LC Lawyers

In Victoria, the Domestic Building Contracts Act regulates residential building contracting and the contractual interaction between residential builders and owners.

The Victorian Civil and Administrative Tribunal is where you resolve domestic building disputes.

However, before a residential building dispute goes to the VCAT, it must, at first instance, go to the DBDRV.

The DBDRV appoints a conciliator, who with the cooperation of the parties tries to resolve the dispute – if this is not possible, the dispute can then be referred to the VCAT.

To issue legal proceedings VCAT an application must be lodged via the application form available on the VCAT’s website.

Once filed, the VCAT will ordinarily set down a directions hearing.

At the directions hearing, there will typically be an order for the matter to go to mediation, and the tribunal member typically will make an order that the parties provide a statement of claim and sometimes a statement of defence and/or counterclaim.

Prior to the mediation, the parties are required to furnish a ‘position paper’ that provides a summary of the dispute.

Although lawyers are not compulsory, in most cases, construction lawyers do attend and they are often accompanied by technically qualified expert witnesses.

The mediator does their level best to settle the matter with the assistance of the parties and their advocates.

If the matter settles, the terms of settlement are written up and signed off as a deed of settlement.

If the mediation is unsuccessful, the case is then referred back to a directions hearing.

At the directions hearing, the tribunal member may make orders for all, or some of the following:-

  • Completion of statement of claim, statement of defence/and or counterclaim
  • Reply to defence or counterclaim
  • The preparation and exchange of lists of discoverable documents
  • The preparation, filing and exchange of expert witness reports
  • Timelines for the completion of the above tasks

Once the above steps have been completed, ordinarily, there will be a further directions hearing.

At that directions hearing, typically orders will be:

  • The setting down of a date for a compulsory conference
  • The setting down of a date for trial
  • Any further orders that the parties require
  • In circumstances where one of the parties (or both) have not complied with orders, further orders that generate new deadlines

If a matter goes to compulsory conference, the parties are required to attend.

At the compulsory conference a tribunal member typically presides and then the member:

  • Gives both sides the opportunity to present a summary of their cases
  • Typically caucuses with both parties
  • And sometimes gives an indication where they see the respective merits of the case

If the matter settles, the settlement is written up and signed by the parties and the case concludes.

If the matter does not settle, the case will proceed to trial and full hearing.

At the hearing, the following tends to occur:

  • The parties will be legally represented by construction lawyers and/or barristers
  • Each party will tender their expert evidence that will be proffered by the expert witnesses
  • Depending on the complexity of the dispute and the amount involved, the hearing range will be from a number of days to a number of weeks

Once the case is concluded, the tribunal member will hand down a written decision.

This piece is prepared by Lovegrove & Cotton, with the assistance of one of our prior law graduates. 

Lovegrove & Cotton: Experts in Residential Building Dispute Resolution

The above summary is a very condensed, if not abbreviated, version of the process at VCAT. As construction law is a complex area, a potential disputant is well advised to engage a well experienced construction lawyer to have conduct of the dispute resolution process. Lovegrove & Cotton have practised in this area for 30 years. One of our lawyers co-authored ‘the Users Guide to the Domestic Building Contracts Act’, Lovegrove on Building Control. The principal of Lovegrove and Cotton, Justin Cotton has 20 years of experience in the resolution of building disputes and this of course includes a wealth of experience at the VCAT.

For related Lovegrove & Cotton articles on building dispute resolution, please see:

Compulsory Conferences – Domestic Building Dispute Resolution and the VCAT.

Mediation – Domestic Building Dispute Resolution and the VCAT.

Building Disputes – How they are won and how they are lost.

The Domestic Building Dispute Resolution (DBDRV) – Victoria. 

Disclaimer

This article is not legal advice and discusses its 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.

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On 21 September 2023 a new guideline was issued on behalf of the Victorian Government in relation to the approaches that ought to be adopted by Municipal Building Surveyors and Private Building Surveyors with respect to remediation work proposals to deal with “Combustible External Cladding”.

Arguably the advent of this new guideline, that must be adopted by Building Surveyors, may herald a changing emphasis away from a default position of replacing all combustible cladding towards a more risk-based mitigation strategy, and a higher emphasis (in appropriate circumstances) on partial cladding replacement and/or reliance on the overall active and passive fire safety systems at a building.

The relevant instrument is Minister’s Guideline 15, that was issued under section 188(1)(c) of the Building Act 1993 by the Minister of Planning on 21 September 2023.  It is stated in the preamble that Municipal and Private Building Surveyors “must have regard to this Guideline pursuant to section 188(7) of the Act”.

