Building And Town Planning Permits

LAC Lawyers Pty Ltd is engaged in a substantial domestic building dispute in the Victorian Civil and Administrative Tribunal (“VCAT”) in Melbourne which involves a claim in excess of $1,800,000.00. Essentially, the case raises the inter-relationship between the issue of a building permit and the antecedent issue of a town planning permit in respect of Section 24 of the Building Act 1993 (Vic.).

That Section requires that a building surveyor must not issue a building permit unless a planning permit has been obtained and the building permit will be consistent with that planning permit.

Since the introduction of the Building Act 1993 (Vic.), the Victorian Building Commission has issued Ministerial Guidelines on behalf of the Minister for Planning.

In November 2000, the Building Commission issued a Minister’s Guideline numbered 00/001 entitled “Building Permit and Planning Permit Consistency”. Those guidelines required the building surveyor, in determining whether the building permit would be consistent with the planning permit, to take the following steps:

– Compare the plans lodged with the application for the building permit with those plans endorsed by the responsible authority as part of the planning permit and any documents referred to in the planning permit that have a direct bearing on the proposed building permit to ensure that they are consistent; and

– Confirm that all planning permit conditions relevant to the building permit that are required to be completed prior to commencement of the development, have been complied with.

The November 2000 Minister’s Guideline provided that the surveyor’s assessment of consistency between the building permit and the relevant planning permit should include (but not be limited to) consideration of:

– The height, area, form and configuration of the proposed building work or any part of the building work;

– The location of the proposed building on the land, including setbacks from boundaries;

– The location of windows, doors and privacy screens; and

– Any conditions of the planning permit that have specific construction requirements or that require specification construction details.

In October 2005, the Building Commission issued a further Minister’s Guideline entitled “Professional Standards – Building Surveyors” which stated that building surveyors performing their functions had to do so in a competent manner and to a professional standard.

This legislation and guidelines places a building surveyor under an obligation to identify discrepancies between the architectural drawings and town planning drawings on the one hand and working drawings and building contract on the other hand. Any such discrepancies should be referred back to the client/builder with a request that an explanation be provided. A building surveyor should not attempt to reconcile or resolve the discrepancies on his or her own.

Likewise, a builder has independent obligations to check documents approved as part of a building permit for any discrepancies before setting out building works and commencing construction.

Section 16 (1) of the Building Act 1993 (Vic.) requires that a person must not carry out building work unless a building permit in respect of the work has been issued and is in force and the work is carried out in accordance with the legislation and the building permit.

Accordingly, builders who do not identify discrepancies between architectural and town planning drawings on the one hand and working drawings and the building contract on the other hand before proceeding to excavate footings, poor slabs and erect frames may well be responsible for considerable damages for re-building, delay and consequential economic loss to developers if such matters as setbacks have been incorrectly calculated even where the setbacks are in accordance with the working drawings incorporated into the building permit but are contrary to the town planning permit conditions or endorsed town planning drawings.

Both building surveyors and registered builders have important responsibilities to ensure that commercial and domestic buildings are constructed in compliance with Victorian legislation and Victorian planning and building permits.

Of course, the fact that discrepancies exist between the endorsed town planning drawings and the building permit working drawings may also give rise to liabilities on the part of the building designers/architects responsible for either. If the town planning drawings drafter knows that a developer/builder has appointed someone else to complete working drawings, the town planning drafter may be under a duty of care to warn the developer/builder to ensure that the working drawings are consistent with the town planning permit conditions and the endorsed town planning plans. Likewise, where the working drawings drafter is aware that the developer/builder has appointed someone else to complete town planning drawings, the working drawings drafter may be under a duty of care to warn the developer/builder to check the working drawings when the town planning permit is issued to ensure that the working drawings are consistent with the later endorsed town planning drawings.

Modern building practice is for developers to shop around to obtain the most competitive price for town planning and drafting services. This sometimes leads to different design professionals being appointed for each function. Where this is so, the drafters have an obligation to ensure that plans continue to be checked even if this work is to be performed by another. Likewise, a developer may find that he or she is regarded by the courts as accepting a de facto duty to work as a project manager and ensure liaison between the town planning drafter and the working drawing drafter where these functions are split on the grounds of cost efficiency. This duty may be imposed even when the developer is not a professional builder or investor.

Michael Pickering is a solicitor employed at LAC Property Lawyers Melbourne. He has nearly 20 years experience as a lawyer.

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