Building Appeals Board Lawyers

Lovegrove and Cotton is one of the oldest dedicated construction law practices in Australia. We have decades of experience in the provision of legal representation in Building Appeals Board (BAB) matters. The firm represents property owners, strata communities and building practitioners.

The BAB is a merits review board comprising the likes of expert builders, engineers, surveyors and lawyers. It is a less formal and faster avenue for the resolution of certain types of building disputes than the Court system.

Such is the unique nature of the jurisdiction, applicants need construction lawyers that command a high level of expertise in the Building Act 1993 and the building regulations. So one looks no further than us, as the firms’ founder was the lawyer that was engaged by the Government as the key advisor on the development of the Building Act. Justin Cotton, has now assumed the reigns as he is preeminent in the State of Victoria in representing property owners, builders and practitioners before the BAB.

His expertise is complemented by our other building lawyers who regularly represent clients before the board in relation to:

Appeals against orders served by municipal and private building surveyors.
Cladding related building notices, building orders, and emergency orders.
Directives to fix defective or non-compliant building work.
Building and occupancy permit disputes.
Reviews of council decisions regarding building regularisation.
Matters concerning protection works notices and related disputes.
Fast track BAB applications.

If you are concerned about your options for the review of decisions or are taking a matter to the BAB, call to speak to one of our lawyers on (03) 9600 4077 or email at enquiries@lclawyers.com.au

To access Lovegrove and Cotton BAB articles, go to our e-library or click on the below links:

Aug 28 2023

When a building surveyor (whether private or municipal) considers there to be noncompliance with provisions of the Building Act 1993 (Vic) (“the Act”) or it’s subordinate statutory instruments, that building surveyor may choose to issue a “Building Notice” under s106.[1]

A Building Notice is intended to “start a conversation between building owners and the Municipal Building Surveyor (MBS) about issues identified and detailed in the notice”[2]. Effectively, Building Notices are “show cause notices”, often worded in such a manner that building owners’ are required to ‘show cause’ as to why something should or should not be done – ie: remove combustible cladding from the façade of a building. Building Owners are afforded the opportunity to respond to the notice in writing and within the period of time specified under the notice. Non-compliance or an inadequate response can escalate this to the issuance of a “Building Order”,[3] or on in the most serious cases, an “Emergency Order”.[4]

Our firm is often briefed to address building notices issued by Municipal Building Surveyors for the regularisation of buildings which have been caught up in the combustible cladding ‘rift’.

There are mechanisms under the Act that allow building owners to appeal decisions of a MBS’ if they are considered ‘unfavourable’.

Section 160A Application

An MBS may request that a building owner may make an application for determination in respect of building design under section 160A of the Act. Section 160A reads:

“(1) An application may be made to the Building Appeals Board for a determination that a particular design of a building or an element of a building complies with this Act, the building regulations or any document applied, adopted or incorporated in the building regulations.”

Applications of this kind are assessments of compliance with the Building Code standards to meet minimum benchmarks. In effect, the BAB would act as a peer reviewer, stepping in to the MBS’ shoes to make a decision as to building conformity.

A section 160A application however calls for more “heavy-lifting” as it were, in terms of the standard of proof required to satisfy the BAB in the exercise of it’s discretion, as building owners are tasked with the job of convincing the BAB that the building overall complies with the Building Regulations as well as having to deal with potential cross-examination issues that may arise with expert witnesses. The heavy-lifting aspect, as one would envisage, also usually correlates with added costs to bring such an application. Further and among other things, it is a voluntary application by the building owner.

The BAB gives a guide to the the information which should be submitted with a compliance assessment application. This includes, but is not limited to (where relevant):

Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
Recent register search statement (title search) (less than 3 months old) and a plan of subdivision/lot plan;
Details of any proposed performance solution/s;
A report detailing the proposed alternative method (if any) and/or material, prepared by an expert in the relevant field;
Test reports, CodeMark certificates, building product accreditation certificate issued by the Authority;
Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
Detailed work methodology for the proposed alternative method; and/or
Written submissions to describe how the proposed material and/or method of construction meets or exceeds the relevant performance requirements.

