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Building Alert – Identity cards for authorised persons under the Building Act

Identity cards for authorised persons under the Building Act

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

Sections 228 and 228A of the Building Act 1993 (Building Act) operate to allow a municipal building surveyor (MBS) to authorise a person to exercise any or all of the powers of the MBS under Division 2 of Part 13 of the Building Act. Where a person has been so authorised by the MBS, the MBS must issue identification to that person.

The authorisation and identification requirements in the Building Act are separate from the requirements of a Council appointing a person to be an authorised officer under section 224 of the Local Government Act 1989 (LGA).

In most, if not all cases, it would be appropriate that a person appointed by the MBS to be an authorised person under the Building Act also be appointed as an authorised officer of Council under the LGA.

The instrument of appointment and authorisation by the MBS of an authorised person needs to be a separate instrument to the instrument appointing the person to be an authorised officer of Council as the authorisation is derived from a different legal entity.

The identification requirements in the Building Act and the LGA are also separate, such that an authorised person under the Building Act would require a separate form of identification to the identity card that must be issued to an authorised officer under the LGA.

The form of identification of an authorised person under the Building Act under section 228B(4) must:

(a)   display a photograph of the person; and

(b)   state the person’s name; and

(c)   state the fact that the person is an authorised person within the meaning of section 228.

The Building Act does not prescribe the exact form that the identification must take, rather provided the requirements in section 228B(4) have been met, it will be a valid identification.

For practical purposes, the MBS may issue the identification in the form of a sufficiently durable card.  Whilst it is not stipulated as a requirement in section 228B(4), we are of the view that the identification card should state that it has been issued by the MBS and accordingly consider it should also be signed by the MBS.

template instrument of appointment and authorisation of an authorised person under the Building Act and a template form of identification are attached.

Both the Building Act and the LGA contain requirements in relation to the production of identification when exercising powers and entering land.

We understand that separate guidance material in relation to the requirements for the exercise of powers by the MBS and an authorised person, including the requirements for entry onto land will be provided by the Victorian Municipal Building Surveyors Group (VMBSG) in due course.

For further information, please contact: Ian PridgeonMarcus HeathDaniel SilfoElizabeth Flanagan and Angelina Bell.

If you’d like to stay up to date with insights from our Building Enforcement team, please email us at newsletters@rk.com.au.


Amendments to section 241 of the Building Act 1993 – limitation periods for offences – R K lawyers

Amendments to section 241 of the Building Act 1993 – limitation periods for offences

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

The Building Amendment (Enforcement and Other Measures) Act 2017 has resulted in amendments to section 241 of the Building Act 1993 (“Act”).  Section 241 – Proceedings for offences, was amended on 16 August 2017.

The changes to section 241 are of importance to proceedings pursuant to Part 3, 4, 5, 7 and 8 of the Act, are as follows:

  1. subsection 241(7), which was substituted by a different subsection; and
  2. subsection 241(8), being an additional new subsection.

What has remained unchanged?

A council can still commence a proceeding for an offence within the period of three years after the commission of the alleged offence, this provision has remained unchanged.

With the exception of subsections 241(7) and 241(8) the remainder of section 241 has not been amended.

The Amendments

The changes to section 241 of the Act, allow proceedings to be brought within two years after the offence first came to the attention of Council, provided it is not more than 10 years after the offence occurred.

For example, subsection 241(7) of the Act allows a council two years to commence a prosecution for building work it has just discovered that occurred eight years ago without a building permit.

We are of the view the offence is not required to have occurred after the amended section 241 came into operation (i.e. 16 August 2017) for the amended section 241 to apply.  What is relevant to the application of section 241 is when the alleged offence first came to the attention of council and when a proceeding is commenced.

For example if an alleged offence, being the carrying out of building work without a building permit occurred in 2010 and the relevant council became aware of the building work on 17 August 2017 (after section 241 was amended) section 241 would apply to the alleged offence.

What may constitute coming to the attention of the relevant council is not yet fully understood.  Arguably it ought to be interpreted as coming to the attention of those in the council responsible for enforcing the Act.  If it was interpreted as meaning any part of the council, such as cleaning staff, this could be problematic.  Until this has been tested in a Court it will remain partially unclear as what it exactly means.

