LC Lawyers

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 tasked with making determinations about building control matters under the Act. The BAB serves an important function as a review avenue for decisions made by statutory authorities under the Act, for certain disputes, for modifications in relation to certain regulations, and for certain determinations.

It is bespoke to the building industry and the fact that it is expert-led tribunal with board members usually either builders, building surveyors, fire safety engineers, quantity surveyors, structural and services engineers, access consultants, architects, town planners, construction lawyers, or consumer planners.[2]

1. Review of Decisions by Statutory Authorities

Under Part 10, Division 1, the Building Act outlines several grounds for application for review to the Building Appeals Board of a decision by a statutory Authority.

2. Review of Decisions in Relation to Building and Occupancy Permits

Section 138 provides that appeals may be brought to the BAB by either owners and purchasers of land[3] or reporting bodies[4] (such as the Metropolitan Fire Brigade) for certain decisions or actions taken by statutory authorities in relation to building and occupancy permits – this appeal mechanism is therefore relevant at stages prior to occupation.

Under Section 138, specifically, subsection 1, an appeal may be brought to the BAB for a decision to refuse, impose conditions on, amend or cancel, refuse an application to amend or cancel, a building permit, or a failure to make a decision to amend or cancel a permit within a reasonable time.[5] It follows that the BAB has jurisdiction with regard to building and occupancy permit-related decisions by a private or municipal building surveyor.

Subsection 2 concerns requests by building surveyors or reporting bodies to amend a permit application or to provide more information in regards to a permit. This provision would be relevant in cases where an RBS or reporting body considered the existing permit application fell short in some regard. An example would be adequate access for the Metropolitan Fire Brigade or the positioning of fire hydrants in multi-residential complexes.

3. Reviews of Directions to Fix Building Work

Under Division 2 of Part 4 of the Act, an RBS or the VBA may issue a direction to fix building work on the grounds there is failure to comply with the Act, Regulations or Building Code of Australia. A failure to comply with a direction gives rise to a pecuniary penalty. Such a direction is reviewable by the Building Appeals Board pursuant to Section 138A of the Act.

This review avenue would be of relevance where a builder has been served with a direction to fix but considers on reasonable grounds that the works are compliant and there has not been a breach of the Act, regulations, or code.

4. Reviews of Termination of RBS

As noted in an earlier article, which also discussed transfer of functions, a decision in regards to the termination of private building surveyor functions by the VBA under the Building Act 1993 is a reviewable decision pursuant to Section 140 of the Building Act 1993. The Building Appeals Board has jurisdiction in the event of a refusal, and an RBS or the relevant owner may apply for review of a refusal or failure of the VBA to allow the termination of RBS functions.

5. Protection Works Appeals

A common form of appeal at the BAB is in relation to protection works determinations by building surveyors regarding protection works or emergency protection works, or requests for further information by adjoining owners. An appeal made under Section 141 may be made by either an owner or adjoining owner.

6. Building Notices and Orders, and Emergency Orders

Another prevalent appeal is in regards to the service by either an RBS or MBS of a building notice or building order in relation to building works or an existing already complete building.[6] Review is also available in regards to Emergency Orders issued by Municipal Building Surveyors.

In the current environment with the proliferation of building compliance-related building notices and orders, including those concerning cladding, these appeals may be made in tandem with applications such as those under Section 160A for determinations in respect to building design, although often a cladding notice will contain a clause that it will not be enforced whilst a s160A application is on foot (without that clause, prudence would dictate a combination of a s142 appeal [so as to stay the effect of the BN or BO] and s160A application for determination).

7. Building Regulation

Section 144 of the Building Act provides that where the Building Regulations 2018 leave a matter to be determined by, or confer discretion on, a body or a person, an owner of a building or land may appeal to the Building Appeals Board in regards to the exercise of that discretion or the making of that determination.

For example, the Building Regulations provide that a report and consent is required from a relevant council in the event components of a building are proposed to project beyond street alignment[7] or a septic tank is proposed or building is proposed in an area prone to flooding,[8] or from a service authority (such as a water supply authority) if a building is proposed to be constructed over an easement,[9] and so forth. All of these determinations under the regulations are reviewable by the BAB pursuant to Section 144 of the Act.

8. Other Appeals

Other reviews include the refusal by an RBS or MBS for a person to be able to temporarily occupy a building, and the refusal of the VBA to appoint an adjudicator for purposes of the Building and Construction Industry Security of Payment 2002 (VIC).

