Building consultants as agents for clients
June 01, 2020
Some clients elect to engage building consultants to inspect building work. While this is a legitimate business activity the role of the building consultant is limited and largely unregulated.
The building consultant role is not recognised by Victorian building legislation and they have no clear accountability to their client under this legislation. The registered builder is however accountable for the building work to the client under the Victorian building legislation and is also responsible under the building contract. Therefore a registered builder is not legally obliged to rely on directions or similar from a building consultant as the builder always remains responsible for the building work. Instead any requests or suggestions made by a building consultant need to be considered on their merits. Only the relevant building surveyor can give directions to the builder.
While they provide a service to their clients the consultants have no right to expect the builder to engage with them rather than the client. The HIA contract, unless modified by agreement between the builder and the owner, does not provide for the owner to have an agent represent them. Instead the HIA contract provides that the builder deal directly with their client – the owner. This is consistent with the Victorian building legislation making the builder responsible to the owner and needing their approval for variations to the building work.
It has come to HIA’s attention that some building consultants may not understand the limited nature of their role and assert that the Building Act gives them rights that do not exist. For example, it may be claimed that section 240 of the Building Act, which allows for builders or agents to apply for permits and respond to regulatory actions on behalf of their client, gives a building consultant the right to represent an owner at a PCI, handover or similar inspection. This is not correct as an inspection before handover is not an inspection regulated by the Building Act – as compared to the final inspection carried by out by or for a building surveyor.Therefore section 240 has no relevance in this situation.
If a HIA member finds that a building consultant is misunderstanding their limited role the member is welcome to contact HIA Workplace Services on 1300 650 620 for further information.