Victorian Current Acts Victorian Current ActsSchedule 4—Transitional provisions
1 Definitions
In this Schedule—
"former body" means any of the following bodies established under the old Act—
(a) the Building Control Technical Advisory Council;
(b) an advisory committee (including a special advisory committee);
(c) a Development Approvals Co‑ordinating Committee;
(d) the Building Control Accreditation Authority;
(e) the Building Control Qualification Board;
(f) a Building Referees Board;
(g) the Building Referees Panel;
former officer means any of the following people appointed or employed for the purposes of the old Act—
(a) a Development Approvals Co‑ordinator;
(b) the Registrar of the Building Control Accreditation Authority;
(c) the Registrar of Building Referees Boards;
(d) the Registrar of the Building Control Qualification Board;
(e) the Director of Building Control;
(f) the State Building Surveyor;
(g) the Secretary of the Building Control Technical Advisory Council;
(h) any other officer or employee of the public service;
"old Act" means the Building Control Act 1981 ;
proceeding includes an inquiry, investigation, appeal, reservation of a question of law, dispute, reference or application but does not include an application for accreditation or for a certificate of qualification as a building surveyor or building inspector.
2 General transitional provisions
(1) This Schedule does not affect or take away from the Interpretation of Legislation Act 1984 .
(2) Without limiting subclause (1), in declaring that certain provisions of this Act are to be treated as re-enacting with modifications certain provisions of the old Act, this Schedule must not be taken to—
(a) limit the operation of any provision of the Interpretation of Legislation Act 1984 relating to re-enactment; or
(b) be an exhaustive list of the provisions of the old Act re-enacted by this Act.
(3) If this Schedule provides that a provision of the old Act continues to apply to any matter or thing, then any regulation or other instrument having effect under that Act for the purposes of that provision also continues to apply to that matter or thing.
(4) If—
(a) a provision of the old Act; or
(b) a provision of the Victoria Building Regulations 1983; or
(c) a provision of a regulation or instrument referred to in subclause (3)—
continues to apply to a matter or thing, it continues to apply as in force immediately before that provision was repealed or revoked.
(5) This Schedule applies despite anything to the contrary in any other provision of this Act.
3 Superseded references
On the commencement of this clause, in any Act (other than this Act or a provision of the old Act continued by this Act), or in any instrument made under any Act or in any other document of any kind—
(a) a reference to the old Act is deemed to be a reference to the Building Act 1993 ; and
(b) a reference to the Co-ordinator or Development Approvals Co-ordinator or the Development Approvals Co-ordinating Committee under the old Act is deemed to be a reference to the municipal building surveyor; and
(c) a reference to building approval in relation to the old Act is deemed to be a reference to a building permit; and
(d) a reference to a relevant authority in relation to the old Act is deemed to be a reference to a reporting authority; and
(e) a reference to a certificate of occupancy in relation to the old Act or the building regulations is deemed to be a reference to an occupancy permit; and
(f) a reference to the Building Control Qualification Board is deemed to be a reference to the Building Practitioners Board; and
(g) a reference to a certificate of qualification as a building surveyor in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building surveyor under this Act; and
(h) a reference to a certificate of qualification as a building inspector in relation to the old Act or any corresponding previous enactment is deemed to be a reference to registration as a building inspector under this Act; and
(i) a reference to the Building Control Accreditation Authority is deemed to be a reference to the Building Regulations Advisory Committee; and
(j) a reference to the Building Control Technical Advisory Council or the Secretary, Building Control Technical Advisory Council is deemed to be a reference to the Building Regulations Advisory Committee; and
(k) a reference to a Building Referees Board or the building referees is deemed to be a reference to the Building Appeals Board; and
(l) a reference to the building regulations is deemed to be a reference to the building regulations made under this Act; and
(m) a reference to the Director of Building Control is deemed to be a reference to the Commission; and
(n) a reference to the State Building Surveyor is deemed to be a reference to the Commission; and
(o) a reference to the approval of a temporary public building under the Health Act 1958 is deemed to be a reference to an occupancy permit issued under Division 2 of Part 5 of this Act in respect of a temporary structure.
