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

Background to the Building Interim Regulations 2017 and finalisation of the Building Regulations 2018:

  1. TheBuilding Interim Regulations 2017 (Interim Regulations) came into operation on 4 June 2017, replacing the Building Regulations 2006and ultimately were replaced by the Building Regulations 2018.
    1. The Interim Regulations were substantially the same as the 2006 regulations, with minor amendments to update references to standards, planning schemes and other minor changes.
    2. The Interim Regulations have been necessary because the 2006 regulations will lapse and the process for development of new regulations 2018 at the time were not complete.
  2. TheBuilding Regulations 2018 replace the Building Regulations 2006 and the Building Interim Regulations 2017.
    1. The Regulations, which come into effect from 2 June 2018, are designed to reflect the changing nature of the industry, technology, equipment and methodology to deliver a better, more effective and efficient building industry that benefits both practitioners and consumers.
  3. Interim Regulation 903 for emergency orders; an emergency order made under section 102 of the Act must include (in addition to the matters permitted by section 103 of the Act):

(a)  The location of the building, land or place of public entertainment to which it applies;

(b)  The name of the owner or occupier;

(c)  The reason or reasons why the emergency order was issued;

(d)  The period within which the emergency order must be complied with;

(e)  The date of inspection by the municipal building surveyor; and (f) the date of issue of the order;

(g)  The name and address of the municipal building surveyor.

  1. An emergency order made under section 102 of the Act must include (in addition to the matters permitted by section 103, 104 and 105A of the Act):

(a)  The location of the building, land or place of public entertainment to which it applies;

(b)  The name of the owner or occupier;

(c)  The reason or reasons why the emergency order was issued;

(d)  The period within which the emergency order must be complied with;

(e)  The date of inspection by the municipal building surveyor;

(f)   The date of issue of the order;

(g)  The name and address of the municipal building surveyor.

