Building Act 1993

The Act affects a broad range of parties:

• Property owners and developers: must obtain building permits before commencing work and occupancy permits before occupying buildings. Owner-builders face additional requirements under Division 3A of Part 3.
• Builders and construction companies: must be registered building practitioners; must carry out work in compliance with the permit and building regulations; must not carry out work that falls outside their registration category.
• Building surveyors (both municipal and private): are the central gatekeepers who issue permits, conduct mandatory inspections, and can issue building notices, building orders, and emergency orders.
• Building practitioners generally (draftspersons, inspectors, engineers, building designers): must be registered with the VBA under Part 11.
• Plumbers (sanitary, drainage, gasfitters, mechanical services, fire protection): must hold a licence under Part 12A; must issue compliance certificates on completion of work.
• Consumers and homeowners: have rights to domestic building insurance, to appeal to the BAB, and (after recent amendments) to benefit from cladding rectification subrogation rights.
• Councils: continue to employ municipal building surveyors and exercise local building law functions under Division 5 of Part 12, though their role has shifted since the VBA was created.
• Insurers: required to provide domestic building insurance policies; affected by cladding rectification provisions under Division 4 of Part 9.

Before building work commences:

• s. 16(1): A person must not carry out building work unless a building permit has been issued and is in force. This obligation applies to the person doing the work, not just the owner.
• s. 16(2): Building work must be carried out in accordance with the Act, the building regulations, and the conditions of the building permit.
• s. 17: Applications for building permits must be made to the relevant building surveyor.
• s. 17A: The relevant building surveyor must give the owner an information statement before issuing a permit.
• s. 18AA: The relevant building surveyor must apply to the VBA for a building permit number.

Notification obligations:

• ss. 18A–18D: Surveyors must notify Development Victoria, the Commissioner of State Revenue, and the Secretary (where applicable) of permit applications. These notifications connect the building permit system to land tax, development contributions, and other statutory regimes.

During construction:

• Part 4: Mandatory inspections at stages specified in the permit. The relevant building surveyor may give directions to fix building work that does not comply with the Act, regulations, or permit.

On completion:

• Division 3 of Part 4: A certificate of final inspection must be obtained before occupation.
• Part 5: An occupancy permit must be obtained before the building is occupied (for building work) or before a place of public entertainment opens.
• Part 12A, Division 4: Licensed plumbers must issue compliance certificates on completing plumbing work.

Registration and licensing:

• Part 11: Building practitioners must be registered with the VBA in the appropriate category and subclass before carrying out work. Registration must be renewed annually (s. 172).
• Part 12A, Division 3: Plumbers must hold a licence in the appropriate category before carrying out plumbing work.

Insurance:

• Part 9, Division 3: Registered building practitioners carrying out domestic building work must hold domestic building insurance before commencing work above the prescribed contract value.

Relevant building surveyor:

• s. 19: Discretion to approve or refuse building permit applications, with power to impose conditions.
• s. 20: Power to specify the type of permit (standard, staged, or occupancy permit combined with building permit).
• Part 4: Power to issue directions to fix building work and to refuse to issue a certificate of final inspection where work does not comply.
• Division 1 of Part 8: Power to issue emergency orders where a building or structure poses immediate danger to persons, without prior notice.
• Division 2 of Part 8: Power to issue building notices (requiring a response) and building orders (requiring action).

Victorian Building Authority:

• Part 11: Power to grant, refuse, suspend, cancel, or impose conditions on registration of building practitioners following disciplinary proceedings.
• Part 12, Division 2: Power to appoint authorised officers, set annual fees, maintain registers, and accredit building products (s. 14).
• s. 14B: Power to keep the register of accredited building products.
• Division 1A of Part 6: Power to transfer functions of a private building surveyor who is unable to continue, protecting continuity for permit holders.
• Division 3 of Part 6: Power to appoint a manager of the business of a private building surveyor.
• Part 12A, Division 11: Power to suspend or cancel plumber licences following inquiries and disciplinary action.
• Part 13, Division 2: Authorised officers have entry and information-gathering powers including the ability to enter premises, inspect, take samples, and copy documents.

Minister:

• s. 7: Power to make building regulations.
• Part 13, Division 1: Power to intervene where a council fails to exercise building functions.
• Part 12: Power to issue guidelines for the VBA.

Building Appeals Board:

• Part 10, Division 5: Broad powers including the power to conduct hearings, take evidence, make orders, and (since the 2016 amendments) resolve domestic building work disputes.

