Building Regulations 2018

Owners of buildings with occupancy permits. Every commercial, industrial, and multi-residential building owner has ongoing obligations under the essential safety measure regime. ESMs include fire exits, sprinklers, fire detectors, emergency lighting, and similar safety equipment. The obligation to inspect, test, and maintain these is a condition of the occupancy permit itself (regulation 195).

Owner-builders. Individuals who want to build their own home without hiring a registered builder must obtain a certificate of consent (Part 3). They take on direct liability for the building work and must comply with relevant standards (Schedule 2 sets out duties and responsibilities).

Building surveyors. The Regulations define what building surveyors must do (inspection obligations under regulations 173, 174), how they must assess compliance (regulation 121 for performance solutions), and what records they must keep (regulation 175). They also specify the qualifications required for the various categories of registered building surveyor (Schedule 9) and the work each class may do (Schedule 10). The Cau v VBA litigation (discussed below) directly engaged the scope of work authorised for building surveyors.

Building inspectors. Schedule 11 prescribes the work building inspectors may perform. Regulation 174 specifies the classes of prescribed persons who may carry out different categories of inspection.

Domestic builders. Schedule 12 sets out the work authorised for each class of registered domestic builder (limited, manager, unlimited, etc.).

Building product manufacturers and suppliers. The accreditation regime under regulations 240-246 affects manufacturers seeking NCC-accepted accreditation for their products.

Swimming pool and spa owners. All owners of swimming pools and spas must comply with the applicable barrier standard (defined in regulation 5) and registration and inspection obligations.

Building surveyor obligations at permit stage:

• Must determine the building classification (regulation 13)
• Must assess whether proposed work complies with the Act and Regulations (regulation 24(4))
• Must not approve a fire performance solution unless holding specified qualifications or relying on specified expert certificates/determinations (regulation 121)
• Must issue inspection records complying with regulation 173

Building owner obligations (occupied buildings):

• Must display the occupancy permit at an approved location (regulation 197), with a penalty of 10 penalty units
• Must ensure essential safety measures are inspected, tested, and maintained as specified in the occupancy permit (regulation 195)
• Must comply with any maintenance determination under regulation 215

Owner-builder obligations:

• Must obtain a certificate of consent before carrying out domestic building work (Part 3)
• Must comply with the duties and responsibilities in Schedule 2

Application requirements for building permits:

• Regulation 24: Form 1 format
• Regulation 25: Drawings, specifications, allotment plans, engineering computations, planning permits
• Regulation 26: Demolition-specific requirements
• Regulation 28: Swimming pool or spa applications have additional requirements

Compliance with AS 1851-2012 for ESM: Where the occupancy permit specifies an older standard, the owner may upgrade to AS 1851-2012 compliance for maintenance purposes (regulation 196(2)), but must then continue with that standard (regulation 196(3)).

Record-keeping by building surveyors: Regulation 175 requires building surveyors to keep copies of directions to fix building work until the occupancy permit is issued, the direction is revoked, or the Building Appeals Board sets it aside.

Relevant building surveyor: May require testing of materials used in building work (regulation 120(1)) and may prohibit use of materials that fail tests (regulation 120(2)). May consent to partial compliance of building work or existing buildings with certain standards in altered buildings (regulations 232, 233, 234), subject to criteria including structural adequacy and safety/health considerations. The consent must be in Form 18 (regulation 232(4)).

Building Regulations Advisory Committee: Issues certificates of accreditation for building products (regulation 245), may revoke accreditation (regulation 246), and has powers in relation to building product accreditation.

Victorian Building Authority: Administers building practitioner registration, prescribes approved forms (regulation 9), and plays the central regulatory role under the Building Act.

Emergency orders and building notices: Regulations 177-181 prescribe mandatory content for emergency orders (regulation 177) and building notices (regulation 179), but the power to make orders is given by the Act (sections 102, 106, 111-113). The relevant building surveyor or municipal building surveyor exercises discretion in deciding whether to issue these.

The Regulations impose penalty units for specific breaches. Notable examples:

Regulation 197(2): Failure to display a current occupancy permit at an approved location in a Class 1b, 2, 3, 5, 6, 7, 8, or 9 building, or a place of public entertainment, is an offence punishable by 10 penalty units. The requirement applies to commercial, multi-residential, and institutional buildings.

The Act (not the Regulations directly) imposes larger penalties for substantive offences like carrying out building work without a permit, acting as a building practitioner without registration, and failing to comply with essential safety measure requirements. The Regulations set out the procedural and technical requirements; breach of those requirements is enforceable through the Act's penalty regime.

Building permit applications: Must be in Form 1 (regulation 24(1)) with all required supporting documents. The relevant building surveyor assesses compliance. There is no prescribed statutory determination period in the Regulations themselves (the Act provides timelines).

Owner-builder consent applications:

• Must be accompanied by information within specified currency periods: for example, a certificate of title must be dated within 7 days of application (regulation 15(b)), and a co-owner written statement within 28 days (regulation 15(d))

Essential safety measures:

• Must be inspected and tested at the frequency specified in the occupancy permit (regulation 195)
• Annual reporting obligations apply in most commercial buildings

Building product accreditation:

• Regulation 245: Committee must re-issue certificate when accreditation is renewed, condition varied, or accreditation transferred

Mandatory inspections:

• Regulation 173: Inspection records must include date, time, purpose, permit number, address, inspector name and registration number, stage inspected, and outcome

Building Act 1993 (Vic). The Regulations are subordinate legislation under the Act. All powers exercised under the Regulations derive from the Act. The essential safety measure obligations in regulation 195 cross-reference the occupancy permit regime in the Act (sections 40, 51 and others).