This Guideline does not apply to every building in Victoria that has combustible cladding that does not comply with the deemed-to-satisfy provisions of the Building Code / NCC.  Instead, it is stated to apply only to buildings which are “classified as Class 2 or Class 3 by the NCC or contain any component which is classified as Class 2 or Class 3”, for which the works were completed or final approval issued before 1 February 2021, and which have “Combustible External Cladding”.

The term “Combustible External Cladding” is defined for the purposes of Minister’s Guideline 15 to mean:

  • Aluminium composite panels (ACP) with a polymer core which is installed as external cladding, lining or attachments as part of an external wall system; and
  • Expanded polystyrene (EPS) products used in an external insulation and finish (rendered) wall system.

There are also graded definitions to measure the extent of a risk with combustible cladding; the relevant category terms being “Low Cladding Risk”, “Elevated Cladding Risk” and also “Unacceptable Cladding Risk”.  Each of these key terms are said to have the meanings given to them in the “Cladding Risk Mitigation Framework”.

Regard should also be had to this document known as the “Cladding Risk Management Framework” [1], which is defined in the Guideline to be “the document of that name published by the Department of Transport and Planning on 22 September 2023, as updated from time to time.” 

This document (the CRMF) consists of some 10 pages of more detailed guidance which seeks to “remove uncertainty amongst municipal building surveyors, building owners and building practitioners about the practical and reasonable measures that can be taken to make a building sufficiently safe from a cladding fire risk perspective.”   We note the reference to “sufficiently safe”, which is not the same as “completely safe” and has elements of subjective discretion to be applied.

Refer to page 2 of the CRMF under paragraphs 1.1.1 to 1.1.7 for more detail on the purpose and objectives of the “framework”, which should be considered carefully by the Council Municipal Building Surveyors (“MBS”) and also Private Building Surveyors (“PBS”), as well as building owners and practitioners, alongside Minister’s Guideline 15.

The definition of “Acceptable Cladding Risk” in the CMRF means where the building:

  • Achieves a “Low Cladding Risk” rating; or
  • Presents an overall level of risk to the life and safety of the occupants of the relevant building which is reasonably similar or less than the risk which would be presented by the same building, if that building had no combustible external cladding.

The definitions of “Low Cladding Risk” and also “Elevated Cladding Risk” are defined in technical terms in relation to the risk of fire spread between Sole Occupancy Units in “sprinkler protected” versus “not sprinkler protected” parts of the building where there is combustible external cladding.  This is as set out in Table 1: Cladding risk rating categories, found in section 2.2 of the CMRF. 

Likewise, “Unacceptable Cladding Risk” is also defined in that section 2.2 table, and has technical benchmarks associated with it.  In other words, it is not simply that cladding system and building which does not meet the definition of “Acceptable Cladding Risk” referred to above.

Regard would most likely need to be had to advice from a suitably qualified fire engineer, in order to assess what level or risk applies to the building.  The level of risk may vary depending on the layout and location of the combustible external cladding on the building and may differ with some parts of the building compared with others.

The key emphasis is on how the MBS or a PBS should assess a “Remediation Work Proposal” to address non-compliant combustible cladding on such buildings.  That term is defined as:

  • A proposal prepared by the owner of a Relevant Building or anyone authorised on their behalf for the work to address the Combustible External Cladding; or
  • A proposal prepared by Cladding Safety Victoria to address the Combustible External Cladding on a relevant building.

This will clearly depend very much on the appropriate risk category for the premises based on the above definitions, which will have regard to other elements such as sprinkler protection and other fire safety systems rather than solely looking at the extent and combustibility of cladding.

It is said that Municipal Building Surveyors and Private Building Surveyors, when fulfilling their functions under the Building Act 1993 and the Regulations, must have regard to the Cladding Risk Mitigation Framework and any information or advice provided to these professionals by Cladding Safety Victoria (CSV) or the Department of Transport and Planning after the date of the Guideline.  That is, if that information or advice is expressly identified as being supplied for the purpose of the Guideline.

The purpose of the Guideline is to provide guidance to an MBS or a PBS when fulfilling these functions, including where:

  • An MBS has served a Building Notice, Building Order or Emergency Order in respect of Combustible External Cladding and is considering a Remediation Work Proposal in response; or
  • An MBS is considering whether to issue a Building Notice, Building Order or Emergency Order and is considering a Remediation Work Proposal about the combustible cladding; or
  • An application for a Building Permit has been made to a PBS or an MBS for the performance of remedial work in relation to the combustible cladding.

