An important change has occurred in Victoria that building practitioners and owners contemplating or having works be done must be aware of.
It is well understood that in many cases, where substantial work is being performed, a building permit must be obtained prior to the work commencing. What has changed however, for better or worse, is that as of July, the responsibility for obtaining a permit lies upon ‘building practitioners.’
The Building Act states as much in a somewhat indirect way by firstly stating that the owner must ensure there is a permit in place. However, the Act goes on to state that the onus is actually on the building practitioner instead of the owner if a building practitioner has been engaged to carry out building work on the land.
A building practitioner here can be a building surveyor, inspector, building engineer, quantity surveyor, domestic builder, draftsperson or any other person prescribed to be one. These are the main experts who may face prosecution – rather the owner, as was previously the case – if works are done without a permit.
Previously, an owner could be liable for ‘non-permitted works’ even where they (as was common) did not themselves actually carry out the works. Now, by virtue of having engaged a professional, even if that professional is unregistered, owners gain a measure of protection in this respect.
The effect of Section 16 of the updated Act is that an owner will or may be ‘immune from prosecution’ in respect of works done without a permit. However, they don’t necessarily get any protection from the relevant municipal council from the issuance by municipal building surveyors (MBS) of building notices or orders for illegal works.
A relevant MBS could issue a building notice, among other circumstances, where works done are outside the scope of, or not permitted by the terms of the permit, as a building permit will cover certain building works but not necessarily all building works. Obviously, that building owner will communicate with the engaged ‘building practitioner’ in order to deal with such an order or notice which will, among other things, involve early and honest communication with the relevant council.
As a result, owners are now generally ‘off the hook’ as far as prosecution is concerned if domestic building works are conducted without a building permit in cases where they engage a registered or unregistered building practitioner, as widely defined, to do works.
The responsibility is now clearly on the building practitioner or architect to ensure a building permit is in place prior to works relevant building being commenced. This is arguably as it should be. However, it will be interesting to see how these changes (which are by far not the only changes made in the building law landscape) play out in practice.
It should be remembered that council will need make a decision where works have been done without a permit, as to whether in council’s opinion the owner is in fact exempt in the circumstances or whether council will go after the relevant building practitioner or practitioners. As with any new change in the law, unintended consequences are possible and new legislation can bring about unanticipated outcomes.