Section 160 Appeal

A s160 application is for a determination that a provision of the building regulations does not apply; or applies with the modifications or variations specified in the application.

S160 reads:

“(2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations-

(a) does not apply; or

(b) applies with the modifications or variations specified in the application –

to a building or land specified in the application.”

Filing an application under s160 means you are asking the Board to make a determination that the relevant regulation which prohibits the use of a potentially combustible cladding material either does not apply or applies with modifications. You must satisfy the Board that the provision applying to that building or land is inappropriate in the particular circumstances (s160(2)(a)). [5]

The BAB gives a guide to the information which should be submitted with a modification application. This includes, but is not limited to:

Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
Recent register search statement (title search)(less than 3 months old) and plan of subdivision/lot plan;
Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
Comments from adjoining property owner/s, if affected, for matters that relate to modification of a siting regulation (the siting is where the building will be constructed, which can effect the property’s setbacks from boundaries, fence heights, overlooking/overshadowing);
Details of any proposed measures to mitigate the risk of any adverse consequences of non-compliance with the relevant provision of the building regulations; and
Justifications why the provision of the building regulations applying to the building or land is inappropriate in the particular circumstances or why it is reasonable and not detrimental to the public interest to modify or vary the provision of the building regulations.

Section 142 Appeal

An alternative to the above would be an application to the BAB under Section 142 of the Act which proffers a different method of review.

This section reads:

“(1) The owner of a building or land, may appeal to the Building Appeals Board against—

(a) a decision to serve a building notice on the owner under Division 2 of Part 8; or

(b) the failure within a reasonable time, or refusal to cancel a building notice on being requested

to do so by the owner.“

Section 142 of the Act allows a building owner to appeal to the BAB on the grounds of whether the notice or order should have been issued in the first place or the building or it’s works fall within Schedule 3-Exemptions for Building work and buildings. This, in effect, means that the owner applies to have the councils’ notices and orders set aside if there are lawful grounds to do so.

The prescribed appeal periods under this section are 30 days, pursuant to Regulation 271(1)(o)-(s). This is opposed to seeking a determination that a building complies with the performance requirements under section 160A.

It also means that the burden of proof is flipped onto the MBS who will be tasked with proving why the building is in fact “un-safe” in light of evidence (usually expert witness evidence brought by the building’s owner(s)) that it is not. This is a significantly higher benchmark to meet.

Conclusion

In conclusion, the BAB may issue a determination under the above sections for cladding to remain in its current state without rectification works if it can be shown that those works can fit comfortably within the Act and the Regulations through performance solutions or otherwise, or if the Board is satisfied that the building is not a threat to the safety of it’s occupants.

Every case is heard on its merits and turns heavily on the building owner’s expert evidence. In a recent case our firm has been involved in, it was the recommendation of the expert fire engineer that partial removal of the cladding façade be replaced with non-combustible material as that would bring the risk profile of the building down significantly to meet the requirements. Electing to use experienced construction lawyers to provide advice during your application to the BAB is prudent in saving time, money and increasing your chances of a positive outcome.

This is a Lovegrove and Cotton publication.

For related articles on cladding please see:

How to Respond to Cladding Rectification Notices and Orders in Victoria

Full Replacement of all EPS Cladding on Apartment Buildings may not be Ordered if Performance Based Solutions are Satisfied

Appealing cladding related building notices under the Building Act 1993 (Vic)

Cladding safety Victoria funding and demands for cladding regularisation – the interplay

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 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.