The purpose of the Guideline is also said to be to supply guidance on how an MBS or a PBS should assess Remediation Work Proposals for such cladding where the proposal does not include the full removal and replacement of the cladding.

If one examines the CRMF, it could be argued that the emphasis is more on avoiding the full replacement of all cladding (where possible and technically justified) in favour of either targeted removal and replacement in certain areas, and/or upgrades and maintenance of other active and passive fire safety systems in the building.

For instance, paragraph 2.3.3 amplifies the notions of “proportionality” and “scalability” in responding to cladding fire risk on buildings.  That paragraph reads:

“This policy applies the principle of proportionality and scalability in responding to cladding fire risk on buildings in Victoria.  Applied to relevant buildings, the primary focus is on achieving an acceptable cladding risk rating.  The recommended focus is targeted combustible external cladding removal in conjunction with enhancements of the building’s active and passive fire safety systems proportionate to the risk exposure presented by combustible external cladding.”

At the very least, this heavily emphasises a ‘holistic’ approach that takes into account all active and passive fire safety features at a property, rather than only focussing on the type and combustibility of cladding products present and the fact they are banned or non-compliant products.

Table 2 on page 5 of the CRMF sets out potential actions for cladding risk remediation based on the cladding risk rating category, and even for “Unacceptable” risk it does not necessarily mandate full replacement of all combustible cladding on the building.

There is also section 3.6 of the CRMF that states that an MBS “should consider” issuing a “letter of action” to the relevant owner or Owners Corporation before issuing an enforcement instrument (such as a Building Notice or Order), or where such an instrument has already been served, before taking any enforcement action on it, so as to:

  • alert the Owners to the Guideline and the CRMF; and/or
  • advise on the suitability of any Remediation Work Proposal that may have been put forward on behalf of the Owners or by the CSV prior to that date.

Again, this demonstrates that the expectation is that an MBS will adopt potentially a more symbiotic relationship with affected owners and the CSV in relation to the formulation of a Remediation Work Proposal to resolve the issues. 

Written By Justin Cotton, Director, Lovegrove and Cotton Construction and Planning Lawyers

References

[1] The Cladding Risk Mitigation Framework is available at: https://www.planning.vic.gov.au/guides-and-resources/building-policy/building-reform/Cladding-remediation-partnership-program

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.

For further articles on cladding, please refer to:

Due Diligence for Registered Certifiers with Emphasis on Combustible Cladding and Performance Requirements under the Building Code

Appealing Cladding Related Notices and Under the Building Act 1993 (Vic)

How to Respond to Cladding Rectification Notices and Orders in Victoria

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.

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A building surveyor is a statutory officer, whose job description is enshrined in building statutes such as the Northern Territory and Victorian Building Acts.

In some jurisdictions they bear different vocational titles such as an accredited certifier in NSW or a private certifier. In other countries they are called building officials.

In Victoria and NSW, one has the choice of engaging a building surveyor from either the private sector or a municipal authority. In Victoria once engaged they become the relevant building surveyor or the abbreviated term the ‘RBS’.

Building Surveyors have carriage of the building permit delivery process. They issue building permits and carry out mandatory inspections during the building process and ultimately issue occupancy permits or certificates of final inspection (in the case of renovation or alteration building works), when the work is fit for occupation.

When can a building surveyor issue a building permit?

In Victoria, the relevant building surveyor may issue a building permit according to section 16 of the Building Act 1993 (Vic). There are are a number of instruments/requirements for a successful application:

  • A Planning Permit for the site must be acquired.
  • The calculated Building Permit levy must be paid, in accordance with the project size and class.
  • Any required consent from a reporting authority is received.
  • If protection works is required, they have been complied with.
  • Plans in an acceptable format are received and considered. More on these documents can be found in the Building Regulations 2018 – reg 25: Application for permit to construct or alter a building.

In Victoria, a building permit cannot be issued if a planning permit has not been issued.

Great care must be taken by the building surveyor when checking plans

There is Victorian Supreme Court authority that brings home this point. Justice Eames made this clear when discussing this statutory responsibility and the term ‘condescend to the minutiae’ was born.

