A recent ruling by the Supreme Court should send shockwaves throughout the Victorian community.
The Court determined that the Victorian Building Authority (VBA) did not have the power to order L U Simon Builders Pty Ltd to fix six apartment buildings with non-compliant cladding.
This case is the most momentous in decades. It confirmed that once builders have ‘completed’ construction and issued an occupancy permit, the VBA cannot give ‘a direction to fix’. Most disturbing, Minister Richard Wynne was the ringleader in regulating this ‘game of Russian roulette’, playing with people’s lives.
The ‘regulator’ cannot regulate
Although it may seem strange to trusting Victorians, without the passage of Minister Wynne’s 2015 Building Legislation Amendment (Consumer Protection) Bill, and specifically his insertion of Section 37B into the Building Act, LU Simon’s win would not have been possible.
Ironically, Wynne’s ‘reform laws’ had promised robust reforms and the claim was that it would increase the VBA’s powers foremost to improve consumer protection. Instead, as this judicial edict has revealed, the prejudicial laws in place to protect builders for 30-plus years have not been remedied.
Worse, the lunatical laws have been greatly enhanced in favour of builders, the model of deregulation reinforced and the VBA’s powers so diminished that the roguish ‘regulator’ cannot regulate!
Consumers the biggest losers
Fortuitously for LU Simon, the Planning Minister planned his reforms in time for its lawyers to argue that it had no obligation to remove and replace the flammable cladding.
For Justice Cavanough, it was not a difficult determination. It was purely a question of statutory interpretation, the text and context clarifying that the legislative objective was to constrain the VBA, thereby again failing consumers.
Furthermore, since this judgment has set a precedent for the future, the extensively documented, long-established systemic failure of the building regulatory regime remains set in concrete. Builders firmly flagged the big winners, and unfairly consumers the biggest losers!
Could the Andrews’ ALP ‘Fair Go’ Government have accidentally activated the ‘law of unintended consequences’?
An examination of the Planning Minister’s disinformation and the enormous body of evidence designates a definitive “no.”
Game of Russian roulette
There were two separate cases involving LU Simon, each intermeshed and playing out slowly, the deck subtly stacked to support the construction kings in this combative ‘game.’
Both cases have been multifaceted and insufferably complicated to comprehend, with tortuous twists over years and strategic ‘game plays’ precast to confuse and cloud the consumer con.
Thus only today can the tactical stratagems leading up to this Court decree be unscrambled and understood.
To begin, here’s a synopsis of the two distinct but connected cases.
Case 1: Lacrosse fire sparks combustible cladding crisis
The first case involving LU Simon was sparked when the Lacrosse Tower in Docklands went up in flames in November 2014. This ferocious fire spotlighted LU Simon Builders and ignited national interest in the ever-widening combustible cladding crisis.
Over more than three years, the various authorities issued orders in relation to the Lacrosse building and the owners instituted a number of legal proceedings.
The crucial problem was who could be blamed for the 2014 Lacrosse inferno, its non-compliant cladding and rectification. Of course, it could not be the builder.
In October 2015, the Melbourne City Council’s (MCC) building surveyor issued orders against the owners, giving them one year “to replace the building’s non-compliant cladding with panels that meet Australian fire-safety standards.” At the time, MCC’s CEO Ben Rimmer said “the building was deemed safe (to occupy) for now.”
Hence, problem solved. The Building Act compelled that the owners were responsible. The owners were to blame.
The owners appealed the orders for full re-cladding to the Building Appeals Board (BAB) and LU Simon also sought to revoke the orders.
As to rectification costs, the Lacrosse owners’ pursuit of $40 million from LU Simon is still being staged, the next phase not set down for a VCAT hearing until September 2018. Imagine the astronomical financial costs, and the owners must replace the cladding by July 2018!
However this case plays out, the owners will be the losers. Despite evidence from the Metropolitan Fire Brigade (MFB) in its Post Incident Analysis Report that the occupancy permit documents showed 20 alternative solutions “were used to determine compliance with…the BCA,” in itself astounding, “there was no such alternative solution for the use of combustible cladding.”
LU Simon is seeking to shift the blame in its VCAT fight to avoid paying the Lacrosse owners; claiming installing non-compliant cladding “has been a common practice across Australia for at least 40 years,” such panels “routinely approved by the MFB, independent fire engineers, architects and building surveyors.”
Further, as lawyers are acutely aware, by adjoining more parties, the owners’ costs will skyrocket, and with the insurmountable stress over so many years, it may prove too much for the victims to endure.
Thus, the owners have been involved in many legal battles. Apart from challenging the MCC Order in the BAB, they have faced hefty expenses, losses in rent, years of unbearable distress and suffering, and their properties are plainly not saleable.
Timing the trickstering was significant.
It’s called clowning around with people’s lives in this brutal ‘game’!
