Untitled document

Building Amendment Act 2011

No. 5 of 2011

TABLE OF PROVISIONS

Section  Page

1Purposes

2Commencement

3Definitions

4Modification of building regulations

5New section 160B inserted

160BApplication for modification of building regulations relating to access for persons with disabilities

6Definition of Plumbing Code of Australia substituted

7Repeal of Amending Act

═══════════════

ENDNOTES

Building Amendment Act 2011

No. 5 of 2011

[Assented to 12 April 2011]

The Parliament of Victoria enacts:

1Purposes

The purposes of this Act are to amend the Building Act 1993—

(a)to provide for an application to be made to the Building Appeals Board for the disapplication, modification or variation of certain provisions of the building regulations relating to the provision of access to buildings and facilities and services within buildings for persons with disabilities; and

(b)to provide for recognition of the National Construction Code Series, which is a document to be published by the Australian Building Codes Board that will contain the Building Code of Australia and the Plumbing Code of Australia.

2Commencement

This Act comes into operation on 1 May 2011.

3Definitions

(1)In section 3(1) of the Building Act 1993 insert the following definition—

"National Construction Code Series means the National Construction Code Series published by the Australian Building Codes Board as amended or remade from time to time;".

(2)In section 3(1) of the Building Act 1993, for the definition of Building Code of Australia substitute—

"Building Code of Australia means the Building Code of Australia comprising—

(a)Volume One of the National Construction Code Series including any variations or additions in the Appendix Victoria set out in the Appendices to that Volume; and

(b)Volume Two of the National Construction Code Series including any Victoria additions set out in Appendix A of that Volume;".

4Modification of building regulations

After section 160(3) of the Building Act 1993 insert—

"(4)An application must not be made under this section in relation to an access provision of the building regulations within the meaning of section 160B.".

5New section 160B inserted

After section 160A of the Building Act 1993 insert—

160BApplication for modification of building regulations relating to access for persons with disabilities"

(1)An application may be made to the Building Appeals Board for a determination that an access provision of the building regulations—

(a)does not apply; or

(b)applies with the modifications or variations specified in the application—

to a building, or land on which a building is to be constructed, specified in the application.

(2)The application may be made by—

(a)the owner of the building or land; or

(b)the purchaser under a contract of sale of a lot of a kind referred to in section 9AA(1) of the Sale of Land Act 1962; or

(c)a lessee of the building, who proposes to have, or is having, building work carried out in respect of the building; or

(d)any person acting on behalf of a person referred to in paragraph (a), (b) or (c), other than the relevant building surveyor.

(3)An application must be made on the ground that compliance with the access provision of the building regulations would impose unjustifiable hardship on the applicant.

(4)In determining whether compliance with an access provision of the building regulations would impose unjustifiable hardship on the applicant, the Building Appeals Board must take into account all relevant circumstances of the particular case including the following—

(a)any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or reasonably likely to result from, compliance with the provision;

(b)any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or reasonably likely to result from, compliance with the provision;

(c)the extent to which the construction of the building has or will be financed by government funding;

(d) the extent to which the building—

(i) is used for public purposes; and

(ii) has a community function;

(e)the financial position of the applicant;

(f)any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;

(g)any exceptional technical factors (such as the effect of load-bearing elements on the structural integrity of the building) or geographic factors (such as gradient or topography), affecting a person's ability to comply with the provision;

(h)financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, tax concessions, subsidies or other external assistance provided or available;

(i)whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;

(j)benefits reasonably likely to accrue from compliance with the provision, including benefits to persons with disabilities, to building users or to other affected persons, or detriment likely to result from non-compliance;

(k)detriment reasonably likely to be suffered by the applicant, building developer, or building manager, or by persons with disabilities or other building users, including in relation to means of access, comfort and convenience, if compliance with the provision is required;

(l)if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;

(m)any evidence regarding efforts made in good faith by the applicant or a person required to comply with the provision, including consulting access consultants or the relevant building surveyor;

(n)if the applicant has given an action plan (within the meaning of Part 3 of the Disability Discrimination Act 1992 of the Commonwealth) to the Commission under section 64 of that Act, the terms of the action plan and any evidence of its implementation;

(o)the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving, or on behalf of the applicant, a building developer, building manager or the relevant building surveyor and persons with disabilities, about means of achieving compliance with the provision, including in relation to the factors listed in this subsection.

(5)If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in subsection (4), the Building Appeals Board must consider the following additional factors—

(a)the extent to which substantially equal access to public premises is or may be provided otherwise than by compliance with the access provision of the building regulations;

(b)any measures undertaken, or to be undertaken, by, on behalf of, or in association with, a person or organisation in order to ensure substantially equal access.

(6)A determination under this section must provide for compliance with an access provision of the building regulations to the maximum extent not involving unjustifiable hardship.

(7)For the purposes of this section, unjustifiable hardship is to be interpreted and applied having due regard to the rights and interests of all relevant parties.

(8)In this section—

access provision of the building regulations means—

(a) a performance requirement—

(i)that is contained in Section D, Part E3 or Part F2 of the Building Code of Australia Volume One as forming part of the building regulations; and

(ii)in respect of which there is an equivalent performance requirement contained in the Access Code within the meaning of the Disability (Access to Premises - Buildings) Standards 2010 of the Commonwealth; and

Note

The Disability (Access to Premises - Buildings) Standards 2010 of the Commonwealth are available from the Australian Government Attorney-General's Department website at the extent that the performance requirement relates to the provision of access to buildings and facilities and services within buildings for persons with disabilities; and

(b)a provision of a document applied, adopted or incorporated by reference in a performance requirement referred to in paragraph (a);

applicant means a person referred to in subsection (2)(a), (b) or (c) who has applied under this section or on whose behalf another person has applied under this section;

Building Code of Australia Volume One means Volume One of the National Construction Code Series including any variations or additions in the Appendix Victoria set out in the Appendices to that Volume;

building developer means a person with responsibility for, or control over, the design or construction of the building and includes any of the following—

(a)a building practitioner of a category referred to in paragraph (e), (f) or (h) of the definition of building practitioner;

(b)an architect within the meaning of section 3(1) of the Architects Act 1991;

building manager means a person with responsibility for, or control over, the management of the building.

(9)Division 5 (other than section 161) does not apply to an application under this section.".

6Definition of Plumbing Code of Australia substituted

In section 221B(1) of the Building Act 1993, for the definition of Plumbing Code of Australia substitute—

"Plumbing Code of Australia means the Plumbing Code of Australia set out in Volume Three of the National Construction Code Series including any variations or additions in the Appendix Victoria set out in Appendix A of that Volume;".

7Repeal of Amending Act

This Act is repealed on 1 May 2012.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (See section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════

ENDNOTES

Minister's second reading speech—

Legislative Assembly: 10 February 2011

Legislative Council: 3 March 2011

The long title for the Bill for this Act was "A Bill for an Act to amend the Building Act 1993 and for other purposes."