VBA Enforcement Wrap

The Victorian Building Authority (VBA) is responsible for monitoring and enforcing compliance of builders, surveyors and plumbers (among others) with Victoria's construction laws.

Late last year, the VBA released its Compliance and Enforcement Report for the first 6 months of 2022. The VBA investigates both civil and criminal matters. A summary of its investigations and enforcement actions are at the end of this article. 

As its reports are released biannually and up to 6 months later, it can be difficult to get a timely read on how the VBA's compliance and enforcement activities are tracking. However, some trends can clearly be seen in the VBA's most recent report.

• Firstly, the number of complaints about plumbers requiring investigation by the VBA has reduced. Specifically, the number of complaints escalated to the investigation stage has reduced from 145 to about 104. The VBA attributes the reduction to its new fast-track resolution process, which sees earlier involvement of technical staff and engagement with the practitioner to achieve rectification works that does not require a formal investigation process. The VBA cites a 51 percent reduction in the number of plumbing matters escalated for investigation between 2020-21 and 2021-22 following the implementation of the fast-track process.
• Secondly, a higher number of matters were referred for building practitioner discipline in January - June 2022 when compared with July - December 2021. Specifically, the number of referrals was increased from 24 to about 110. The VBA attributes this to its efforts to expedite a number of long-standing matters under investigation - i.e. clearing a backlog of old cases. This is reflected in a comparatively lower number of show cause notices being issued in the first half of 2022 compared with the second half of 2021 as well as a 48 percent reduction in the number of matters escalated for investigation and discipline as compared to the previous year, which the VBA attributes to both pandemic-related constraints and its fast-track process.
• Thirdly, the VBA has said that it placed greater emphasis on high-risk issues and conduct, which has resulted in a reduction in the overall number of completed investigations for the year. A risk-based triage process was implemented during the 2020-21 financial year to enable more effective use of its investigative resources and prioritise serious non-compliance. The VBA intends to compliment this approach with low-level enforcement actions by way of cautions and education for less-serious non-compliance.

We expect these trends continued into July - December 2022. In particular, we expect the VBA is continuing to work through a backlog of investigations that were stalled by COVID. Further, given recent upheaval in the construction space due to escalating material prices and some notable building firm collapses, we anticipate that a number of show cause events may have occurred that are yet to be fully investigated until the current backlog of cases has been addressed. However, VBA’s recently implemented triaging system will still see the most serious conduct investigated. As such, we expect to see a gradual up-tick in the VBA's enforcement activity in 2023 as the backlog clears, after which we expect a renewed focus on more recent conduct. 

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VBA Compliance and Enforcement Summary: January – June 2022

Plumbing

Criminal:

• Charges laid against a practitioner for carrying out renovations of a bathroom and ensuite without registration in Victoria resulting in a $4,000 penalty without conviction plus $350 in costs, and against another for carrying out plumbing work in prescribed class of ‘mechanical services’ without being licensed or registered to do so resulting in a $1,000 fine without conviction.

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Administrative Action:

Fourteen inquiries were held by the VBA resulting in:

• the imposition of financial penalties on thirteen practitioners;
• the issuing of two reprimands; and
• the suspension of three licences.
• Licence Suspensions - three practitioners had their licenses suspended for reasons such as lodging a compliance certificate containing a misstatement of fact, installing and covering pipework before being made available for inspections, carrying out non-compliant plumbing work, use of defective materials, and failure to provide compliance certification within the required timeframe. All three suspensions were imposed with a monetary penalty in the amount $9,087 for each practitioner.
• The most common plumbing work investigations resulting in monetary penalties and/or reprimands were poor workmanship, non-compliant plumbing work, plumbing work undertaken by unregistered or unlicensed people, and failure to issue compliance certificates.

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Building

Criminal:

• Six individual builders were prosecuted by the VBA and heard in the Magistrates’ Court of Victoria for reasons such as carrying out building work whilst not a registered builder, providing false or misleading information to a building surveyor, failure to hold building insurance, carrying out work without a permit.

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Administrative Action:

• 268 investigations were completed by the VBA resulting in:

• The issuing of 72 cautions; 
• 110 referrals for practitioner discipline;
• 17 referrals for prosecution;
• The issuing of 4 education letters; and
• 64 investigations resolved without further enforcement action.
• The most common building works investigated were building without a permit, building work not undertaken in accordance with a building permit, building work carried out by unregistered and uninsured people, and failure to complete mandatory inspections as required. 

The 110 referrals for discipline resulted in:

• 53 show cause notices issued;
• 50 reprimands;
• 8 cancellations of registration;
• 12 suspensions of registration;
• 1 disqualification;
• 8 further training requirements;
• 44 monetary penalties imposed;
• 53 cautions; and
• 26 resolved without further action.

Suspension of Registration – practitioner registrations were suspended for reasons including poor or incompetent workmanship, licence lending, holding office in a company under external administration, breach of dispute resolution notice, carrying out works without a permit, and failure to comply with a direction to fix work within a specified period.

Cancellation of Registration – registrations were cancelled for reasons such as holding office in a company under external administration and obtaining registration on the basis of false or misleading information.

Disqualification of Registration – a practitioner was cancelled and disqualified for registration for a period of three years for engaging in unprofessional conduct in connection with the use of fraudulent occupancy permits, holding false certificates of domestic building insurance, and making false and misleading statements to the VMIA.

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Statutory Referrals:

• Building Orders – 61 referrals from relevant building surveyors to the VBA with 25 of these escalated to disciplinary action.
• s 37 Directions to Fix – 14 referrals with 5 of these escalated.
• s 33 Missed Mandatory Inspection – 54 referrals with 25 of these escalated. 

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If any of the above is relevant to you or you want to know more, please feel free to get in touch.

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The contents of this article do not constitute legal advice and it is not intended to be a substitute for legal advice and should not be relied upon as such.  It is designed and intended as general information in summary form, current at the time of publication, for general informational purposes only.  You should seek legal advice or other professional advice in relation to any particular legal matters you or your organisation may have.

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