Nine Ways to Fix Building Regulation in Victoria 5

Friday, December 6th, 2013
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Once again, the Building Act in Victoria is in the public spotlight for all the wrong reasons.

Last year, the now defunct Building Commission was being hammered following two scathing reports into the way building industry regulation was being administered in the state. Now, unflattering commentary on its reincarnation – the Victorian Building Authority (VBA) is rife in print and online media as well as on the airways.

This time, however, industry and consumer representatives alike agree on at least one point: the current system is failing and needs repair. So what should be done?

When you reform an Act of Parliament, it is important to get it right and avoid “tossing the baby out with the bath water.” As in a game of chess, every move must be thought through with due consideration given to likely consequences. This is not entirely unlike the process of drafting a contract for a large commercial building project.

Seasoned law reformers, who must have a strong track record, be independent and able to engage with policy makers in a candid manner, need to be engaged.

So too should key stakeholders, who should ideally have a degree of ownership in the process. A case in point was the Building Act introduced in the mid-1990s. Despite these changes having been the most radical in history, industry, consumers, insurers and local government were all “on board” and the legislation passed in a seamless manner.

In terms of specific changes which need to be made, these should be geared around refocusing the Act upon its original area of building control (it was never intended to be about “greenification”, security of payments or anything else).

This includes:

  1. Fixing up the building control regime, improving building surveyor probity and introducing compulsory CPD for these practitioners.
  2. Auditing surveyors annually (like some other professions, such as lawyers) with the cost of an independent auditor being borne by individual practitioners themselves.
  3. Reconsidering the dismantlement of the Building Practitioners Board and asking whether or not it could instead by strengthened by appointing more consumer representatives, beefing up its powers, increasing fines, boosting its resources and making it truly independent from the VBA.
  4. Banning private surveyors from sanctioning alternative solutions, re-introducing independent peer review and regulating fee floors for certification services to ensure surveyors don’t cannibalise each other with underquoting.
  5. Improving accessibility to the Building Appeals Board for home owners and adjoining owners and maintaining a database of reported decisions.
  6. More clearly demarcating the respective roles of local council building departments and private building surveyors in the enforcement of building regulations.
  7. Clarifying procedures to be followed where building permits “lapse” and defining the role of building surveyors after an Occupancy Permit has issued (currently a no-man’s-land).
  8. Using money from fines and penalties to beef up funding for continuing professional education (CPD) which, as stated above, should be mandatory.
  9. Giving serious consideration to insurance reform, such as whether it is possible to have “run off” cover for some practitioners, or to match the period of domestic builder insurance to the 10 year liability cap.

As time goes on, debate surrounding the system and how it can be improved will continue.

Whilst wholesale changes may not be necessary (‘if it ain’t broke, don’t fix it’), there is scope for improvement in current arrangements.

Opportunities to implement this must be taken.

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  1. Hans Tracksdorf

    There are numerous problems with our whole system of Building regulation, its extremely overperscriptive and cumbersome , take stairs as one example , there is a current amendment to add a whole lot of extra requirements into the NCCode regarding stairs to minimise falls. As there are minimal Australian Stats the controlling body has had to reference fall statistics from the UK ( in the 100000s) and applied these to our context. Now in the EU ( population 550 million people- far larger than the USA ) there are all sorts of weird and wonderful stairways, in the mediterranean theyre often made of marble ,( once again millions of tourists) and there are often heaps more winders than are permitted here. The point is, we are not state of the art and why do we need to overregulate buildings so heavily, in such a small population country!! In the 30 years ive been involved with the regulatory framework , the regs and accompanying documents have trebbled. I think that in the end its got little to do with Building safety or standards and got more to do with risk and that brings us back to our basic problem of the legal framework. The EU does not have this whole” Who Can we Screw mentality ” and theres the difference.

  2. Gabriel Barnes

    It seems Tasmanian & Victoria are to battle similar issues in the review of their respective Acts. The challenge for regulators in to change the bad while retaining the good. It still dumfounds me as to how we can develop an National Building Code but the states cant manage to develop a National Building Act. Bring back the "Rainbow Books"….. 'The Model Building Act" and lets improve the system nationally.

  3. Laurence White

    I would agree with 6. particularly. I suffered a horror story type scenario with an adjoining owner building an overlooking property clearly in breach of building regulations and Frankston City Council unwilling to do anything about it. FCC refused to engage and fobbed me off to the Private Building Surveyor, who knew the ropes and told me he could be charging me for his time! The building was built too close to the boundary but the surveyor said 'prove the fence is built on the boundary' and the FCC backed him up! FCC failed to enforce basic building regulations such as display of permits etc etc and again referred me to the PBS saying the system had been 'privatised'. There is no statutory recourse to the BAB also for adjoining owners!

    • Amir

      Well, like with any claim, not only in law, but also in life, when making a claim, you need to have evidence if you expect the other party to agree with you. Acceptance without evidence is logical fallacy, so I hope you can understand that even though rudely stated, asking for evidence of the non-compliance (obtaining the geographical location of the allotment boundary relative to the title plan) is the correct logical response to identify if an issue is present. Overlooking is a defined regulation, so please do not use the dictionary to determine what is 'overlooking', it'll only confuse you more, it is not the act of looking, it is a line of sight measured at specific heights, distances, and areas. You can overlook into an adjoining property, but regulation 417 is a specific regulation applicable to specific situations.

      Also, the sheer fact that you refer to it as a 'horror story type scenario' indicates a probability that you presented yourself in a manner that led to non-help.

      People are dying, all around the world, from real problems, please don't keep yourself up at night worrying about the display of building permit information.

  4. Peter

    Death & Insolvency Insurance needs to be overhauled too. These policies need to cover the builder too. A comprehensive policy not dissimilar to car Insurance. Oh, & remove that word Warranty from all marketing forms & inform the consumer of what their policy really gives them.