VIC – HENDRY building surveyors provide some history to the formation of the Building Act 1993 and an insight to the main content features incorporated into the Building Act 1993 at the time of its proclamation with the Building Regulations.

INTRODUCTION

Victoria’s Building Act 1993 provides powers for the regulation of building and building standards. It is supported by the Building Regulations 2006. The Building Act 1993 and the Building Regulations 2006 are closely interwoven and therefore it is necessary to cross reference much of the information contained in each, the building regulations reference the Building Code of Australia (BCA).

BACKGROUND

AUBRCC (the forerunner to the Australian Building Codes Board) initiated a project to develop a National Model Building Act in November, 1990. This was in recognition of the need for reform of existing legislation governing the construction of buildings and the need for greater legislative uniformity among the states and territories.

Differing standards had created serious and costly non-tariff barriers to interstate commerce and seriously handicapped the export drive in building products and services.

Following an extremely intensive developmental and consultation program, AUBRCC completed what is referred to as the Model Building Act in November 1991.

The proposal for a new Victorian Act grew out of a general review of Victoria’s building regulatory legislation, in conjunction with the development of the Model Building Act. The Building Control Act 1981 was the primary legislation in Victoria regulating the construction of building and their on-going safety.

In Victoria the Model Building Act was released for comment in February 1992 with the stated intention of reviewing the Building Control Act 1981. The Model was used as the basis of its replacement. Subsequently, detailed drafting instructions were prepared principally based on the Model Building Act and taking into consideration the results of the extensive consultation undertaken both in development of the Model and at numerous public seminars.

The Building Bill was passed by the Victorian Parliament on 1 December 1993 and received Royal Assent on 14 December 1993.

The first major amendment to the Building Act 1993 came in the form of the Building (Amendment) Act 1995 which received Royal Assent on 31 October 1995. Most of this amending Building Act came into operation on 1 December 1995.

Summary of innovations contained in the Building Act 1993

• A system has been established where one has the choice of engaging either a building surveyor from the private sector or a local council to oversee all aspects of building control, from application for a building permit to the issue of an occupancy permit. The Building Act 1993 has been structured so as to allow a private building surveyor to take the place of a municipal authority and assume identical powers, standard of care and liabilities.

This provided the public and the industry with choice in order to introduce competition which lead to a speedier and more efficient building control system, also known as building certification.

Councils can opt out of building control system by resolution, provided they enter into an arrangement to transfer all building control functions to another council, private building surveying organisation, or a regional corporation. The applicant may find that there is a choice between engaging a private building surveyor, a municipal building surveyor from the local council or a municipal building surveyor from another council. The applicant is able to ‘shop around’, with a view to engaging the most competitive professional in terms of fee, quality of service, and more importantly, turnaround time.

• Local councils are able to charge fees that are competitive with the private sector.

• A local council can opt out of building control, provided it enters into an alternative arrangement for the provision of that service.

• Law suits concerning the Building Act 1993 attract a limitation period of ten years. The jurisdiction of the Limitation of Actions Act does not embrace anything covered by the Building Act 1993. The ten years runs from the issue of an occupancy permit or a certificate of final inspection. It is not possible to issue legal proceedings for any defect that is more than ten years old.

• The doctrine, often called the ‘deep pocket syndrome’, meant that financially viable defendants who were joined in legal proceedings with ‘men of straw’ defendants had to assume the liability of insolvents under judicial determinations. Under the Building Act 1993, no defendant has to pay any more than his or her own percentage of liability, irrespective of the insolvency of the co-defendants.

• A Building Commission has been established (now the Victorian Building Authority). The Building Commission is funded by a statutory level over the cost of the building work.

• Any dispute to do with the Building Act 1993 is resolved by one appeal body, the Building Appeals Board.

• All building practitioners have to register with the Building Practitioners Board and carry compulsory professional indemnity insurance cover as a prerequisite to practise. It is illegal to practise without such cover.

Building Legislation Table
Refer to our Building Legislation Table for further information on the building control process.

Further Advice

For building surveying consultancy advice please contact our closest HENDRY office by clicking here.