The Victorian Civil and Administrative Tribunal (VCAT) has reviewed a decision made by the Building Practitioners Board (BPB) – a decision which followed an inquiry into the professional conduct of the applicant, a private building surveyor.

VCAT considered the interpretation and application of ss 24 and 87 of the Building Act 1993 (Act). Key findings were:

  • Section 24: a building surveyor ought not to issue a building permit if the documents submitted with the application do not, themselves, show that the building work will comply with the Act and Building Regulations 2006 (Regulations), including the issue of overlooking
  • Section 87(4): where a protection work and protection work response notice have been issued, a determination must still be made under s 87
  • Section 87(4): when making a determination regarding protection works, the determination must be made in a reasonable time, as dictated by the circumstances.

BACKGROUND FACTS

This case concerned a building permit issued for the construction of a dwelling in Hawthorn, Victoria. The owners engaged the applicant as the relevant building surveyor (RBS) and he issued a building permit in September 2010.

OVERLOOKING

The plans submitted with the application for a building permit did not contain information about whether regulation 419 would be complied with regarding overlooking into the secluded private open space of the adjoining property.

The RBS gave evidence that he had attended the site before issuing the building permit and during that site visit he considered whether the adjoining owner’s backyard was secluded private open space. He said he concluded the adjoining owner’s backyard was not secluded private open space because the backyard was not screened by a fence which had no more than 25 percent of its area open.

The RBS proceeded to issue a building permit.

The adjoining owner alleged that the works would give rise to overlooking and be in breach of regulation 419.  Although the owner and RBS maintained that the originally proposed work would comply with regulation 419, the plans were amended to include an overlooking analysis and the variation approved by the RBS.

The BPB alleged the RBS had failed to comply with section 24(1)(a) because he had issued a building permit when he could not have been satisfied that the building work would comply with regulation 419 of the Regulations.

PROTECTION WORK

Before issuing the building permit the RBS determined that protection works were required. The adjoining owner was served with a Form 3 – Protection Work Notice (Form 3). The RBS received a Form 4 – Protection Work Response (Form 4) from the adjoining owner, in which he stated he disagreed with the proposed protection works and requested further information.

The next step in this process was for the RBS to provide the adjoining owner a written notice of determination under s 87 of the Act, including a statement regarding the adjoining owner’s right to appeal to the BAB (as required by regulation 602(6)).

Having received the objection to the proposed protection works from the adjoining owner, the owner amended the proposed design and obtained certification from two engineers in accordance with regulation 603. The RBS advised the adjoining owner that the project would proceed by way of ‘dual certification’ in an email.

Confused by the process, the adjoining owners lodged an appeal with the Building Appeals Board against the RBS’s failure to make a determination under s 87 of the Act.

The BPB alleged the RBS failed to comply with ss 87(1) and 87(4) of the Act in that he failed to make a determination as to the appropriateness or otherwise of protection work and failed to make a determination in writing to the adjoining property owner.

OVERLOOKING – WHAT DOES IT MEAN TO BE ‘SATISFIED’ UNDER SECTION 24(1)?

The Tribunal held that the requirement of s 24, being that a building surveyor must not issue a building permit unless he or she is satisfied the building work will comply with the Act and the Regulations, should be read together with regulation 301. Regulation 301 states that an application for a building permit must contain sufficient information to show the work will comply with the Act and Regulations.

There were two key questions before VCAT on this issue, being:

  • whether or not the documents lodged in support of the permit application were sufficient to demonstrate compliance with regulation 419 in relation to overlooking
  • if the documents were not sufficient, whether the documents can be supplemented by a site inspection.

WERE THE DRAWINGS SUFFICIENT?

The Tribunal held that the drawings submitted to the RBS with the permit application did not provide sufficient information to allow a reasonably competent building surveyor to determine that overlooking was not an issue. The fact that amendments were made to the original drawings after the building permit was issued, served to highlight the insufficiency of the original drawings.

CAN THE DRAWINGS BE SUPPLEMENTED BY A SITE INSPECTION?

The RBS submitted that even if the permit drawings did not show compliance with regulation 419, he was nevertheless ‘satisfied’ there would be compliance with Regulation 419 on the basis of the site inspection he conducted before issuing the building permit. He also submitted that as regulation 301 does not specifically require documentation about overlooking to be submitted, there should be no requirement that the drawings demonstrate compliance with regulation 419.

