Building (Amendment) Act 2004

Victorian Legislation Parliamentary Documents i Building (Amendment) Act 2004 Act No. 66/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Definitions 2 4. Building regulations 3 5. Refusal of building permits 3 6. Insertion of new section 24A 3 24A. Further limitations on issue of building permit 3 7. Insertion of new sections 25A and 25B 5 25A. Notice to building surveyor of changes 5 25B. Restrictions on owner-builder 6 8. Insertion of new Division 3A in Part 3 7 Division 3A—Certificates of Consent for Owner-builders 7 25C. Application for owner-builder certificate of consent 7 25D. Further particulars 7 25E. Decision on application for certificate of consent 8 25F. Applications in relation to land owned by related bodies 10 25G. Certificate of consent 11 25H. Register of certificates 11 25I. Building Commission to publish information statement 11 9. Documents to include prescribed information 12 10. Appeals against decisions of Building Practitioners Board 12 11. Offence to carry out certain domestic building work if unregistered 13 12. Additional function of Building Practitioners Board 13 13. Delegation of functions of the Building Practitioners Board 13 14. Power to amend or revoke plumbing insurance orders 13 15. Regulation-making powers in relation to plumbing work 14 16. Insertion of new Division 1B of Part 13 14 Division 1B—Inspections of Safety and Emergency Equipment 14 227E. Powers of inspection of chief officer and municipal building surveyor 14 17. Production of identity card by authorised persons 15 -- 1 of 20 -- Victorian Legislation Parliamentary Documents Section Page ii 18. Substitution of new section 229 15 229. Power of entry—inspections of buildings, places of public entertainment etc. 15 19. Insertion of additional regulation-making powers 16 20. Reporting authority fees 17 21. Consequential amendment 17 ═══════════════ ENDNOTES 18 -- 2 of 20 -- Victorian Legislation Parliamentary Documents 1 Building (Amendment) Act 2004 † [Assented to 19 October 2004] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Building Act 1993— (a) to improve the regulation of domestic building work in relation to owner-builders; and (b) to require that authorised officers produce identification before exercising powers under that Act or the regulations; and Victoria No. 66 of 2004 -- 3 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 2 (c) to provide powers for the inspection of safety or emergency installations, equipment or services in buildings and places of public entertainment and the inspection of records relating to their operation and maintenance; and (d) to empower a reporting authority to fix certain fees; and (e) to provide for additional regulation-making powers; and (f) to generally improve the operation of that Act. 2. Commencement (1) Sections 1 and 21 and this section come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 July 2005, it comes into operation on that day. 3. Definitions (1) In section 3(1) of the Building Act 1993 insert the following definitions— ' "certificate of consent" means a certificate of consent under Division 3A of Part 3; "chief officer" means— (a) in relation to the metropolitan fire district under the Metropolitan Fire Brigades Act 1958, the Chief Officer of the Metropolitan Fire and Emergency Services; and s. 2 See: Act No. 126/1993. Reprint No. 5 as at 31 May 2003 and amending Act Nos 26/2001, 60/2003 and 102/2003. LawToday: www.dms. dpc.vic. gov.au -- 4 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 3 (b) in relation to any building or land outside the metropolitan fire district, the Chief Officer of the Country Fire Authority under the Country Fire Authority Act 1958;'. (2) In section 3(1) of the Building Act 1993, in the definition of "Building Code of Australia" omit "1996" (where twice occurring). 4. Building regulations In section 7(1)(a) of the Building Act 1993, for "and maintenance" substitute ", maintenance, demolition and removal". 5. Refusal of building permits (1) In sections 24(1) and 24(2) of the Building Act 1993, after "Subject to" insert "section 24A and". (2) Sections 24(3), 24(4), 24(4A) and 24(4B) of the Building Act 1993 are repealed. 6. Insertion of new section 24A After section 24 of the Building Act 1993 insert— "24A. Further limitations on issue of building permit (1) The relevant building surveyor may consider an application for a building permit for building work that is not domestic building work but must not issue the permit unless he or she is satisfied that— (a) each building practitioner to be engaged in the building work is registered under Part 11; and (b) each architect to be engaged in the building work is an insured architect. s. 4 -- 5 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 4 (2) The relevant building surveyor may consider an application for a building permit for domestic building work that is to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that— (a) the work is to be carried out by a builder who is registered under Part 11 in the appropriate class of domestic builder and is covered by the required insurance; and (b) each architect to be engaged in the building work is an insured architect. (3) The relevant building surveyor may consider an application for a building permit for domestic building work where the cost of the