FAQs - Reforms: changes introduced on 4 July 2016

Do the new requirements of s37 apply to existing permits?

The provisions of s37 apply from the 4 July irrespective of when a building permit was issued.

What is the timeframe for the relevant building surveyor (RBS) to provide a copy of the direction to fix to the owner?

A copy of the direction to fix is required to be provided to the owner at the same time it is issued to the builder. (Refer s 37J)

When do the new provisions of section 30 apply to a building permit application?

The provision applies to any building permit issued on or after the 4 July irrespective of when it was lodged.

When a mandatory inspection is carried out, (ie. footings or frame inspection) is RBS required to issue a written direction for every non-compliant or approved subject inspection reports completed by the building inspector?

Where non-compliant work has been identified by the RBS, s37A should be issued. This may be an oral direction or a written direction. Where an oral direction is given, the RBS must be satisfied that the work can be compliant within 7 days. If not, a written direction must then be given and a copy provided to the owner. A direction must only cover items of work that are non-compliance and does not need to be accompanied by a inspection report.

Does an owner builder have seven days (7) to comply with an oral direction?

The owner builder must complete the building work as directed within the specified time frame given at the time, however if a verbal direction is not complied with within 7 days the RBS must issue a written direction.

If an owner builder does not comply with a written direction, does it require a building notice to be issued?

Where a written direction has not been complied with, it should be referred to the VBA and the RBS should consider the use of part 8 enforcement powers (issue notices / orders)

How should building surveyors provide written notice to the VBA?

Written notice should be provided to the VBA via VBA customer service email address: customerservice@vba.vic.gov.au.

How should building surveyors provide written notice to the owner?

Refer to the service of documents  requirements under the Act.

In what form should the notice be issued?

The noticed should be issued in the approved form which can be found on the VBA website.

Documents supporting a building permit application are itemised. Do they also need to be itemised on the checklist?

YES you are required to itemise documents on the approved checklist. Alternatively, it can be provided as an attachment or appendix to the checklist.

When submitting an occupancy permit to council under section 73, do the recent changes to the Act require the approved checklist to be lodged?

No. A checklist lodgement only applies to a building permit application under the section 30.

Can the section 30 be electronically signed?

Yes. Refer to the Electronic Transaction Act for further details.

What is considered appropriate evidence in relation to the registration of each practitioner as required by item 8 (v) of section 30A checklist?

Appropriate evidence that should be provided by the applicant when lodging the building permit documentation can include:-              

  • a copy of the VBA website printout which includes the practitioners details; or
  • a copy of the practitioners certificate of registration; or
  • a copy of practitioner registration card.

Where a contracted building inspector is engaged by the RBS, who determines the time limit given that the inspector has no control of when the next inspection will occur?

The RBS is required to determine the time limit on the written direction.

Can the person carrying out the inspection issue a written direction to fix building work as approved subject to conditions?

No. Where non-compliant work is encountered the inspection should not be approved. A direction to fix is issued if the building works does not comply with the Act, the Regulations or building permit.

Can the person carrying out the inspection issue a written direction to fix building work and not specify a time frame other than at the time of the next mandatory inspection?

The written direction to fix building work must specify time frame for complying with the direction.  It is not appropriate to nominate at the time of the next mandatory inspection.

If the directions are served electronically, can they be saved electronically without having a paper file?

Yes.

Do you have to provide a S30 checklist for an amendment to a building permit?

Yes if a building permit is amended and documents are required to be resubmitted to Council, then a checklist associated with the amendment will be required to be submitted.

How has the VBA communicated to owners and builders of these new changes so they are aware they will be receiving directions to fix building work?

The VBA has posted a fact sheet and new form up on the website as part of the overall reforms communications. A summary has also appeared in the VBA mail.

Can there be a grace period before this legislation is mandatory in order for the industry to amend workflows and systems to accommodate for the new legislation?

The implementation of this part of the legislation commencement on 4 July 2016.

Does a section 37(B) direction to fix override a section 37(A) direction to fix by the RBS?  

Yes, a section 37(A) issued by the RBS ceases to have effect if a section 37(B) is given by the VBA. However, the RBS is still responsible for their appointed functions of section 76 for building project.

The important words in subclause 3 are "…that work…" in s37B(3).

The VBA would not choose to issue a section 37B apart from exceptional circumstances. These circumstances might include:-

  • when the VBA has identified non-compliant building work
  • VBA has engaged with the RBS and the RBS has refused to issue a s37A.

The VBA would unlikely issue a s37B until such time they have issued a direction to the RBS (most likely using a s205M direction). Another example might be where the VBA strongly disagrees with the s37A direction issued by the RBS. Again, in this instance we would seek to engage with the RBS to discuss our opinion and where appropriate, the RBS would amend the s37A. As such, it is unlikely that we would have both a s37A and s37B on foot at the one site at one time. A s37B only overrides the relevant parts of a s37A. For example, if a s37A refers to framing matters, and a s37B relates to siting matters, the two instruments can co-exist. However, where the s37B relates to the same items as the s37A, the s37B would override.

Will the VBA provide a form 1507 in order to comply with the mandatory notification stage? If not, what is the process?

No, the VBA would not issue a form 1507. We don't perform the role of a registered practitioner as set out in section 238 of the Act. The RBS will need to ensure appropriate inspection of the building work for all mandatory inspection stages to ensure compliance.

Time frames on when directions are required to be fixed. Does VBA have any guidelines?

The length of time specified in directions should be appropriate and reasonable for the building work to be undertaken. The minimum time should be cognisant of the appeal period, which will be 7 days (refer section 146 of the Act).

Where compliance with the written directions to fix building work is not achieved within the time period, does the VBA 'take over' the directions and pursue it through to compliance?

The VBA does not 'take over' the directions to fix building work. Building notices and/or orders are to be issued by the RBS at the end of the period for the directions to fix building work where compliance has not been achieved.