5ADeputy chairperson may perform the functions of the chairperson

5A Deputy chairperson may perform the functions of the chairperson Despite clause 5, if the chairperson of the Building Appeals Board is absent or unable to act as chairperson, the deputy chairperson of the Building Appeals Board must carry out all the duties and may exercise all the powers of the chairperson while the chairperson is absent or unable to act as chairperson. 6 Pecuniary interests (1) If a member of a Board has a direct or an indirect pecuniary interest in a matter which is about to be or is being considered by the Board, the member must as soon as possible after the relevant facts come to his or her knowledge disclose the nature of the interests— (a) to the Minister, in the case of the chairperson; or (b) to the chairperson, in the case of any other member. (2) A member who has disclosed a pecuniary interest in a matter under subclause (1) must not be present while the Board is considering or deciding the matter and must not take part or further part in that consideration or decision. (3) An act or decision of a Board is not invalid merely because a member contravenes subclause (1) or (2). (4) Subclause (3) does not prevent a member of a Board being removed from office because he or she has contravened subclause (1) or (2). (5) For the purposes of this clause, a member of a Board must not be taken to have a pecuniary interest in a matter merely because the member is engaged in the building industry or in any matter connected with that industry. (6) Without limiting what is a pecuniary interest in a matter for the purposes of this clause, a person must be taken to have a pecuniary interest in a matter relating to a building or building work if the person— (a) is or was involved in designing the building; or (b) has assisted in preparing or making an application for a building permit or occupancy permit for the building or work; or (c) is the relevant building surveyor in respect of an application for a permit for that building or building work. 7 Membership of Board not office or place of profit A member of a Board must not, in respect of the office of member, be taken to hold an office or place of profit under the Crown which would— (a) prevent the member sitting or voting as a member of the Legislative Council or Legislative Assembly; or (b) make void the member's election to the Legislative Council or Legislative Assembly; or (c) prevent the member continuing to be a member of the Legislative Council or Legislative Assembly; or (d) subject the member to liability to a penalty under the **Constitution Act 1975**. Part 2—General procedure 8 Building Appeals Board may sit in panels (1) For the purposes of performing any of its functions, the Building Appeals Board may be constituted by one or more panels of its members. (2) The chairperson of the Building Appeals Board may determine which and how many of its members are to constitute a panel and what proceedings or classes of proceedings are to be allocated to each panel. (3) If a panel of two or more members includes the chairperson of the Building Appeals Board, he or she is the chairperson of the panel. (4) If a panel of two or more members includes the deputy chairperson but not the chairperson of the Building Appeals Board, the deputy chairperson is the chairperson of the panel. (5) If a panel of two or more members does not include the chairperson or deputy chairperson of the Building Appeals Board, the members of the panel may elect the chairperson of the panel. (6) If, after a proceeding has commenced before a panel of two or more members, a member of the panel becomes unavailable— (a) if the parties to the proceeding agree, the proceeding may be continued and completed before the remaining members of the panel; and (b) if the member who is unavailable is the chairperson of the panel another chairperson of the panel must be chosen in accordance with this clause. (7) If the parties do not agree to continue a proceeding under subclause (6) the chairperson of the Building Appeals Board must arrange for the matter to be reconsidered by another panel, and that other panel may have regard to the earlier proceedings. (8) The chairperson of the Building Appeals Board must arrange for records to be kept of the proceedings and decisions of each panel of the Board. (9) Except where this Schedule otherwise expressly provides, a provision of this Part or Part 3 applying to a Board applies to a panel. 9 Decisions not affected by certain matters An act or decision of a Board is not invalid only because— (a) of a defect or irregularity in the appointment of a member or acting member; or (b) of a vacancy in its membership; or (c) the occasion for the appointment of an acting member has ceased to exist. 