Should you require any further advice or assistance regarding the recent amendments to the Act please do not hesitate to contact our Statutory Building and Prosecution team: Ian PridgeonMarcus HeathDaniel SilfoElizabeth Flanagan and Angelina Bell.

 

 


China Tour June 2018

The Victorian Municipal Building Surveyors Group is looking at running a 14 day China study tour in June 2018 visiting in the cities of Shanghai, Chengdu, Xian and Beijing.  The cost of the tour including international and domestic flights, bullet train and shared accommodation is $3995 pp. This tour is open to all members who wish to attend including partners and friends.  Anyone who is interested in participating should complete and return the expression of interest by 29th December 2017.

china2018@vmbsg.com.au

China Study Tour 2018 Brochure_Low res

Video link 2015 tour

Video of previous China Study Tour of 2015


Victorian Cladding Taskforce Interim Report

Victorian Cladding Taskforce Interim Report November 2017Please find a link the Interim report, this is a Chairs report and not the final Taskforce report.

https://www.planning.vic.gov.au/building-policy/victorian-cladding-taskforce

 

Victorian Cladding Taskforce Interim Report November 2017

Also link to Victorian Cladding Taskforce website

https://www.planning.vic.gov.au/building-policy/victorian-cladding-taskforce


BUILDING MINISTERS’ FORUM Communique

BUILDING MINISTERS’ FORUM
6 October 2017
Communiqué

The third Building Ministers’ Forum (BMF) for 2017 held in Brisbane on Friday, 6 October 2017, continued to drive decisive action on potentially hazardous aluminium cladding and other efforts to improve the compliance and safety of Australian buildings.

BMF Ministers recognise the public safety concern and clear risk arising around the use of cladding that does not comply with the National Construction Code (NCC). All Ministers agreed that they will use their available laws and powers to prevent the use of aluminium composite cladding with a polyethylene (PE) core for class 2, 3, or 9 buildings of two or more storeys, and class 5, 6, 7 or 8 of three or more storeys, until such time as they are satisfied that manufacturers, importers, and installers, working in collaboration with building practitioners, will reliably comply with:

  • the newly established standard setting test against which fire retardant cladding products are deemed to be reasonable for use in high rise settings; and
  • an established and implemented system of permanent labelling on cladding products to prevent substitution.

For its part, the Commonwealth will regularly provide the states and territories with import data on (more…)


Announcement of new CEO for the VBA

VBA names new Chief Executive

The Chief Commissioner of the Victorian Building Authority (VBA), Dr Owen Donald, today announced the appointment of Ms Sue Eddy as the building regulator’s new CEO.

Ms Eddy’s appointment follows an extensive search and selection process that commenced in June this year when Prue Digby announced her intention to retire from the role.

“I am pleased to announce the appointment of Sue Eddy as the VBA’s new CEO. Sue is a talented leader with an impressive track record in fiscal management, operational strategy and stakeholder engagement, and was selected from a strong field of worthy candidates,” said Dr Donald.

A former Associate Chartered Accountant, Sue Eddy is currently Lead Deputy Secretary Corporate Services at the Department of Economic Development, Jobs, Transport and Resources where she has direct responsibility for the department’s near $2 billion operating budget and over 300 staff. She previously headed the Budget Strategy and Reform branch of the Department of Treasury and Finance, overseeing the development of successive State Government budgets.

In announcing the appointment, Dr Donald also paid tribute to Ms Digby.

(more…)


NSW Government investigation finds Griffith City Council breached law on certifying multiple buildings

“I knew what I did was illegal…”

Council planning manager Carel Potgieter told the board “I knew what I did was illegal however I thought I was doing it within my delegation…”.

Council defended their actions in a submission to the BPB, highlighting problems they face in terms of staff shortages. Council said, “the motive for non-accredited officers to sign certificates was in the interest of customer service”.

 

http://www.areanews.com.au/story/4950538/investigation-council-breached-the-law-on-building-certifications/