- Corporate and commercial
Partner - London. United Kingdom
Since 1 January 2021, all registered building surveyors in Victoria, Australia have been required to comply with the Victorian Building Authority’s (“VBA”) first Code of Conduct for Building Surveyors (“the Code”).
The Code is just one of the reforms being implemented by the various Building Ministers in response to the well cited ‘Building Confidence Report’ (“BCR”) prepared by Professor Peter Shergold and Ms Bronwyn Weir in February 2018. In addition to the reforms already introduced, consultation continues this month in relation to independent third party review, mandatory inspections, building design acceptance as well consultation on the draft Auditing and Compliance Publication Framework.
While other Australian states and territories were somewhat ahead of Victoria in implementing codes of conduct1, the Code is the first to be introduced in line with the BCR’s recommendations.
In part, the Code’s significance lies in its position within the evolving compliance and enforcement framework in Australia’s building and construction industry.
With the VBA statutorily empowered2 to approve codes of conduct for building practitioners3, we can expect further building professionals to be subject to codes of conduct in the future. To that end, representatives from the VBA confirmed late last year4 that, while building surveyors were identified as a priority for a code of conduct to be introduced, the VBA is now turning its attention to a review of both builders and engineers.
The Code provides a minimum standard for Victorian building surveyors to adhere to. It is expected therefore that most building surveyors are already meeting the Code’s expectations.
Further, building surveyors already have statutory responsibilities (under the Building Act 1993 (Vic) (“the Act”) and the Regulations). The Code does not detract from those responsibilities, nor does it extend or circumvent the obligations arising under contract and/or tort and/or under the Australian Consumer Law.
Conversely, in responding to allegations of negligence, there may be scope for the Code to assist building surveyors to raise a “peer professional opinion” defence5. This may be achieved by using the Code to demonstrate that the relevant building surveyor acted in a manner that was widely accepted in Australia (at the time the services were provided) as competent professional practice in the circumstances.6
Failure to comply with the Code, however, is a contravention of section 177D of the Act giving rise to potential disciplinary action under section 178 of the Act.
At first blush, the Code could be seen as a series of motherhood statements. However, the high level values comprising the 8 core principles are only one element of the Code. Each core principle includes details of what building surveyors must (or must not) do to meet each core principle and practical examples are provided.
The core principle to act independently (core principle 4), which requires a building surveyor to act independently when providing building surveying services, will be an interesting principle to watch over the early years of the Code’s implementation.
Section 4.2.2 of the Code is one aspect within the requirement to act independently and provides that a building surveyor must not participate in or give advice on the development of designs or performance solutions for proposed building work before or after accepting an engagement to be the relevant building surveyor for that work.
Section 4.2.2 requires building surveyors to take heed of the obligation at the procurement stage such that a fee proposal should not state that the building surveyor is going to be involved in the design (including being involved in proposing alternatives to the deemed to satisfy provisions (i.e. identifying performance solutions)) as this means the building surveyor is acting with a conflict of interest.
Building surveyors who have been (or are likely to be) appointed as the relevant building surveyor can provide advice on requirements of the Act, the Regulations and the National Construction Code. The Code makes it clear that advice on deemed to satisfy solutions can be given and the concept of performance solutions can be discussed but the suggestion and actual preparation of performance solutions and any supporting documents must be independent from the relevant building surveyor for the project.
To clarify, this does not mean that the relevant building surveyor cannot sit in on design team meetings as the relevant building surveyor’s input is still critical (noting that if a performance solution is proposed, it needs to be approved by the relevant building surveyor in any event and it would not make sense to isolate the relevant building surveyor from the process until the last stage of approval).
Arguably, the Code goes further (or, at least, is more precise) than the existing obligation under section 77(1)(a) of the Act which prohibits building surveyors from carrying out their functions under the Act7 if they also prepared the design of the building or building work.
The interpretation of this core principle will be interesting to watch as the obligation has previously been a source of confusion for some.
Increasingly clear demarcation between the various building practitioner roles will ultimately help building surveyors respond to claims by assisting them to identify with more precision what aspects of a project are purely design (and therefore not within the building surveyor’s purview) and also what aspects are purely construction matters (for which the builder or their subcontractor ought to redress).
It remains to be seen how the Code is interpreted in practice but the VBA has publicly stated that it will focus on education first before enforcement. While this should not be seen as a grace period for disciplinary action, it may suggest an openness to engage in a conversation about any matters which require clarification in these early days of the Code’s implementation.