Building Legislation Amendment Act 2023
The Building Legislation Amendment Bill 2023 passed both Houses of Parliament on 1 June 2023 and received Royal Assent on 6 June 2023. Upon commencement of the relevant provisions on a date to be proclaimed, the new Building Legislation Amendment Act 2023 (Amendment Act) will make a number of significant changes to the Building Act 1993 (Vic) (Building Act) as well as a range of other legislation. The provisions of the Amendment Act will commence no later than 1 February 2024.
The Amendment Act imposes additional obligations which will have an impact upon Councils, Contractors and Principals in the building industry. Some of the key amendments to be made to the Building Act are highlighted below.
Key amendments to the Building Act
New statutory role of the State Building Surveyor
Division 3 to be inserted in Part 12 of the Act establishes the statutory role of the State Building Surveyor (SBS). The SBS will continue to operate within the Victorian Building Authority for ease of facilitation and information sharing, but a number of the SBS’ functions will now be given force under the Building Act. The objectives of the SBS include to act as the primary source of technical expertise for building and plumbing work, to encourage improvements to regulatory oversight and to support improvements to the building surveyor profession.
The key function of the SBS is that they have the power to make binding determinations relating to the technical interpretation of building and plumbing standards and requirements. Determinations issued by the SBS need to be followed by building and plumbing practitioners, and building permits will be required to comply with any binding determinations which are in force.
Building and plumbing practitioners will need to carry out work in accordance with all determinations made by the SBS, and building surveyors will need to have regard to all binding determinations issued by the SBS. Disciplinary action may apply for failing to comply with a binding determination.
New statutory role of the Building Monitor
Division 3A to be inserted in Part 12 of the Act introduces and establishes the role of the Building Monitor who will advocate for domestic building consumers. The Building Monitor is to be appointed by the Governor in Council on the recommendation of the Minister and has the important role of advising the Minister for Planning on systemic issues experienced by domestic building consumers and make recommendations to address these issues.
The Building Monitor is responsible for producing an annual Building Monitor Issues Report identifying the issues affecting domestic building consumers and for providing recommendations for each issue identified. To enable the Building Monitor to effectively perform their role, they are granted extensive information gathering powers that entitle them to obtain relevant information from a range of sources, including Councils.
All persons or bodies who are the subject of recommendations that emerge from the Building Monitor Issues Report will be made aware and will be required to provide a response to the Building Monitor whether they agree or disagree with the recommendation. If they agree, the person or body will need to respond indicating how they intend to implement the recommendation. Councils will need to consider the Building Monitor Issues Report and any recommendations made by the Building Monitor which may affect Council’s functions and operations.
New categories of building practitioner
In the interests of creating greater consistency and compliance with national building standards and to facilitate ease of movement of labour, the Amendment Act expands the definition of ‘building practitioner’ in section 3 of the Building Act. The new or amended categories include a building consultant, building designer, site supervisor and project manager. The work permitted to be carried out by these building practitioners will be further clarified in forthcoming regulations, including registration requirements for each practitioner. It will be an offence for a person to carry out prescribed building work without being registered to carry out that work.
As foreshadowed in the Second Reading Speech, the role of a ‘building consultant’ could include performing due diligence inspection work, essential safety measures maintenance work, disability access work and energy efficiency work.
Transitional provisions in the Amendment Act ensure practitioners already registered in categories that will be amended will be deemed to be registered in the new category, including a ‘draftsperson’ being taken to be registered as a ‘building designer’ and ‘person responsible for a building project’ being taken to be registered as a ‘project manager’.
New requirement to submit a draft building manual
Sections 41A and 41B of the Building Act will introduce a requirement for persons applying for an occupancy permit to submit to the relevant building surveyor a draft building manual for prescribed buildings. Building manuals are intended to be a single repository of all relevant information relating to the design, construction and ongoing maintenance of a building. Further details about the requirements for a building manual will be prescribed through regulations, including the buildings to which they apply and what they will need to contain, as well as the form of the manual which may be prescribed to be in digital format.
Once submitted, and if approved by the RBS, the building manual will be provided to the owner or the owners corporation, who will be responsible for maintaining and keeping the documentation current.
Importantly, section 44D of the Building Act will make it an offence to knowingly or recklessly include false or misleading information in a draft building manual or updates to an approved building manual.
The requirements for building manuals will be triggered by classes of buildings to which building manuals apply being prescribed by regulations. Transitional provisions apply for building permits and occupancy permits being considered around the time these classes of buildings are prescribed.
New requirement for RBS’ to provide information statements
Once certain relevant information is prescribed in regulations, including classes of buildings to which the requirement applies and the content of the information to be provided, relevant building surveyors will need to provide owners prescribed information statements at the time of issuing a building permit.
The details about the information statement are not yet clear, but the Second Reading Speech states that the information statement will be
‘a document that clearly details [the relevant building surveyor’s] roles and responsibilities’ which will ‘increase transparency and assist consumers to be fully informed about the critical role that their appointed building surveyor plays in their building project.’
An improved information sharing framework
Amendment to section 259AB of the Building Act will strengthen information sharing practices between statutory bodies through approved information sharing arrangements. These arrangements entitle the relevant agencies to request and disclose information which is considered reasonably necessary for the performance of functions under the Building Act. Notably, the agencies which are considered relevant agencies for the purpose of the Building Act have been expanded and now expressly include, among others, the Building Monitor, Business Licensing Authority, and the chief dispute resolution officer of Domestic Building Dispute Resolution Victoria.
Many of these changes have been introduced as part of the current building system review. The amendments to be introduced by the Amendment Act are reflective of a number of the recommendations set out in the Stage One Report, as outlined in our recent insights article, Victorian Building System Review – Stage One Report Published.
Councils, Principals and Contractors should:
- be aware of the new statutory role of the SBS and any binding determinations which may be made by the SBS;
- be aware of the new statutory role of the Building Monitor and the recommendations which may arise from the Building Monitor Issues Report;
- consider the new practitioner categories, registration requirements and scope of permitted work to be prescribed;
- be aware of the requirement to provide information statements if a Council MBS is the relevant building surveyor for a project; and
- prepare, maintain and comply with building manual requirements.
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