  1. The change to this regulation is the addition of references to sections 103, 104 and 105A of the Act.
  2. Prior to 16 August 2017, section 103 of the Act related to the “Contents of an emergency order”.Post 16 August 2017, section 103 of the amended Act relates to “Orders to vacate”, whilst section 104 relates to “Orders to owners, occupiers or buildings” and section 105A relates to “Duration of order.
  3. Regulation 903(a) to (g) remains the same.
  4. The Building Interim Regulations 2017 detail the educational and experience requirements for Builders Registration.
    1. Taken together, both the educational and experience requirements are known as the ‘Prescribed Qualifications’ for registration as a building practitioner.
    2. These requirements are different for each category of Builders Registration.
  5. When applicants apply to become a Registered Building Practitioner, the Victorian Building Authority (VBA) is required to consider both the formal qualifications and the practical experience the applicant holds.
    1. The Regulations now detail the educational requirements more specifically than they had previously.
    2. Whilst a formal qualification is important, the application must also show they are able to apply the theoretical knowledge and practical skills gained through experience.
  6. The VBA may assess an application without the prescribed qualification, and they are currently developing guidance to assist in identifying what may be considered equivalent to the prescribed qualifications.
    1. However, the VBA does look favourably towards builders that hold a formal qualification as this enhances the knowledge and skills of building practitioners in the industry.
    2. The VBA may register an applicant for registration who has the required knowledge and skills even if they have not obtained the prescribed qualification. Remember the ‘prescribed qualification’ is BOTH the education and experience. Many candidates for registration will find that, for example, a certificate IV together with relevant practical experience and skills may satisfy the equivalent qualification pathway to registration.
    3. While a Certificate IV does not provide all the elements of the required knowledge for registration as a Domestic Builder (Unlimited), an applicant may still hold a qualification that, taken together with experience, may be considered equivalent to the prescribed qualification.
    4. For example, this may include completion of a Certificate IV and sufficient relevant experience.
    5. The Regulations define the scope of work that registered building practitioners in each class and component of Domestic Builder, Building Surveyor and Building Inspector can undertake. These definitions are consistent with the VBA Practitioner Guides currently published on the VBA website.
    6. A number of practitioners hold registrations that do not match these new definitions. As a result, some practitioners will need to be transitioned to the new scopes of work, potentially with a condition attached to their registration. These practitioners will be contacted directly by the VBA.
    7. These changes will not change the work practitioners are registered to undertake.
    8. It is an offence for a practitioner to carry out work outside the scope of their registration. This is particularly relevant to registered building practitioners who build ‘spec’ homes as they now need to hold an unlimited domestic registration to build such homes.
  7. The Regulations define scopes of work that registered building practitioners in each class and component of Domestic Builder, Building Surveyor and Building Inspector can undertake.
    1. The cost threshold for work which is required to be undertaken by a Domestic Builder or Draftsperson has increased from $5,000 to $10,000.
    2. Practitioner’s registration will need to align with the scopes of work defined in the Regulations.
    3. This applies specifically to Building Surveyors, Building Inspectors, Commercial Builders and Domestic Builders.
  8. As part of the new Building Interim Regulations 2017 and ultimately the 2018 regulations, the class of Domestic Builder – Manager (DB-M) has been changed to Project Manager (Domestic).
    1. The scope of work for this class remains identical to that of the DB-M.
    2. However, changes will be implemented over a 5 year period to ensure that all practitioners currently registered as a DB-M meet all the requirements, including that of the prescribed qualifications.
  9. Where building registration is required for an Owner Builder, the registration held by the Owner Builder must authorise the carrying out of that type of building work.
  10. Australian Standards –References to Australian Standards in regulations 105, 607, 613, 707, 709 and 710 have been revised to reflect current drafting practice.
  11. National Construction Code –Throughout the regulations, a reference to an ‘alternative solution’ has been changed to a ‘performance solution’, to reflect the current language of the NCC.
  12. References to Planning Schemes updated –References to planning schemes have been updated to account for recent planning scheme amendments. 76 planning schemes that have applied the Residential Growth Zone, the General Residential Zone or the Neighbourhood Residential Zone are referenced. Where a planning scheme applies a schedule to the Mixed Use Zone or Township Zone, those zones are also specified.
  13. Other changes –Transitional provisions provide for continuity between the operation of the Building Regulations 2006 and the Building Interim Regulations 2017.
    1. References to legislation have been updated in regulations 105, 305, 801, 1003 and 1805, and in Form 8 in Schedule 2 to the Regulations. Notes to items 1 and 4 in Schedule 8 have also been updated.
    2. Reg 13 clarifies that the RBS must determine the classification of a building when performing a function under the Act or the Regulations, and if there is a doubt of the classification of the building the RBS must classify the building in the class that it most closely resembles.
  14. Additional documentation is required to be given to council for public record-keeping purposes. This comprises:
    1. Any determination issued by the RBS under reg 111(2) that protection work is required .
    2. A record under reg 38 that a performance solution complies with a performance requirement of the NCC.
    3. Any s 238 certificate relied on by the RBS together with any record of a building practitioner made under reg 124.
    4. A copy of any permit required for the construction, installation or alteration of a septic tank system.
  15. The information that the RBS must provide to the VBA will be prescribed in reg 47. RBSs will be required to report on the same information that RBSs
    are currently asked to report on to the VBA. From 1 July 2019, the RBS will be required to report on additional information. The details that will be required to be provided about a building permit issued during that month are listed in reg 47(2). They are:

    1. Whether an occupancy permit is required in relation to building work.
    2. The mandatory notification stages for the building work.
    3. Whether the building work is subject to a combined allotment determination.
    4. Whether any exemption from or consent to partial compliance has been granted by the building surveyor under certain regulations.
    5. Whether a swimming pool or spa barrier is included.
    6. Whether the RBS determined that protection work is required.
    7. The details that will be required to be reported at the end of each month about an active building permit are listed in reg 47(4). They are:
      1. Any extension granted during that month by the RBS to the commencement date or the completion date of the building work, and the new dates, and
      2. Any inspection of building work to which the permit applies at a mandatory notification stage.
  • Councils’ obligation to keep documents in relation to building permits in their original form for 10 years has changed. Councils must now keep building permit documentation (including protection work documentation) lodged with council, in any manner specified by the Keeper of Public Records.
  1. An MBS issuing an emergency order should include the date of any inspection(s) in the order if applicable. If the MBS relies on an inspector for any inspection prior to issuing the emergency order, the MBS should record that information in the emergency order.
  2. Reg 195 clarifies for building owners and occupants that it is a condition
    of occupying a building or place that the ESMs are inspected, tested and maintained.

    1. In addition, if a maintenance determination is made, and an occupancy permit applies to the building or place of public entertainment, it is a condition of occupancy that the ESMs listed in the maintenance determination are inspected, tested and maintained.
    2. For ease, the RBS must issue the owner with a maintenance schedule under reg 218, which consolidates all of the ESMs to be maintained.

 

Daniel Epstein of Counsel

By Daniel Epstein

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Posted in: Beginners Guide • Building and Construction • Civil Law • Consumer Law • VCAT

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