“it is beyond argument that a surveyor charged with statutory and contractual responsibility for examining plans for compliance, and being well paid to do so, is being called on to apply an expertise which condescends to examine the minutiae of plans, so as to detect error, and ambiguity which might reasonably produce error by those who will subsequently rely on those plans”. [1]

Victorian building surveyors carry out statutory mandated inspections

In Victoria there are four universal mandatory inspections per regulation 167:-

  • Prior to footing placement
  • Before pouring in situ concrete
  • Completion of frame
  • Upon completion

In the case of class 2, 3, and 4 buildings, the regulation 172 prescribes additional inspections, between the frame and completion inspections. Regulation 169 also mandates additional inspections of the construction of a swimming pool or spa, which includes an excavation inspection and a final pool barrier inspection.

Further information on these inspections is available in the VBA Building Practice Note M1-01 [A].

When the work is completed, the builder has to notify the RBS. The building surveyor conducts a final inspection. If satisfied that the building work is fit for occupation, the RBS issues an occupancy permit. If the work involves renovations or alterations to a building the RBS issues a certificate of final inspection.

The significance of the occupancy permit cannot be underestimated as it:-

  • allows for the lawful occupation of a building
  • and provides the evidential trigger or start date for the 10 year liability period. 10 years after the occupancy permit or certificate of final inspection is issued the plaintiff, save for very limited exceptions, will be barred by statute from initiating a ‘building action’.
The 10 year liability period acts like a “guillotine” when barring building action

In Victoria building surveyors can obtain compliance certificates from prescribed building practitioners

Building practitioner is a defined term under the Building Act 1993.

Section 238 of the Victorian Building Act allows a building surveyor to get a compliance certificate from a registered and prescribed class of building practitioner, that certain works comply with the regulations. Building surveyors can delegate inspections to registered building inspectors. Building surveyors can delegate inspections to registered building inspectors.

If the reliance upon the compliance certificate is in good faith, the RBS will be exonerated from any liability that flows from that which is certified. Regard must be had to the good faith requirement; reliance upon compliance certificates as a good faith defence is not a given. There is Supreme Court authority where it was found that good faith reliance was not applicable to the facts at hand.

Enforcement

Building surveyors are statutorily responsible for enforcement and compliance, this is a key part of their raison d`etre (for those that can`t converse in French ‘reason to be’).

They can issue:-

  • Building notices.
  • Building orders.
  • In Victoria, municipal building surveyors can issue emergency orders.
  • If a private building surveyor issues a building notice and in a matter of non-compliance with that notice, issues a building order and the respondent refuses to make good that which is required under the order, the RBS must then notify the Victorian Building Authority.

There are statutory conflict of interest provisions, that prevent building surveyors from ‘wearing more than one hat’, as it were

Conflict of Interest

In Victoria the conflict of interest provisions are found in section 79 of the Building Act 1993.

What building surveyors are not

Building surveyors are not a panacea for everything defective.

Take for instance the Building Act 1993 Section 46 states that:-

An occupancy permit is: “evidence that the building or part of a building to which it applies is suitable for occupation… but is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations”. 

Nor are building surveyors ‘arbiters of good taste’

Nor are building surveyors ‘arbiters of good taste’.

Senior Member Davis stated in a 2004 VCAT case:-

“The role of the Building Surveyor/Building Inspector is outlined in the Building Act and Building Regulations. A Building Surveyor/Building Inspector is not engaged to design, construct, project manage, act as a site foreman, clerk of works, supervisor for any part, of any construction process. [2]

The Building Surveyor/Building Inspector does not have any ‘overriding duty’ but has a specified, finite responsibility to ensure compliance with the minimum standards of the Building Code.” [3]

In like vein, more recently Member Nash in Galea v Silverline Homes Pty Ltd [2022] 1368 stated that:- [4]

”It is not the role of the RBS to ensure that each and every element of construction of a dwelling at each stage, complies with the BCA. It is not a supervisory role in that regard. This is particularly the case when there are only 4 mandatory inspections to be undertaken. Any additional inspections would be an additional cost to the owner, substantially increasing the costs of construction. Further, such a supervisory role would result in a RBS taking on the roles and responsibilities of the builder.”

This case is instructive as it is illustrative of a misunderstanding that is harboured by some that the building surveyor is ‘a man for all seasons’; a ‘cure all’ for everything defective. 

A building surveyor is not a “man for all seasons”

The vocational responsibilities and liabilities are curtailed to certain statutory remits and as the said case illustrates, building surveyors are not site supervisors, nor are they superintendents of works.

