Wednesday, 13 November 2013

Directions hearing

The most visited post on this site, by some considerable margin, has nothing specifically to do with Port Melbourne. Perhaps because it can affect anyone in Victoria, my missive on the Building Appeals Board has remained in the top five posts-of-the-month ever since it was written. And that, sadly, was only my first experience with the body tasked with resolving building disputes. So, after receiving word from a fellow Port Phillip resident experiencing, depressingly similar, frustration with Victoria's Protection Works legislation I am spurred on to once again, deviate briefly from the trivialities of local news and reviews...

To briefly recap, the Building Act 1993 provides a mechanism for those performing building work to effectively guarantee access to adjoining properties. This process is only meant to be invoked and utilised where access is required in order to provide legitimate protection to the adjoining property from the building work. However an unscrupulous person could abuse it to gain access for other reasons, potentially without even performing the promised protection. In my opinion, the likelihood of this occurring is significantly increased by the unhappy combination of some apparent flaws in this part (7) of the Act, and an ill-conceived approach to enforcement that relies heavily on the resources and stamina of citizens unwittingly drawn into the process, without any pre-existing interest or experience. This may be most commonplace in Melbourne's inner suburbs, where proximity between adjoining dwellings grows ever greater.
The Victorian Building Authority (formerly known as the Building Commission) provides a number of regulatory bodies, among them the Building Appeals Board (BAB) and the Building Practitioners Board (BPB). One of the functions of the BAB is to hear disputes relating to these so-called Protection Works (and has the power to refer matters of conduct to the BPB which, in turn, has punitive powers). The "determination" of my first hearing before the BAB comprised a formal set of "directions" for the builders (the "owner's agent") to fulfil, within 60 days. I was told that these directions were enforceable as if they were a judgement or order of a court of a competent jurisdiction. So when they weren't fulfilled I assumed that by bringing this to the BAB's attention, they would then refer the matter to the BPB. I assumed wrong.

At least I didn't have to pay (other than in lost earnings) for the dubious privilege of attending a "further hearing" of the BAB; but I did have to wait another eight weeks. Compared to the time it takes to assemble a house frame, this process is excruciatingly slow. In the meantime city lawyers for both the owner and their builder sought to assume control of the scope and direction of the hearing, with some success. By the time it came to pass, it had been re-designated a "directions hearing"; the significance of which no one at the BAB was prepared to elucidate.

BAB hearings take place at their premises, accessed through a side entrance of the former goods shed that houses the newly rebranded Victorian Building Authority. Like the original hearing, this one started late, which made for an uncomfortable wait in reception with the other parties. However there were some notable differences; the most confounding of which was that not a single member of the original panel was present. That's right, the three board members who had listened to the case and given the written determinations now being re-evaluated had been replaced by four entirely new faces. The explanation subsequently offered was that this was due to rotation of board members, however on later investigation the chairperson of the original hearing (a building surveyor) was still on the board. His place however was taken instead by a lawyer.

It turns out that a "directions hearing" does not, as I had optimistically hoped, assess whether previous "directions" have been complied with. It appears that they are not even intended for substantive discussion; only to give yet more "directions" for yet another hearing. It was remarked by the board that this wasn't a cost-effective forum for the nature of the dispute. I couldn't agree more, so why then is there no alternative?

In contrast to my first BAB hearing, I felt that this one was lop-sided. The other party, who had (extremely deferential) legal representation, was able to control the flow of the meeting, perhaps playing to the professional background of the chair. There was an air of impatience; as if I was pursuing a petty claim through a supreme court. The trouble, of course, is there are no higher or lower bodies available.

Having now attended two hearings I feel vaguely qualified to make some outsider observations about them. In my opinion they are woefully unsupportive of lay people. This probably results from the fact that most of the other functions of the BAB (and probably the board member's regular jobs) involve dealing exclusively with industry professionals, full-time property developers and lawyers. Their responsibilities to poor old adjoining owners are something of an irregular tack-on to their normal duties which, except for the rare case where those adjoining owners are themselves in the building industry, call for a different mentality and skill set. They are probably unaware of just how confronting the entire process is, even to degree-educated professionals, let alone a retired manual worker or single mum say.

The BAB do not seem to recognise that there is no enforcement of (the Protection Works part of) the Building Act without adjoining owners alerting them to possible breaches. It is in no one else's interests. In my opinion every private individual, who is willing to donate $284 and a morning of their time to stand before the board, ought to be treated as a potential whistle-blower of misconduct within the industry that they oversee. Perhaps the reason that this doesn't happen is the natural tendency for disputes involving neighburs to become entangled with non regulatory matters. But, if this is a genuine problem, then it seems nonsensical for the enforcement mechanism (such as it is) to be intertwined with the dispute resolution mechanism.

Anyway the net effect of my "directions hearing" was the scheduling of a third hearing (for almost ten months after my original dispute submission!), although for legal reasons that I am prevented from disclosing, that one never took place. I can't say I was disappointed, although it did regrettably mean that no action was ever taken against those alleged to have breached the Building Act.


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