Building Appeals Board

This is going to be an atypical post, both in its verbosity and its lack of specific relevance to Port Melbourne (although we do border what looks set to become the country's largest urban renewal project). Many would even describe it as another rant.

It is presented here to aid others who find themselves considering lodging a dispute with Victoria's Building Appeals Board (BAB), as there is a dearth of useful information around on this subject, and these pages rank relatively highly in search engines. In follows on from an earlier post on building Protection Works, and deals in particular with invoking a hearing with the board as a result of the problems detailed there.

The Building Appeals Board is a creation of section 10 of the Building Act 1993 that hears 'appeals', 'disputes' and 'modifications' related to specific provisions of that act. It seeks to make it quicker, cheaper and easier to resolve problems by providing an alternative to legal representation. However if you are unwittingly drawn into a dispute, for example as a property owner adjoining a construction development, you may be surprised at how slow, expensive and tricky it is.

In my earlier post I described how legislation designed to protect 'adjoining owners' can be abused. If you find yourself caught out by these pitfalls you will likely be faced with the following options:

• Talking with the owner - legally the owner has certain responsibilities to you, however they may delegate these to their agent (their builder). If the owner is remote, neither the builder nor the planning department is obliged to give you their contact details.
• Talking with the owner's agent (i.e. the builder) - this is the ideal solution, but is contingent on them being honest and helpful. Unfortunately you aren't paying their wages, so your leverage over them may seem slight. Beware that verbal agreements and assertions may prove worthless should you need to take the matter further.
• Talking to the council - unfortunately the place of construction doesn't determine the selection of relevant building surveyor. If the council's building department is not the relevant building surveyor, they cannot take action on your behalf (except where there is an emergency situation). They ought to be a useful source of information, however getting advice from them is very dependent on good will which, in my experience with Port Phillip council, is sadly highly hit and miss
• Talking to the relevant building surveyor - their name must legally be displayed outside the development. The Building Commission's web page states that "All questions on specific obligations and rights should be directed to the relevant building surveyor", although the commission's own practice note also states that "The RBS should refrain from acting as an arbiter where there is disagreement."
• Talking to Consumer Affairs / BACV - they offer free advice and conciliation, although this is geared toward problems between builders and their own customers
• Talking to a Lawyer - if they are well versed in the nuances of the Building Act, then their fees are likely to be in the $400/hr region. Given this, they should recommend that you exhaust all available options with the Building Commission before considering legal action. For, in case you didn't know, even people who win civil law suits generally only recover a portion of the costs involved in bringing them.
• Talking to the Building Commission - they are the definitive authority on all matters relating to the Building Act, and if you live in Port Melbourne then you don't have far to go as they're based in Docklands. What follows is my experience of this option.

My first contact with the Building Commission was via the (theoretically separate) Building Appeals Board. When I requested guidance in identifying possible breaches of the regulations I received this response:

It’s really difficult to ascertain what is the best course of action to be taken. I can only help you if you decide to lodge an appeal. The application fee for disputes under section 152, 153, 154, 155 & 159 of the Building Act 1993 is $284.00 and the application takes approximately 10-12 weeks to finalise.

As a creation of the Building Act, the Building Commission ought to be the authority on it, unfortunately in my experience they are in no hurry to share their insight with mere members of the public. For developers and renovators spending hundreds of thousands of dollars, or more, the cost of such a hearing is insignificant, but in the case of protection works it seems somewhat unfair for adjoining owners to have to pay (and then wait) for the privilege of requesting authoritative rejection of, say, an unscrupulous builder's ongoing misrepresentation of the law.

Building Appeals Board Application
In order to lodge a dispute you have to fill in one of eight forms, and submit it along with all supporting documentation to the Building Commission. There is no advertised option for electronic submission. These are the sort of public service forms that are customarily accompanied by extensive guidance notes for their completion, however the only guidance I could find on what to submit was from a document entitled What you need to know about the Building Appeals Board, which states:

For the BAB to hear an appeal or dispute appropriately and make a well judged determination, the quality of the submission is important.

That's all very good, but what constitutes a quality submission? Wouldn't it be helpful to provide some (redacted) examples of submissions that meet that criteria? It goes on to say:

It is important the relevant application form is completed accurately to avoid delays. When preparing the submission to accompany the application form, the following information, as indicated in the form, should be incorporated:

• nature – what you are appealing?
• grounds – what are the reasons for the appeal?
• relief sought – what do you want the outcome to be?