9. Appeals Generally

BAB appeals are, according to the Act, “in the nature of a re-hearing.” This essentially means that the BAB is at liberty to “step into the shoes of the original decision maker” and consider matters not originally brought before the original decision maker.

A decision which is subject to a right of appeal to the BAB does not take effect until an appeal is heard and the decision is affirmed or until the end of the appeal period if there is no appeal made.[10]

There is also an option pursuant to Section 147 of the Building Act for a fast-track appeal, where one making an appeal may apply to the BAB, where urgency dictates, for the board to hear the matter within 2 days of application for fast-track. The BAB may refuse a fast-track application.

The BAB also has jurisdiction to hear matters in relation to disputes as between certain parties. The kind of disputes in which the BAB has jurisdiction are outlined in Part 10 Division 3, and include:

  • Disputes between owners and building surveyors in regards to the exercise by the RBS of inspection powers and powers of entry;[11]
  • Disputes between an owner and adjoining owner regarding the carrying out of emergency protection work;[12]
  • Disputes between an owner and adjoining owner regarding protection works insurance cover;[13]
  • Disputes between an owner and adjoining owner regarding a survey of the adjoining property (what is often referred to as a dilapidation report);[14]
  • Disputes between an owner and adjoining owner regarding expenses for the supervision of protection works;[15]
  • Any other disputes between an owner and adjoining owner in regards to the protection works regime under Part 7 of the Building Act 1993;[16]
  • Disputes between an owner and a relevant building surveyor as regards the building surveyor’s estimate of the cost of the work for which the permit is sought (building permit levy);[17]
  • Disputes concerning building works and the application and/or effect of building regulations as between owners, builders, building surveyors, and/or the authority;[18] and
  • Disputes between adjoining owners in regards to the construction and/or costs of party walls.[19]

It follows there are a range of disputes for which the BAB has jurisdiction to resolve, with many of them related to disputes as between adjoining owners especially with respect to protection works.

10. Determinations that May be Made by the BAB

There are other more miscellaneous kinds of proceedings under the BAB’s jurisdictions for which the BAB may make a determination and these include:

  • Determinations for compensation for loss or inconvenience suffered by an adjoining owner in regards to protection works (this is a discretional power and compensation is often a contentious matter);[20]
  • Determinations concerning modifications of building regulations or local laws (such as overshadowing, height restrictions etc.), which essentially are applications that certain regulations do not apply, or only apply with modifications, to the subject building;[21]
  • Determinations concerning modifications of access building regulations for persons with disabilities;[22] and
  • Determinations concerning building design compliance, on the application of an owner, purchaser, RBS, or the VBA (which are often relevant in terms of alternative solutions under the BCA).[23]

11. Types of Orders the BAB May Make

The BAB is not so confined in the kinds of orders it may make by virtue of the fact that it is able to ‘step into the shoes of the original decision maker.’ It is essentially given all of the powers of the original decision maker. Importantly, Section 161 provides that the BAB may “make any order that it considers appropriate in the circumstances.”

12. Appeals from the BAB

A decision or determination by the BAB is final and has legal effect. It is subject only to the inherent jurisdiction of the Victorian Supreme Court for review on an issue or question of law. Essentially this means if the BAB erred in law such that it acted outside of jurisdiction, the Victorian Supreme Court would upon application be able to quash the decision of the BAB, require it act in accordance with law, prohibit it from acting contrary to law, issue an injunction, or make a declaration, depending on the circumstances of the appeal.

Conclusion

It follows there are a range of decisions and disputes that give rise to the BAB having jurisdiction, alongside certain matters for determination under the Building Act 1993 (VIC). It is a unique jurisdiction that serves a very important regulatory oversight function in Victoria and is playing a great part in the state’s efforts to address the cladding crisis.

Lawyers within the firm have many years of experience with matters at the Building Appeals Board in a range of different matters including multiple noteworthy cladding determinations, building order and notice matters, protection works matters, building and occupancy permit disputes, and reviews of council decisions in regard to building regulation dispensations. In the emerging paradigm of a weaker economy and issues concerning building surveyor insurability, there is potential for reviews under Section 140 regarding RBS terminations to become more common.

If you are concerned about your options for review of decisions, like those discussed briefly in this piece, or if you are engaged in a building dispute, it is worthwhile discussing your options with an experienced construction lawyer. It is critical to be mindful of relevant time limits for applications for reviews to ensure one avoids prejudice flowing from a failure to respond to the likes of Building Orders and Notices.

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 qualified construction lawyer.