work (estimated in accordance with section 201) is more than $12 000 and the work is not to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that— (a) the work is to be carried out by— (i) a builder who is registered under Part 11; or (ii) an architect who is registered under the Architects Act 1991; or (b) the applicant has been issued with a certificate of consent for the work; or (c) the applicant is the Director of Housing within the meaning of the Housing Act 1983.". s. 6 -- 6 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 5 7. Insertion of new sections 25A and 25B After section 25 of the Building Act 1993 insert— "25A. Notice to building surveyor of changes (1) If a building permit has been issued in respect of building work to be carried out by a building practitioner or an insured architect and subsequently the engagement of the building practitioner or architect ends, that building practitioner or architect and the owner of the building or land in respect of which the permit is issued must, within 14 days after that engagement ends, each give the relevant building surveyor written notice of the ending of that engagement. Penalty: 10 penalty units. (2) If a building permit has been issued in respect of building work and subsequently a building practitioner or insured architect is engaged to carry out the building work, the owner of the building or land in respect of which the permit is issued must, within 14 days after that engagement, give the relevant building surveyor written notice of the engagement including details of— (a) the building practitioner's registration under this Act; or (b) the architect's registration under the Architects Act 1991. Penalty: 10 penalty units. s. 7 -- 7 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 6 (3) A builder who is engaged to carry out domestic building work after a building permit is issued in respect of the building work must, within 14 days after that engagement, give the relevant building surveyor written notice of the engagement including details of the required insurance by which the builder is covered. Penalty: 50 penalty units. 25B. Restrictions on owner-builder An owner of land or a building must not carry out domestic building work as builder on that land or in respect of that building if the cost of the work (estimated in accordance with section 201) is more than $12 000 unless the owner— (a) has been issued with a certificate of consent for the work; or (b) is a builder who is registered under Part 11; or (c) is an architect who is registered under the Architects Act 1991; or (d) is the Director of Housing; or (e) is carrying out the work in accordance with an emergency order, a building notice or a building order made under Part 8. Penalty: 50 penalty units.". s. 7 -- 8 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 7 8. Insertion of new Division 3A in Part 3 After Division 3 of Part 3 of the Building Act 1993 insert— 'Division 3A—Certificates of Consent for Owner-builders 25C. Application for owner-builder certificate of consent (1) A natural person may apply to the Building Practitioners Board for the issue of a certificate of consent to carry out domestic building work on land. (2) The application must— (a) contain the prescribed information; and (b) be made in the prescribed manner; and (c) be accompanied by— (i) a statutory declaration by the applicant stating that the applicant has read the information statement published under section 25I; and (ii) any other prescribed information; and (iii) the prescribed application fee. 25D. Further particulars The Building Practitioners Board may ask an applicant under section 25C to give it any more information that it reasonably requires to determine the application and may refuse the application if the applicant does not comply with the request within a reasonable time. s. 8 -- 9 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 8 25E. Decision on application for certificate of consent (1) The Building Practitioners Board must issue a certificate of consent for domestic building work if it is satisfied that— (a) the applicant has complied with sections 25C and 25D; and (b) the applicant is the owner of the land on which the domestic building work is to be carried out or the application is authorised under section 25F; and (c) the application relates to the carrying out of domestic building work in relation to, or ancillary to, a single dwelling; and (d) the applicant resides and will continue to reside, or intends to reside, in the dwelling; and (e) the applicant has not been issued with a building permit for the carrying out of domestic building work by the applicant as builder on land owned by the applicant or a related body in the previous 3 years other than in relation to, or ancillary to, the dwelling on the land to which the application relates; and (f) if the applicant co-owns the land to which the application relates with another person, a building permit has not been issued to that person for the carrying out of domestic building work by that person as builder on land owned by that person in the previous 3 years other than in relation to, or ancillary to, s. 8 -- 10 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 9 the dwelling on the land to which the application relates; and (g) if the applicant was a co-owner of land (other than