The only thing this adds, to what is already described on the application form, is the importance of accuracy (no really?!). I could find no guidance on appropriate nature, grounds or relief, or on the level of detail expected. The BAB hears a diverse range of matters and in most cases I suspect the parties to the hearings are building industry professionals 'in the know' of such things. This would explain the assumption that applicants will magically be familiar with the Building Code of Australia's building classes (note that the application fee doubles for building classes 2-9).

Finally it says:

Five copies of the application and five copies of all relevant documentation, plans, drawings and photos MUST be enclosed with the appropriate fee.

Given that copies must also be supplied to the other parties to the hearing, prepare to spend a lot of time in front of the printer/photocopier. Although when I hand-delivered my five copies of fifty pages of application form, photographs, plans and correspondence to the Goods Shed North, they told me they actually only needed three copies. Fan-tastic.

One thing to be wary of when making an appeal relating to Protection Works, is who to identify as the other parties. The form allows you to identify either the owner or the owner's agent. The former is the party responsible in law, but the latter is the party you're most likely to be interacting with. This is worth clarifying before submission to avoid any suggestion of pursuing the wrong party.

Two days after submission I received an acknowledgement letter (and credit card receipt) indicating that my application had been registered, and that a technical assessment would be undertaken in due course. Four weeks after that, I received the notice of hearing (for a date eleven weeks from the original submission). The nature of the appeal that I had described had been translated to instead reference sections 159 and 155 of the Act; so perhaps that is what had been expected on the application form. This turned out to be significant at the hearing as compensation, which was a minor aspect of my application, was assumed to be the main issue since it was listed first on the hearing notice.

I strongly recommend reviewing the stated nature of the appeal, versus the available provisions under Part 10 of the act, as this will determine the focus and scope of the hearing.

Building Appeals Board Hearing
The hearing takes place at the BAB premises, accessed through a side-entrance of the commission building. You are asked to arrive 30 minutes in advance of the hearing, which makes for an awkward wait in reception with the other party(s) (especially if, as in my case, the previous hearing is running late). Eventually we were led into a small conference room. On one side of the table sat the three board members, selected from a panel of members (in our case a building surveyor, an architect and a planner). We sat on the other side of the table alongside two directors of the Construction & Design company involved in the dispute. The case officer also sat in the room but played no active role.

The hearing started with the chairman asking everyone to identify themselves and then pointing out that, although there is no oath, it is an offence under section 246 of the act to knowingly make any false or misleading statement. I have reason to suspect that such statements were made in my hearing, and had read the following in the previously mentioned 'what to expect' guide:

The hearing will be recorded and a party to the hearing may request a copy of the transcript. However, a cost is associated with this service.

However on request for the transcript, I was made to realise that this only relates to hearings brought by building practioners. This seems a bizarre distinction to me, and underscores the importance of jumping on potentially misleading statements at the time.

The chairman then read out the nature of the appeal as described (by the BAB registrar) on the notice of hearing. It was at this point that it became horribly obvious that no member of the board had actually read my submission. This resulted in considerable initial confusion due to the significant difference in emphasis between the nature of the appeal as stated by me, and that stated on the hearing notice.

Something not mentioned in the 'what to expect guide' but stated on the BAB's 'what you need to know' web-page is that hearings are open to the public. Apparently observers are welcome in hearings, providing that they are not a witness in the matter being heard, and have called the day before to ensure they can be accommodated. If you have the time, I strongly recommend going along to a similar hearing so that you can familiarise with what to expect next, as some will find it not for the faint-hearted. They are generally held on Thursday mornings.

The party making the appeal (the appellant) is then asked to make a presentation in support of their application. Since the panel were, it seems, viewing my fifty page submission for the very first time, this effectively meant walking them painstakingly through it. I strongly recommend numbering every page of your submission and rehearsing a concise précis of the dispute, ideally couched using the terms of the provisions referenced on the hearing notice. This, unfortunately, is a task where skills in confident public speaking, awareness of construction terminology, and a good reading of the relevant regulations appear to be near mandatory. This is not an undertaking that can be approached lightly. I can't help feeling that easily intimidated or non technically minded applicants will find themselves unfairly disadvantaged here, especially if the other party has brought legal representation with them.

