Following on from our recent eAlert regarding changes to the Building Act 1993 and Building Regulations 2006, this update includes additional changes on the legislation.

Building Act 1993 changes

The Building Amendment (Enforcement and Other Measures) Act 2016 (Act) received assent last Tuesday 23 May 2017, although very few provisions are in force as yet. One key provision is the new indictable offence in s 16B for a person in the business of building to knowingly carry out building work without a building permit or not in accordance with Act, regulations or permit.

We understand that the Minister has written to all councils noting that they are generally not resourced to prosecute indictable offences and recommending that if a council or the municipal building surveyor suspects an offence under s 16B has occurred, the matter should be referred to the Victorian Building Association (VBA) for consideration. The challenge for councils might be knowing whether s 16B has been breached as the same conduct could be a breach of s 16(1), 16(2), 16(4) or 16B. Until the matter is investigated, determining which provision(s) are the most appropriate for a prosecution could be difficult, however, the investigation requirements for indictable offences are more onerous than for summary offences.

The options for councils seem to be as follows:

  • refer most alleged breaches of any of the offences in s 16 and 16B to the VBA for consideration
  • continue on with their usual approach and generally only pursue investigation and prosecution based on the summary offences unless there is a particularly egregious matter where a breach of section 16B seems likely (in which case refer that mater to the VBA)
  • inform themselves about the requirements for investigating of indictable offences and pursue the investigation of all alleged s 16 and 16B offences themselves.

The majority of the Act’s amendments will come into force on a date to be proclaimed or if not proclaimed, on 1 July 2018. This includes changes to powers of entry, notices and orders, service of documents, registration of corporate entities and changes to time limits for bringing prosecution proceedings. Our unofficial information is that the government is keen to have the amendments proclaimed before 1 July 2018 but the precise dates are unknown.

The amendments to the Act which provide for the VBA to issue building permit numbers (Part 4 of the amending Act) will come into force on a date to be proclaimed or if not proclaimed, on 1 July 2019.

Building Interim Regulations 2017

The Building Interim Regulations 2017 (Interim Regulations) will come into operation on 4 June 2017, replacing the Building Regulations 2006. The Interim Regulations are substantially the same as the 2006 regulations, with minor amendments to update references to standards, planning schemes and other minor changes. The Interim Regulations have been necessary because the 2006 regulations will lapse and the process for development of new regulations is not complete. Our eAlert last week referred to the regulatory impact statement and draft Building Regulations 2017, which are out for public comment until mid-July 2017 but will not come into operation before July 2018.

With the introduction of Interim Regulations it would be prudent for practitioners and councils to update any references to the 2006 regulations in their forms and correspondence by referring to the Building Interim Regulations 2017. Although s 10 of the Building Act 1993 can be used to apply the 2006 Regulations to designs commenced before 4 July 2017, certification under s 10 will generally not be necessary given there is limited substantive difference between the 2006 Regulations and the Interim Regulations. Similarly, if references to the 2006 Regulations are made in documents produced after 4 June 2017, this would not affect the validity of the document or decision taken (see s 29 and 30 of the Interpretation of Legislation Act 1984). However, ideally all references to building regulations in any document produced after 4 July 2017 should be to the Interim Regulations.

For advice regarding the changes the Building Act 1993, the proposed new Building Regulations 2017 or the Building Interim Regulations 2017, please contact Bronwyn Weir.