National Construction Code / Building Code of Australia. Part 2 of the Regulations (regulations 10-13) incorporates the NCC/BCA by reference. The BCA's building classifications, deemed-to-satisfy provisions, and performance requirements all apply as if they were part of the Regulations.

Mutual Recognition Act 1992 (Cth). In Victorian Building Authority v Cau [2023] FCAFC 120, the Full Federal Court considered the interaction between the Building Regulations' authorisation of building surveyor work (Schedule 10) and the Mutual Recognition Act's entitlement to interstate registration. The activities "authorised to be carried out" under a Victorian building surveyor registration (as defined by the Regulations and Schedule 10) were used to determine whether a Western Australian building surveyor's registration was equivalent for mutual recognition purposes.

Disability (Access to Premises -- Buildings) Standards 2010 (Cth). Regulation 236 (access to buildings for persons with disabilities) aligns the Regulations with the Commonwealth Disability Standards. When a new part is added to an existing building, access provisions must be met for the affected parts.

Australian Standard AS 1851-2012. Regulation 196 expressly incorporates this standard as an alternative to older occupancy permit requirements for fire protection maintenance. This is one of the few regulations that explicitly names and gives legal effect to an Australian Standard.

Transfer of Land Act 1958 (Vic). Regulation 15(b) requires a certificate of title dated within 7 days, under the Transfer of Land Act, to accompany owner-builder consent applications for Torrens title land.

Sale of Land Act 1962 (Vic). The definition of "allotment" in regulation 5(1) is defined by reference to section 8A of the Sale of Land Act.

Classification of buildings drives everything. The building class (determined under regulation 12 using the BCA definitions) determines which NCC standards apply, what inspections are mandatory, whether an occupancy permit is required, and whether ESM obligations attach. Misclassifying a building -- for example, treating a Class 2 multi-unit building as a Class 1 house -- can result in significant non-compliance.

Fire performance solutions require specific qualifications or certificates. Regulation 121 is strict: a building surveyor cannot simply agree that a performance solution meets fire performance requirements. They must either hold the Graduate Certificate in Performance-Based Building & Fire Codes from Victoria University (or VBA-approved equivalent), or rely on one of the specified types of expert certificate or formal determination. There is no general discretion to accept other evidence of fire safety compliance.

ESM conditions are conditions of the occupancy permit, not just best practice. Regulation 195 makes ESM inspection, testing, and maintenance a condition of the occupancy permit, not merely a regulatory obligation. This means a building owner who fails to maintain ESMs may be in breach of the occupancy permit itself, not just a separate statutory obligation. The consequences include potential occupancy permit cancellation under the Act.

Displaying the occupancy permit is compulsory. Regulation 197 imposes a positive obligation on commercial and multi-residential building owners to display a copy of the occupancy permit at an approved location. Many owners are unaware of this requirement.

Partial compliance for building alterations is available but requires surveyor consent. Regulations 232-234 allow partial compliance for alterations to existing buildings, but only with the relevant building surveyor's written consent using Form 18. Proceeding with an alteration on the basis of assumed partial compliance (without formal consent) is a compliance risk.

Applicable barrier standard for swimming pools is tied to construction date. Under the definition in regulation 5, the barrier standard a pool must meet is generally the standard in force at the date of construction. If building work is later carried out on the barrier, the new standard at the date of that work applies (at least to the affected parts). Pool owners who modify barriers should seek advice on which standard now applies.

Mutual recognition for interstate building surveyors is not automatic. The Cau litigation shows that interstate building surveyors cannot assume their registration automatically qualifies them for Victorian registration under mutual recognition. The equivalence assessment compares the specific activities authorised under each State's registration, including activities like issuing building permits that may not exist in the same form in all States.

Example 1: Commercial building ESM annual report. A retail shopping centre holds an occupancy permit specifying that its sprinklers, emergency lighting, and exit signs must be inspected and maintained quarterly. The owner is required by regulation 195 to ensure those ESMs are inspected and maintained as specified. The owner must also display a copy of the occupancy permit at an approved location (regulation 197). Failure to comply with either obligation creates regulatory exposure.

Example 2: Owner-builder building a house extension. A homeowner wishes to add a second storey without engaging a registered builder. They must apply for a certificate of consent under Part 3, using the Authority's approved form (regulation 14). The application must include the required information (regulation 15), a certificate of title dated within 7 days (regulation 15(b)), and must be accompanied by a fee (regulation 18). If they proceed without consent, the building work is unlicensed under the Act.

Example 3: Building surveyor approving a performance solution for fire. A building surveyor receives an application for a commercial building where the architect has proposed a performance solution in lieu of a sprinkler system. Before the surveyor can accept this solution, they must either hold the Graduate Certificate in Performance-Based Building & Fire Codes (VU), or must obtain a fire safety engineer's certificate under section 238 of the Act from a fire safety engineer who did not design the building work (regulation 121(d)).

Example 4: Interstate building surveyor seeking Victorian registration. A building surveyor registered as Building Surveying Practitioner Level 1 in Western Australia applies to the VBA for registration as "Building Surveyor - Unlimited" in Victoria under the Mutual Recognition Act. The VBA must assess whether the activities authorised under the WA registration are substantially the same as those authorised by a Victorian unlimited registration, including the power to issue building permits (Schedule 10 of the Victorian Regulations). As the Cau litigation shows, this is a substantive equivalence assessment, not a rubber stamp.

Example 5: Swimming pool barrier upgrade. A homeowner built an inground pool in 2010. The barrier was compliant with the then-current standard. In 2024, they renovate the pool surrounds and replace part of the fence. The renovation is building work on the barrier. Regulation 5's definition of "applicable barrier standard" means that the replaced part of the barrier must now meet the barrier requirements in force in 2024. The homeowner cannot simply rely on the 2010 standard for the new fence sections.