Building work offences:

• s. 16(1): Carrying out building work without a permit in force: 500 penalty units (natural person), 2,500 penalty units (body corporate).
• s. 16(2): Carrying out building work not in accordance with the Act, regulations, or permit: 500 penalty units (natural person), 2,500 penalty units (body corporate).
• s. 16B: Indictable offence for knowingly carrying out building work without a required permit: 600 penalty units or five years imprisonment, or both (natural person); 3,000 penalty units (body corporate).

Non-compliance with orders:

• s. 118: Failure to comply with an emergency order or building order: 500 penalty units (natural person), 2,500 penalty units (body corporate).

Practitioner offences:

• Part 11, Division 1: Offences for carrying out work in a registration category without registration: up to 500 penalty units (natural person), 2,500 penalty units (body corporate).

Plumbing infringement offences (Schedule 5):

The infringement notice scheme for minor plumbing offences allows VBA to issue on-the-spot infringement notices for contraventions including:

• s. 221ZH(2): 5 penalty units;
• s. 221ZI(1): 3 penalty units;
• s. 221ZLA: 1 penalty unit;
• s. 221ZNB(1) and (2): 5 penalty units each;
• s. 221ZO(2): 2 penalty units;
• s. 221ZP(3): 3 penalty units;
• s. 221ZPA(1) or (2): 1 penalty unit.

Improper use of information:

• s. 259A (Part 14): Offence for Authority members and employees to misuse information obtained in their official capacity.

Enforcement machinery:

Part 13 establishes general enforcement mechanisms including authorised officer entry powers, information-gathering powers, infringement notices, and court remedies. Courts can make orders for compliance, remediation, and costs.

Building permits:

1. Owner engages a relevant building surveyor.
2. Application lodged with the relevant building surveyor (s. 17); information statement provided to owner (s. 17A).
3. Surveyor applies to VBA for building permit number (s. 18AA).
4. Notifications to Development Victoria, Commissioner of State Revenue, and Secretary where required (ss. 18A–18D).
5. Surveyor decides on application (s. 19); permit issued specifying inspection stages, conditions, and type.
6. Building work commences and is carried out in accordance with the permit.
7. Mandatory inspections at each required stage (Part 4, Division 1).
8. Any direction to fix work must be complied with within the time specified (Part 4, Division 2).
9. Certificate of final inspection issued (Part 4, Division 3).
10. Occupancy permit obtained before building occupied (Part 5, Division 1).

Registration of building practitioners (Part 11):

• Application lodged with VBA (s. 170); assessed against competency and probity criteria.
• Annual renewal with fees payable to VBA (s. 172).
• Registration covers specified categories and subclasses.
• Disciplinary proceedings (Division 3) may result in suspension, cancellation, or conditions.
• Review rights available under Division 4.

Plumbing work (Part 12A):

• Work carried out by a licensed plumber.
• Compliance certificate issued on completion (Division 4).
• VBA inspectors can inspect at any time (Division 10).
• Infringement notices available for minor offences (Division 10A and Schedule 5).

Appeals to Building Appeals Board (Part 10):

• Rights of appeal against building permit decisions, building orders, and disciplinary decisions (Division 1).
• Appeal procedures and hearings (Division 2).
• Domestic building work dispute resolution (Division 3).
• BAB has power to affirm, vary, or set aside decisions.

The Act explicitly connects with and cross-references a number of other statutory regimes:

• Domestic Building Contracts Act 1995: the definitions of "domestic building work" and "domestic building work dispute" in s. 3 of the Building Act are drawn from the 1995 Act. The two Acts work together to regulate home building contracts and associated warranty and dispute resolution obligations.
• Mutual Recognition Act 1992 (Cth): interstate building practitioners and plumbers can seek registration in Victoria under the Commonwealth mutual recognition framework. Sections 170 and 179–180 of the Building Act operate alongside Part 3 of the Mutual Recognition Act. This interaction has been the subject of substantial litigation including Victorian Building Authority v Andriotis [2019] HCA 22.
• Transfer of Land Act 1958: the definition of "owner" in s. 3 of the Building Act is anchored to registered proprietor status under the Transfer of Land Act.
• House Contracts Guarantee Act 1987: Schedule 9 preserves provisions of that Act relating to the Domestic Building (HIH) Indemnity Scheme, providing continuity for historical insurance liabilities.
• Insurance Contracts Act 1984 (Cth): the domestic building insurance framework in Part 9 operates alongside the Commonwealth statute, and notification obligations under the Insurance Contracts Act have been considered in insurance disputes about building defects (see MS Amlin Corporate Member Limited v LU Simon Builders Pty Ltd [2023] FCA 581 considering s. 227C of the Building Act in relation to the VBA's information-gathering powers and their relevance to insurers).
• Planning and Environment Act 1987: building permits must be consistent with planning permits; a building surveyor must not issue a building permit that conflicts with a planning scheme (s. 11 of the Building Act).
• Building Regulations 2018 (Vic): the primary delegated legislation made under Schedule 1 of the Act, covering structural requirements, energy efficiency, fire safety, access for persons with disabilities, and a wide range of technical building matters.
• National Construction Code (NCC): incorporated by reference under s. 9 of the Act into the building regulations, setting minimum national technical standards for buildings.

