LC Lawyers

The enforcement of building compliance and standards in Victoria involves a range of statutory authorities and is effected by a range of statutory processes. 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” and thereafter a “Building Order”, in the most serious cases, certain building surveyors may issue an “Emergency Order”. This article discusses appropriate approaches to dealing with these situations and stands as a pertinent reminder as to why owners, building practitioners and other industry stakeholders should do their level best to avoid any circumstance that could give rise to the issuing of a building notice, building order or emergency order.

Statutory authority to issue notices and orders

In Victoria the relevant building surveyor has the power to issue building notices and building orders under the Act. The building surveyor can either be a council building surveyor or a private building surveyor.

As touched on above, there are three key types of enforcement instruments (amongst other powers available to statutory authorities under the Act):

  • Building notice
  • Building order
  • Emergency order

Private building surveyors (PBS) can issue building notices and building orders. They do not have the power to issue emergency orders. That statutory power is the exclusive remit of the municipal building surveyor.

If a notice respondent fails to comply with a building order issued by the PBS, the PBS must refer the matter to the VBA and have nothing further to do with the matter. The VBA will then assume the compliance jurisdiction

When are building notices and orders issued?

Notices and orders will be issued when the respondent has breached a provision of the Act.

A typical but not exhaustive list of breaches are:-

  • Carrying out work without a building permit
  • Carrying out work that is at odds with the approved use of the building permit
  • Failure to comply with a building notice
  • Safety measures have been neglected and not properly maintained
  • In the case of an emergency order the carrying out of work, or occupation of the building, is dangerous or ruinous and poses a threat to life or limb

Ordinarily, a building order will be issued after a building notice. Emergency orders do not require a building notice to have been issued.

Who can the notices and orders be served on?

The person in charge of the site which could be the builder, the contractor or the owner or all of the above. Parties should be mindful of which particular actor a building notice or order is directed to, as there must be relevant authority to respond and make submissions, lest an offence crystallise under the Act.

Building Notices

Building Notices are effectively show cause notices (they are often worded such that a recipient is required to show cause why something should or should not be done) and afford the recipient the ability to respond to the notice in writing, within the period of time specified in the notice.

The RBS will have the discretion to either decide that the answers to the show cause notice are satisfactory, in which case the notice can be withdrawn. If the RBS is not satisfied, they may “up the ante”, as it were, and issue a building order.

Building Orders

Parties should do all they can to avoid being issued a building order. These instruments are very serious, and noncompliance crystallises an offence under the Act. Building orders are generally more resolute than building notices and command the recipient to take certain action by a certain time.

Appeal Rights

If a respondent wishes to appeal a building order the Building Appeals Board (BAB) is the appellate jurisdiction. There are a range of ways to appeal a building order or notice to the BAB.

If you are served with either a building notice or order what should you do?

If you receive one of these instruments, take the matter incredibly seriously. Time will run from the date the notice or order is issued. Whilst a notice does not necessarily require a response if the recipient accepts the proposed requirements, a failure to comply with a building order will culminate in risk of serous fines and convictions and in certain instances forced demolition.

For noncompliance with a building order, the fines in the case of natural persons are very high and in the case of corporations much higher.

  • Natural person fine being 500 penalty units ($96,155.00 as at December of 2023)
  • Corporation fine being 2500 penalty units ($480,775.00 as at December of 2023)

It is the writers’ recommendation that a construction lawyer well versed in the intricacies and application of the Act be retained from the get go to assist with the regularisation of matters at hand. Furthermore, this firm typically recommends the retention of a consulting building practitioner, be it a building surveyor or a fire engineer. Reason being the solutions do in the main require a technical dexterity.

Sometimes it will be close to impossible to comply with the time frames articulated in a building order, in which case the respondent should apply for the order to be extended prior to the compliance deadline. The RBS in the writers’ experience will typically entertain an extension as long as the grounds for that accommodation are sound and in good faith. Generally, if a recipient can show they are making good progress to regularise matters and taking the matter seriously, the private or municipal building surveyor will afford some flexibility.

Building orders require compliance by the deadline outlined in them. If the respondent fears, or is on notice, that an extension will not be forthcoming then it is paramount that the respondent lodge an appeal with the Building Appeals Board.

It is also very wise for the respondent to, as far as practicable cooperate with the responsible authority mindful of the fact that in circumstances where there has been a breach of the Building Act a prosecution may ensue. Councils do not always prosecute breaches but their resolve will no doubt harden if the respondent is indifferent or opposed to regularisation of matters that are at odds with the legislation.

Further, if a recipient fails to comply with a building order but has done everything reasonably practicable to regularise matters, even if a prosecution eventuates, if the respondent is therefore able to depose that matters were dealt with in good faith and with alacrity, then the Magistrate will be more likely to factor this in as being a positive, in deliberations over penalty.