During your presentation, the panel may ask questions, but the respondent is meant to wait their turn. If the content of your presentation is unflattering for the respondent, they may find this satisfyingly difficult to achieve.

It was soon observed by the panel during my presentation that much of my submission was more of a complaint in nature than a dispute. This is underscores what I see as a major flaw in the effectiveness of this mechanism when it comes to protection works; you can only invoke a hearing as a result of a dispute. So a builder may blatantly contravene the act, but unless they dispute this with you, you don't have valid cause to call upon the (considerable) expertise of the board. In my case there was an element of ongoing dispute, and that is primarily what the board focused on resolving; they were disappointingly disinterested in actions that had gone on before. It does make you question whether there is anyone remotely interested in enforcing this legislation.

In contrast to my meticulously documented submission, the respondent's presentation was entirely verbal. I felt that the panel unreasonably attached equal weight to their unsubstantiated assertions as they did to my own, as the chairman characterised there to have been mistakes on both sides. Given that my submission suggested that the respondent had scant regard for several sections of the Building Act, it may have been overly optimistic to assume that they would feel bound by the requirement not to knowingly make false or misleading statements.

Nevertheless my sense, on completion of the hearing, was that it had been a worthwhile exercise. Although it took an age to set in motion, and although the panel had evidently not read my submission, they conducted the hearing with professionalism, and there was no hint of the undercurrent of nepotism that I felt in communication with other members of the building industry (which was a relief, given their recent bad press). Crucially it vindicated the assertion that my property could not in fact be used for ongoing building work without my explicit agreement, and also gave me an an opportunity to highlight conduct that I perceived to be unprofessional at best.

Unfortunately however it's not the hearing that counts, but the final determination of the board, which is not given on the spot...

Determination of the Building Appeals Board
The 'determination' is the board's considered conclusion from the hearing. The BAB supposedly maintains past anonymised determinations on-line, but either there have been very few hearings, or this is not maintained (there is only one example of a dispute determination available for download, which has nothing to do with Protection Work, and is an example of a dismissal of the appellant's case).

I received my determination two weeks after the hearing (almost 3 months after the submission). In keeping with the forward-focused theme of the hearing, although examples of alleged misconduct were brought up in my submission (and not disputed), these were sadly not mentioned. However it did give a number of direction's to the builder, for completion with 60 days.

According to the registrar of the BAB "The Determinations of the Board MUST be put into effect, and are enforceable as if they are a judgement or order of a court of a competent jurisdiction". Which begs the question; what is the process if they are not? And that, will regrettably be the subject of yet another post to come.

Alternatives
When I first embarked on my application to the BAB I assumed (since no one told me otherwise) that it was the only avenue available to me with the building regulator. However I eventually realised that it is also possible to lodge a complaint with the Building Commission, or to go one step further and lodge an inquiry directly with the Building Practioners Board (BPB); this being the body to whom disciplinary matters may be referred from the BAB (as a result of a hearing), or the commission (as a result of a complaint).

As far as I can tell this has the following going for it:

• It has the power to fine for breaches of professional standards, or to bring prosecutions for breaches of the building act
• There is no fee and no hearing to attend
• There is no advertised application process, you can just write a letter
• It doesn't require there to be a "dispute"
• Successful complaints are eventually published (although the commision's own search facility won't find practitioner's names - use Google site search instead to see if you are dealing with a serial offender)

The main disadvantage, as far as I can tell, is that it is a closed process. You don't know who will assess the inquiry, or when, or get an opportunity to clarify your position in person. Compare this to lodging an appeal with the BAB:

• It follows an open process and will be adjudicated by three or more experts drawn from a published panel
• It appears to have a significant emphasis on resolving disputes rather than policing
• Nevertheless it has the power to refer a matter of conduct or ability to practise to the Building Practioners Board
• Both you and the other parties will be invited to (and expected to) attend a formal hearing
• You will pay for the privilege (note that the BAB generally expects parties to pay their own costs regardless of the outcome of a hearing)
• The results of the appeal are not published

As you can see, it is not necessarily a clear cut decision. In fact there is nothing stopping you following up both avenues, although the commission recommends resolving disputes before making complaints. In my next post in this series I will describe my experience with making a complaint to the Building Commission.

E&OE