VIC Hendry advises building owners, property professionals and contractors involved in the building and property industry to be aware of recent significant changes to the Victorian Building Act that will affect them.
These changes can place you, your company and your contractor in a vulnerable position. A contractor under the Act, is deemed to be anyone who; performs building works, alterations or rectification works, such as fire services, HVAC, electrical or general building work.
Until recently, in Victoria, the owner has always been responsible for ensuring that a building permit is obtained before any building works can occur. Section 16 now states in part “it is a defence for the land owner if a building practitioner or architect has been engaged to carry out the work” and the owner has not obtained the permit.
A Victorian Building Authority ‘Fact Sheet’ clearly defines “contractors” as Building Practitioners, under Section 16 of the Act. Therefore, if the owner does not obtain the building permit, it is incumbent on the contractor (manager) to obtain a building permit or sight a copy of the building permit prior to commencing alterations to a building.
Schedule 8 of the Building Regulations describes that most building works require the need for a Building Permit. This includes any structured works, internal alterations where active or passive fire systems/services or essential safety measures are altered or affected, and for most fit outs and any change of use.
/ Questions you should consider…Is the contractor aware of this requirement? Are they a registered building practitioner? Have they allowed for the applicable permit fees in their quotation?
If a building owner, property / facility manager or building engineer issues a work order to a contractor to perform repairs, alterations or additions that requires the obtaining of a building permit, then the contractor must obtain the building permit prior to commencing work. If the owner or contractor does not obtain a building permit for the work, and is subsequently exposed, this could put the manager/engineer in an invidious legal position between the parties, especially if insurance claims are involved.
Complications will arise when a manager issues a purchase order to a contractor to commence building work (alterations) without first obtaining a building permit, not advising the contractor to include an allowance for the building permit, or advising the contractor that the building owner is not obtaining the building permit. This manager can be deemed to be the person in charge of carrying out the building works (alterations) in the building as the manager is providing directions to perform building works. This manager is now in a vulnerable position. Fines for an individual are $76,000 and a company $377,000.