Conclusion

If you are issued with a building notice, it is important you speak to a construction lawyer. If you are issued with a building order or emergency, it is absolutely essential you speak to a construction lawyer. Regardless of what stage you are at, considered advice will be important having regard to all of the circumstances of the specific case.

Lovegrove & Cotton Compliance and Regularisation Lawyers

For thirty years, Lovegrove & Cotton have provided advice and represented property owners, builders, and building practitioners in building and planning regularisation matters. Please see our building regulatory compliance 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 other Lovegrove & Cotton articles on notices and orders, see below:

Building Notices and Orders: The Regularisation of Non-compliant Building Work in Victoria

Building Act prosecutions, Regularisation of Non-Compliant Building Work and Effective Plea Bargaining

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 construction law firm. Lovegrove & Cotton Lawyers and our experienced team will assist you based on the facts and circumstances of your case.

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The law is not that mysterious a discipline; by and large, when a decision is handed down, the reasons expounded for loss and victory are based upon common sense and logic. The loss is thus rarely attributable to the fault of the decision maker as his or her judicial mandate is limited to digesting the facts, listening to the arguments, and then following the precedents to divine the judgement. Sometimes decision makers of first instance get it wrong, but the wrong is typically righted on appeal.

So why do litigants lose building cases? Why do some lawyers proceed to trial in circumstances where both parties are confident of victory yet both opponents are mindful of the fact for there to be a victor there will have to be a loser?

Building disputes are invariably characterised by:

  • defective building work
  • time overruns
  • overpayments or cost overruns
  • monies being owed to builders and contractors

As building disputes are so very technical in nature, it follows that the role of the expert witness is paramount. A lawyer is not qualified to inspect and diagnose the cause of construction failure. It would be negligent for a construction lawyer to presume in such matters, and he or she would not be indemnified by an insurer for venturing into the expert witness terrain.

So there is a case to argue that the role of the expert witness in a construction dispute is even more impactful than that of the lawyer. The lawyer after all, in getting a case trial ready, provides the theatre for the experts to persuade a decision maker that their technical diagnoses and costings are more compelling than those of their opponents. Sure there might be legal arguments concerning contractual interpretation and repudiation, but it is the technical diagnostics that tend to shape the size of the award for quantum.

So one’s choice of technical expert is very, very important. This being the case, when one engages a technical expert, it is crucial to look for:

  • someone in possession of the relevant skill sets, be they costing, engineering, construction or design.
  • an expert with whom one is familiar with; a person that is held in high esteem.
  • integrity, candour and a spine – no one likes surprises, so it’s not about the expert telling you what you want to hear. One needs the truth, which may not always align with that the client’s position. Hence you need an expert who can stand up for him or herself, won’t be led and backs a position.
  • eloquence, as the expert has to be persuasive in the giving of expert opinion.
  • unflappability, as expert witnesses will be subjected to the blowtorch of cross examination where the opponent will seek to discredit and sometimes humiliate the expert to nullify the effectiveness of the testimony.
  • experience giving testimony in court; the court is no place to “road test”.

Alas, unless one has a “road tested relationship with an expert” the only way one can locate experts of higher calibre is by way of word of mouth. Otherwise it can be tantamount to a lottery, because there is no expert accreditation or registration regime. Expert witnesses are not found in the categories of building practitioner registrants, so they do not come under the jurisdiction of any oversight body like the VBA. Unlike lawyers and doctors, there is no ability to strike an expert off the roll, because there is no roll.

Furthermore there is no recognised qualification in expert witness testimony, nor is there any requirement by law that they be insured. If a lawyer is negligent in a building case, regardless of whether it is due to an overreliance upon expert evidence or other factors, the aggrieved knows the solicitor by law is required to be insured. No such luck for the aggrieved with the expert.

Troublingly, in 30 years of practice, during which time the writer has been involved in thousands of building disputes, the writer has never witnessed a plaintiff expert agreeing with a defendant expert on diagnosis and costing. The writer is not going to speculate on the reasons for the divergence, but the contrary nature of expert evidence has become part of the DNA of building disputes. This is a very serious problem in the dispute resolution dynamic. The inability of the system to facilitate expert opinion convergence of opinion is, in this writers view, the greatest factor that influences the winning or losing of cases. 

Choosing the right lawyer

Although there are specialist construction lawyers, some legal generalists take on briefs that are well outside their comfort zone. Unfamiliar with the relevant statutes, case law and contracts and lacking intel regarding where to find the best technical expertise, non-specialist lawyers can flounder. This is particularly true when they come up against a seasoned and battle hardened construction lawyer. 

But even if one chances upon a construction law expert, it is critical that the client provides accurate and comprehensive instructions. It is equally critical that the lawyer, flanked by the expert witness, provides a very candid risk assessment in writing of the strengths and weaknesses of the case. A failure to risk proof the case can culminate in unsatisfactory outcomes.