10 Meetings (1) Subclauses (2), (3) and (5) do not apply to the Building Appeals Board when constituted by a panel. (2) At a meeting of a Board a quorum is half the number of the members currently holding office and, if this would not be a whole number, the next highest whole number. (3) The functions of a Board may be performed at a meeting at which there is a quorum. (4) At a meeting a decision of a Board is the decision of the majority of the members present and voting at the meeting and if voting is equal, the person presiding at the meeting has a casting vote as well as a deliberative vote. (5) The person who is to preside at a meeting of a Board is— (a) the chairperson, if present; or (b) the deputy chairperson (if any), if the chairperson is not present; or (c) a person elected by the members present, if the chairperson is not present and either there is no deputy chairperson or the deputy chairperson is not present. (6) Subject to this Act and the regulations, the procedure of a Board is in its discretion. Sch. 3 cl. 10(7) inserted by No. 96/2004 s. 22. (7) If a member of a Board holds 2 or more positions on the Board ex officio— (a) he or she is only entitled to exercise a single deliberative vote at meetings of the Board, regardless of how many of those positions he or she holds on the Board; and (b) for the purposes of determining the total number of members of the Board currently holding office for the purposes of determining whether a quorum of the members is present, all the ex officio positions held by the member are to be counted as one member. 11 Authentication of documents (1) A document required or authorised to be prepared by a Board must be taken to be authenticated by the Board if— (a) in the case of a document of a panel of the Building Appeals Board, it is signed by the Registrar of the Building Appeals Board and either the chairperson of the panel or the chairperson of the Building Appeals Board; or (b) in any other case, it is signed by the chairperson or deputy chairperson of the Board and the Registrar of the Board or another person employed for the purposes of this Act and designated by the Board for that purpose. (2) The production of a document purporting to be a copy of a record of an act or decision of a Board and purporting to be signed by the Registrar is evidence and, in the absence of evidence to the contrary, is proof that a decision in those terms was duly made by the Board or that the stated act was duly done by the Board. Part 3—Proceedings before the Building Appeals Board 12 Additional powers of Board This Part is in addition to and does not take away from any other provision of this Act. 13 How to commence a proceeding (1) A person may commence a proceeding before the Building Appeals Board by serving on the Board an application, a notice of appeal or a notice of referral of a matter to the Board, as appropriate. (2) A document commencing a proceeding— (a) must specify— (i) the nature of the proceeding; and (ii) the grounds for commencing the proceeding; and (iii) the relief sought; and (b) must be in accordance with the regulations (if any). (3) The person who serves a document commencing a proceeding must without delay serve a copy of that document on— (a) the decision-maker, if the proceeding is an appeal; and (b) in the case of a matter referred to the Building Appeals Board, any other person with a right to refer that matter to the Board; and Sch. 3 cl. 13(3)(c) substituted by Nos 21/2017 s. 95(16), 7/2017 s. 296(4). (c) in the case of an application for a modification of a provision of the building regulations that relates to a building or land on the Heritage Register under the **Heritage Act 2017**, the Heritage Council; and (d) any other party concerned. 14 Parties to a proceeding A person who, under clause 13, is entitled to be served with a copy of a document commencing a proceeding before the Building Appeals Board is a party to that proceeding. 15 Conducting a proceeding (1) The Building Appeals Board must give the parties to the proceeding reasonable opportunity to make— (a) oral submissions at a hearing; or (b) written submissions in the case of a proceeding that is not a hearing. Sch. 3 cl. 15(2) amended by Nos 69/2009 s. 54(Sch. Pt 2 item 7.1), 21/2017 s. 95(17). (2) Sections 14, 15, 16 and 21A of the **Evidence (Miscellaneous Provisions) Act 1958**, as in force immediately before their repeal, apply to the Building Appeals Board in relation to a proceeding as if the Board were a Board appointed by the Governor in Council. (3) The Building Appeals Board— (a) may proceed by accepting written submissions or by conducting a hearing; and Sch. 3 cl. 15(3)(b) amended by No. 21/2017 s. 95(18). (b) may inform itself in any manner it thinks fit; and (c) is bound by the rules of natural justice; and (d) is not bound by any rule or practice as to evidence; and (e) may conduct a proceeding in private if it considers it in the public interest or the interest of justice to do so, but must otherwise hold its hearing in public; and (f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and (g) may proceed with the hearing in the absence of a party to the proceeding if it is satisfied that the party has been given reasonable notice of the date, time and place of the hearing; and (h) may at any time adjourn the proceeding; and (i) may deal with proceedings or classes of proceedings together if it is satisfied that they relate to the same parties, the same building, land or building work or the same or related subject-matter; and (j) may seek the independent advice of a person to assist it in dealing with the proceeding. (4) A party to a proceeding may appear at a hearing before the Building Appeals Board or do anything else in relation to a proceeding before that Board either personally or through an agent. (5) The Board must disclose to each party to a proceeding any advice it receives under subclause (3)(j) and give each party a reasonable opportunity to make submissions about that advice before determining the proceeding. 