A misapprehension of their statutory remit often leads them to being incorrectly joined as co-defendants on the basis that they bear a greater burden of responsibilities than they do.

This is unfortunate for a variety of reasons:-

  • They find themselves joined in legal proceedings on spurious and misconceived grounds.
  • This then forces them to claim indemnity to ensure that the case is defended.
  • Which can impact upon the price of premiums going forward.
  • Sometimes creates false hopes for ambitious plaintiffs.
  • Adds to the stresses that are already on the higher end of the tension barometer of a class of profession that is in danger of losing critical mass.
Stress Barometer

Absent a critical mass of certifiers within local government there will be sufficient private building surveyors to absorb the work load that exists in the building industry.

References

[1] Toomey v Scolaro Concrete Constructions and Others (No.2) [2001] VSC 279, para 311.

[2] Lewis v Threadwell [2004] VCAT 547, para 138.

[3] Lewis v Threadwell [2004] VCAT 547, para 132.

[4] Galea v Silverline Homes Pty Ltd (Building and Property) [2022] VCAT 1368, para 45.

Footnotes

[A] Note however that these notes are guides and not statutory.

Lovegrove & Cotton: Leaders in Building Practitioner Advocacy

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex jurisdiction, feel free to contact our practice manager and construction and planning lawyer, Tsigereda Lovegrove.

Click here to learn more about Lovegrove and Cotton and practitioner advocacy. Follow the below links for further articles:

Prosecutable Offences Under the Building Act 1993 (Vic)

The Duty of Care of Certifying Authorities to Owners of Residential Buildings: How Far Does it Go?

Building Surveyors are not Arbiters of Good Taste

Victorian Building Surveyors Powers to Issue Building Notices and Building Orders

Due Diligence for Registered Certifiers with Emphasis on Combustible Cladding and Performance Requirements under the Building Code

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.

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With the advent of private building surveyor or certification services over the last 20 or so years, we have seen private practice building practitioners armed with the status of public officials making regulatory decisions to uphold the ‘public good’ of community standards.

It is self-evident that when a private certifier or building surveyor is performing their functions their true client is the public or the community, which has an interest in the maintenance of safe and reliable building standards. This is despite the fact that the commercial client is an owner or developer who is faced with the imperative of building as quickly and cheaply as possible.

Given the importance of the building surveyor for issuing commencement and completion approvals, the building surveyors themselves evidently need a system that regulates their conduct and ensures appropriate standards are adhered to. Disciplinary powers are therefore also required in order to police the standards.

Could it be that in the drive to maintain community standards, some decision makers are losing sight of the key demarcation between professional error on the one hand and professional misconduct on the other? There is or should be a distinction between the two, and the judgment of the trier of the fact should be cool and reflective before there is any decision made that the line has been crossed.

There is case law in different States and Territories relating to building surveyors or certifiers, and the principles applied in one jurisdiction will be persuasive in another. In fact, the principles applicable to different professions (not just building) can be apposite in all areas of professional misconduct advocacy.

This is because all professional misconduct findings must be sourced in a decision by the fact finder that they are “reasonably satisfied” that misconduct has been proven against the practitioner, so that an adverse disciplinary finding can be made against them. This is a higher standard of proof than the usual civil standard in contract or negligence disputes, where you simply have to prove your case to the threshold of “more likely than not”.

In professional misconduct however, because of the severe reputational and potentially financial consequences to a person and their career, the higher standard of proof of “reasonable satisfaction” is needed before the person should be found guilty. This is not as high an onus as the level of “beyond reasonable doubt” found in criminal trials, but is still a high threshold that leaves little room for grey areas. Interestingly, the standard of proof for misconduct charges was initially set down in a case examining marital misconduct (or ‘adultery’) in the late 1930s, being the case of Briginshaw v Briginshaw [1938] HCA 34.

There is also case law in different Australian jurisdictions making a demarcation between professional negligence or errors on the one hand that should not amount to an adverse disciplinary finding, versus more significant and severe conduct that could or should amount to such a finding.

In a NSW case early in the third millennium, the judge made some instructive observations about differentiating incompetence from an adverse finding.

“It is a familiar aspect of the law relating to professional discipline that a distinction is drawn between incompetent conduct that, though careless and negligent, is not so objectionable as to warrant an adverse disciplinary finding and on the other hand incompetent conduct which is more serious and warrants an adverse finding.”