Case 2: Wynne sets the stage for a blockbuster win for big builders
This latest Supreme Court judgment concerned a second, separate case in relation to six other Towers built by LU Simon in and around Melbourne’s CBD where an estimated 2,500 people live and work.
However, this case was most certainly closely linked to the Lacrosse case. How could it not be with the same builder involved?
In the case of the Lacrosse calamity, the Building Act was the culprit, whether it was in fact or not. In this second case, a super swindle was planned.
Upon assuming the role of ‘Responsible Minister’ in December 2014, Wynne unambiguously articulated why the construction industry was lawless: “the investigatory and compliance regime isn’t working.” Sagaciously, he branded it “systemic failure.”
This reference to systemic failure and faulting the VBA as the ‘regulators of non-compliance’ has been Wynne’s discordant drum, beating tirelessly for the past three-plus years.
In March 2015, ahead of the bad news on the horizon, Wynne set out to win over the public. He advised that he had been in training for this role all his life. And the primary punch line, he put people first in his pragmatic proclamations, saying things such as “planning is ultimately about people,” “where we live,” adding, “and fairness.”
Here the language cleverly chosen to pacify the public, who were later to learn the wistful words of comfort were cherry-picked to quell growing fears, and cover the most superlative of confidence tricks.
In May 2015, MFB Deputy Chief Officer David Youssef expressed his shock.
“In my 30 years I have not seen a fire spread like this in a high-rise before,” he said, adding, “I was confident that Melbourne high-rises were built to very high standards. We’ve been caught by surprise with what occurred there.”
Youssef’s confidence was clearly misplaced. The VBA’s fictitious ‘very high standards’ suppressed because the deregulated building industry’s non-existent standards were classified a “dirty little secret.”
Then on 8 May 2015, Fire Protection Association CEO Scott Williams informed the Australian of the “time bomb,” with tens of thousands of apartment buildings nationwide threatening risk of intense, rapidly spreading fire.
As highlighted above, timing the trickstering was supremely significant.
Several legal cases initiated by the Lacrosse owners were afoot and yet to play out, doubtless a reprieve on one front when the Lacrosse owners’ class action was dropped.
In addition, the Lacrosse owners’ appeal of the order to the BAB, and LU Simon’s attempt to have it revoked, required time to play out the ‘alternative solutions’ shenanigans. Of special note is the Business-Bureaucracy (Biz-Bureau) Band, and in particular the role of the enormously powerful BAB, an integrated segment of this band.
The BAB is comprised solely of chosen industry experts, neither independent nor impartial, and its role here was extremely important. Hence the BAB’s sluggish process, not issuing its dismissal of both appeals until January 2017 and ordering the owners to remove the seriously risky cladding.
This was imperative to buy time for plotting the vital moves culminating in this Supreme Court verdict.
So as the Lacrosse pawns in this game worried tormentedly on, their lives in every sense on the line, the kings watched whilst Wynne’s Band systematized. And 2015 and 2016 quietly wafted away.
The key to success was planning. The dominant industry operatives and our officials had been working on the ‘plan’ for years. But the Lacrosse fiasco had to be factored in, and the many thousands of other high-rises built by our biggest builders with the petrol-coated panels.
Wynne could tweak the package. Success also necessitated shrewd tactical manoeuvres and as the ringmaster, Wynne could consent. Then the scheming stipulated proceeding leisurely, and Wynne had this in the bag.
Quintessentially, the ‘plan’ had to be obscured by limiting the release of information and camouflaging the end goal through misleading propaganda. Most importantly, and despite his claims to the contrary in his speechifying to Parliament, the Minister had to totally exclude consumers from any communication or consultation on his proposed ‘laws’ – this armoured lockout critical to concealing the intent of the legislative loophole.
‘Systemic failure’ laws fortified
By far the most important ruse requiring time was fortifying the VBA’s indestructible standing as the lead agency in ‘systemic failure.’
In presenting the 2015 legislation to Parliament, Wynne’s Explanatory Memorandum confidently guaranteed: “the authority will be given new powers to direct builders to fix non- compliant or defective building work,” to be “exercised more appropriately.”
When the names of many big builders slipped into The Australian in January 2016, the game was just about wrapped up, the ‘get-out-of-trouble’ tickets only weeks away.
Wynne had his ‘consumer protection’ legislation enacted by early 2016. Under the guise of strengthening the powers of the VBA, these included the crucial Section 37B ‘direction to fix’ effective from 4 July 2016. However, as has just been confirmed by the VBA on 23 February 2018, “Since the introduction of the VBA’s power to issue directions to fix in July 2016, the VBA has not issued any directions to fix.”
So the VBA never issued a ‘direction to fix’ to LU Simon or any other builders. Really such laws were never planned to become a reality.