16 Determinations and reasons (1) A determination of the Building Appeals Board must be in writing. (2) The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just. (3) The determination may include any other incidental order or direction that the Building Appeals Board considers is necessary. (4) The Building Appeals Board must without delay cause a copy of its determination in any proceeding to be served on each party to the proceeding. (5) Within one month after being served with a copy of the Building Appeals Board's determination, or within any further time allowed by the Board, a party to a proceeding may request the Board to give to the party written reasons for its determination. (6) The Building Appeals Board must comply with a request received under subclause (5) without delay after receiving it. (7) The Building Appeals Board may make public any of its determinations in any manner it thinks fit. (8) The Building Appeals Board is not bound by its earlier determinations. 17 Costs Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs. 18 Correction of errors (1) On its own initiative or at the request of a party to a proceeding, the Building Appeals Board or a panel of the Board may make a determination correcting an earlier determination in which there is— (a) a clerical error or accidental slip or omission; or (b) an evident material miscalculation of figures; or (c) an evident material mistake in the description of a person, property or thing. (2) The powers of the Board under subclause (1) may also be exercised on behalf of the Board by— (a) the chairperson of a panel of two or more members; or (b) the chairperson of the Building Appeals Board, if the relevant panel or the chairperson of the panel is unavailable. 19 Enforcement of determination A determination of the Building Appeals Board may be enforced as if it were a judgment or order of a court of competent jurisdiction. Schedule 4—Transitional provisions ***former body*** means any of the following bodies established under the old Act— (a) the Building Control Technical Advisory Council; (b) an advisory committee (including a special advisory committee); (c) a Development Approvals Co‑ordinating Committee; (d) the Building Control Accreditation Authority; (e) the Building Control Qualification Board; (f) a Building Referees Board; (g) the Building Referees Panel; ***former officer*** means any of the following people appointed or employed for the purposes of the old Act— (a) a Development Approvals Co‑ordinator; (b) the Registrar of the Building Control Accreditation Authority; (c) the Registrar of Building Referees Boards; (d) the Registrar of the Building Control Qualification Board; (e) the Director of Building Control; (f) the State Building Surveyor; (g) the Secretary of the Building Control Technical Advisory Council; (h) any other officer or employee of the public service; ***old Act*** means the **Building Control Act 1981**; ***proceeding*** includes an inquiry, investigation, appeal, reservation of a question of law, dispute, reference or application but does not include an application for accreditation or for a certificate of qualification as a building surveyor or building inspector. (2) Without limiting subclause (1), in declaring that certain provisions of this Act are to be treated as re-enacting with modifications certain provisions of the old Act, this Schedule must not be taken to— (a) limit the operation of any provision of the **Interpretation of Legislation Act 1984** relating to re-enactment; or (b) be an exhaustive list of the provisions of the old Act re-enacted by this Act. (3) If this Schedule provides that a provision of the old Act continues to apply to any matter or thing, then any regulation or other instrument having effect under that Act for the purposes of that provision also continues to apply to that matter or thing. (4) If— (a) a provision of the old Act; or (b) a provision of the Victoria Building Regulations 1983; or (c) a provision of a regulation or instrument referred to in subclause (3)— continues to apply to a matter or thing, it continues to apply as in force immediately before that provision was repealed or revoked. (5) This Schedule applies despite anything to the contrary in any other provision of this Act. 3 Superseded references On the commencement