Everything old is new again? Incremental change to building regulation in Victoria


Posted By on 21/06/23 at 10:03 AM

The Building Legislation Amendment Act 2023 (Vic) (the Amendment Act) has become law, having passed both Houses of State Parliament and having received royal assent on 6 June 2023.  The Amendment Act will commence on a date to be proclaimed, being no later than 1 February 2024.

The Amendment Act is substantially a revival of the Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Bill 2022 (Victoria) that stalled in the Legislative Council, having run out of sitting days in which to pass before the State election in November 2022.[1]

The Amendment Act represents the delivery of Stage 1 of an initiative and process called the Building System Review, based around a series of reports to government by an Expert Panel on Building Reform. The Stage 1 report prioritised practitioner registration; building approvals; regulatory oversight; and consumer protection.

Key measures

Key measures introduced by the Amendment Act include:

  • Building Monitor: The position of Building Monitor will be established. The Building Monitor will assist people affected by issues in the domestic building industry (owners and adjoining owners), highlight systemic issues in that part of the industry, and advocate for owners.
  • State Building Surveyor: A statutory role for the State Building Surveyor is set out. The State Building Surveyor will have power to make binding determinations on the interpretation of laws as to building and plumbing standards, to provide technical guidance and training on building and plumbing work, and to engage with regulators and stakeholders.
  • New categories of Building Practitioner: “Building practitioner” will be extended to include the new categories of building consultant, building designer (formerly, draftsperson), site supervisor and project manager (formerly, a person responsible for a building project). Transitional arrangements will apply to currently registered practitioners. Regulations will provide further guidance on what work is carried out by each of these categories of building practitioner. Penalties will later apply for carrying out work of a kind prescribed as falling within a registration category without the relevant registration.
  • Building manuals: Upon promulgation of regulations stating the classes of buildings to which this will apply and the form and content of the manuals, it will be a requirement that draft building manuals obtain the approval of building surveyors as a precondition to the issue of occupancy permits.
  • Data sharing: There will be enhanced data sharing between Victorian building industry agencies, including but not limited to the VBA, in the furtherance of an agency’s functions. The list of “relevant agency” is long and includes the VCAT (but not apparently a Court exercising jurisdiction sought to be conferred on VCAT).  This will extend to the sharing of documents as well as data.

The Amendment Act is the first part of a reform process which, when it got properly underway in early 2021, was intended to lead to recommendations for a new Building Act by the end of 2023.  Evidently, the reform process has been delayed.

Is the delay excusable?

Victorians affected by recent builder collapses and by defective building work (including design, inspection and issuing of permits) may prefer that the reforms in the Amendment Act had already come into effect, on the assumption that the approach of gradual linking up and tightening of various aspects of the building regulation may drive towards better outcomes and better standards in built structures in the long run.

But the delay stretches back further than the immediate past Parliament. There is seemingly a history of delay in reform of building regulation in Victoria.

Those industry participants with longer memories may recall a Bill introduced into the Parliament in 2014 by the then government – the Building Legislation Amendment Bill 2014 – ran out of time to pass the Legislative Assembly and lapsed at the conclusion of the 57th Parliament due to the election in November 2014. Many of the reforms proposed in the 2014 lapsed Bill were subsequently legislated, such as registration of corporations and partnerships as building practitioners by means of the Building Amendment (Enforcement and Other Measures) Act 2017. However other attempts at reform, such as the then proposal to reinstitute a type of domestic building consumer protection fund, have not been enlivened or otherwise advanced.

Again, those adversely affected by building projects in Victoria may prefer that the reform process had a higher priority amongst successive governments’ legislative programmes, and/or involved a less incremental approach to reform.

Industry participants may have to suspend judgment on not only timeliness but also the effectiveness of reforms, until the time when the trajectory of the three-stage reforms is better understood and further stages of reform are implemented.

In the meantime, many continue to ponder whether the delay is excusable.

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[1] Notably, provisions in the defunct Building, Planning and Heritage Legislation Amendment (Administration and Other Matters) Bill mandating a requirement for a further building inspection under the auspices of the municipal building surveyor before an occupancy permit can be issued, do not form part of the Amendment Act.

KHQ Lawyers - Catherine Bell

Catherine Bell Principal Solicitor

Catherine is recognised as a leading construction law practitioner, and has more than 20 years’ experience in construction and infrastructure law, advising on major construction projects and acting... Read More