the land to which the application relates) with another person in the previous 3 years, a building permit has not been issued to that person for the carrying out of domestic building work by that person as builder on that land in that 3 year period; and (h) the applicant is not in the business of building. (2) In sub-section (1) a reference to a period of 3 years does not include any period before the commencement of section 8 of the Building (Amendment) Act 2004. (3) Subject to sub-section (4), the Board must refuse to issue a certificate of consent if the requirements of sub-section (1) are not met. (4) The Board may exempt an applicant from the requirement in sub-section (1)(e), (1)(f) or (1)(g) if the Board determines that special circumstances exist. (5) For the purposes of sub-section (4), the Board may determine that special circumstances exist if it is satisfied that— (a) the application arises from a substantial change in the circumstances of the applicant; or (b) the applicant would suffer hardship if the application were refused. s. 8 -- 11 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 10 (6) In this section "related body" means a body corporate of which the applicant is a director or the trustees of a trust of which the applicant is a beneficiary. 25F. Applications in relation to land owned by related bodies (1) An applicant for a certificate of consent in respect of domestic building work is not required to be the owner of the land on which the work is to be carried out if— (a) the land is owned by a body corporate; and (b) the applicant is a director of the body corporate; and (c) the body corporate has in writing authorised the applicant to make the application and to carry out the work. (2) An applicant for a certificate of consent in respect of domestic building work is not required to be the owner of the land on which the work is to be carried out if— (a) the land is the subject of a trust; and (b) the applicant is a beneficiary of the trust; and (c) the trustees of the trust have each in writing authorised the applicant to make the application and to carry out the work. s. 8 -- 12 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 11 25G. Certificate of consent A certificate of consent issued under this Division— (a) must contain the prescribed information; and (b) expires 3 years after the date of issue. 25H. Register of certificates (1) The Registrar of the Building Practitioners Board must keep a register of certificates of consent issued under this Division. (2) The register must be kept in accordance with the regulations. 25I. Building Commission to publish information statement (1) The Commission, after consulting with the Director of Consumer Affairs Victoria, may publish an information statement setting out information in relation to this Act, the building regulations, the Domestic Building Contracts Act 1995 and the regulations under that Act that the Commission considers appropriate to provide to applicants for certificates of consent. (2) The Commission, after consulting with the Director of Consumer Affairs Victoria, may publish a statement amending or replacing a statement published under sub-section (1). (3) The information statement and any amending or replacement statement must be published in the Government Gazette.'. s. 8 -- 13 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 12 9. Documents to include prescribed information (1) For section 84(2) of the Building Act 1993 substitute— "(2) The notice must include— (a) prescribed details of the proposed building work as at the date of the notice; and (b) prescribed details of the proposed protection work setting out the nature, location, time and duration of the protection work; and (c) any other prescribed information.". (2) In section 85(1) of the Building Act 1993 omit "in the prescribed form" (where twice occurring). (3) After section 85(2) of the Building Act 1993 insert— "(3) A notice given under this section must contain the prescribed information.". (4) For clause 1(a) of Schedule 2 to the Building Act 1993 substitute— "(a) contain the prescribed information; and". 10. Appeals against decisions of Building Practitioners Board After section 143(1) of the Building Act 1993 insert— "(1A) A person to whom a decision of the Building Practitioners Board under Division 3A of Part 3 applies may appeal to the Building Appeals Board against— (a) a decision of the Building Practitioners Board under that Division; or s. 9 -- 14 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 13 (b) a failure of the Building Practitioners Board, within a reasonable time, to make a decision under that Division.". 11. Offence to carry out certain domestic building work if unregistered For section 176(2A) of the Building Act 1993 substitute— "(2A) A builder must not carry out domestic building work under a major domestic building contract unless the builder is registered under this Part in the appropriate class of domestic builder. Penalty: 100 penalty units.". 12. Additional function of Building Practitioners Board After section 183(2)(c) of the Building Act 1993 insert— "(ca) to issue certificates of consent;". 13. Delegation of functions of the Building Practitioners Board In section 186A(2) of the Building Act 1993, for "section" substitute "sections 25D, 25E(1), 25E(3) and". 