Cautionary Tale: Occupancy Permit & Inspection Nightmares

All I set out to do was have a home built on our lovely block of land for my husband and me to enjoy in our final years. Intrinsically and to my detriment, the journey was grounded in regulatory failings, vested interests and insurance.

Brief background

In 2009, I entered into a domestic building contract with a registered builder to construct a dwelling that would accommodate disability requirements. The builder engaged a surveyor who was also an experienced civil engineer, to issue the staged Building Permit, properly conduct four mandatory stage inspections as set out on the Building Permit, and issue the Occupancy Permit. It soon became visually obvious the build was failing to meet acceptable standards.

The cut of the block was too deep; the slab had been poured contrary to submitted plans and incorrectly sited on the block; the original design plans approved by Council had been altered on Building Permit documents without my knowledge or consent; the garage door opening that structurally sits directly below the upstairs lounge room, was outside industry standards. Defective brickwork was evident around the entire dwelling.

Furthermore, the Building Permit did not show the layout of drains to the legal point of discharge on the allotment. On this basis alone, the Permit should not have been issued.

When communication with the practitioners deteriorated, I requested Building Advice and Conciliation Victoria (BACV), being a joint service offered by the Building Commission and Consumer Affairs Victoria, to come onsite and investigate my complaint. At this stage, the Occupancy Permit had not been issued.

The Building Commission's onsite inspection was a ‘nudge-nudge, wink-wink' affair with major defects and breaches of the Building Act ignored. This was disappointing because significant and extensive powers had long been granted to the building regulator.

Section 196 of the Building Act established the Commission’s function to monitor and enforce compliance with the Act and Regulations, and Section 198(2) empowered the Commission to direct a municipal or private surveyor to carry out their functions under the Act and Regulations if it considered it necessary for the proper administration of the Act.

I queried how the building works had ever been approved but was met with silence. No disciplinary actions were taken against the practitioners by the Commission. In a time and place context, this was not unusual.

The 2011 Victorian Auditor-General Office (VAGO) Report, Compliance with Building Permits, found that the Building Commission could not demonstrate that the building permit system was working effectively or that building surveyors were properly discharging their role to uphold and enforce minimum building and safety standards.

The 2012 Ombudsman Report also identified cronyism and corruption within the Building Commission along with failures of administration and proper governance.

The Occupancy Permit was issued in January 2011. We took occupancy of the home but, for safety reasons, could only live in a part of the dwelling.

In 2012, a mediation session with the builder was undertaken. Under extreme duress I signed the Terms of Settlement. However, when I factored in the $5,760.00 the builder had twice received for rendering piers that were part of the works, and the solicitor immediately deducted a further $7,165.69 bringing his total to more than $16,000.00, I walked away from VCAT with nothing.

In 2013, I contacted the newly-founded Victorian Building Authority (the VBA) about the same complaint and requested an investigation be carried out into the conduct of both the builder and surveyor. An onsite inspection was conducted and a VBA External Technical Report was prepared. The report identified breaches of the Building Act and Regulations.

In 2015, a Building Practitioners Board (BPB) Inquiry was held into the professional conduct of the builder and he was found guilty of all allegations. That guilt finding is no longer on the VBA website. Practitioner records are currently being obliterated. The VBA website now states: it only holds individual building records from November 2015, company building records from July 2018 and plumbing records from June 2019. There is a lot to be concerned about.

Unconscionable Conduct

Indisputable evidence shows that between 2009 and 2015, the relevant building surveyor engaged in unconscionable conduct when he unlawfully employed six unregistered persons, to conduct mandatory stage inspections across Gippsland to Melbourne and beyond.

Moreover, the surveyor disclosed to the VBA that he employed three unregistered persons to carry out four mandatory stage inspections at our site, including two slab inspections and frame inspection in 2009, and the mandatory final inspection for the issuing of the Occupancy Permit in January 2011 which rendered the Occupancy Permit invalid. The surveyor merely signed the permit to give this fraudulent rort legitimacy.

With regard to our property, only one allegation was ever framed against the surveyor unlawfully permitting three unregistered persons to conduct four mandatory inspections at our site. It was confounding that the Authority framed an allegation against the surveyor for the unlawful frame inspection but not the two unlawful slab inspections, or the unlawful final inspections for the issuing of the Occupancy Permit, even though the breaches were identical in scope under Part 11 of the Building Act.