[1] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s106.html

[2] https://www.vba.vic.gov.au/cladding/building-rectification

[3] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s111.html

[4] http://www5.austlii.edu.au/au/legis/vic/consol_act/ba199391/s102.html

[5] https://www.buildingappeals.vic.gov.au/how-to-commence-a-proceeding/modification-and-compliance-assessment-proceedings

[6]https://www.vba.vic.gov.au/__data/assets/pdf_file/0019/123058/Cladding_guide_to_councils_medium_risk_buildings.pdf

Filed Under: Articles Tagged With: 142 appeal, 160 appeal, 160a application, appealing cladding building order, appealing cladding notices, building act lawyers, building dispute lawyers, building dispute resolution, building disputes, building order, construction dispute resolution, construction dispute resolution lawyers, construction disputes, construction lawyers, municipal building surveyors, resolving building disputes, show cause notice cladding notice, show cause notices

Jul 18 2023

^{Building Defects in Apartment Buildings in Victoria: You Don’t Have to Fight the Battle Alone}

If you are a private apartment owner in a residential building administered by an Owners Corporation and you become aware of water ingress that affects either the common property or your private lot (apartment), it is critical you are aware of your rights.

It is critical that a comprehensive building consultant report is obtained first to identify the nature and probable causes of the defects, and the best options to rectify the problems.

A frequently encountered building defect with apartment buildings is that of the inadequately waterproofed or “leaky” balcony. Water entry can then occur into apartments, and quite possibly a neighbouring Unit rather than the one to which the balcony connects. This can then lead to disputes between private Owners and not only water entry into your apartment, but possibly someone else’s.

The nature of residential apartment complexes is that a problem encountered in one part of the building is likely to be discovered in another part, or throughout the building. There will likely be building defects (poor workmanship or materials) affecting private and common property throughout the building.

Consequently, it is nonsensical to expect a private lot owner to “go it alone”. Nor should they have to run up against an obstinate Owners Corporation Manager who insists that private lot owners fight their own battles. This is not how such building defect cases are run in Victoria.

In fact, the way these building defect cases are generally run is by having the Owners Corporation (as a collection of the private lot owners acting in concert) as the first plaintiff or applicant in regard to any defects sourced in or affecting the common property. The proceeding then also includes those private lot owners who wish to join the proceeding as affected owners who become co-plaintiffs / co-applicants, so that the legal case is effectively run as a “class action”.

The rationale for this is quite simple. The Owners Corporation is effectively the owner of the common property and responsible for administering the same, and therefore only the Owners Corporation as a collective whole has legal standing to sue for defects that affect (or arise in) the common property. Whereas only the private lot owner of an apartment has legal standing to sue for compensation for defects located in their private lot or affecting the same.

Pursuant to section 4 of the Owners Corporation Act 2006 (“the OC Act”), the Owners Corporation is responsible to manage and administer the common property and also “to repair and maintain” the common property and the chattels, fixtures, fittings and services related to the common property or its enjoyment.

This responsibility is for the Owners Corporation, not the Manager. The OC Manager is only an agent assisting the Owners Corporation (in an administrative capacity) and should not be making binding decisions on behalf of the Owners Corporation. Therefore, the Manager has no right to tell lot owners that the Owners Corporation will not be taking legal action against the Builder or developer for building defects.

Decisions for the Owners Corporation are made at Annual General Meetings (AGMs), Special General Meetings (SGMs) and at Committee meetings (see section 108 of the OC Act regarding who can call a Committee meeting).

The duty to repair and maintain the common property (as opposed to private property) that is held by the Owners Corporation may include also the need to take legal proceedings for compensation to rectify defects in the common property, ie that are defects arising out of or affecting common property parts of the development.

Depending on the length of time that has passed, the Builder could potentially have a defence that alleged building defects are not caused by the works of the Builder or its subcontractors, but are instead “maintenance” or “fair wear and tear” issues that the OC is responsible for rather than the original Builder.

A common defensive tactic by a Builder or Developer in this situation is to allege a lack of maintenance over the intervening years since completion on the part of the Manager or individual lot owners. They will seek copies of related Owners Corporation records over the years and allege “inadequate maintenance” without properly specifying what the Owners should have taken it upon themselves to do by way of maintenance.

Another tactic commonly encountered is where the Developer retains Unit ownership and therefore Owners Corporation membership, and attempts to stall or shut down any recovery action against the Developer by voting against such measures.

In order to commence legal action against any party, either with or without some affected private Lot Owners, an Owners Corporation must obtain a special resolution of votes approving the legal action at a meeting of the OC. This special resolution must be obtained and duly recorded in writing before the legal action is commenced. A special resolution is 75% or more of the votes based on lot entitlement (see section 18 of the OC Act).