of this clause, in any Act (other than this Act or a provision of the old Act continued by this Act), or in any instrument made under any Act or in any other document of any kind— (a) a reference to the old Act is deemed to be a reference to the **Building Act 1993**; and (b) a reference to the Co-ordinator or Development Approvals Co-ordinator or the Development Approvals Co-ordinating Committee under the old Act is deemed to be a reference to the municipal building surveyor; and (c) a reference to building approval in relation to the old Act is deemed to be a reference to a building permit; and (d) a reference to a relevant authority in relation to the old Act is deemed to be a reference to a reporting authority; and (e) a reference to a certificate of occupancy in relation to the old Act or the building regulations is deemed to be a reference to an occupancy permit; and (f) a reference to the Building Control Qualification Board is deemed to be a reference to the Building Practitioners Board; and (g) a reference to a certificate of qualification as a building surveyor in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building surveyor under this Act; and (h) a reference to a certificate of qualification as a building inspector in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building inspector under this Act; and (i) a reference to the Building Control Accreditation Authority is deemed to be a reference to the Building Regulations Advisory Committee; and (j) a reference to the Building Control Technical Advisory Council or the Secretary, Building Control Technical Advisory Council is deemed to be a reference to the Building Regulations Advisory Committee; and (k) a reference to a Building Referees Board or the building referees is deemed to be a reference to the Building Appeals Board; and (l) a reference to the building regulations is deemed to be a reference to the building regulations made under this Act; and (m) a reference to the Director of Building Control is deemed to be a reference to the Commission; and (n) a reference to the State Building Surveyor is deemed to be a reference to the Commission; and (o) a reference to the approval of a temporary public building under the **Health Act 1958** is deemed to be a reference to an occupancy permit issued under Division 2 of Part 5 of this Act in respect of a temporary structure. Sch. 4 cl. 4 repealed by No. 21/2017 s. 100(5). 5 Former officers A former officer who, immediately before the commencement of this clause, was a member of staff within the meaning of the **Public Sector Management Act 1992** continues, subject to that Act, as a member of staff within the meaning of that Act, with a position or employment in the Department of Planning and Development corresponding as nearly as practicable to that held immediately before that commencement, on the same terms and conditions and with the same classification and accrued or accruing entitlements as applied to the person immediately before that commencement. Sch. 4 cl. 6 repealed by No. 21/2017 s. 100(5). 7 Directions about enforcement of old Act (1) A direction in force under section 16(1) of the old Act immediately before the commencement of this clause has effect, on and from that commencement, as if it were a declaration made and published under section 191 in relation to this Act. (2) A direction in force under section 16(2) of the old Act immediately before the commencement of this clause in relation to an area declared under the **Alpine Resorts Act 1983** to be an alpine resort has effect, on and from the commencement of this clause, as if it were a declaration made and published under section 192 in relation to this Act. (3) On the date of commencement of this clause any reference in the direction to which subclause (1) or (2) applies to— (a) Part III of the old Act is deemed to be a reference to Part 3 of this Act; and (b) Part VIII of the old Act is deemed to be a reference to Part 8 of this Act; and (c) Part IX of the old Act is deemed to be a reference to Part 7 of this Act. 8 Building approvals (1) A building approval or building permit granted under the old Act or a corresponding previous enactment and existing immediately before the commencement of this clause is, on that commencement, deemed to be a building permit issued under this Act. (2) An application for building approval made under the old Act and not determined immediately before the commencement of this clause is deemed, on that commencement, to be an application made to a municipal building surveyor for a building permit under this Act. (3) Anything done before the commencement of this clause in relation to an application to which subclause (2) applies is, on and from that commencement, deemed to have been done for the purposes of this Act. (4) Without limiting subclause (3), a consent, refusal of consent, or condition required in relation to a matter by a relevant authority within the meaning of the old Act in relation to an application to which subclause (2) applies is deemed to be a consent, refusal of consent, or condition required by a prescribed reporting authority under this Act in relation to a prescribed matter. (5) If under section 20A of the old Act the Minister has appointed a person to act in place of a relevant authority in relation to an application to which subclause (2) applies, a consent, refusal of consent, or condition required in relation to a matter by that person has effect for the purposes of this Act as if the person were a prescribed reporting authority and the matter were a prescribed matter. (6) A levy is not payable under Division 2 of Part 12 in respect of an application to which subclause (2) applies. Sch. 4 cl. 9 repealed by No. 21/2017 s. 100(5). 