14. Power to amend or revoke plumbing insurance orders For section 221ZQ(4) of the Building Act 1993 substitute— "(4) The Minister may, by order published in the Government Gazette, amend or revoke an order made under sub-section (1).". s. 11 -- 15 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 14 15. Regulation-making powers in relation to plumbing work In section 221ZZZV(1)(a) of the Building Act 1993, after "performance," insert "energy efficiency, water efficiency, environmental efficiency,". 16. Insertion of new Division 1B of Part 13 After Division 1A of Part 13 of the Building Act 1993 insert— "Division 1B—Inspections of Safety and Emergency Equipment 227E. Powers of inspection of chief officer and municipal building surveyor (1) The chief officer and the municipal building surveyor may either jointly or separately inspect— (a) any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are performing and being maintained in accordance with the building regulations or any relevant occupancy permit; or (b) any records or reports relating to the operation and maintenance of any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are being kept or displayed in accordance with the building regulations or any relevant occupancy permit. s. 15 -- 16 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 15 (2) The chief officer must provide the municipal building surveyor with a report of an inspection by the chief officer under sub- section (1) within 5 business days of that inspection. (3) The municipal building surveyor must ensure that the owner of a building or place of public entertainment that has been inspected in accordance with sub-section (1) is provided, within 10 business days of that inspection, with an inspection report signed by the municipal building surveyor.". 17. Production of identity card by authorised persons For section 228(5) of the Building Act 1993 substitute— "(5) An authorised person to whom an identity card has been issued must produce that card for inspection— (a) before exercising a power under this Act or the regulations; and (b) at any time during the exercise of a power under this Act or the regulations if asked to do so. Penalty: 1 penalty unit.". 18. Substitution of new section 229 For section 229 of the Building Act 1993 substitute— "229. Power of entry—inspections of buildings, places of public entertainment etc. (1) Subject to sub-section (2), an authorised person may enter any building or land for the purpose of carrying out any inspection, authorised or required by this Act or the regulations, of— s. 17 -- 17 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 16 (a) the building; or (b) a place of public entertainment; or (c) any equipment, installation, service, records or reports relating to the building or to the place of public entertainment; or (d) building work or plumbing work. (2) An entry under sub-section (1) may be carried out— (a) in the case of a residence or the land on which a residence is situated, only between the hours of 8 a.m. and 6 p.m.; and (b) in any other case, at any reasonable time.". 19. Insertion of additional regulation-making powers (1) In section 261(1) of the Building Act 1993— (a) after paragraph (b) insert— "(ba) certificates of consent including a requirement that any matter in an application for a certificate be verified by statutory declaration;"; (b) in paragraphs (c) and (d), after "permits," insert "certificates of consent,"; (c) after paragraph (j) insert— "(ja) the information to be included in, or to accompany, any notice or application required under this Act or the regulations;"; (d) in paragraph (la), for "fees" substitute "maximum fees". s. 19 -- 18 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 17 (2) In section 262(f) of the Building Act 1993, for "10 penalty units" substitute "20 penalty units". 20. Reporting authority fees (1) In clause 1(e) of Schedule 2 to the Building Act 1993 for "the relevant prescribed fees (if any)" substitute "the relevant fees (if any) fixed by the reporting authority under clause 4". (2) After clause 4(3) of Schedule 2 to the Building Act 1993 insert— "(4) A reporting authority may fix fees (not exceeding the maximum fees prescribed for the purposes of this clause) for applications or classes of applications referred to it under this Act or the regulations. (5) If the reporting authority is a council, the fees must be determined in accordance with the Local Government Act 1989. (6) A reporting authority other than a council must publish a notice in the Government Gazette of any fees fixed by it under this clause.". (3) In clause 5(1A) of Schedule 2 to the Building Act 1993 for "the relevant prescribed fee (if any)" substitute "the relevant fees (if any) fixed by the reporting authority under clause 4". 21. Consequential amendment In section 34(1) of the Architects (Amendment) Act 2004 for "paragraph (i) is repealed" substitute 'in paragraph (i) omit "except in Part 9 and sections 24(3) and 176(6)" '. ═══════════════ s. 20 -- 19 of 20 -- Victorian Legislation Parliamentary Documents Act No. 66/2004 Building (Amendment) Act 2004 18 ENDNOTES † Minister's second reading speech— Legislative Assembly: 3 June 2004 Legislative Council: 15 September 2004 The long title for the Bill for this Act was "to amend the Building Act 1993 and for other purposes." Endnotes -- 20 of 20 --