Building Surveyor Determination Appeals

In this article, we will delve into the following:

• Building Surveyors;
• Responsibilities of Building Surveyors;
• Building Permits;
• Right to Review Decisions;
• Building Appeals Board; and
  • Appeals Process;
  • Appeals Periods; and
  • What to Serve on the Board and Other Concerned Parties.
• Legal Representation.

Building Surveyors

Section 16 of the Building Act 1993 (Vic) (‘The Act’) states that a person is not to conduct any building works unless a building permit has been issued. A building surveyor from the private or municipal sector issues this building permit in Victoria. A building surveyor ensures the construction activities adhere to regulations by conducting inspections. On a building project, only one building surveyor may be employed, and they may only be replaced under exceptional circumstances.

Responsibilities of Building Surveyors

Building surveyors play a critical role in ensuring that construction projects meet the necessary standards and regulations. One of their primary responsibilities is to oversee the building permit delivery process. This involves issuing building permits after assessing and approving building plans to ensure they comply with relevant codes and regulations. Throughout the construction phase, building surveyors conduct mandatory inspections to verify that the work aligns with approved plans and meets structural, fire safety, accessibility, and environmental sustainability requirements.

Upon completion of the building work, building surveyors perform final inspections to determine if the structure is fit for occupation. If satisfied, they issue occupancy permits or certificates of final inspection, depending on the nature of the project. Building surveyors also have the authority to issue building notices, building orders, and emergency orders in cases of non-compliance or safety concerns. These notices and orders prompt necessary actions to address issues and make buildings safer for occupants. Municipal and private building surveyors alike wield powers such as issuing building directions, building notices, and building orders under relevant legal provisions, ensuring that construction projects adhere to established standards for safety and functionality.

Building Permits

A building permit may be issued pursuant to section 16 of The Act, however, there are several requirements for this application to be successful:

• Planning permit for the site must be acquired;
• Calculated building permit levy must be paid;
• Any consent from a reporting authority must be received;
• Protections works must be complied with, if applicable; and
• All plans must be in an acceptable format and must be sent and considered by the Board.

Right to Review Decisions

In Victoria, building owners have the right to dispute determinations made by building surveyors. Notably, owners can seek review of decisions through the Victorian Building Authority (VBA), the Victorian Civil and Administrative Tribunal (VCAT), the Building Appeals Board, or the Victorian Supreme Court.

Section 150 of The Act outlines mechanisms for resolving disputes between building owners and building surveyors regarding the exercise of powers related to inspections. This section grants both parties the right to refer such disputes to the Building Appeals Board for resolution.

Furthermore, owners also have the option of seeking judicial review at the Victorian Supreme Court. This route is typically pursued as a last resort, especially if the VCAT or VBA commits a jurisdictional error. These legal processes, although are more intricate and time-consuming than merit reviews.

Building Appeals Board

The Building Appeals Board (Board) in Victoria holds significant authority in resolving disputes and appeals related to decisions made by building surveyors. Specifically, the Board’s jurisdiction extends to matters concerning building design compliance under the Building Code of Australia, often initiated by owners, purchasers, relevant building surveyors (RBS), or the Victorian Building Authority (VBA). These appeals and disputes fall within Part 10 of The Act, encompassing a range of decisions such as refusal of permits, directions to fix building work, protection work determinations, and decisions made under the Building and Construction Industry Security of Payment Act 2002, among others.

The Board operates as a specialist tribunal comprising professionals from diverse backgrounds within the building industry, ensuring a thorough and informed review process. Panel hearings, conducted either physically or virtually, involve meticulous consideration of evidence, potential site inspections, and mediation if deemed appropriate. Upon reaching a decision, the Board issues a written determination with detailed reasons or findings, which must be adhered to by the involved parties. These determinations are final within the Board’s jurisdiction but can be appealed to the Supreme Court of Victoria solely on points of law, highlighting the Board’s authoritative role in resolving complex building-related disputes.

One notable area where the Building Appeals Board’s authority is crucial is in disputes regarding protection works, especially between neighbouring property owners. If an owner or an adjoining owner disagrees with the Relevant Building Surveyor’s determination regarding proposed protection works, they can appeal to the Building Appeals Board. This process ensures a comprehensive review of contentious issues related to building regulations and upholding standards within the construction industry in Victoria.

Appeals Process

In Victoria, the appeals process for building surveyors’ determinations are governed by the Building Regulations 2018 and the Act. The steps are as follows:

1. The first step is to lodge a Notice of Appeal with the BAB within the specified period;
2. The appellant must clearly state the grounds for appeal and why they believe the determination was incorrect or unreasonable;
3. In some cases, the BAB will facilitate a mediation or conciliation session;
4. The appeal shall proceed to a formal hearing before the BAB in the event that mediation or conciliation are considered ineffective or unsuitable. All pertinent arguments and evidence are presented and taken into consideration during this hearing; and
5. Following the hearing the BAB will issue a legally binding decision either upholding or setting aside the building surveyor’s determination.

Appeals Periods

The Building Regulations stipulate stringent deadlines for serving the Board with your notice of appeal. The Board does not have the authority to prolong this period if this notification is served after the appeal period, with the exception of certain situations. As per regulation 271 of the Building Regulations, the duration of the notice of appeal is contingent upon the nature and subject matter of the appeal.

What to Serve on the Board and Other Concerned Parties

If an appeal is to be determined the following steps may be completed:

• A notice of appeal(s) form;
• Written submission containing the grounds and nature of the proceeding and relief sought; and
• A payment detail form for the prescribed fee for each appeal.

Provided that the Board does not require any additional information after a hearing has been conducted, the decision of the appeal will usually be within one to eight weeks.

Legal Representation

For all concerns regarding reviews of decisions and building disputes, contact us today at admin@elaminelaw.com.au or call us at 03 8400 0100.