Remedial Powers policy

Purpose

This policy describes the BPC’s approach to the use of remedial directions, notices or orders to bring building or plumbing work into compliance, fix defects or direct a practitioner to carry out their functions.

Scope

‘Remedial powers’ as set out in this policy refers to tools used by the BPC to:

• bring building or plumbing work into compliance with standards
• fix defects or resolve other shortcomings in delivery against contractual obligations
• secure commitments to take specific action, complete work, or stop work.

Broadly, this policy refers to ‘non-compliance’ which is taken to include defective and incomplete work.

Remedial tools may be issued to practitioners (e.g. plumbers, builders and building surveyors), owner builders, and owners or occupiers of a property. In most cases, they are directed to practitioners.

This policy is relevant to employees of the BPC, practitioners, and consumers of building and plumbing services.

Purpose of remedial powers

Remedial powers focus on fixing issues, protecting consumers, and maintaining safety. Where available, they may be applied in place of, or alongside, other measures such as prosecution or disciplinary action.

These tools support compliance by allowing responsible parties to fix non-compliant work and bring it to the required standard, in many cases without disciplinary action being necessary.

A direction, notice or order is issued to the responsible party i.e. licensed or registered practitioners, owner-builders, property owners, or others with legislative obligations to bring work into compliance or take corrective action. Recipients are required to comply with defined actions, in set timeframes.

BPC uses remedial powers to:

• bring building or plumbing work into compliance with standards
• set out practical steps and a timeframe required to bring work into compliance, or to finalise incomplete work
• provide a clear and direct pathway to discipline for non-compliance, for breach of the remedial direction as well as the underlying non-compliant work.

Role of remedial powers

The BPC has a range of powers to educate practitioners, ensure practitioners correct non-compliance and hold practitioners to account, with the aim of ensuring safety, legal compliance, and consistent consequences. In many cases, discipline action may follow from significant non-compliance by registered or licensed practitioners.

Remedial tools differ from discipline as the aim is to rectify or complete work, while discipline addresses the conduct or breach to improve conduct and deter future non-compliance.

The role and availability of specific remedial tools can depend on factors including:

• the type of work
• the seriousness of the non-compliance or level of risk, with priority generally given to significant non-compliance with standards
• timing, including in relation to:
  • building occupancy
  • age of the non-compliant work
• the ability to attribute non-compliance to appropriate parties
• the registration or licence status of the practitioner
• statutory roles of parties in the building regulatory system, and enforcement tools available to them.

Remedial powers can be applied alone or with other enforcement or disciplinary actions. Failure to comply may lead to disciplinary action or prosecution.

Reinforcing the role of other regulators

The BPC operates alongside other bodies with statutory duties and regulatory responsibilities. Its approach to remedial powers accounts for the primary role of other parties in the regulatory system.

For building work that requires a building permit, a Relevant Building Surveyor (RBS) plays a central regulatory role. They ensure that building work complies with all applicable standards, primarily through conducting mandatory inspections and issuing Directions to Fix when non-compliant work is identified. They may also issue Building Notices and Building Orders. This is a primary frontline regulatory role concerned with the remedy of non-compliant building work.

Additionally, local governments, through their Municipal Building Surveyors (MBS), also have a role in ensuring the safety of buildings. MBS have the authority to inspect buildings for compliance and issue Building Notices and Building Orders to address non-compliant work post occupancy. They also issue Emergency Orders where there is a danger to life or property arising from the condition or use of a building.

In the plumbing sector, licensed plumbers are responsible for self-certifying their work by issuing a compliance certificate to the consumer, a process supported by a plumbing insurance scheme.

The BPC’s primary focus is on ensuring the capability, conduct and practices of building and plumbing practitioners, maintaining the integrity and performance of the regulatory system.

When considering the use of remedial powers, the BPC will consider the roles and responsibilities of other parties in addressing non-compliant work. The BPC expects that, in general, these parties will first use their own powers to resolve matters before BPC intervention.

The BPC’s use of remedial tools is intended to:

• support and complement the functions of other regulators
• intervene in cases of priority harm, primarily to resolve significant non-compliances with standards
• act where there are concerns that another party is not adequately discharging their role
• protect the integrity of the regulatory system.