Footnotes:

Source Article: https://lclawyers.com.au/users-guide-building-appeals-board/

[2] Building Appeals Board, About Us, accessed at https://www.buildingappeals.vic.gov.au/about
[3] Building Act 1993 (VIC), s 138(4).
[4] Ibid, s 138(5).
[5] Building Act 1993 (VIC), s 138(1).
[6] Building Act 1993 (VIC), s 142.
[7] See Building Regulations 2018, reg 109.
[8] Ibid, reg 153.
[9] Ibid, reg 130.
[10] Building Act 1993 (VIC), s 146.
[11] Ibid, s 150.
[12] Ibid, s 151.
[13] Ibid, s 152.
[14] Ibid, s 153.
[15] Ibid, s 154.
[16] Ibid, s 155.
[17] Ibid, s 156.
[18] Ibid, s 157.
[19] Ibid, s 158.
[20] Ibid, s 159.
[21] Ibid, s 160.
[22] Ibid, s 160B.
[23] Ibid, s 160A.

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A typical building contract outlines the agreement between the parties, including timelines, payment schedules, and ways to end the contract. Often, one party will send a “Notice of Intention to Terminate” to the other party if there has been a serious breach. This notice gives the other party a chance to fix the breach within a certain timeframe. If the problem is not addressed or the response is unsatisfactory, the contract may be terminated.

Important Note: Wrongfully terminating a contract can have serious legal consequences, so it is crucial to get legal advice to confirm whether you have valid grounds for termination. Even if the grounds are lawful, failing to follow the correct contractual procedure might still lead to a claim for wrongful termination.

Common issues like delays or cost overruns are often reasons for issuing a Notice of Intention to Terminate. However, in some cases, an owner may terminate a contract with just one notice under Section 41 of the Domestic Building Contracts Act 1995 (Vic) (the Act). This can apply in situations such as:

  • The contract price increasing by 15% or more since it was signed.
  • The contract not being completed within 1.5 times the agreed period.
  • The delay or cost increase was due to unforeseen circumstances that the builder could not have anticipated when the contract was made.

To end the contract under Section 41 of the Act, the owner must provide a signed notice to the builder explaining the reason for termination.

What Can Be Claimed After Termination?

Payment disputes are common in construction when a contract is terminated. The builder may claim payment for any unpaid work, while the owner might seek damages for delays or defects in the work. After termination, a builder is entitled to be paid for the work completed up to that point. This is known as quantum meruit, meaning “as much as they have earned.”

In the case of Mann v Paterson Constructions Pty Ltd [2019] HCA 32[5], the Court clarified that a builder may claim under quantum meruit but cannot recover more than the contract price for the work done. The decision limits how much builders can claim when a contract is terminated and ensures the agreed pricing mechanisms in the contract are not undermined.

Section 38 of the Act also requires a proper paper trail for variations to plans and specifications that affect the price. The Court found that under this section, builders could not claim for unpaid variations, even if the owner had repudiated the contract (this may not always be the case though).

Difference Between Termination Under Section 41 of the Act and Contractual Termination

As outlined in Section 41(7) of the Act, Section 39 of the Act does not apply to terminations under Section 41. While this is similar to the ruling in Mann v Patterson, Section 41 applies specifically to time or cost overruns due to unforeseen circumstances. It is often described as a “no-fault” provision, meaning the owner may not be able to claim additional costs that could be recovered through a standard contractual termination.

This can include extra costs for hiring another builder, increased insurance costs, or other expenses that result from the builder’s faults in a standard termination.

Delays and Contributing Factors

In Mardell Constructions Pty Ltd v Singha [2009] VCAT 1532 [8], the Tribunal showed that Section 41 of the Act does not operate independently of the contract. In that case, the contract allowed the builder 10 days to fix a substantial breach before termination. However, the owner had also contributed to the delay by withholding payment, which led the builder to suspend work. The Tribunal found the owner wrongfully terminated the contract, leading to its repudiation.

Section 41(5) entitles the builder to a fair price for the work done up until termination. However, the builder cannot claim more than they would have under the original contract.

Reasonable Costs and Recent Discussions

Recent discussions about the meaning of “reasonable costs” have been highlighted in the 2024 Victorian Department of Government Services Review of the Domestic Building Contracts Act 1995. The review suggests expanding the definition of “reasonable price” under Section 41 of the Act and recommends a monthly payment model based on completion estimates from an independent contract administrator, such as an architect.

Determining a total settlement under Section 41 of the Act can be complicated due to varying opinions on the value of defects or variations. 

