The Role of the Building Surveyor

One of the aspects of a private building surveyor’s role with respect to a lapsed building permit is proving vexing. It has to do with a building surveyor’s engagement, the potential factors that suggest the end (if any) to that engagement, and how closely the building surveyor’s role is tied to the initial Building Permit that he/she has issued. As is clear, Building Permits are only current for a finite point of time, and works under each Permit must be completed by a certain date.  Could it be that when a Building Permit has expired (or “lapsed”) that this brings about the end of the building surveyor’s engagement?

Building Permits will specify a commencement date and completion date for the building work and specify the mandatory inspections. The period of time to complete works under a Permit for a class 1 or 10 building is two years, and the Building Permit will lapse if the building work has not commenced and been completed within the relevant periods.

Prior to lapse of a Building Permit, the owner of the land may seek an extension of time to commence or complete the works, and that application must be made to the Relevant Building Surveyor (RBS) who approved the Permit. The RBS then has a discretion to grant an extension if the extent of the works so warrants this, and any refusal by the RBS to grant the extension may be appealed to the Building Appeals Board.

Building Permits lapse when a building project remains idle and building work is not carries out on the site. It is suggested that good practice for a Building Surveyor would be to have a “bring up” diary system so that they can warn owners of the pending expiry date.

If a Building Permit lapses, no further building work can be carried out until a new Building Permit is issued, as any building work carried out during the hiatus will not come within the jurisdiction of the original Building Permit.

Is the role of a building surveyor terminated if the Building Permit lapses?

Significantly, where a Building Permit has lapsed, the original Building Surveyor (RBS) remains responsible for enforcement at the site. In other words, their role is not terminated, merely because the Permit has lapsed. Authority for this is found at section 81 of the Act which states that: the appointment of a private building surveyor under this Part cannot be terminated without the written consent of the Authority (ie the Victorian Building Authority).

An application must be made by the owner (or the owner’s agent) to obtain a new Building Permit in relation to any building work not commenced or completed. That application must be made to the original Building Surveyor, unless an application is made under section 81(1) to the Victorian Building Authority for the Authority (“the VBA”) to consent to the Building Surveyor’s termination.

If building work in respect of which a private building surveyor (the RBS) is appointed is terminated before commencement or completion, the owner of the subject land must notify the VBA and the relevant Council of the termination of the building work – see section 81(2) of the Act.

Therefore, a Building Surveyor’s engagement may be deemed to be terminated under section 81(3) if the building work for which they were appointed has been terminated before commencement or completion. The VBA can then provide written consent to a new private Building Surveyor or a Council Building Surveyor completing the necessary functions.

One should also be aware of the ability of a private building surveyor to transfer their RBS functions for specific works to another building surveyor, provided that the developer/person who appointed the original building surveyor and the new building surveyor to whom the functions will be transferred, both consent to the transfer of functions.  This power is found in section 80C of the Act.  Such a transfer can be for a finite period of time or can be permanently, and notice of the transfer has to be given in writing to the VBA and the relevant Council.

As a general rule only the same Building Surveyor who was initially appointed for the particular work site, can issue a new Building Permit in respect to the same functions for that site. The exception to that is if the Building Surveyor is replaced, with the VBA’s consent, under the provisions of the Building Act 1993.

Do I require a new Building Permit?

It is very important to note that the carrying out of building work that does not occur under the auspices of the Building Permit is illegal building work and cannot retrospectively be approved, as there is no retrospective approval mechanism under the Building Act.

If an application for a new Building Permit is made to complete unfinished works on a site, an entirely new Building Permit application will be required together with plans and specifications for the future works, and certification (for example by an engineer) of any works carried out since the lapse of the original Permit.

It is a vexed area but a “gypsy’s warning” to those practitioners who consider that their role has ended at a site just because a Building Permit has lapsed. In fact, the original Building Surveyor remains responsible and if necessary should be willing to use enforcement powers, for example a Building Notice or Building Order that compels an owner to make work compliant or demonstrate that work is compliant with the Act and Regulations.

A danger is that if nothing is done, potentially unsafe works could remain in existence, in an uncertified and parlous condition. Furthermore, it will be illegal to occupy the building in circumstances where an occupancy permit has not been issued.

One of the other consequences of lapsed Building Permits, is that if a new Building Permit is not sought after a number of years there may be changes to the building regulations and/or provisions under the National Construction Code. This can often culminate in more onerous conditions being brought to bear, resulting in higher construction costs. We know of instances where this has occurred.

It should be remembered that the enforcement powers for the RBS are found in Part 8 of the Act. If an owner fails to comply with a Building Order issued by the RBS, then the RBS must refer the matter to the Victorian Building Authority for future enforcement, and from that time the RBS’ role is effectively at an end (as far as enforcement under Part 8). This referral must occur within 14 days after the final day for compliance in the Building Order.

For further relevant articles, please see:

What are Building Notices and Orders in Victoria?

This is a Lovegrove and Cotton publication, authored by Justin Cotton. Justin has more than 20 years of construction lawyering.

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