Pursuant to section 74 of the OC Act a Special General Meeting can be called to deal with defined or specific issues. This can be convened by a lot owner nominated by other owners whose lot entitlements total at least 25% of all lot entitlements for the land affected by the OC. Or the SGM could be convened by the Manager of the OC acting on the authority of the Committee or that of lot owners whose lot entitlements total at least 25% of all lot entitlements.

If any private lot owner has concerns about the behaviour of the OC Manager or their decisions about potential building defects, there will be a complaints procedure available under the Rules of the Owners Corporation. Also refer to the OC Act (see s152 and the following sections) in regard to resolution of complaints or disputes by either an internal dispute resolution process or by an external complaint process to Consumer Affairs Victoria (see s160 of the Act).

This dispute resolution process can lead to a conciliation or mediation between, for example, concerned lot owners (or an owner) and the OC Manager and potentially any other lot owners.

Since late April 2017 the domestic building litigation landscape has changed somewhat in Victoria, with the advent of an organisation known as Domestic Building Disputes Resolution Victoria (or “the DBDRV”).

Since that time VCAT will no longer accept an application to resolve a domestic building dispute between an Owner (or Owners) and the Builder, unless the parties have first lodged an application to the DBDRV for a conciliation of the dispute. This requirement will also apply to Owners Corporation building disputes in Victoria.

In practice, this process has been promoted as “free, fast and fair” but while the jury is out on “fair”, and it is arguably “free” if parties elect not to use lawyers, it is not “fast” currently due to the influx of applications and the backlog this has created. It is not uncommon to encounter a delay of up to 3 months from lodgement of an application to the DBDRV and the appointment of a conciliation officer.

Once one of the parties obtains a certificate from the DBDRV that says the dispute is not suitable for conciliation, or a certificate that says that conciliation was attempted and was unsuccessful, then the parties are free to instead file a conventional application to the Building & Property List at VCAT.

Once at the Tribunal, the process becomes a building litigation and the parties will generally use lawyers, but there will be further attempts at mediation before the case proceeds to a final contested Hearing.

This is a Lovegrove and Cotton publication, authored by Justin Cotton.

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 a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.

Filed Under: Articles Tagged With: apartment leaking, building act lawyers, building defects, building dispute lawyers, building dispute resolution, building disputes, common property leak, construction dispute resolution, construction dispute resolution lawyers, construction disputes, construction lawyers, mould from water ingress, owners corporation and leaking water, water ingress

Subcontractor Lawyers

Lovegrove and Cotton have acted for small, medium to large end subcontractors for thirty years in the areas of:-

debt recovery;
security for payment claims;
sub-contractor defence actions; and
front end advice.

The firm has acted for a wide variety of subcontractors including:-

form workers and concreters;
structural;
plumbers;
electrical and air-conditioning contractors;
multinational electrical engineering companies;
small to medium size engineering companies;
signage;
remediation; and
civil works contractors.

The firm has also acted in very high-end disputes for on projects of state significance in both New South Wales and Victoria.

Our founding principal, Adjunct Professor Kim Lovegrove MSE RML wrote the “Subcontractors Handbook to Contract Administration”.

Security Of Payment

Lovegrove and Cotton has many years of experience in security of payment claims and the application of various building and construction industry security of payment legislation in Victoria, New South Wales, Tasmania, and South Australia. The firm has had conduct of high profile cases in Victoria and Tasmania.

The firm also had conduct of the defence of a raft of payment claims made in relation to the Victorian Commonwealth Games Village.

Our firm represents both claimants and respondents: be they builders, property developers, consultants, subcontractors, or the like, with respect to the:-

preparation of claims and payment schedules;
preparation of defences of claims; and
enforcement of such claims via adjudication or litigation.

Our firm also provides regulatory advice for clients on the various security of payment schemes throughout Australia to ensure our clients comply with the requirements of those various schemes.

Justin Cotton can be contacted to assume conduct of your security for payment matter by emailing enquiries@lclawyers.com.au.