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From MAV CEO, Kerry Thompson: Registration and Inspection of Swimming Pools and Spas

Subject: From MAV CEO, Kerry Thompson: Registration and Inspection of Swimming Pools and Spas

4 September 2018

TO THE CHIEF EXECUTIVE OFFICER

Sent to CEOs and CEO PAs

Dear colleague

Registration and Inspection of Swimming Pools and Spas

Recently the Building Amendment (Registration of Building Trades and Other Matters) Act 2018 was introduced to parliament. The Bill, amongst other things, provides for a system of mandatory registration and inspection of swimming pools and spas.

We understand that there is some concern within the sector about the potential implications of this bill for councils, and seek to address some of those concerns.

Under the Bill, councils would be required to maintain a register of all swimming pools and spas appurtenant to residential buildings which have either been registered with the council or which the council is aware of within its municipality.

The Bill also provides for regulation making powers to establish a mandatory registration and inspection regime of swimming pools and spas. It is vital to note that any such regulations will go through a Regulatory Impact Statement (RIS) process with public consultation. However, both the drafting of the regulation making powers and the Second Reading speech point to a requirement on owners of spas and pools to arrange for inspections, rather than this requirement being on council. This interpretation is shared by Simone Holding of Maddocks in this Lexology article, “Importantly the obligation to carry out mandatory inspections will not rest with Council”.

Public consultation for the Building Interim Regulations 2017 included a suggestion to address pool and spa barrier compliance through requiring all pools and spas to comply with the most recent barrier standards, rather than the current standards which vary based on when the pool was installed. This had the potential to be extremely onerous for councils to enforce, even with the proposed three-year lead-time, and there was insufficient evidence to suggest that it would improve pool safety.

Instead, the MAV along with the Victorian Municipal Building Surveyors Group (VMBSG) and other stakeholders advocated for a system of mandatory registration and regular inspections. In the case of the MAV we requested feedback from all councils on this, and of the 38 that responded the overwhelming majority supported both mandatory registration and mandatory regular inspections.

Both our advocacy and that of the VMBSG focused on the need for the owner to be the primary person responsible for registering their pool or spa, engaging a qualified person to perform inspections, and lodging proof of compliance resulting from that inspection with council within the required timeframe. Our understanding is that this will be reflected in the model proposed under the RIS, and that direct intervention by councils will be limited to cases where the owner of a registered pool or spa has not supplied evidence of compliance within a required timeframe. We are committed to working with DELWP and the VBA to ensure that councils have the capacity to fulfil these responsibilities.

The issue of resourcing is an issue that goes beyond spa and pool barrier fences and affects the entire building regulatory system. Council’s role as a building regulator rarely operates to cost recovery and is generally subsidised by other activities or revenue streams. Even where councils have the necessary funds, it is increasingly difficult to find enough suitably qualified persons to carry out the work. We are keen to raise this as a broader issue facing the building regulatory system in Victoria.

We also wish to reiterate that Local Government already has responsibility under Section 212 of the Building Act to administer and enforce the Act and regulations within their municipality, and this extends to spa and pool fences. We believe that moving to a model where the responsibilities of council are more clearly defined and have a dedicated funding stream through prescribed fees would be a positive step forward.

We will be strongly advocating for the interests of the sector when the time comes through the RIS process, and will be seeking your input to inform that advocacy. We will also continue to work with the State in the meantime to attempt to ensure that the options presented as part of that RIS are reasonable and workable for local government.

While much depends on the detail of the regulations, we believe that there is a significant opportunity to improve not only the state of pool and spa safety but also the position of local government. If the RIS proposes options which are unworkable for local government, we will oppose them strongly.

We understand that John Prendergast, President of the VMBSG, has written to all Municipal Building Surveyors on this issue.

If you wish to discuss this further, please contact Emlyn Breese at the MAV, telephone 03 9667 5534.