Damages for Defective Work

In Wenli Shao v AG Advanced Construction Pty Ltd [2019] VSCA 93[11], the Court addressed whether termination under Section 41 of the Act cancels out claims for damages due to defective work. The ruling stated that the cost of fixing defects must be considered when calculating the reasonable price owed to the builder under Section 41(5). In this case, the owner terminated the contract and sought damages for defects through VCAT.

The court ruled that the builder was entitled to a reasonable price for the completed work, but this amount was reduced by the cost to fix the defects. On appeal, the Supreme Court agreed that the builder could not be penalized twice for the same defects.

Conclusion

Section 41 terminations may seem attractive in the current environment of fluctuating material costs and availability issues, but they can reduce the amount an owner can claim due to the “no-fault” element. Owners should carefully consider other contract termination options before making a decision and seek professional advice to ensure they can maximize their claim so far as they are by law entitled to. 

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 qualified construction lawyer.

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The World Organization of Building Officials (WOBO) has acknowledged the work of Lovegrove & Cotton for their recent contributions to the International Building Quality Centre (IBQC). WOBO noted the firm’s involvement (in a WOBO update dated 28 March 2024) regarding IBQC guidelines, stating, “WOBO appreciates the work carried out by Lovegrove and Cotton and their recent updates in respect of IBQC.”

Members of the Lovegrove & Cotton team have been instrumental in assisting with the development of the IBQC Risk-Based Building Classification and Mandatory Inspection Guidelines. These guidelines were developed over 18 months, involving collaboration with leading professionals from the United States, United Kingdom, Australia, New Zealand, and Germany. The guidelines focus on implementing a risk-based approach to building classification and mandatory inspection processes.

On 28 March 2024, three key articles authored by Lovegrove & Cotton were republished by WOBO:

Lovegrove & Cotton acknowledges WOBO’s recognition and is very grateful. The firm also recognizes the important role that this highly regarded global body plays in advancing good practice approaches to building regulation and building control.

Lovegrove & Cotton will continue to support the development of robust building regulatory frameworks, in line with a tradition of helping to establish good practices in building control dating back more than 30 years.

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Main graphic

A Profile on Tsigereda Lovegrove From Ethiopia to Australia, from Amharic to English and from Admin to running a legal practice – the journey to date and continuing


Tsigereda left Ethiopia in 2009. After an initial period of 4 months in Auckland, New Zealand, with her late mother-in-law, Tsigereda Lovegrove settled in Australia. She learned English as her second language and set her sights on a career in law.

Building a Career at Lovegrove & Cotton

Starting as a receptionist at Lovegrove & Cotton Lawyers in 2011, Tsigereda worked her way up within Lovegrove & Cotton, which was established in 1993 by the writer.

Balancing Education and Professional Responsibilities

While working at the firm, Tsigereda embarked on an LLB at Victoria University. She balanced her studies with her role as Office Manager and Financial Controller, overseeing the firm’s financial and administrative operations. This experience laid a solid foundation for her future roles.

Transitioning to Legal Practice

After completing her law degree, Tsigereda became a Construction Lawyer and Practice Manager at Lovegrove & Cotton. With 11 years of management experience, she now oversees practice management, ensuring the firm’s operations run efficiently while fostering a positive work environment. Since she became Practice Manager, the firm has grown by 300% in terms of full-time legal personnel.

Legal Expertise in Construction Law

Tsigereda’s legal practice covers a broad spectrum of construction law, including tribunal and court cases, building appeals, and building regulatory compliance in Victoria and NSW. She also provides advice on legislative interpretation of the Building Act 1993 and the Domestic Building Contracts Act.

Recognition of her expertise is reflected in the law firm being named in the construction section of Globe Law Experts 2024 for Australia.
Tsigereda- Globe Law ExpetsDownload

International and Local Contributions

In addition to her domestic legal work, Tsigereda serves as Secretary to the International Building Quality Centre (IBQC) Dispute Resolution Coalition. She coordinates efforts among a distinguished group of international legal experts, including senior jurists from Africa and Australia, as well as eminent construction lawyers from both hemispheres. In this capacity, she contributes to the development of dispute resolution protocols and building regulatory guidelines for emerging economies. She is also a member of the Victorian Building Disputes Practitioners Society Committee.

Her commitment to Africa in terms of the work she does on emerging economy guidelines is an intergenerational commitment to capacity development in Africa, as her grandfather-in-law worked for UNESCO in the 1950s and 60s in Addis in educational capacity building. The late Norman Lovegrove was instrumental in helping to establish mobile schooling where UN VW Combis transported teachers to the rural regions to make education more accessible.

