Transitional rules for new building regulations (Vic)

A building permit for building work can be issued after the commencement of a new regulation without the need to comply with that new regulation if the requirements of Section 10 (2) of the Building Act 1993 are satisfied.

 A building regulation or an amendment to a building regulation , does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced.

Examples of how this would apply would be the new energy requirements introduced in Amendment 14 to the Building Code of Australia.  If substantial progress on the project has taken place, then the new energy requirements would not apply.  Equally, the new requirements for waterproofing or any other matters adopted in the amendment would not apply.  Points worth noting in this regulation:

The person who will issue the building permit not only has to be satisfied but must certify this in writing.   Make sure you have a copy of this decision in your project file.

Suitable documentation is the only means for you to adequately indicate the progress of the works at the commencement date.  Remember the regulation refers to design of the building, so the documentation presented to the building surveyor should be able to demonstrate that such works have in fact taken place.  Generally no single document would be suitable; it needs to be supported by other evidence.  Listed below is a range of such documents:  

• Letter of engagement from client to prepare designs or signed and dated HIA Preliminary Agreement.
• Receipt for payment for preliminary site investigation works in relation to a pre-prepared plan on a particular allotment.
• Feasibility study.
• Correspondence to consultants such as designers, engineers, land surveyors, pl anne rs.
• Correspondences to local authorities such as council, water, power, sewerage, gas.
• Correspondence to sub-contract trades.
• Dated design sketch/concept drawings and development of working drawings largely completed prior to commencement date of the regulation.
• Preliminary cost estimates.
• HIA Plain English Contract signed and dated.
• Evidence of financial transactions (eg deposits, fees, progress payments, payments to design consultants).
• Also refer to Building Practitioners’ Manual – Ministerial Guideline 01/02 “Exercise of discretion to apply the building (single dwellings) (interim) regulations 2001 to siting issues for building work”.

Documentation must be tied to a particular allotment, as generic designs would be unsuitable. As the burden of proof is on you, then the more proof you have the better your position is.  Unlike planning permits, an application for a building permit can be lodged after the commencement date of a regulation; however exemption from the new regulations will depend on how much work was done before.

For further information HIA members can contact HIA Building Services staff on 1300 650 620 or vic_technical@hia.com.au.

To find out more on becoming an HIA member, contact 1300 650 620 or vic_enquiry@hia.com.au.

Ref No.  VIC LEG 06-09   

The above is intended to provide general information in summary form. The contents do not constitute specific advice and should not be relied upon as such. Formal specific advice should be sought by members with respect to particular matters before taking action.  ABN 99 004 631 752