Ten Point Plan to Fix Building Regulation in Victoria
When you reform an Act of Parliament, it is important to get it right and avoid “tossing the baby out with the bath water.” As in a game of chess, every move must be thought through with due consideration given to likely consequences. This is not entirely unlike the process of drafting a contract for a large commercial building project; every potential contingency has to be factored into the equation.
Access to Seasoned Law Reformers
Seasoned law reformers, who must have a strong track record, be independent, and able to engage with policy makers in a candid manner, need to be engaged.
Broadchurch Consultation is Critical
So too should key stakeholders, who should ideally have a degree of ownership in the process. A case in point was the Building Act, introduced in the mid-1990s. Despite these changes having been the most radical building regulatory changes in history, industry, consumers, insurers, and local government were all “on board” and the legislation passed in a seamless manner with bi-partisan political support.
In terms of specific changes which need to be made, these should be geared around refocusing the Act upon it’s original area of building control. It was never about security for payment, it was about best practice building control.
The Ten Point Plan to Fixing Building Regulation in Victoria
1. Annual Auditing
Auditing building surveyors annually (like some other professions, such as lawyers) with the cost of an independent auditor being borne by individual practitioners themselves.
2. Resuscitate the Building Practitioners Board
Reconsidering the dismantlement of the Building Practitioners Board and asking whether or not it could instead by strengthened by appointing more consumer representatives, beefing up it’s powers, increasing fines, boosting it’s resources and making it truly independent from the VBA.
3. Take-away Alternative Solutions Powers from Private certifiers
Banning private surveyors from sanctioning alternative solutions, re-introducing independent peer review.
4. Fee floor for Building Permit Delivery
Regulating “fee floors” for certification services to ensure surveyors don’t cannibalise each other with underquoting.
5. Improve Access to the Building Appeals Board
Improving accessibility to the Building Appeals Board for home owners and adjoining owners and maintaining a published database of reported decisions.
6. Clear Separation of Council and Private Certifiers Responsibilities
More clearly demarcating the respective roles of local council building departments and private building surveyors in the enforcement of building regulations.
7. Solve the Lapsed Building Permit “No Mans Land”
Clarifying procedures to be followed where building permits “lapse” and defining the role of building surveyors after an Occupancy Permit has been issued (currently a no-man’s-land). The NSW concept of a building certificate ie: the regularisation of non-compliant building work, may be instructive and worthy of consideration.
This mechanism provides the ability to apply to the local council to issue the building certificate if the relevant approvals have not been issued by the building official. The certificate’s effect is to embargo the council from taking robust enforcement action of the likes of serving demolition orders, for a period of 7 years.
8. Improve Product Safety Regulatory Systems
Have regard to the Building Products Performance Good Practice Regulatory Framework published by the International Building Quality Centre and authored by an International team of experts, headed up by Dame Judith Hackitt.
9. Improve the Insurance System
Giving serious consideration to insurance reform and exploring the feasibility of matching the period of Domestic Building Insurance with the 10 year liability cap as currently there is a four year un-insured gap.
10. Strengthen Dispute Resolution Steps Which Provide Better Access to “Main Street Solutions”
Look at legislation to incorporate mandatory mediation in standard building contracts and introduce tribunal appointed independent technical experts to provide non-contentious expert evidence. Please see our other relevant articles on this point here:
Some Ideas on Law Reforms That Could Cut the Cost of Domestic Dispute Resolution in the VCAT
Conclusion
As time goes on, debate surrounding the system and how it can be improved will continue.
Whilst wholesale changes may not be necessary (‘if it ain’t broke, don’t fix it’), there is scope for improvement in current arrangements. The current challenges confronting the VBA and the disenchantment with aspects of the Building Act bear testimony to that.
Opportunities to implement this must be taken. It is submitted that there now exists a law reform imperative.
In terms of looking at ways to reform the Building Act to bring it in line with international best practice, have regards to the IBQC “Principles for Good Practice Building Regulation.” The preamble to the guidelines state:
“To be successful, good practice building regulatory systems highlighted by the IBQC, must not only assure public safety, but must also support two other goals: regulatory efficiency and innovation. Regulatory regimes that are not efficient will encourage industry practitioners with limited budgets and timeframes, to circumvent these systems. New and innovative building technologies can sometimes provide better safety, performance, and lower costs. Regulatory systems that do not accommodate legitimate building innovations become irrelevant. Therefore, good practice regulatory systems must not only provide a very high level of public safety but must also be efficient and facilitate high quality design, system, and material innovations fully compliant with safety standards. Good practice building regulatory regimes therefore, must be a win-win-win proposition relative to safety, efficiency, and innovation.
Those seeking to implement the IBQC Good Practice Principles for Building Regulations will need to have regard to their own circumstances, including the capability and capacity of their country or jurisdiction to enact the required legislation and establish the necessary institutional arrangements to properly support the implementation of all principles; and their building and construction industry participants to meet regulatory requirements and develop their professionalism.“
The authors of said IBQC guidelines are the inaugural board members of the IBQC (the inaugural members have a star-icon next to their name in this link).
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.