10 Continued immunities (1) Section 22 of the old Act continues to apply where— (a) a building approval was granted under the old Act before the commencement of this clause in respect of land liable to flooding; or (b) an exemption has, before that commencement, been granted from any requirement of the building regulations within the meaning of the old Act. (2) Section 80 of the old Act continues to apply to the former members and the former Registrar of the Building Control Accreditation Authority in respect of anything done by that Authority, a member of that Authority, an Advisory Committee to that Authority or the Registrar before the commencement of this clause. Sch. 4 cl. 11 repealed by No. 34/1997 s. 30(e). 12 Certificates of occupancy (1) A certificate of occupancy issued under the Victoria Building Regulations 1983 or under any corresponding previous regulations and in force immediately before the commencement of this clause is deemed, on and from that commencement, to be an occupancy permit issued under Division 1 of Part 5 of this Act, and may be amended or cancelled accordingly. (2) Despite anything to the contrary in the old Act or the regulations under it or in the **Interpretation of Legislation Act 1984**, a person who commenced building work more than 3 years before the commencement of this clause cannot, on or after the commencement of this clause, be charged with an offence because he or she was required to obtain a certificate of occupancy in respect of that building work and did not do so. (3) If the municipal building surveyor has received a notice under regulation 6.3 of the Victoria Building Regulations 1983 but has not issued a certificate of occupancy before the date of commencement of this clause, the municipal building surveyor may issue a certificate of occupancy in respect of that building on or after that commencement under those regulations. (4) If a municipal building surveyor has received advice under regulation 6.5 of the Victoria Building Regulations 1983, and has not revoked the existing certificate of occupancy under those regulations, that certificate of occupancy may be revoked and a new certificate of occupancy may be issued under those regulations on or after the commencement of this clause. (5) If a person has commenced building work 3 years or less than 3 years before the commencement of this clause but, at that commencement, has not obtained a certificate of occupancy in respect of that building work— (a) a certificate of occupancy may be obtained on or after that commencement under the old Act and the Victoria Building Regulations 1983 in respect of the building work; and (b) the old Act and the Victoria Building Regulations 1983 apply to any failure by that person to obtain a certificate of occupancy in respect of the building work whether before or after that commencement. (6) A certificate of occupancy issued after the commencement of this clause under subclause (3), (4) or (5) is deemed to be an occupancy permit under Division 1 of Part 5 of this Act. (7) Subject to this clause, on and from the commencement of this clause— (a) no further certificate of occupancy can be issued under the Victoria Building Regulations 1983; and (b) a certificate of occupancy cannot be revoked under those regulations. 13 Instruments and other matters under the building regulations (1) Clause 11 and the amendment of the old Act do not affect the continuity of any instrument issued or served, or thing done, under the building regulations under the old Act before the commencement of this clause. (2) If— (a) a matter can be dealt with by issuing a building notice, building order or emergency order under Part 8 of this Act; and (b) the Victoria Building Regulations 1983 provide a mechanism for dealing with that matter (whether by notice, direction, requirement or otherwise)— that mechanism cannot be used to deal with that matter on or after the commencement of this clause. (3) A notice served under regulation 57.1 or 57.2 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be an emergency order under Part 8 of this Act. (4) A notice served under regulation 3.2(1) or 57.3 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a building notice under Part 8 of this Act. (5) A notice issued under regulation 3.2(3) of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a building order under section 111 of this Act. 14 Building actions Division 2 of Part 9 does not apply to building work commenced before the commencement of this clause or to building work for which an application for building approval was made before that commencement. Sch. 4 cl. 15 repealed by No. 46/2008 s. 271. Sch. 4 cl. 16 repealed by No. 21/2017 s. 100(5). 