It is noteworthy that the VBA further stated that its ‘encouragement’ “at times required the issue of a Section 2015M direction,” this calling upon the relevant or municipal building surveyor to be directed to direct the builder. If this irrational ‘rationale’ seems bizarre, be assured it is the norm for all things building. The S 205M raises the question of time, presumably applicable only in the construction phase. Regardless, with no penalties attached, the outcome is pointlessly ineffectual.
Wynne waxing lyrical as builders line up legal challenge
The first inkling that LU Simon proposed to test the powers of the VBA came in October 2017, when it informed that the builder “who constructed the Lacrosse apartment tower, has mounted a legal challenge to stop authorities ordering it to fix another six multi-storey towers it erected with non-compliant cladding.”
VBA’s CEO Prue Digby awkwardly added “Recently the VBA asked building practitioners – including LU Simon, who had not made satisfactory progress in achieving compliance – ‘to provide an enforceable undertaking to provide an agreed pathway to bring these (6) buildings into compliance’“.
Wynne’s missives of misinformation were relentless. Three weeks prior to the historic 2017 Supreme Court ruling, he determined the cladding crisis cause “decades of non-compliance and a culture of cutting corners,” adding “We have to fix it”!
This from the ‘fixer’ who had already purportedly just fixed it!
Wynne wound up wittily waxing lyrical where he had begun. Ahead of the Court’s finding in this shameful betrayal, Wynne as ‘Responsible Minister’ blamed the VBA. He concluded that after emaciating the VBA’s powers, it was the guilty party who: “will have to lift their game”!
Game over: Big bombshell
Next the news delivered the Supreme Court’s decision just on Christmas 2017, announcing Court Ruling Protects Builders.
It was all settled. Before those affected knew it was ever slated!
Thus it came to pass that the supposed laws lionized to “fix the flaws” and “protect consumers” were powerfully bent to benefit builders, with Wynne pontificating perfectly to “underpin the future growth of the industry.” Consequently, Wynne’s actions in contravention of the stated ‘Purpose’ of the Building Act: “(a) to regulate building work and building standards” authorized nil regulation by the reputed regulator!
Whilst it revealed a monstrous bombshell for owners, for Wynne’s winners it was unsurprisingly a windfall.
The truth revealed in the Age was that if the VBA had succeeded, “it would have meant owners not having to go through the usual process of getting a building defect report and launching legal proceedings.“
Yes, if the regulator had been legally empowered to regulate, the VBA could have ordered LU Simon to fix the combustible cladding on these six apartments. And these powers would have pertained to all non-compliant, defective buildings.
However, Wynne’s intention, explicitly inserting Section 37B into the Building Act, provided bullet-proof protection.
So why have a regulator if it cannot regulate?
The answer is simple: like the cladding, our ‘governance’ is a contaminated façade. Its offensive objective to mislead, to mask the truth that consumers are simply cash-cows with one single purpose: to fund the rogue industry and become its victims. To pick up the tab for all their rectification losses if they can. To be the prey to feed the insatiable, ever-growing ‘dispute industry.’ And lastly, to pay the immoral pollies and listen to their wily pollie waffle.
Wynne’s legacy: Spiraling consumer catastrophe
Builders could have been in trouble in this high-stakes game, but as in the past, the big players in the con-struction industry would be unbeatable, forever protected. Armed with their ‘get-out-of-jail’ permits as requisite issue, they have been granted ‘safety’ now, and in the future.
As for owners, the disingenuous ‘reforms’ were buried to blindside until December 2017 when it was “Mission Accomplished.” Thus in this game of Russian roulette, Wynne’s ‘consumer protection’ laws have delivered near fully loaded guns ready to be discharged at the heads of owners.
Too late for the defenceless targeted victims!
In short, there were no miscalculations. Poor quality, unsafe buildings, lives at risk, ‘systemic failure’ entrenched, this was the end game. Profits over people and a spiralling consumer catastrophe! This is Wynne’s legacy to the Victorian community.
Wynne’s last word
Wynne was asked to respond to his ‘reforms’ for this article, to justify how legislation which he submitted under the pretence of ‘consumer protection’ could have in fact left consumers worse off than ever. He was also asked why he repeatedly refused to allow any consumer consultation and why, despite persistent requests and lengthy written submissions from the only building consumer organization in Victoria and the country, he elected to rebuff all overtures and failed to respond to any communication.
He refused to offer any response. After repeated follow up, a media adviser to John Eren sent some nonsensical comments, and I quote some of these below:
From comments on Wynne’s ‘Fair Go’ reforms – email on 25 January 2018
“While we are still considering the implications of the decision (LU Simon Supreme Court decree), we are confident the VBA has the tools it needs to make buildings safe if they are found to have combustible cladding used in a non-compliant manner.”
“We will continue to monitor the VBA’s activities to ensure it has the powers it needs and if additional legislation is needed, we will move to introduce it.”
“We will continue to work hard to protect Victorians.”