Remedial tools and consumer remedy rights

Many non-compliances relate to services provided to consumers through contracts, for which they have existing civil rights. This means that consumers can seek compensation or remedy by pursuing civil action or engaging with BPC’s dispute resolution services.

The BPC accounts for these processes within its regulatory model. Where:

• a matter does not meet the BPCs risk-based criteria for a regulatory response, it may provide consumers with insurance information to pursue a claim, such as plumbing insurance
• an apparent breach of standards is first raised, the BPC may also expect individuals to attempt dispute resolution with the responsible party, typically the builder
• the BPC may prioritise its regulatory efforts to significant non-compliances, with consumers retaining rights to seek resolution of defects or contractual matters
• it is not possible for the BPC to clearly attribute a non-compliance to a person and there is not a party with statutory responsibility for the work, it may be more appropriate for parties to take civil action to resolve the parties’ dispute
  
• there are ongoing civil proceedings, the BPC may elect not to issue a remedial tool if it could interfere with these actions.

Dispute resolution encourages parties to address defects or agree on specific actions without the need to escalate to formal tools or disciplinary measures. Dispute Resolution Orders or Rectification Orders may be issued to complement or follow conciliation efforts.

Remedial tools and further enforcement

Registered and licensed practitioners are required to understand and comply with the law. To support this, the BPC provides regulatory guidance and education to practitioners to promote voluntary compliance with relevant regulations and standards.

When non-compliance is identified and it is appropriate for the BPC to respond, it may first consider whether there is an appropriate remedial tool available. Where a formal or legal tool is not suitable in the context the BPC may alternatively issue a voluntary formal request to encourage compliance, before progressing to more directive measures.

Failure to comply with a remedial tool is a serious regulatory breach and may result in enforcement actions, including prosecution, injunctions, or disciplinary measures (including suspension of registration). For Rectification Orders, non-compliance with the order without reasonable excuse can lead to the immediate suspension of a practitioner’s registration.

The BPC may decide not to use a remedial tool and instead escalate directly to disciplinary measures in situations involving serious or repeated breaches, or where corrective actions are insufficient to protect the community and uphold industry standards. For example, when there is a lack of confidence that the practitioner is competent to bring their work into compliance.

Formal requests by the BPC

BPC may use formal requests to complement the remedial tools set out in the legislation to resolve matters. Failure to cooperate with these requests may lead to an escalation to remedial tools or disciplinary action, depending on the seriousness of the non-compliance or a practitioner’s history.

Requests within an Inspection report

An Inspection Report is a document provided by the BPC to building and plumbing practitioners after an inspection has been conducted by BPC Authorised Officers. The report summarises the findings of the inspection and outlines any actions that must be taken to resolve identified non-compliances. The required actions are determined based on the level of risk, the parties involved, and the stage of the work.

The inspection report is a tool to provide practitioners with an opportunity to bring work into compliance, maximising industry accountability and consumer protection. It may contain requests to remedy non-compliance or provide information about the state of compliance. Where legislated tools have been issued this will be recorded.

In some inspection contexts, such as where all issues are captured in a specific remedial instrument or enforcement action, only a summary of the attendance and actions will be provided through the inspection report.

Request to rectify (plumbing)

A Request to Rectify (RTR) notice may be issued to licensed plumbers to address non-compliant or defective plumbing work identified by the BPC as part of a desktop assessment, usually in response to a consumer report. The notice details the items that require rectification and the expectation to provide evidence of rectification in the requested timeframe.

A RTR is a tool to achieve compliance and resolve complaints quickly, avoiding the necessity for in-person inspections or for more formal tools such as a plumbing Rectification Notice. It is only issued when a technical assessment of materials provided by the consumer, usually together with the plumber’s compliance certificate, establishes a high degree of confidence that the work is defective.

Remedial tools

Remedial tools are formal instruments, with scope and process defined by legislation. The choice of remedial tool used by the BPC will depend on the stage of the building or plumbing work. For example, preferencing a tool such as Directions to Fix (DTF) to address issues identified before occupancy.

Dispute Resolution Order

A Dispute Resolution Order (DRO) is a binding order issued by the Chief Dispute Resolution Officer (CDRO). A DRO is issued when the CDRO is satisfied that the parties to a domestic building dispute have not resolved their dispute. This can include instances where a dispute has not been resolved through conciliation, was only partially resolved, or a record of agreement was not complied with. It can also be made as a consent order if both parties agree.