Owner-builders and the consent certificate requirement:

Division 3A of Part 3 requires an owner-builder certificate of consent from the VBA before the relevant building surveyor can issue a building permit to an owner-builder. Owner-builders also face statutory warranty obligations on resale under s. 137C and related provisions. These are commonly overlooked during property transactions.

The occupancy permit is separate from the building permit:

A building permit authorises the work; it does not authorise occupation. A separate occupancy permit (Part 5) must be obtained before the building is used. Many owners assume the final inspection certificate is sufficient. It is not. Occupation without an occupancy permit is a separate offence.

Domestic building insurance must be in place before work commences:

Part 9, Division 3 requires the insurance to be obtained before commencing domestic building work above the prescribed value. A builder who starts without insurance is exposed to penalties and the policy may be unavailable if a claim later arises.

The limitation of actions regime in Division 2 of Part 9 does not apply retrospectively:

Schedule 4 provides that Division 2 of Part 9 (limitation of actions) does not apply to building work commenced, or for which a permit application was made, before the commencement of the relevant clause. This protects certain pre-Act claims but can create confusion when multiple time limits are potentially applicable.

Mutual recognition does not guarantee automatic registration:

The High Court in Victorian Building Authority v Andriotis [2019] HCA 22 confirmed that the VBA retains the ability to refuse registration to an interstate practitioner on character grounds under the Mutual Recognition Act 1992 (Cth). An interstate practitioner with registration in their home state is entitled to lodge a notice but is not guaranteed registration if there are fitness concerns grounded in the character exception.

Plumbing work and building work are separately regulated:

Part 12A creates a parallel licensing and compliance regime for plumbing work, distinct from the building permit system. A building permit does not authorise plumbing work; a licensed plumber must be separately engaged, and compliance certificates must be filed. Confusing the two regimes causes compliance gaps.

Building notices versus building orders:

A building notice (Division 2 of Part 8) requires the recipient to show cause why a building order should not be made. A building order is the final enforcement step and can require demolition, repairs, or cessation of use. Non-compliance with a building order is a separate and serious offence under s. 118.

Example 1: Residential extension without a permit

A homeowner adds a room to their house without obtaining a building permit. Under s. 16(1), carrying out building work without a permit in force is an offence. The relevant building surveyor can issue a building order requiring the owner to obtain a permit retrospectively or, if the work cannot be approved, to demolish the extension. The owner may also face a 500 penalty unit fine. If the homeowner later sells the property, the absence of a permit will be revealed in a building records search, potentially affecting the sale.

Example 2: Registration and interstate practitioners

A building surveyor registered in Western Australia seeks to work in Victoria by lodging a notice under s. 17 of the Mutual Recognition Act 1992 (Cth). The VBA must accept the notice and grant registration unless an exception applies. Under Victorian Building Authority v Cau [2023] FCAFC 120, the FCAFC confirmed that the equivalence of occupations under the mutual recognition framework requires comparing the activities authorised in each state. Where activities are not substantially the same, the mutual recognition entitlement does not arise. The VBA may require further assessment or refuse registration on that basis.

Example 3: Cladding defects and insurance subrogation

A building with non-compliant aluminium composite cladding is subject to a VBA rectification order. The owners' corporation pays for rectification and seeks to recover from the original builder. Under Division 4 of Part 9, the VBA or owners can exercise subrogation rights under domestic building insurance policies to pursue the liable parties. The insurer steps in to manage the recovery action.

Example 4: Plumbing compliance certificate

A licensed gasfitter completes gas fitting work in a commercial kitchen. Under Part 12A, Division 4, the gasfitter must issue a compliance certificate for the work. If the certificate is not issued, the building owner cannot demonstrate compliance to the relevant authority and may face difficulty obtaining an occupancy permit or satisfying insurance requirements. A VBA plumbing inspector can attend the site under Division 10 powers and, if work is defective, issue a direction for rectification.

Example 5: Building Appeals Board dispute

A developer disputes a municipal building surveyor's refusal to issue an occupancy permit on the basis that the building does not comply with fire safety requirements. The developer lodges an appeal with the BAB under Division 1 of Part 10. The BAB can hear evidence from both sides, including from technical experts, and has power to affirm, vary, or set aside the surveyor's decision. The BAB can also impose conditions on any amended approval.