Current state of play One Year On from the introduction of legislation and the changes in Building Law (Part One):

Current state of play One Year On from the introduction of legislation and the changes in Building Law:

• Building Legislation Amendment (Consumer Protection) Act 2016;
• Building Amendment (Enforcement and Other Measures) Act 2017;
• Building Interim Regulations 2017and finalisation of the Building Regulations 2018;

Background Building Legislation Amendment (Consumer Protection) Act 2016 (Vic):

1. In 2016 the Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) was passed.
2. This legislation introduces a number of changes to the regulation of building work in Victoria and aims to enhance consumer protection for domestic building work.
   1. Builders, building surveyors and others involved in the building industry in Victoria should be aware that the legislation also introduces other significant changes.
3. This legislation introduces a number of changes to the regulation of building work in Victoria to enhance consumer protection for domestic building work under both theBuilding Act 1993 (Vic) and the Domestic Building Contracts Act 1995 (Vic), as well as other changes designed to improve the operation and enforceability of the requirement of these Acts.
4. In summary, the key changes included:
   1. Works being undertaken by owner builders now being subject to the same regime of performance audits by the Victorian Building Authority (VBA) as builder works;
   2. Not allowing building surveyors to accept engagements where there is a conflict of interest;
   3. Setting out with more clarity when a builder or other person will be committing an offence if building work is undertaken without a building permit or not in accordance with a building permit; and
   4. More extensive powers for the VBA, building surveyors and auditors to issue directions requiring builders and other people in charge of building sites to fix non-compliant work.
5. An example of how these matters change things:
   1. Owner builders will only require consent to undertake building works of more than $16,000 (previously $12,000). This amount will bring the certificate of consent in line with the requirement to obtain domestic building insurance if the owner builder then sells the property on which the works were carried out within a specific time frame.
   2. Works being undertaken by owner builders will also be subject to the same regime of performance audits by the VBA as works undertaken by registered builders. The VBA can carry out performance audits of owner builder works, works undertaken by an owner who is an architect and owners carrying out works under an emergency order, a building notice or a building order.
6. For building surveyors conflicts of interest there are enhanced provisions preventing building surveyors accepting engagements where they (or their partner, director, employer or employee) have a conflict of interest.
7. In addition there is clarity around what constitutes an offence wherethe changes set out with more clarity when a person will be committing an offence by allowing building works to be undertaken without a building permit, or by allowing building works to be undertaken which is not in accordance with a building permit or building laws.
8. In addition there is extended powers to direct fixing of non-compliant work through extensive powers for the VBA, building surveyors and auditors to issue directions requiring builders and other people in charge of building sites to fix non-compliant work. The VBA or the building surveyor will be able to issue directions to a builder to ‘fix’ building work that does not comply with the Building Act, its regulations or the building permit. There is a penalty for non-compliance.
   1. A builder cannot seek any payment from the owner for complying with the direction to fix. If the builder does not comply with the direction to fix, the building surveyor must advise the VBA of the failure. A builder has seven days (or such other time which may be prescribed) to appeal the direction to the Building Appeals Board.
   2. A building surveyor must not serve a building notice or order on an owner unless it is clear a notice to fix will not be complied with or it is not possible or appropriate to give a notice to fix.
9. There are new provisions requiring domestic building contracts for arranging or managing the building work to specify the name of the builder who is carrying out the work.
10. Builders will be able to give written undertakings to the VBA.
    1. A failure to comply will be a ground for disciplinary action and the VBA can seek compliance through the courts.
    2. The VBA will be required to maintain a public register of undertakings which may be inspected by anyone.
11. In addition there were significant changes included the abolition of the Building Practitioners Board, the transfer of the Board’s powers and functions to the VBA, a new show cause disciplinary process and a new dispute resolution procedure to be established by Consumer Affairs Victoria under a body called Domestic Building Dispute Resolution Victoria.

Daniel Epstein of Counsel