A DRO may be used to address issues such as:

• defective domestic building work
• incomplete work and delays
• non-payment
• other prescribed matters related to domestic building contracts.

A DRO can be issued to one or both parties involved in a domestic building work dispute. This includes building practitioners (individuals or companies) and property owners. It may apply to multiple parties simultaneously, such as both a homeowner and a practitioner, depending on the required actions.

DROs against a builder will typically cover requirements to fix defective or non-compliant work, complete domestic building work, pay the homeowner the reasonable cost of a third party to fix defective or non-compliant work, or pay an amount of money to the homeowner arising out of a claim or entitlement under the contract.

DROs issued to a homeowner may require them to pay money owed to a practitioner under a contract such as unpaid variations or stage payments, pay money into a trust fund until work is fixed or completed.

Non compliance with the DRO will trigger a breach notice, which then triggers the use of additional remediation powers of the BPC.

Direction to Fix

Oral or written Directions to Fix (DTF) are issued to a builder (including an owner builder) or, in the case of an oral DTF, the person apparently in charge of the site. They require the person to address non-compliances found during construction (before the occupancy permit or certificate of final inspection).

The RBS has a primary responsibility and statutory obligation for issuing DTFs. They may also be issued by ‘authorised persons’, typically appointed BPC Inspectors. They:

• are issued when an authorised person believes on reasonable grounds that building work does not comply
• are restricted to matters relating to work in connection with the construction, demolition or removal of a building. This can include, in some cases, providing information related to the state of compliance
• can be issued to require building work to be carried out to achieve compliance, or for work to be stopped to allow for proper inspection.

Oral DTFs may be given during inspections for immediate issues and if not resolved, a written DTF follows. However, BPC may issue a written DTF first. Written DTFs specify the non-compliance, outline the required corrective actions, and may require submission of documents or reports to prove compliance. Penalties apply for failure to comply with a written DTF.

DTFs are primarily used by BPC for time critical situations, such as work not in line with the permit or clear medium to high-risk non-compliance by a builder, especially where work is approaching a stage where non-compliance may be covered up by further building work.

In deciding to issue a DTF the BPC may consider if another approach is more suitable. For example:

• use of compliance advice or inspection reports
• requests for information on the state of compliance
• accounting for ongoing RBS actions or requiring actions by the RBS.

Rectification Notice

Rectification Notices (RN) are issued by BPC Plumbing Inspectors or Compliance Auditors, to licensed or registered plumbers to address non-compliant or defective plumbing work. RNs are used by the BPC at any time when non-compliance or defects are identified in plumbing work.

RNs may be used following a proactive inspection or audit of plumbing work or following a consumer report of apparent non-compliance. Generally, an RN will relate to a compliance certificate lodged by a licensed plumber, however, they may be issued even if a compliance certificate hasn't been lodged.

RNs are provided as a written notice specifying the non-compliance, the required corrective actions, and compliance timeframe. Penalties, including potential licence suspensions, apply for failure to comply with an RN.

After an RN is issued, the BPC generally requires the practitioner to rebook an inspection to confirm that the works have been made compliant or provide sufficient evidence (such as photos or documentation) to demonstrate compliance.

An RN is not issued in every instance. For example:

• very low risk non-compliances may only be noted for the plumber, to encourage improved future practices
• where the BPC can identify non-compliance but there is significant doubt whether this was caused by the licensed plumber, the BPC may provide a technical report on the breach to the consumer to support civil action or insurance claims

• when the BPC decides not to inspect or issue an RN, or the homeowner refuses to allow the plumber to return and fix the work, the BPC may provide information to help the consumer make an insurance claim.

Rectification Order

From 1 July 2026 the BPC will have the power to issue Rectification Orders (RO). ROs are issued to the person who carried out the work, typically the registered builder listed on the contract. In the case of residential apartment buildings, the developer may be issued an RO. An RO can be issued to multiple people, who are then jointly and severally liable for compliance.

An RO is the primary remedial tool directly available to the BPC to require a builder to rectify or complete building work after an Occupancy Permit has been issued. ROs can be issued for the rectification of incomplete, non-compliant or defective building work up to 10 years post-occupancy, including retrospectively and outside of insurance. Use of an RO by the BPC is guided by a Ministerial Direction and operational policies, which emphasise use for the most significant of non-compliances.

