VBA Enforcement Wrap - January to June 2023

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

Last month, the VBA released its Compliance and Enforcement Report for the first 6 months of 2023. 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 increased. Specifically, the number of complaints escalated to the investigation stage increased from 104 to 153 compared with the same period for the year prior. The VBA attributes the increase to the ongoing refinement of its intelligence-led approach to compliance and enforcement, and the use of established and new sources of data to identify practitioners of interest.
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• Secondly, a lower number of matters were referred for building practitioner discipline in January - June 2023 when compared with the January – June 2022 period. Specifically, the number of referrals was decreased from 110 to 40. This can be attributed to a spike in the 2022 period due to efforts at the time to expedite a number of long-standing matters under investigation - i.e. clearing a backlog of old cases. The VBA says that the first half of 2023 represents a level of referrals “consistent with matters now typically escalated for investigation under current triage protocols”.
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• Thirdly, the VBA has said that its risk-based triage process assists it to make informed decisions about how to apply investigative resources effectively. Prioritising serious non-compliance. This approach was emphasised by the VBA this time last year and appears to be responsible for another downtick in the overall number of completed investigations for the year. This risk-based triage process was previously implemented during the 2021-22 financial year to enable more effective use of its investigative resources and prioritise serious non-compliance. The VBA says that complimenting this approach with low-level enforcement actions by way of cautions and education for less-serious non-compliance continues to produce effective outcomes.
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VBA Compliance and Enforcement Summary: January – June 2023

Plumbing

Criminal:

• Charges laid against a practitioner for carrying out regulated plumbing and building work (roofing) without appropriate licence or registration resulting in a $1,000 penalty without conviction.

Administrative Action:

Twenty-one plumbing inquiries were held by the VBA resulting in:

• the imposition of financial penalties on twenty practitioners;
• the issuing of five reprimands; and
• orders for retraining issued to five practitioners.

Licence Suspensions – no practitioner licences were suspended outright in this period. Conditional suspensions were issued subject to the completion of further training for reasons including carrying out defective work, permitting another person to carry out plumbing work that was defective and not in compliance with relevant standards, signing of a compliance certificate containing a misstatement of fact, and failure to lodge compliance certificate in time.

The most common plumbing work investigations resulting in monetary penalties and/or reprimands were failure to comply with a rectification notice, carrying out work while not licenced or registered, carrying out defective work, and completing and covering drain works when the VBA had not inspected or authorised the covering.

Building

Criminal:

• Six individual builders were prosecuted by the VBA and heard in the Magistrates’ Court of Victoria for reasons including acceptance of appointment as a private building surveyor when unregistered, carrying out building work whilst not a registered builder, carrying out work under a major domestic building contract without registration and required insurance, and carrying out work without a permit.

Administrative Action:

140 investigations were completed by the VBA resulting in:

• The issuing of 37 cautions;
• 40 referrals for practitioner discipline;
• 19 referrals for prosecution;
• The issuing of 1 education letter; and
• 41 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 ‘licence lending’.

The VBA received 189 referrals from building clients that resulted in:

• 56 show cause notices issued;
• 31 reprimands;
• 16 cancellations of registration;
• 9 suspensions of registration;
• 0 disqualifications;
• 2 further training requirements;
• 19 monetary penalties imposed;
• 2 cautions; and
• 40 resolved without further action.

Suspension of Registration – practitioner registrations were suspended for reasons including non-compliance with dispute resolution order made by Domestic Building Dispute Resolution Victoria and holding office in a company under external administration.

Cancellation of Registration – all reported registration cancellations were attributed to the holding of office in a company under external administration.
 

Statutory Referrals:

• Building Orders – 57 referrals from relevant building surveyors to the VBA with 18 of these escalated for investigation.
• s37 Directions to Fix – 29 referrals with 11 of these escalated.
• s33 Missed Mandatory Inspection – 68 referrals with 36 of these escalated.

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

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.