Understanding the Building Appeals Board (BAB) in Victoria: Appeals, Dispute Resolution, and Compliance.
The Building Appeals Board (BAB) in Victoria functions as an independent review body established in 1993 under Part 10 of the Building Act 1993 (VIC) (‘the Act’), replacing the Victorian Building Control Act 1981. This history gives it a long-standing legacy in building regulation, and, factoring in its predecessors, the BAB has been part of the regulatory framework for decades.
It serves a vital role in reviewing decisions made by statutory authorities on building control matters, facilitating dispute resolution, and issuing determinations as set out in the Act. Through the BAB, parties can seek reviews of statutory bodies’ decisions, access dispute resolution pathways, and request determinations outlined in the Act. This piece outlines the BAB’s functions, including its jurisdiction over appeals, compliance reviews, and modification determinations.
Factor’s Contributing to the BAB’s Sustainability
Numerous factors contribute to the BAB’s sustainability and longevity, ensuring it remains a trusted and effective body for dispute resolution over time.
The BAB’s sustainability is supported by a model that includes a diverse range of referees, typically comprising a presiding construction lawyer and two technical experts, allowing for a comprehensive review of each case.
Further, members of the BAB are appointed by the Minister and selected based on their expertise and reputation in the field, recognized by their peers as reputable and venerated professionals. Although appointments are typically for three-year terms, members may be reappointed.
The BAB can also appoint referees with specific skills to suit the nature of a case. For example, in disputes involving a building surveyor’s discretion—such as issuing or refusing a building permit—a qualified building surveyor may be included on the panel. This ensures specialised expertise for each matter.
Jurisdiction of the BAB: Issues the BAB Can Hear
The BAB has broad jurisdiction under Part 10 of the Act to handle multiple building-related matters, including:
- Appeals: (ss 138–149),
- Disputes: (ss 150–158),
- Compensation applications: (s 159).
An alternative: Section 160 Application to the BAB 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.
Reviewing Decisions of Statutory Authorities at the BAB
Under Part 10, Division 1, the Act outlines several grounds upon which applications for review can be made to the BAB regarding a statutory authority’s decision. Section 138(2) grants the BAB authority to examine disputes against a requirement of a reporting authority or Relevant Building Surveyor (RBS) to provide further details or to amend a permit application Furthermore, under Division 3 of Part 10, the BAB may address disputes related to the discretionary powers exercised by an RBS under the Act.
Appealing Building and Occupancy Permit Decisions
Section 138 of the Act specifies situations in which appeals can be lodged with the BAB in relation to building and occupancy permits. Under Section 138(1), appeals may be filed if:
- A building permit is refused,
- Conditions are imposed, or
- Amendments or cancellations are contested.
Appeals can also be filed when a permit amendment or cancellation request is denied or unreasonably delayed. Consequently, the BAB has jurisdiction over decisions made by municipal or private building surveyors concerning building permits.
Challenging Directions to Fix Building Work Through the BAB
The BAB offers routes to review and challenge Directions to Fix building work issued by an RBS or the Victorian Building Authority (VBA) under Division 2 of Part 4 of the Act. An RBS may issue a Direction to Fix if, following an inspection, it is deemed 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 Municipal Building Surveyor (MBS) decides 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 complies with the Act, Regulations, or Code and does not require a written direction.
Directions to Fix may be issued verbally or in writing, each having different time limitations and penalties for non-compliance. If a verbal direction is issued, the builder must comply within seven (7) days before a written direction follows. A written direction then specifies at least seven more days for compliance. Failure to comply may result in penalties of up to 500 penalty units ($98,795) for individuals and 2,500 penalty units ($493,975) for corporate entities.
Note: The above figures are at the 1 July 2024 to 30 June 2025 penalty unit value of $197.59. It is subject to change. CLICK HERE for further information.
Termination of Building Surveyor Services: Rights to Appeal at the BAB
Under Section 140 of the Act, an owner who appoints a Private Building Surveyor (PBS), or the PBS themselves, may appeal to the BAB if an authority fails to consent to or refuses termination of the surveyor’s appointment within a reasonable time. Such decisions may also be subject to review by the Victorian Civil and Administrative Tribunal (VCAT) under Section 83R of the Act, which offers a merits review jurisdiction. VCAT may affirm, vary, or set aside the decision or remit it back to the VBA for reconsideration.
Protection Works Disputes: Appeals for Adjoining Owners and Builders
Protection works disputes are common appeals at the BAB. Section 141 of the Act allows appeals by either an owner required to conduct protection work or an adjoining owner. Appeals can challenge determinations regarding:
- Appropriateness of protection work (Section 87),
- Declarations under Section 89,
- Failures or refusals to make determinations or declarations within a reasonable timeframe, or
- Requests for additional information (Section 87).
The BAB reviews these appeals and has the power to affirm, vary, or set aside the decisions made by the building surveyor.
Compliance Notices and Orders: Options for Appeal
Compliance measures, such as building notices and orders, address non-compliant work or risks in buildings. Section 142 of the Act provides rights to appeal these notices or orders to the BAB, including emergency orders issued by a MBS.
Municipal Authority Decisions: BAB’s Jurisdiction for Review
Section 144 of the Act enables owners to appeal determinations, approvals, or discretionary decisions by a person or body under the Building Regulations 2018. Examples include determinations about:
- Projections beyond street alignments,
- Septic tank installations,
- Construction in flood-prone areas,
- Construction over easements.
Each of these determinations is reviewable by the BAB under Section 144 of the Act.
Expedited Appeals: The BAB’s Fast-Track Process
The BAB provides a fast-track review process for urgent matters to which are appeals under Section 147 of Part 10, Division 2 of the Act.
Dispute Resolution Services Offered by the BAB
The BAB has jurisdiction over specific disputes under Part 10, Division 3 of the Act, such as:
- Disputes between owners and surveyors over RBS inspection powers,
- Disputes regarding emergency protection works,
- Protection works insurance disputes between owners,
- Costs of supervising protection works.
BAB’s Powers to Award Costs
The BAB has specific powers regarding costs as outlined in Clause 17 of Schedule 3 of the Act, where each party typically bears its own costs. However, Clause 16(2) of Schedule 3 gives the BAB discretion to make cost orders if it considers it ‘just.’ Though not bound by the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), the BAB may refer to Section 109(3) of the VCAT Act, which allows costs orders based on 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’.1
It is important to note that the BAB does not automatically impose costs on unsuccessful parties, which makes it less intimidating for parties concerned about potential financial repercussions. However, it does retain the power to award costs if appropriate.
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’.2
Length of Hearings and Timeline Expectations
Typically, appeals take six to twelve months to reach a hearing. In certain cases, such as large-scale cladding matters, the waiting period may extend to or over two years.
Hearings generally conclude within a day, with panels that typically comprise of three part-time members with relevant expertise in engineering, surveying, architecture, or law. While parties aren’t required to have legal representation, it is advisable to seek legal advice.
Why Expert Construction Lawyers Are Essential for BAB Cases
Due to the BAB’s unique jurisdiction, it is beneficial to have experienced construction lawyers familiar with BAB processes. Skilled lawyers understand when and how to appeal and the likelihood of success.
Lovegrove & Cotton has nearly three decades of experience in BAB jurisdiction, offering expert advice and representation. In particular, Adjunct Professor Kim Lovegrove, Chair of the International Building Quality Centre (IBQC) and a former World Bank law reform consultant, has advocated for the BAB as a model of best practice in building regulatory processes. Contact Tsigereda Lovegrove or Justin Cotton at enquiries@lclawyers.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.
