The Building Legislation Amendment and Other Matters Bill 2024 was enacted on 13 November 2024, to amend the Building Act 1993 (the Building Act), the Architects Act 1991 (Architects Act), the Victorian Planning Authority Act 2017 and for other purposes.
The Bill enables building surveyors to issue building orders requiring owners to take any action that, in the opinion of the building surveyor, is necessary to remove or reduce circumstances that pose a danger to life, health or safety. This fills a gap in the Building Act whereby the action that a building surveyor may believe is necessary to address the risk does not fall within the scope of ‘building work’, ‘protection work’ or ‘other work required by the Regulations’.
Emergency orders have broader scope than general building orders and minor work orders as they can require ‘other work necessary to make the building, land or place safe or to secure the building, land or place from access.’ However, the absence of the requirement to serve a building notice prior to making an emergency order means that the power is used more judiciously, and predominantly in instances where a significant or imminent ‘danger to life or property’ exists. As a result, it is generally not suitable to use the emergency order power as a substitute for circumstances where a general building order or a ‘minor’ building order requiring the owner to take any necessary action is appropriate.
The Bill also clarifies the circumstances in which a building surveyor may make a building order for minor work. The prescribed circumstances are those listed in section 106 of the Building Act that are relevant to the issue of a building notice.
Building surveyors play a critical oversight role for the compliance and safety of building work and buildings. To ensure that these professionals can effectively and efficiently undertake their duties, it is vital that the Building Act provides them with the appropriate enforcement tools.
Recent decisions of the Supreme Court of Victoria and the Victorian Court of Appeal, and consultation with local government stakeholders about the experiences of municipal building surveyors, have highlighted a need to improve the Building Act’s building order provisions to ensure that the Building Act’s safety objectives can be achieved.
In particular, the amendments in the Bill support local councils’ effective and efficient administration of their building control functions, through the oversight provided by municipal building surveyors, to ensure safety of the built environment for all building owners, occupants, and members of the public.
The Bill amends the Building Act to clarify that building surveyor functions include any functions conferred on building surveyors by any Acts or regulations (in addition to the Building Act or the Building Regulations 2018).
This amendment clarifies the scope of functions that a registered building surveyor is authorised to carry out, to address a technical gap created by the Building Legislation Amendment Act 2023 (BLAA), which came into effect on 1 February 2024.
The BLAA broadened an existing offence provision in the Building Act to provide that a person must not carry out work that is of a kind prescribed to be carried out by a category or class of building practitioner unless the person is registered, and the registration authorises the carrying out of that work.
The Bill clarifies that authorised work of a building surveyor includes any functions conferred by any other Act (in addition to the Building Act) or any other regulations (in addition to the Building Regulations 2018).
Section 80C of the Building Act enables a private building surveyor to transfer their functions under the Act or the Building Regulations 2018 in respect of any building work for which they have been appointed, to a different building surveyor.
The Bill streamlines arrangements for the transfer of a building surveyor’s functions to another building surveyor by removing the requirement for a transfer form to be provided to the relevant council in order for the transfer to take effect. We have become the primary source of information regarding the transfer of functions.
Previously, a transfer only took effect after a transfer form was provided to both the relevant local council and us. However, it was difficult to determine when this had occurred. To verify whether a transfer had taken effect, we had to manually contact the relevant local council to confirm that they have also received a copy of the form.
More practical provisions are required that ensure that the effective date of a transfer of building surveyor’s functions is clear to all parties involved.
We are yet to enact this legislative change and will communicate with you before this takes place.
The Bill introduces an expiry date to the forms used to prepare plumbing compliance certificates. Plumbers may request a 12-month extension to the expiry date of compliance certificate forms and we will have the discretion to grant that extension.
The Bill will make it an offence to issue a plumbing compliance certificate prepared using an expired plumbing compliance certificate form and introduces a penalty for the use of a compliance certificate that is not for the correct kind and value of plumbing work that it is issued for.
Plumbing compliance certificates provide valuable intelligence about plumbing work in Victoria. Compliance certificates yet to be lodged potentially represent a reduction in our oversight of plumbing work. As there was previously no expiry date, licensed plumbers may never use or lodge the certificates previously purchased.
Compliance certificates are an integral part of the Victorian plumbing regulatory regime to ensure a high standard of plumbing work is maintained throughout Victoria. These changes assist us in overseeing plumbing work across Victoria.
The Building Act requires a property owner carrying out protection work in respect of an adjoining property to serve the owner of the adjoining property a notice of their proposed building work. An owner is expected to take reasonable steps to find the contact details of the adjoining owner in the first instance. Often, the owner or the relevant building surveyor (RBS) will approach their local council to request the adjoining owner’s contact details for the purpose of serving a protection works notice.
The Bill provides a clear authority for councils to disclose the name and address of an adjoining property owner to an owner making a request for that information, for the purpose of facilitating a notice of proposed building works. The Bill improves consistency in councils’ administration of this function by enabling regulations to be made prescribing what information must be provided in an applicant’s request for the adjoining owners contact details.
The Bill includes a regulation-making power to prescribe the information, documents and fees that must form part of information request to council. The Bill also includes a regulation-making power that may prescribe that an owner must give a statutory declaration to a relevant council when making a request for the adjoining owner’s contact details (for example, stating that the contact details provided by the council will be used only for the purposes of serving a protection works notice).
Interstate practitioners must notify us that they intend to work under Automatic Deemed Registration (ADR) and demonstrate that they hold any required insurance. Depending on the type of licence or registration the person holds, this may mean the person must also hold the required insurance or can produce evidence that they are eligible to be insured.
Currently, the person must demonstrate that they meet the insurance requirements until the 12-month anniversary of their registration or licence. This creates challenges when the date of their insurance policy or letter of eligibility does not align with their notification date.
For Victorian practitioners, we can manage this issue by approving periods of less than 12-months at either the initial registration or later renewals. This discretion does not currently exist for ADR practitioners. The amendment extends the discretion currently available to the us for Victorian building practitioners to ADR practitioners.
The changes remove an administrative barrier that may prevent eligible interstate practitioners from meeting Victorian insurance requirements. They make it easier for these practitioners to demonstrate their eligibility to work in Victoria under an ADR license or registration, supporting an increased workforce.
When determining fees under the Building Act for the licensing of any class of building employee, we must have regard to any Ministerial Guidelines on the maximum fees that can be charged. This amendment addresses a gap in the Building Act where the Guidelines can currently set maximum fees for the registration of building practitioners but not for the licensing of building employees.
The Bill also amends the Building Act and the Architects Act to allow us to reduce, waive or refund a fee in whole or in part in prescribed circumstances. The Bill further provides us with flexibility in how they can charge fees, taking into account a range of factors, including the nature of the work to be performed or the value of the work or service to be performed.
The changes provide us with maximum flexibility when analysing potential fee options in the future. Previously, there were limits on the options for prescribed fees, which do not fully enable a user-pays approach to setting certain fees.
This enables us to respond to cases of genuine hardship or administrative error.