Warm regards

Kerry

Kerry Thompson | Chief Executive Officer

Municipal Association of Victoria (MAV)
Level 12, 60 Collins Street, Melbourne 3000 | GPO Box 4326, Melbourne 3001
Ph: (03) 9667 5502 | Fax: (03) 9667 5550 | Email: kthompson@mav.asn.au
Website: www.mav.asn.au | Extranet: www.mav.asn.au/extranet 


DECLARATION OF THE MINISTER THAT THE VICTORIAN BUILDING AUTHORITY IS TO CARRY OUT THE FUNCTIONS OF A MUNICIPAL BUILDING SURVEYOR

DECLARATION OF THE MINISTER THAT THE VICTORIAN BUILDING AUTHORITY
IS TO CARRY OUT THE FUNCTIONS OF A MUNICIPAL BUILDING SURVEYOR

I, Richard Wynne, Minister for Planning, and being the Minister responsible for the Building Act 1993, (‘Act’) under section 190 of the Act, after having formed the opinion that it is in the public interest to do so, declare that any or all of the functions of a municipal building surveyor under the Act and the Building Interim Regulations 2017 are to be carried out by the Victorian Building Authority in relation to any building work carried out at, and the building and
land situated at, 247 Williams Road, South Yarra, Victoria.

Dated 24 February 2018
RICHARD WYNNE
Minister for Planning

GG2018S065


Building Alert Supreme Court of Victoria provides guidance with regard to the interpretation of Regulation 414 of the Building Regulations

Building Alert

Supreme Court of Victoria provides guidance with regard to the interpretation of Regulation 414 of the Building Regulations

| Published by Marcus Heath, Ian Pridgeon, Daniel Silfo, Elizabeth Flanagan, Angelina Bell of RK Lawyers

Anderson v Building Appeals Board [2017] VSC 415 (21 July 2017)

Background

The plaintiffs filed two appeals with the Building Appeals Board (“Board”) against Stonnington City Council’s refusal to give its consent to requests for report and consent in respect of Regulation 414 of the Building Regulations 2006 (“Regulations”) to proposed alterations and additions to a dwelling.

The Board made a determination and refused to give its report and consent under Regulation 414 of the Regulations.

Appeal

The plaintiffs made an application to the Supreme Court of Victoria for an order quashing or setting aside the determination of the Board. The plaintiffs advanced two grounds at the hearing, namely the Board had regard to an irrelevant consideration, being daylight access, when determining whether it was acceptable to grant report and consent and the Board had misdirected itself when considering whether to grant report and consent.

The plaintiffs submitted that Division 2 of Part 4 of the Regulations is a comprehensive ‘code’ for the protection of amenity and neighbourhood character. They submitted that each Regulation within the Division addresses a separate aspect of amenity such that the term amenity should be construed narrowly to avoid overlapping.

Council, being the second defendant, represented by Mr Joe Forrest of counsel and briefed by Russell Kennedy Lawyers, submitted that when exercising discretion regarding whether or not to grant report and consent, consent must be refused to an application for report and consent if the application did not comply with any matter set out in the Minister’s Guidelines MG-12 (“MG”). This includes amenity to habitable room windows of existing dwellings on nearby allotments, in this case relating to limiting access to daylight and sky.

Justice McDonald held that the meaning of amenity in terms of Regulation 414 and the MG should not be read down, he stated at paragraph [45] of the judgement:

The discretion conferred upon the second defendant by (f) of the Reg 414 Ministerial Guidelines is unconfined. There is no basis for reading down the ordinary meaning of ‘amenity’ (which includes accessibility of daylight) because reg 416(1) provides that a building must be set back from a habitable room window in an existing dwelling on an adjoining allotment to provide for a light court to the window that has a minimum area of 3m² and a minimum dimension of 1m clear to the sky.

Conclusions regarding Regulation 414

Justice McDonald did not accept the plaintiffs’ arguments and preferred the arguments put on behalf of the Council. The application for judicial review was dismissed accordingly.

The ordinary meaning of amenity should be applied in relation to Regulation 414 and the MG, which includes accessibility to daylight. Accordingly, it is open to a council, in exercising its discretion when considering whether or not to provide its report and consent pursuant to Regulation 414, to refuse to give consent if the proposed setback would result in a significant impact on the amenity, including accessibility to daylight, of the secluded private open space and habitable room windows of existing dwellings on nearby allotments.

Please contact our Statutory Building and Prosecution Team should you require any further advice:  Ian PridgeonMarcus HeathDaniel SilfoElizabeth Flanagan and Angelina Bell.