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Beware of 'new' section 16 of the Building Act 1993
19 September 2016 in Compliance & Enforcement
Section 16(1) of the Building Act 1993 (Act) is central to the regulation of building work in Victoria. It provides that a person must not carry out building work unless they have a valid building permit for that work and the work is carried out in accordance with that building permit, the Act and the Building Regulations.
From 4 July 2016, s 16(1) of the Act has been amended. The changes shift the responsibility for obtaining building permits squarely to 'building practitioners' and architects when they are engaged by an owner. This will have implications for how illegal building works are investigated and prosecuted by local councils and the Victorian Building Authority.
The amended s 16(1) is as follows:
16. Offences related to carrying out building work
(1) A person must not carry out building work unless a building permit in relation to the work has been issued and is in force under this Act.
(2) A person must not carry out building work unless the work is carried out in accordance with this Act, the Building Regulations and the building permit issued in relation to that work.
(3) An owner of land must not permit building work to be carried out on that land unless:
(a) a building permit in relation to the work has been issued and is in force under this Act
(b) the work is carried out in accordance with this Act, the Building Regulations and the building permit issued in relation to that work.
(4) A building practitioner or an architect who is engaged to carry out building work must ensure that:
(5) Subsection (3) does not apply to an owner if the owner has engaged a building practitioner or architect to carry out the building work on that land.
(6) Subsections (1), (2), (3) and (4) do not apply if the building work is exempted by or under this Act or the Regulations.
As can be seen, ss 16(3) provides that a land owner is specifically prohibited from permitting building work to be done on their land without a building permit and/or in breach of the Act, the Regulations or the permit. While on the face of it, this provision would enable the owner to be prosecuted if there is work carried out without a permit, regard must be given to ss 16(5) which goes on to provide that ss 16(3) does not apply to an owner if the owner has engaged a building practitioner or architect to carry out the work.
The term 'building practitioner' is defined in the Act as a building surveyor, building inspector, quantity surveyor, engineer engaged in the building industry, draftsperson, builder including a domestic builder, person who erects temporary structures or other person who belongs to a class or category of people prescribed to be building practitioners.
The amendments to the wording of s 16 are significant. While s 16(1) has always stated that 'a person must not carry out building work….', it was commonly argued that an owner could be liable for the breach, even where they did not physically carry out the work. The reasoning was that the owner was responsible for carrying out the work through their engagement of a builder or tradesmen to undertake the works when no building permit was in place. This reasoning was supported by s 17 of the Act, which provides that it is the owner that applies for the building permit.
However, the new ss 16(5) expressly states that the requirement that the owner obtain the relevant building permit does not apply to an owner if the owner engaged a building practitioner or architect to carry out the building work on that land.
Accordingly, under the amended s 16(1), before enforcement action may be taken, it will be necessary to first find out if the owner engaged a 'building practitioner' or architect to carry out the work. If such a person was engaged by the owner then any prosecution proceedings based on breach of s 16 will necessarily need to be commenced against the building practitioner or architect engaged by the owner.
The implications of these amendments are as follows:
If an owner engages a building surveyor but then proceeds to commence work without a building permit being issued, the owner could rely on ss 16(5) and would not be liable for a breach of s 16(3). Further, the building surveyor may be in breach of ss 16(4) because they did not ensure that a building permit was issued before the work commenced.
Where an owner engages an architect, draftsperson, engineer or quantity surveyor to prepare or advise on plans, the owner will be able to rely on s 16(5) and will not be in breach of s 16(3) if they proceed with the works without a building permit. Further, the architect, draftspersons, engineers or quantity surveyor engaged in the building projects could be in breach of s 16(4) by virtue of the fact that they were engaged to prepare or advise on the design and they did not ensure that a building permit was later issued. All architects, draftspersons and engineers must therefore take steps to ensure that the owner obtains a building permit for any works that they have designed before those works commence.
It is noteworthy that it is not necessary for the 'building practitioner' that is engaged by the owner to be registered. Therefore, even where an owner engages an unregistered 'builder' who does not ensure that a building permit is obtained, the owner will get the benefit s 16(5) and cannot be prosecuted under s 16(3).
Where an owner engages a 'building practitioner' the council investigating the matter would need to locate the 'building practitioner' if they want to bring a prosecution against that person.
Owners who engage a number of trades, any of which would fall within the very broad definition of a 'domestic builder', can get the benefit of s 16(5) and cannot be prosecuted under s 16(3).
Even if there is evidence that an owner was knowingly involved in the decision not to obtain a building permit, provided that they have engaged at least one person that falls within the definition of 'building practitioner' they will not be in breach of s 16(3).
Although s 16(1) and 16(2) prohibit a person from carrying out work without a building permit (which has always been the case), these new ss 16(3), 16(4) and 16(5) arguably narrow the scope of s 16(1) and 16(2) making it unclear whether an owner who can rely on s 16(5) could nevertheless be prosecuted under s 16(1) or 16(2).
While prosecution proceedings against owners with respect to the carrying out of illegal works may now be much more difficult, a municipal building surveyor could still issue an owner with a building notice and/or order in relation to the illegal works. If the owner does not comply with a valid building order, council could issue proceedings against an owner for an offence under s 118 of the Act.
In summary, any 'building practitioner' or architect engaged by an owner must now ensure that a building permit is obtained regarding that work or they could be in breach of s 16(4). Further, in investigating illegal work, a council will need to determine whether an owner can get the benefit of s 16(5) before they decide whether to prosecute an owner.