Reply To: Act and Regulation amendments

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Ian Robson

The nomination of a municipal council as a ‘building regulator’ is a problem. According to earlier legal advice from Hoey (when the VBA incorrectly referred to councils as regulators) it is not the correct expression as we do not make regulations. I wonder if the State Govt has deliberately used this wording as bite back. We really need a revised comment from Hoey as to whether this expression gives councils additional duties – but I expect not (and that, even though in the Act, it is a poorly chosen word).

The words ‘may refer’ are more of a potential problem as they suggest the VBA will use this to justify handballing matters to councils when it should be the VBA (and PBS) that deals with them. What is required is some sort of umpire to review cases if and when this happens. The ultimate resolution may need to be the Supreme Court (I assume VCAT is not possible). My suggestion is to maintain current resistance to improper handballing and I hope the VMBSG or the MAV will throw down an ultimate challenge to the State Gvt.

The ‘direction to fix’ issue may also be relevant to these changes. If a PBS has witnessed or has ‘reasonable grounds’ to believe work fails to comply, they must issue a direction to fix. Once a direction has been issued the MBS cannot issue a notice or order. In other words, if any matter is referred to a council which relates to building work allegedly in breach where a PBS is involved, the determination and response must be done by the RBS and the MBS cannot carry out any further enforcement (except possibly prosecution) – I think this is how it works(?) I attach my summary sheet to staff on the NTF issue. I think I had this on the other old forum as well.

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