17 Agreements required by determinations If, before or after the commencement of this clause, an agreement has been entered into in accordance with— (a) a determination of a Building Referees Board under the old Act; or (b) a determination of a Building Referees Board or the Building Appeals Board in a proceeding referred to in clause 16— this Act applies to the variation or release of the agreement as if it had been made in accordance with a determination under Part 10. 18 Accreditation (1) Anything which, immediately before the commencement of this clause, was for the time being accredited by the Building Control Accreditation Authority is deemed to be accredited by the Building Regulations Advisory Committee for the purposes of this Act. Sch. 4 cl. 18(2) repealed by No. 21/2017 s. 100(5). 19 Building surveyors and inspectors (1) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building surveyor issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building surveyor. (2) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building inspector issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building inspector. (3) If a certificate of qualification referred to in subclause (1) or (2) was suspended immediately before the commencement of this clause, the deemed registration of the person concerned is suspended for the remainder of that period of suspension. (4) The Building Qualifications Register existing under the old Act immediately before the commencement of this clause is deemed to form part of the Register of Building Practitioners. (5) A person deemed to be registered by this clause may apply to the Registrar of the Building Practitioners Board for a building practitioner's certificate. The application must include written proof that the applicant is covered by any insurance required under Part 9. (6) Without delay after receiving an application in accordance with subclause (5), the Registrar of the Building Practitioners Board must issue the applicant an appropriate building practitioner's certificate in accordance with Part 11. (7) No fee is payable for the issue of a building practitioner's certificate under subclause (6). (8) A building practitioner's certificate issued under subclause (6) remains in force for 12 months after the date of its issue. (9) A reference in Part 11 to the anniversary of the registration of a person under that Part is deemed to be a reference to the anniversary of the date of issue of a building practitioner's certificate under subclause (6) in relation to a person deemed to be registered under this clause. (10) An application made to the Building Control Qualification Board before the commencement of this clause but not determined at that commencement is deemed to be an application made to the Building Practitioners Board for registration under Part 11 of this Act. Sch. 4 cl. 20 repealed by No. 21/2017 s. 100(5). 21 Offences by unregistered people—exemptions An approval in force under section 127A(2)(d) of the old Act immediately before the commencement of this clause is deemed to be an exemption under section 176(5)(b) of this Act. 22 Fire protection (1) Subject to this clause, Part VIII of the old Act continues to apply to a building if, before the commencement of this clause, a joint report or fire protection notice has been issued or an order has been made under that Part. (2) Part VIII of the old Act ceases to apply to a building if a building notice, building order or emergency order under Part 8 of this Act is issued for that building. (3) Part VIII of the old Act ceases to apply to a building at the end of twelve months after the day on which action was last taken by the council or the municipal building surveyor under that Part in respect of the building. Sch. 4 cls 23, 24 repealed by No. 21/2017 s. 100(5). Sch. 4 cl. 25 amended by No. 9/2020 s. 390(Sch. 1 item 8.7). 25 Delegations A document evidencing a resolution in force under section 163 of the old Act issued before the commencement of this clause is deemed to be an instrument of delegation under section 11 of the **Local Government Act 2020**. 26 Re-enacted provisions A provision of the old Act specified in Column 1 of the Table is deemed to be re-enacted (with modifications) by the provision of this Act appearing opposite in Column 2 of the Table. **TABLE** | *Old Provision* | *New Provision* | | Section 17 | Part 12 Division 6 | | Section 23 | Section 27 | | Sections 178A to 178C | Part 13 Division 5 | | Part IX | Part 7 | | Section 161 | Part 13 Division 1 | | Section 169(1) | Section 236(6) | | Section 171 | Section 250 | | Section 173 | Section 251 | | Section 174 | Section 252 | Sch. 4 cl. 27 inserted by No. 2/1996 s. 13.