A second allegation was framed against the surveyor regarding the Building Permit not showing the layout of drains to the point of discharge on the allotment, and the details necessary to show compliance with the Building Act 1993 and 1502 (a) of the regulations.

Disappointed by what appeared to be collusion and cover-up of systemic wrongdoing, I wrote many letters to the Premier of Victoria, the Minister for Planning, Members of the Opposition, and relevant others.

My concerns were ignored and I was left languishing without redress. It was puzzling that so much effort was being invested to conceal wrongdoing. Then I received documents that exposed a scandalous state of affairs.

The Hidden Agenda

Originally the surveyor was facing 400 allegations across 131 sites. Unlawful inspections carried out by unregistered persons employed by the surveyor include a voluminous number of residential properties; a shopping centre; public buildings; a supported care accommodation unit; medical consulting rooms; the Clinical School of Nursing and High Dependency Unit in a major regional hospital and worryingly, the footings, foundations, frame and final inspection for the construction of a petrol filling and storage station in Gippsland.

Further allegations framed against the surveyor included the issuing of a staged Building Permit, at a site in respect of building work in circumstances where consent of the Chief Officer (fire safety) was required under the Act and Regulations but had not been obtained.

Around the time of my complaint, the surveyor also held more than 4,000 ‘open’ permits, many with a volume builder. If under the Building Act (as it stood at the time), the surveyor were to lose his ‘fit and proper person’ status as a result of his own professional negligence, then his registration would automatically be suspended.

Who then would be responsible for the open permits? Particularly if unregistered persons had also conducted mandatory stage inspections at those sites.

With this possibility in mind, the primary focus of the regulator seemed to shift from monitoring and enforcing compliance, to protecting the surveyor’s professional status and insurance. This deplorable strategy had priority over my right to have the full scope of facts relevant to my complaint presented to the Building Practitioners Board in 2018.

Untruths were widely disseminated with multiple errors of fact transferred across numerous documents creating misinformation that was never corrected. Allegations involving unlawful mandatory stage inspections were omitted altogether. Unnecessary and continuous delays went on for years depleting my energy and resources.

Even the allegation framed against the surveyor for the unlawful frame inspection repeatedly referred to the works being for an alteration and extension not the construction of a two-story dwelling. This was not a clerical error but instead, a strategic minimisation of vital evidence. So the official record of evidence regarding my case remains incorrect even though the VBA had known about the alteration and extension falsehood since 2016.

Moreover, the name of the person who conducted the unlawful frame inspection at our site was not included in the Inquiry agreed statement of facts. Had the Building Practitioners Board been presented with the full facts of my case, and the level and extent of wrongdoing, I believe it would undoubtedly have influenced decisions made by the Panel.

In 2018, after a two-year delay, the BPB Inquiry into the conduct of the relevant building surveyor recommenced.

The surveyor was found guilty of engaging unregistered persons to conduct 270 unlawful mandatory inspections across Victoria. The practitioner immediately appealed the Board’s decision and penalty.

Summary of Position

There is nothing ethical or just about my circumstance. The Building Commission failed to monitor and enforce compliance when it came onsite in 2010. No disciplinary actions were taken against the unregistered persons or the surveyor. It was a massive failure to act.

Having conducted their onsite investigation in 2013, the Victorian Building Authority then knowingly prevented the full scope of wrongdoing at our site being presented to the Building Practitioners Board Inquiry into the conduct of the relevant building surveyor. I believe decisions made regarding my complaint were strategically driven by the economic imperative to protect the surveyor’s registration and insurance.

It has been eight years since the Victorian Building Authority came onsite to investigate my complaint against the surveyor and I still await an outcome regarding the two allegations relevant to our property that remain strategically locked at appeal.

In 2016, the Valuer General determined our home was worth little more than the land value it had been in 2009. Expert valuations have since confirmed the diminution in the value of the property.

I am unable to obtain standard building insurance once I disclose (as required under the Insurance Contracts Act 1984), that the Occupancy Permit was obtained in unlawful circumstances.

The property cannot now be sold without declaring all the material facts and illegality as required under the 2019 Sale of Land Amendments Act effective 1 March 2020.

The only option left is civil action. Fortunately I am not time barred however, as a self represented single pensioner with no other income stream, it will be a difficult path to tread. Already obstacles have been placed in my way.

To be represented by learned Counsel holding proper understanding of what has actually transpired here, would be a blessing. Financially though, such hope remains out of reach.

All my savings were spent in the struggle to hold the wrongdoers to account. Now there is only my funeral money.

- Margaret Singleton

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