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Victorian Building designers need to be vigilant in their business practices due to the amended Section 16 of the Victorian Building Act 1993 (the Act), which came into effect on July 4, 2016.

Section 16 of the Victorian Building Act addresses offences relating to carryout out building work. Here is an extract from the document:

"(1)     A person must not carry out building work unless a building permit in relation to the work.

(2)     A person must not carry out building work unless the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work.

(3)     An owner of land must not permit building work to be carried out on that land unless—

(a)     a building permit in relation to the work has been issued and is in force under this Act; and

(b)     the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work.

(4)     A building practitioner or an architect who is engaged to carry out building work must ensure that—

(a)     a building permit in relation to the work has been issued and is in force under this Act; and

(b)     the work is carried out in accordance with this Act, the building regulations and the building permit issued in relation to that work.

(5)     Subsection (3) does not apply to an owner if the owner has engaged a building practitioner or architect to carry out the building work on that land."

For those designers, architects and/or engineers engaged to carry out contract administration, and therefore involved through the construction of the project or building stage, it would be anticipated that they would ensure a building permit is in place.

The problem here is that with the majority of designers, architects or engineers are involved in the design work only. A very small percentage of projects have designers engaged to carry out contract administration throughout the construction of the project or building stage.

However, some projects may not start for many months - or even years - following the completion of the relevant documentation. This makes it almost impossible for building designers to monitor the owner’s intention or action with the building work.

To mitigate the risk, if you are engaged following the handover of final design and documentation, and you were not responsible for obtaining the building permit on behalf of the client, you should ensure that construction has not commenced or that there is a building permit in place. This may require requesting a copy of the building permit documentation or seeking written confirmation that construction of the building stage has not commenced.

While it is not the intention of the legislation, confusion has occurred due to certain ambiguous definitions included in the new amendment to the Act, particularly regarding the definitions of “building work” and “domestic building work.”

From the Act:

"building work" includes the design, inspection and issuing of a permit in respect of building work

"domestic building work" has the same meaning as it has in the Domestic Building Contracts Act 1995

From the Domestic Building Contract Act 1995 (DBCA), the definition reads:

"domestic building work" means any work referred to in section 5 that is not excluded from the operation of this Act by section 6

The following is an extract of Section 5 of the DBCA, which outlines building work to which this Act applies:

(1)     This Act applies to the following work—

(a)     the erection or construction of a home, including—

(b)     the renovation, alteration, extension, improvement or repair of a home;

(c)     any work such as landscaping, paving or the erection or construction of retaining structures, driveways, fencing, garages, workshops, swimming pools or spas that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;

(d)     the demolition or removal of a home;

(e)     any work associated with the construction or erection of a building—

(f)     any site work (including work required to gain access, or to remove impediments to access, to a site) related to work referred to in paragraphs (a) to (e);

(g)     the preparation of plans or specifications for the carrying out of work referred to in paragraphs (a) to (f);

(h)     any work that the regulations state is building work for the purposes of this Act.

Ambiguity breeds confusion, and it is clear there is huge industry confusion as to whether design work is included in the definition of “building works” currently stated in the amendment to the Act.

Following the recent illegal demolition of the heritage listed Corkman Pub in Carlton, Planning Minister Richard Wynne has said the state government is determined to hold “cowboy” developers to account when and where possible.

Urgent clarification of the legislation is required in order to prevent scurrilous interpretations of these definitions by the legal profession, who may argue that ‘building practitioners’ - and not owners or developers - are in fact liable for breaches of Section 16 of the Act.

It is only a matter of time before this legislation is rigorously tested in court, to the potential detriment of Victorian registered building practitioners.

Before this becomes a reality, an amendment to be made the Act is required or alternatively, Ministerial Direction is given on the issue in order to provide some clarity and ease the fears of all Victorian building practitioners.

 
  • Alastair, good article which gives food for thought as to these current issues.

  • Alastair, good to catch up on the legislative changes for building designers. But I doubt there is much cause for any who work as designers. Given the 3 year history of the VBA (and the 20 year history of its predecessor the BC), the light touch regulator – most would say no touch – has an unsurpassed record of disinclination to do any enforcing! It is unlikely that this or any other changes will create any concern via the VBA engaging in 'hard' enforcement options.

  • Another example of poorly worded and conceived legislation in Australia put together by Government staff with no understanding of the implications of what they do. I feel for my Victorian design colleagues.

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