Failure to comply with an RO is an offence under the Building Act, and may result in disciplinary action, prosecution, or immediate suspension of a builder’s registration.

An RO may not be not suitable in all situations, and the BPC may consider if another approach is more appropriate. When considering the appropriate approach, the BPC may account for the significance and nature of the non-compliance or defect, the engagement of relevant parties and other factors.

When responding to a building work non-compliance before an occupancy permit is issued, BPC may instead consider other action appropriate in the circumstances, including:

• issue a DTF, for matters that are straightforward
• accept an Enforceable Undertaking, where this would provide a more efficient means of securing compliance and coordinating activity, when proposed by parties early in BPC’s investigations
• issue a section 205M direction to the RBS, where the matter requires actions with their oversight or monitoring.

When responding to a non-compliance after an occupancy permit is issued, BPC may instead:

• enable the dispute resolution process, to resolve matters
• take disciplinary action (including suspension of a practitioner’s registration)
• accept an Enforceable Undertaking, or take account of existing civil actions taken by a consumer.

Prior to determining a First-resort Home Warranty claim, the BPC must consider whether to issue an RO.

Where a claim under the First-resort Home Warranty Scheme for the rectification of defective or non-compliant domestic building work or the completion of incomplete domestic building work cannot be made or, in the BPC’s view, is unlikely to succeed, or assistance is otherwise unavailable under that scheme, the BPC prioritises consideration of ROs where it appears that there may be evidence of incomplete, non-compliant or defective building work in relation to a major building element which:

• has caused or is likely to cause the building to be uninhabitable or prevent it from being used for its intended purpose;
• has caused or is likely to cause the building or a part of the building to be destroyed;
• has caused or is likely to cause the building or a part of the building to be under threat of collapse; or
• places, or is likely to place, a member of the public or occupant of the building at risk of death or serious injury.

205M Direction

A 205M direction is a formal directive issued by the BPC to a Relevant Building Surveyor (RBS), typically a Private Building Surveyor performing functions as an RBS, requiring them to perform their statutory functions under the Building Act 1993 (Building Act) or the regulations.

This power may be exercised where the BPC considers it necessary for the purposes of the Building Act or the regulations. It may be used to ensure compliance and protect building occupants, especially when there are reasonable grounds to believe the RBS will not otherwise act to rectify non-compliant building work or fulfill their duties.

Before issuing a 205M direction, the BPC provides notice to the RBS and allows a minimum of seven days for a response, except in emergencies where the response time may be shorter. The BPC may consider other options such as enforceable undertakings, DTFs or disciplinary action before using a 205M direction, depending on the situation, and the RBS’s cooperation.

Enforceable Undertaking

An Enforceable Undertaking (EU) is a legally binding agreement between the BPC and any person regarding matters under the Building Act. It is used as a regulatory tool to secure voluntary compliance, allowing the person to engage with the BPC to agree on actions to address non-compliance, instead of, or as an adjunct to, the BPC pursuing remedial action, prosecution, an injunction, or disciplinary action. The EU may require the person to fix building work, pay compensation, complete training, or refrain from certain activities. If not complied with, it can be enforced in court.

EUs are generally used when the conduct does not warrant formal disciplinary action or prosecution, providing an opportunity for voluntary agreement and resolution without resorting to more formal remedial tools. They may also be preferred where they can more effectively provide a way to coordinate compliance actions, such as setting out a course of action under an agreed compliance plan.

An EU can be accepted from building and plumbing practitioners (individuals or companies), property owners, and other relevant individuals, including those who are unregistered or unlicensed. It may also apply to multiple parties simultaneously, such as both a homeowner and a practitioner, depending on the nature of the non-compliance and required actions i.e. owner providing access to a site, and a practitioner to complete the required action to correct the non-compliance.

An EU will generally not be considered where the party has a history of non-compliance or not engaging with their obligations.

Notices and Orders to property owners

While the BPC prefers the use of tools to require practitioners responsible for building or plumbing work to bring work into compliance (e.g. Directions to Fix and Rectification Notices) there are certain remedial tools that can only be issued to owners or occupiers of a property. This reflects that in many cases, the ultimate legal responsibility for the safety of the built environment rests with the owner of property.

