Overview of the Amendment Act
The Building Legislation Amendment Bill 2023 (Amendment Act) amends the Building Act 1993 (Building Act), the Architects Act 1991, the Domestic Building Contracts Act 1995, the Building and Construction Industry Security of Payment Act 2002, the Victorian Administrative Tribunal Act 1998, the Sale of Land Act 1962, the Owners Corporations Act 2006, the Cladding Safety Victoria Act 2020 and also has other purposes. It received Royal Assent on 6 June 2023, and will take effect no later than 1 February 2024. These amendments arise from a 3-year process to identify and reform issues relating to building regulation.
Key amendments to Building Act 1993
The amendments to the Building Act are significant reforms and, by way of overview, will primarily: make provision for the appointment of a State Building Surveyor and a Building Monitor; expand obligations in relation to the sharing of information and data; provide for changes in building practitioner categories and make it an offence to act outside a registered category; require that relevant building surveyors issue certain information with building permits; require building manuals be prepared and updated; provide additional purposes for money to be paid pursuant to the Cladding Safety Victoria account; and makes changes to the delegation of powers of the Victorian Building Authority.
Below we provide a brief overview of some of the key elements of some of those amendments.
What is the function of the new State Building Surveyor?
A State Building Surveyor (SBS) may be appointed under new section 206. The SBS will provide the key source of expert technical advice and guidance in relation to building and plumbing work.
The SBS will: advise the Minister in relation to strategic and regulatory issues of significance within the building and plumbing industries; represent the State in respect of the development of national building and plumbing standards and requirements; monitor councils and provide advice and support to them regarding the delivery of their building control functions; engage with building system regulators; monitor developments and trends; provide training and education; and monitor and report on performance of the building surveying industry.
The SBS will also issue binding determinations on the interpretation of standards and requirements for building and plumbing work prescribed by the Building Act, the building regulations and the plumbing laws, and publish them in the Government Gazette. Importantly, a person who is, or has been, licensed or registered under the Building Act must comply with any binding determination of the SBS or otherwise face potential disciplinary action.
What is the function of the new Building Monitor?
A Building Monitor (BM) may be appointed under section 208 of the Building Act and has the primary function of improving the experience of Domestic Building Affected Parties (DBAPs) in the building industry.
The BM is appointed by the Governor in Council, and will advocate for consumers in the industry. The BM will: provide expert advice to the Minister for Planning and to persons and bodies involved in the building industry; create a central repository for the identification of critical and systemic issues affecting DBAPs; and promote awareness of the issues together with options to address those issues.
Section 208P requires the BM to prepare an annual Building Monitor Issues Report which specifies systemic issues it has identified as affecting DBAPs. In this report the BM will make recommendations to address the issues, and will also more generally provide details of its activities for that year. The BM must notify parties affected by their recommendations, and those parties must provide a response addressing the specific matters raised within 6 months following publication of the report.
The BM has been granted information gathering powers under a new section 208K relating to specified persons and bodies to assist them in preparing this report, though subject to strict requirements designed to protect commercially sensitive information and personal information.
Submission of Building Manuals
New section 21(1)(c) has been inserted to require the relevant building surveyor to specify in a building permit whether a draft building manual must be provided to the surveyor with the application of occupancy permit. If required, a building manual must comply with the regulations and must be provided to the relevant building surveyor for approval. The manual is intended to be a centralised repository for all relevant information relating to a building’s design, construction and maintenance. This will provide owners with substantial reference material and thereby the potential to identify building defects early in the life of the building.
Expanded categories of Building Practitioners to be registered
The categories of ‘building practitioner’ requiring registration have been expanded to include a ‘building consultant,’ ‘building designer’ (previously draftsperson), ‘site supervisor’ and a ‘project manager’ (previously a person responsible for a building project). This will enable oversight of additional categories of practitioners giving consumers greater protection under the Building Act. Regulations to be issued pursuant to the Amendment Act will prescribe the work to be carried out by each new category and applicable registration requirements. Under new section 169D it is an offence under the Building Act for a practitioner to perform building work without proper registration to perform the relevant work. Building practitioners now face disciplinary action for contravening the Building Act or the regulations including any binding determination of the SBS. This expanded category of ‘building practitioners’ now has greater accountability.
What to do?
The Amendment Act provides for significant changes to the operation of the Victorian building industry, having broad implications which we anticipate will enhance transparency, accountability and consumer protection within the industry. As these changes unfold and as more changes are effected, building industry stakeholders will need to amend their work practices and avail themselves of the additional rights under the Building Act and other legislation. We have extensive experience navigating the ever-changing legislative framework in the building sector in Victoria and we would be delighted to assist you to understand the full range of amendments and how these amendments will affect your business.
This article was written by Marko Misko, Partner, Julie Charles, Special Counsel and Taulant Javori, Associate.