Insurers, sometimes known as professional litigants, always insist that their lawyers as soon as practicable provide a written legal opinion that clinically and dispassionately analyses the liability risks and the quantum. Typically an insurance letter of advice template will have the following headings:

  • Facts and Chronology
  • Liability and Indemnity
  • Quantum
  • Best case Scenario
  • Worst Case Scenario
  • Likely Scenario
  • Reserve

The reserve will be calculated on the basis of the likely scenario.

The letter of advice will be updated regularly and any changes to the risk profile of the file will be factored into the advice. This type of rigour is conducive to no surprise litigation and assists with formulating of settlement offers. 

Emotion and false hopes

Litigation is by definition emotional and stressful, but emotion cannot be allowed to affect decision making, nor can ill-temper or anger, as these emotions can cloud one’s vision.

For the plaintiff, litigation is by and large about getting paid an amount of money that will place them in the position they should have been if matters hadn’t gone off the rails. Typically this will mean receiving a sum of monies that will fix defects and resolve associated expenses whilst spending as little money as possible. It’s pure mathematics.

For the defendant, in many instances the reality is that it’s about paying out as little money as possible, period. There is no largess in construction litigation, no generosity and there are no windfalls. So if a litigant thinks they will get a windfall by bringing pressure to bear upon the lawyer to tell them what they want to hear rather than what they will on balance get, the likelihood is that the result will be underwhelming. 

Over the years I have seen a lot of opponents who harbour unrealistic expectations. The truth always plays out in a court of law and the result invariably is close the real cost to fix and or complete, the real cost of delays. There’s no padding and no largess. It is thus incumbent upon the client’s lawyers and advisers to reality test to remove any false hope.

The cost of litigation

Despite repeated attempts by policy makers to reduce the cost of litigation, success has remained elusive. Construction litigation is very expensive and in their determination to spend less, litigants often choose advocates who charge less but at the end of the day achieve less for the clients. The top practitioners generally have a lot of work on and they don’t compete on the basis of fees. Rather, they compete on the basis of expertise.

Furthermore, the litigation team will typically involve a barrister, a solicitor and an expert witness, which costs a lot of money. The often exorbitant costs sometimes dictate that litigants simply can’t continue with their cases and this can culminate in loss, particularly if they are forced to become lay advocates.

A refusal to settle in a timely manner

If the parties can’t negotiate and settle their cases at mediation, they lose the ability to maintain control over their destiny. Once a matter goes to trial and a third party – the decision maker – assumes that control and determines one’s destiny, to the victor the spoils.

When a case is lost, it’s most often because the parties refuse to settle. The refusal would have been based upon underestimating the strength of the opponents case or naivety and insufficient appreciation of the dangers inherent in not settling.

Sadly, there is no silver bullet when it comes to resolving building disputes. If such panacea existed, no one would ever lose a case and trial advocates would be out of work.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Justin Cotton is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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

How do I Resolve my Domestic Building Dispute (in Victoria)?

Compulsory Conferences – Domestic Building Dispute Resolution and the VCAT.

Mediation – Domestic Building Dispute Resolution and the VCAT.

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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Once legal proceedings have been issued in the VCAT for a domestic building dispute, in the overwhelming majority of cases, the tribunal will order that the dispute be referred to mediation.

The tribunal, at no costs to the parties, appoints a mediator. Typically, construction lawyers and or barristers appear at the mediation on behalf of the parties.

Before the mediation takes place, the VCAT will normally make an order that each party must prepare and exchange a position paper.

The position paper will provide a synopsis of that which is in dispute and will have a request for the type of relief the party has in mind.

The position paper is normally prepared by a construction lawyer.

The mediation will ordinarily be set down for a day. The mediator will give each party, through its lawyers, the opportunity to present a summary of their cases.

After the mediator has heard the summary and the position paper oration, separate and private caucuses are arranged with the advocates and their clients.

Sometimes, expert witnesses attend the mediation.

Mediators typically communicate settlement offers and rejections from the parties as they try to move towards an accord.

Successful negotiations, in the writers’ experiences, take the better part of a day, as it can take quite a while to move traditionally intransigent positions.

A successful mediation requires the cooperation of all the parties, a willingness to move and compromise where necessary, and a mutual desire to put the dispute behind one in order to move on.

If the settlement is successful, the terms of settlement will be written up and signed. Terms of settlement must be prepared with the greatest of care, and all matters that are germane to the dispute must be resolved, committed to writing, and ‘ticked off’ as it were. If the mediation fails, there is a high chance that the dispute will ultimately proceed to a full-blown (often lengthy, and always costly) hearing, unless it is resolved at a compulsory conference.

 

Lovegrove & Cotton: Experts in Residential Building Dispute Resolution

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 and Cotton articles on building dispute resolution, please see:

How do I Resolve my Domestic Building Dispute (in Victoria)?

Compulsory Conferences – 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.

Filed Under: Articles Tagged With: , , , , ,

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.

Filed Under: Articles Tagged With: , , , , , , , , , , , , , , , , , , , , ,

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