Use of these notices or orders is generally limited to circumstances where it is unsuitable or inappropriate to use an enforcement tool against the relevant practitioner, or where the non-compliance poses a risk to public health or safety.

Plumbing Notices and Orders

Plumbing notices and orders are enforcement tools issued by BPC Plumbing Inspectors when plumbing work breaches plumbing laws, would breach those laws if used, or poses risks to people or property. A Plumbing Order is considered a last resort and will only be issued to an owner or occupier if:

• an RN has already been given to the responsible plumber and it is clear that the RN will not be complied with, or
• it is not possible or appropriate to serve an RN on the plumber responsible for the work.

A Plumbing Notice must be given to the owner or occupier before a Plumbing Order is issued, requiring them to explain in a set timeframe why the plumbing work should not be rectified.

After considering any responses, if the defects remain, the Plumbing Inspector can issue a Plumbing Order to an owner or occupier directing that the work be rectified or modified, specifying a deadline for compliance. Failure to comply with the order may lead to prosecution or the BPC recovering the costs of rectifying the work.

Building Notices and Orders

In certain circumstances, the BPC may be appointed or declared the MBS for a site, granting it the authority to exercise any or all functions of an MBS under the Building Act. This includes when a non-complied with Building Order is referred to the BPC by an RBS (section 205N of the Building Act). When empowered as the MBS, the BPC has the power to issue building notices and orders.

Building notices and orders are formal instruments that require a person to undertake or refrain from specific actions related to building work. There are several types of building orders, including general building orders, building orders to stop work, and building orders for minor work.

The process typically commences with issuing a Building Notice (except in cases involving minor building work orders) requiring the owner to provide reasons in a specified timeframe as to why the building work should not be rectified. If appropriate, the BPC acting as the MBS will then issue a written building order directing that the work be rectified or modified to achieve compliance. Failure to comply with a building order may result in prosecution.

Notice requirements

Remedial directions, notices or orders set out clear legal grounds on which the notice has been issued, providing details of the action required and how to address it (including any timeframes, penalties for non-compliance and appeal rights).

The structure of a notice will vary depending on the type of notice and the specific actions required. Notices that seek rectification of building or plumbing work will clearly identify the observed non-compliance or defect and specify the actions necessary to achieve compliance. For certain types of notices, the BPC will provide the recipient with an opportunity to make submissions as to why the notice should not be issued, or to voluntarily comply before the notice is formally issued. In these cases, the reasons for the potential action will also be clearly outlined in the notice.

Remedial notices take effect upon receipt and compliance is expected by the due date unless a decision is made to amend or stay the notice.

Grounds for issuing

Generally, to issue a notice or an order, the BPC or the authorised officer or person must form a reasonable belief or be satisfied, based on the available evidence, that the work does not meet legislative requirements. This may include circumstances where the work is incomplete, breaches legislative or permit requirements, is defective, or poses a risk to health and safety.

The BPC also needs to be satisfied that it can attribute responsibility for the non-compliance to a person. For example, a registered or licensed plumber in the case of a RN, or the person who carried out the work, in the case of an RO.

The issuing person needs to be satisfied based on the facts known at the time of issuing the notice or order, such as those obtained through an inspection or a defect report. The decision should be based on an objective assessment of the information available at the time, but it is not necessary for the BPC to be satisfied beyond a reasonable doubt of the non-compliance or offence.

Certain instruments, such as the RO, carry other specific statutory requirements before issue.

Where the BPC has not established grounds to use a remedial tool, it may consider whether there is sufficient information to issue a cautionary notice to a practitioner. This reflects that a breach has apparently occurred, but no action will be taken at that time. Cautionary notices serve as warnings to prevent future breaches and help protect against future harm. They may also influence future BPC regulatory actions with the individual and potentially across the industry.

Review Rights

Under building legislation, recipients of a remedial direction, notice or order can seek a review of the direction or decision to issue. The options and appeal times for internal or external review differ depending on the type of remedial power used. Details of the type of review available are outlined in the below table. These rights to review do not apply to Enforceable Undertakings as they are voluntarily entered.

Table 1: Summary of review rights

* If the reviewable decision was made by the Commissioner or the Chief Executive Officer, Internal Review is not available, and the practitioner must instead apply to VCAT for review.