) and not some third party such as a Council building inspector.

Building Surveyors need to be aware of the stringent requirements adopted by the VCAT in the recent case decision of Mr Rudolph Melchiori, building surveyor. The case decision is Melchiori v Building Practitioners Board (Review and Regulation) [2016] VCAT 1125 (7 July 2016).

The Melchiori decision involved a VCAT review of findings of misconduct previously made against Mr Melchiori by the Building Practitioners Board. It concerned over 20 Allegations where he had issued Building Permits and Occupancy Permits for both a residential site and some commercial / industrial sites. The Board called expert evidence and was represented by a barrister, and the building surveyor appeared for himself with no legal representation at the hearing.

This case decision is available online but it is illustrative of a high standard of precision that was adopted by the Tribunal as a requirement for the building surveyor in the particular circumstances of these projects.  Features of the decision included the following requirements of a building surveyor:

• Getting the correct Building Code classification for the building, right from the beginning.  There is no discretion for the RBS when deciding what Class the building falls under.  Questions of professional discretion for the RBS should only arise once the structure’s classification has been declared in the Building Permit and in regard to the assessment process following after that.
• Ensuring a thorough check is done of the Applicant’s estimate of the total project cost including labour and materials.  It would be appropriate for the Applicant to have based the calculation on such sources as Rawlinson’s Guide and for the RBS to have done their own independent calculation or at least relied on some documentary evidence or made inquiries of the Applicant, rather than promptly accepting an estimate that is likely to have been too low.
• Proper detailing and dimensions of such features as window sizes, door openings and levels should be on the drawings, rather than relying on general or generic notes in specifications; the details and dimensions for the specific project should be in the design documents before the Building Permit is approved.
• Window schedules should contain sufficient details about window sizes, thickness, type, energy efficiency etc to show there will be compliance with the Building Code at the Building Permit assessment stage. Rather than being too generic it must be specific to the project and contain sufficient information.
• It is not appropriate to include certain matters to be satisfied by later inspection after the BP is issued eg a fire engineer report to be produced prior to the final inspection was not suitable when the relevant performance levels should have been in the design drawings to be assessed before issue of the Building Permit.

However, in regard to this last point, it is noteworthy that some in the industry argue that in some circumstances, it is common and acceptable practice to specify compliance with an Australian Standard on the plans, without specific details.  For example Page 22 of the VBA’s own audit report (Building Permit Audit, Findings and Actions Industry Report of September 2014) states:

3. where roof/truss designs and computations and/or bracing details are not available at the time of issue of the building permit, the RBS must add a condition on the building permit form. This condition should state that details be provided prior to erection of the frame to demonstrate that the building work meets the requirements of Part 3.4 of the BCA.

This relates specifically to roof/truss designs and computations, but it would seem that on some aspects of the technical and legal requirements for building surveyors in the Victorian market, reasonable minds will continue to differ over some of the greyer areas.

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

For more information and assistance, please contact Lovegrove & Lawyers

By Justin Cotton, Director, Construction and Practitioner Advocacy, Lovegrove  & Cotton Pty Ltd (Construction and Commercial Lawyers)

www.lclawyers.com.au