This writer submits that while some charges will be more clear-cut against a building surveyor, some other charges will be predicated on the building surveyor having allegedly exercised their discretion unreasonably or unprofessionally. It follows that it is the practitioner’s statutory discretion, after they have appropriately conducted the professional assessment for themselves, that is being impugned. That professional discretion is not without limits and can be questioned on a technical level; the problem is where there are ‘grey areas’ where reasonable and qualified minds can differ.

For example, in Victoria an offence of having issued a Building Permit where the Building Surveyor could not have been satisfied the building works would comply with the Building Act 1993 and the regulations, or where the Building Permit was clearly inconsistent with the Planning Permit, could in some instances be quite easily made out as a breach of section 24 of the Building Act 1993.

On the other hand, charges that are based on alleged breach of clause 1502 of the Regulations (ie failing to perform work “in a competent manner and to a professional standard”) are obviously more ephemeral or discretionary when it comes to the trier of fact evaluating whether a charge is made out on the facts.

One should not forget that the building surveyor too is entitled to a professional discretion. Where the charge itself is saying or implying that the professional discretion was exercised unreasonably, then it is the writer’s view that this needs a high threshold to be reached before a finding of guilty should follow. Something akin to a decision that no properly qualified building surveyor in this situation acting reasonably should have come to the same decision.

Not every instance of incompetence or error is tantamount to unsatisfactory professional conduct or professional misconduct

In other words the disciplinary tribunal would need sound and reliable evidence before disturbing the practitioner’s discretion and saying it was unreasonable.

Further to that, it is the writer’s contention that not every professional error that is made out should necessarily amount to an adverse disciplinary finding against the practitioner. All professionals are human and from time to time administrative or other failings will come to the fore.

To err is human, but something higher than any professional mistake is needed before a misconduct investigation or finding should follow. An absolutist position is not what is needed in order to afford sufficient protection to the public.

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: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

How to respond to building practitioner disciplinary action

What to do when your building practitioner’s licence has been suspended

Building misconduct investigations – pleas in mitigation – golden rules

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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When a Registered Building Practitioner (RBP) receives a notice from the Victorian Building Authority (VBA) that he or she has had their building practitioner licence suspended or cancelled, the RBP will need to act immediately as there is a 28 day appeal time period under Section 185 of the Building Act 1993 (VIC).

In most circumstances, the RBP has a right, upon receipt of the notice of suspension or notice of cancellation of their building practitioner licence, to have the decision reviewed by way of:-

• Internal review through the VBA; and/or
• Appeal to the Victorian Civil and Administrative Tribunal (VCAT).

If the RBP is a “directly affected person” under the act, the RBP will have 28 days to file the application for internal review with the VBA and 14 days after the end of the internal review period to file a review with the VCAT (Section 186(4)(a)). If the person wishes to directly apply to VCAT and not apply for internal review, they have 28 days from the date of the reviewable decision to apply to VCAT (Section 186(4)(b)). Accordingly, one must act quickly and the RBP’s suspension will not be lifted during the review period. Accordingly, the RBP should be aware that he or she cannot undertake building works pursuant to the suspended registration during this time.

Further, if the notice of suspension was determined by the Chief Commissioner or CEO of the VBA then the only review opportunity of the RBP is to apply to the VCAT; the internal review option will not be available.

An RBP who has received a notice of suspension or notice of cancellation of their building practitioner licence from the VBA would be well advised to engage a construction law expert experienced with practitioner misconduct advocacy. The requisite appeal instrument will need to be very carefully drafted as it needs to include all the relevant information for the VBA to review the reviewable decision. Legal representation is permitted for the RBP whether he or she elects to give written or oral submissions for the review.

By virtue of the fact that the suspension of a building practitioner’s registration can destroy that individual’s reputation and livelihood and potentially generate a litany of contractual repudiations, it is critical that the building practitioner deploy a construction law and practitioner law advocate immediately and close and careful regard must be had to the statutory review time limits. Note that once a registered building practitioner is suspended then he or she will in all likelihood be unable to complete any residential building contracts that may be on foot particularly in circumstances where the building practitioner is the RBP registered with a company. To say that the consequences of suspension are dire would be an understatement.

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: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

What to do when your building practitioner’s licence has been suspended

Building misconduct investigations – pleas in mitigation – golden rules

What is the legal test for a finding of practitioner misconduct in Victoria and NSW?

Lovegrove & Cotton are experts in construction law and building practitioner representation in Melbourne, Sydney, the ACT and Queensland. Adjunct Professor Kim Lovegrove MSE, RML is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for over fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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