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

Background Building Amendment (Enforcement and Other Measures) Act 2017:

1. Special gazette was published on1 August 2017 providing for the commencement of some sections of the Building Amendments (Enforcement and Other Measures) Act 2016 on 16 August 2017. 
2. The following summarises some of the key changes that took affect that day:
   1. s 31 to 38, 49 & 53; amendments to part 8 relating to the issuing of emergency orders, notices and orders.
   2. Implications are that where a building has an owners corporation, an emergency order, notice or order can be served on the owners corporation and need not be served on individual lot owners. An owners corporation must:
      1. Give a copy of the order or notice to affected lot owners.
      2. Carry out the works required by the order or notice.

• Further, the owners corporation can make representations on behalf of lot owners and may authorise any necessary access to lots for the works to be carried out. This will make it much easier for enforcement action to be taken relating to buildings with multiple lot owners and will be of particular use for enforcement relating to non-compliant cladding on multi-story buildings.

1. s 50(2); the time within which proceedings for offences must be brought has been amended. Proceedings for offences will be able to be brought the longer of:
   1. Three years after the commission of the offenceand within two years after the offence first came to the attention of the Victorian Building Authority or relevant council.
   2. The maximum time available to bring proceedings will be ten years after the commission of an offence.
2. s 56; information sharing between the VBA and other authorities will be expressly provided for in a new s259A of the Act. The provision provides for information sharing arrangements to be entered into between the VBA and a ‘relevant agency’ which is defined to include a very broad range of entities such as:
   1. A council or agency of the commonwealth or state or territory that carries out functions under an enactment relating to building plumbing or architecture;
   2. The police (including state or federal police), the Australian Crime Commission;

• Consumer Affairs Victoria;

1. Victorian Workcover Authority;
2. Architects Registration Board of Victoria;
3. Victorian Managed Insurance Authority;

• Such information sharing arrangements can include information sharing and/or referral of matters or the conducting of joint investigations. Both parties to any such information sharing arrangement will need to agree on the terms of the arrangement but this new provision puts beyond doubt any ability for government entities to collaborate and share information.

1. s 83; section 212 of the Act is amended by the insertion of a new section 212(1A) which provides that the obligation on councils to administer and enforce some parts of the Act and regulations in its municipality is not limited if a private building surveyor has been appointed to carry out functions. This amendment confirms that local government enforcement responsibilities apply where a private building surveyor has issued a building permit for building works.
2. s 19; there is a new power given in s15B to make offences in regulations with maximum penalties of up to 100 penalty units for buildings that are not class 1b or 10 in relation to:
   1. The keeping of exists and paths of travel maintained.
   2. Requiring testing of maintaining safety and emergency services, installations or equipment.

• This will provide for tougher penalties for failures to maintain essential safety measures in buildings.

1. s 26 & 27; regarding directions to fix:
   1. A new sub section 37H(1A) making it an offence for a builder to whom a written direction to fix has been given to not ensure that a person they engage or employ complies with a direction to fix
   2. The existing s37K is amended to provide that the RBS must give notice to the VBA and owner where the builder fails to comply with a written direction to fix. 
2. New indictable offence in s 16B for a person in the business of building to knowingly carry out building work without a building permit or not in accordance with Act, regulations or permit.
3. Changes to section 37H of the Act – offences relating to compliance with directions;
4. Changes to Part 8 – Division 1 of the Act – Emergency Orders;
5. Changes relating to what building notices and building orders can require;
6. The introduction of a new subsection 116(4) to section 116 of the Act relating to amendments or cancellations of certain building orders;
7. Changes to section 146 of the Act – effect of decision under appeal;
8. Changes to section 236 of the Act, being the service provision;
9. Section 241(7) has been amended with regard to when proceedings under the Act and theBuilding Interim Regulations 2017 can be commenced;
10. A new section 251A has been introduced which enables an owners corporation to carry out work at a lot; and
11. The introduction of a new subsection 212(1A) of the Act, which relates to the obligations of councils. The options for councils seem to be as follows:
    1. Refer most alleged breaches of any of the offences in s 16 and 16B to the VBA for consideration continue on with their usual approach and generally only pursue investigation and prosecution based on the summary offences unless there is a particularly egregious matter where a breach of section 16B seems likely (in which case refer that mater to the VBA) inform themselves about the requirements for investigating of indictable offences and pursue the investigation of all alleged s 16 and 16B offences themselves.

Daniel Epstein of Counsel