The above photo of the Combi was taken by the late Norman in the mid-sixties. Tsigereda’s late father too was an educator and teacher.

Publications and Thought Leadership

Tsigereda has authored and co-authored several publications, focusing on key issues such as building insurance requirements, risk-based building classification, and inspection protocols for emerging economies.

Some Thoughts on Tsigereda Lovegrove’s Contributions


“In the short time I have known Tsigereda ‘Ziggy’ Lovegrove, I have come to respect her diligence, capabilities, and tenacity. Set against the backdrop of a faraway homeland, Ziggy forged a new life for herself in Australia, conquered the English language, and raised a family. In her professional life, Ziggy is rightfully proud to have attained a law degree and become a protégé of the law firm that bears her husband’s name. Professionally, she has assisted the International Building Quality Centre in conducting background research, synthesizing material, and coordinating some of the logistics of international meetings, which has demonstrated her dexterity in familiarizing herself with topics that one can only imagine were quite foreign to her not so long ago.”
– Neil Savery, IBQC Board Member

“ In my interactions with Tsigereda, I have found her to be a remarkable force of intelligence, integrity, and professionalism. At the IBQC, she skillfully facilitated teamwork, ensuring that collaboration was smooth, insightful, and effective. Her exceptional communication and leadership skills were evident in these interactions.

Her extensive knowledge and research contributions on mediation as a dispute resolution mechanism have made a significant positive impact on the industry. Additionally, her strategic thinking and dedication to enhancing dispute resolution mechanisms in developing countries, such as Ethiopia, have left a lasting impression on me”.

– Judge/Justice Maedot Yeshak Tesfaye, Federal Court of Ethiopia . 

The Future

Tsigereda addressing the 30 year anniversary function of Lovegrove & Cotton where amongst other things she talked about the next 30 years.

Tsigereda is intent on growing the practice in Australasia, opening a New Zealand office, and continuing to participate in the development of building regulatory guidelines that are contextualized for Africa. Her commitment to advancing the industry reflects her dedication to making a positive difference both locally and globally.

This piece is penned by the founder of Lovegrove & Cotton Kim Lovegrove

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Strata Community Body Corporate Lawyers

Strata Community & Body Corporate Lawyers | Lovegrove & Cotton

Experienced Strata Community & Body Corporate Lawyers Since 1993

Lovegrove & Cotton has been representing strata communities, body corporates, and common property claimants in building defect cases for over three decades. Led by Justin Cotton, our team has extensive experience in handling owners corporation litigation, with a proven track record of success.

Our Expertise in Owners Corporation Building Disputes

We are experts in medium to large owners corporation building cases, including:

  • Rectification of Strata Community Defects: Addressing and fixing defects within strata communities.
  • Resolving Body Corporate Construction Law Disputes: Expert guidance in navigating construction-related disputes for body corporates.
  • Common Property and Systemic Defects: Handling claims related to defects in shared areas and systemic issues affecting the entire building.
  • Major Structural Defects in Strata Communities: Advocating for owners corporations dealing with significant structural problems.
  • Waterproofing and Leaky Building Claims: Legal support for claims involving water ingress and leaky buildings.
  • Cladding Defects Rectification: Assisting with the rectification of defective or combustible cladding.
  • Responding to Building Notices and Orders: Guidance on how to effectively respond to building notices and orders.
  • Strata Community Toxic Mould Cases: Legal representation for strata communities affected by toxic mould.

Nationwide Representation for Owners Corporation Disputes

At Lovegrove & Cotton, we represent owners corporations in all Australian states and territories. Whether your matter is in a tribunal, court of law, or appeal body, we have the experience and expertise to handle your case. Notably, we have a strong record of resolving body corporate disputes through settlement, often before reaching trial.

Successfully Litigating Against Industry Professionals

Our firm has successfully represented owners corporations in significant building defect cases against:

  • Builders: Holding builders accountable for construction defects.
  • Building Surveyors and Private Certifiers: Pursuing claims against certifiers responsible for overlooking defects.
  • Engineers: Litigating against engineers involved in faulty design or construction oversight.
  • Local Councils and Statutory Authorities: Challenging decisions or actions by local councils and other authorities that impact strata communities.

Access Our Strata Community Resources

For more information and expert insights, explore our collection of strata community articles:

Contact Lovegrove & Cotton for Expert Legal Advice

If you are an apartment owner or part of an owners corporation facing building defects or construction disputes, contact Lovegrove & Cotton today for experienced legal representation.

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