VCAT held that where there is the potential that overlooking may be an issue, there must be sufficient information in the permit application documents to demonstrate that it will not be an issue. VCAT suggested that this could be by way of a notation on the drawings, or additional documents submitted with the permit application. VCAT held that a permit application should be refused where there is a potential for overlooking, or other non-compliance with the Act or Regulations, which is not adequately addressed in the documents. Because the documents did not demonstrate compliance in relation to overlooking, VCAT found the RBS should not have issued the building permit.

While VCAT commended the RBS for having undertaken a site inspection, it was made clear that this does not substitute the need for the permit application documents to demonstrate compliance with the Act and Regulations.

Protection work – does a determination need to be made where protection work is no longer required?

The Tribunal considered whether a s 87 determination was required to have been made, given there was a re-design and the ‘dual certification process’ under regulation 603 had been commenced.

The Tribunal held that the wording of s 87 is both prescriptive and mandatory, meaning that once a Form 3, and subsequently a Form 4, have been issued, a determination is required even where the plans have changed such that protection work is no longer required.

It was noted that starting a new process without first completing the initial process can create confusion and uncertainty for the adjoining owner. While the RBS did advise the adjoining owner of the changes via email, this did not discharge him of his obligations under s 87.

Protection work – is there a time limit on making a determination?

The Tribunal found the RBS did eventually make a determination months after the design was amended, and it was decided the project would proceed by ‘dual certification’.  The key issue considered regarding s 87 of the Act was whether the determination was made in a reasonable time.  The Tribunal found that the RBS failed to make a determination in a timely manner on the following basis.

As s 87 provides no specific time limit for a determination to be made, then what a reasonable time is will be a matter of statutory interpretation. The Tribunal applied established principles of statutory interpretation, which provide that the statute should be interpreted in a way which promotes the purpose of the relevant Act.

It was noted that the Act aims to provide an efficient and effective system of issuing building permits. If s 87 were interpreted as having no time limit for a building surveyor to make a determination, then the aim of providing an efficient system would be frustrated.

The requirement under regulation 602(6) for a building surveyor to notify an adjoining owner of their appeal rights under section 141 of the Act was also noted. This section provides that an appeal may be made to the BAB where there has been a failure to make a determination within a reasonable time.

In order to read these sections together in a consistent manner, it was held that the determination required by regulation 602(6) must also then be made in a reasonable time, and what a reasonable time is, must be determined.

In the circumstances of this matter, it was held that waiting some time, up to about five months, to make a determination was not reasonable.

OUTCOME

The BPB found allegations that the RBS had failed to comply with ss 24 and 87 of the Act proven, determined that the RBS should be reprimanded, fined $2000 and ordered to pay 50 percent of the cost of the hearing. On review, VCAT affirmed the BPB’s decision that the allegations were proven, upheld the decision to reprimand and the order with respect to costs, but overturned the fine.

In doing so, VCAT held that the purpose of disciplinary inquiries is to uphold the objectives of the Act, rather than to punish those who do not comply with it. In relation to a need for deterrence when setting a penalty, VCAT noted the novel nature of the matters dealt with in this proceeding, which meant the likelihood of a similar situation arising was relatively low and deterrence was not relevant. VCAT also acknowledged that the application of the Act and Regulations was somewhat unclear in this case, so punishing that RBS’s misinterpretation of them was not necessary.

Key messages from this case

These proceedings provide important guidance for building surveyors, councils and practitioners in approaching ss 24 and 87 of the Act and also regulations 301, 419, 602 and 603.

Where overlooking is a possible issue, consideration of this must be evident on the documents submitted with the building permit application, otherwise a building permit should be refused. It has also been established more generally that a building surveyor’s satisfaction that building work will comply with the Act and Regulations must be clearly demonstrated on the documents submitted with the building permit application.

In relation to protection work, where a Form 3, and subsequently Form 4, have been issued, a determination must be made as per s 87(4) and must be made in a reasonable time, as dictated by the circumstances. This is required even if the design is amended so that the dual certification process under regulation 608 can be applied.