Sch. 4 cl. 4 repealed by No. 21/2017 s. 100(5).
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5 Former officers
A former officer who, immediately before the commencement of this clause, was a member of staff within the meaning of the Public Sector Management Act 1992 continues, subject to that Act, as a member of staff within the meaning of that Act, with a position or employment in the Department of Planning and Development corresponding as nearly as practicable to that held immediately before that commencement, on the same terms and conditions and with the same classification and accrued or accruing entitlements as applied to the person immediately before that commencement.
Sch. 4 cl. 6 repealed by No. 21/2017 s. 100(5).
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7 Directions about enforcement of old Act
(1) A direction in force under section 16(1) of the old Act immediately before the commencement of this clause has effect, on and from that commencement, as if it were a declaration made and published under section 191 in relation to this Act.
(2) A direction in force under section 16(2) of the old Act immediately before the commencement of this clause in relation to an area declared under the Alpine Resorts Act 1983 to be an alpine resort has effect, on and from the commencement of this clause, as if it were a declaration made and published under section 192 in relation to this Act.
(3) On the date of commencement of this clause any reference in the direction to which subclause (1) or (2) applies to—
(a) Part III of the old Act is deemed to be a reference to Part 3 of this Act; and
(b) Part VIII of the old Act is deemed to be a reference to Part 8 of this Act; and
(c) Part IX of the old Act is deemed to be a reference to Part 7 of this Act.
8 Building approvals
(1) A building approval or building permit granted under the old Act or a corresponding previous enactment and existing immediately before the commencement of this clause is, on that commencement, deemed to be a building permit issued under this Act.
(2) An application for building approval made under the old Act and not determined immediately before the commencement of this clause is deemed, on that commencement, to be an application made to a municipal building surveyor for a building permit under this Act.
(3) Anything done before the commencement of this clause in relation to an application to which subclause (2) applies is, on and from that commencement, deemed to have been done for the purposes of this Act.
(4) Without limiting subclause (3), a consent, refusal of consent, or condition required in relation to a matter by a relevant authority within the meaning of the old Act in relation to an application to which subclause (2) applies is deemed to be a consent, refusal of consent, or condition required by a prescribed reporting authority under this Act in relation to a prescribed matter.
(5) If under section 20A of the old Act the Minister has appointed a person to act in place of a relevant authority in relation to an application to which subclause (2) applies, a consent, refusal of consent, or condition required in relation to a matter by that person has effect for the purposes of this Act as if the person were a prescribed reporting authority and the matter were a prescribed matter.
(6) A levy is not payable under Division 2 of Part 12 in respect of an application to which subclause (2) applies.
Sch. 4 cl. 9 repealed by No. 21/2017 s. 100(5).
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10 Continued immunities
(1) Section 22 of the old Act continues to apply where—
(a) a building approval was granted under the old Act before the commencement of this clause in respect of land liable to flooding; or
(b) an exemption has, before that commencement, been granted from any requirement of the building regulations within the meaning of the old Act.
(2) Section 80 of the old Act continues to apply to the former members and the former Registrar of the Building Control Accreditation Authority in respect of anything done by that Authority, a member of that Authority, an Advisory Committee to that Authority or the Registrar before the commencement of this clause.
Sch. 4 cl. 11 repealed by No. 34/1997 s. 30(e).
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12 Certificates of occupancy
(1) A certificate of occupancy issued under the Victoria Building Regulations 1983 or under any corresponding previous regulations and in force immediately before the commencement of this clause is deemed, on and from that commencement, to be an occupancy permit issued under Division 1 of Part 5 of this Act, and may be amended or cancelled accordingly.
(2) Despite anything to the contrary in the old Act or the regulations under it or in the Interpretation of Legislation Act 1984 , a person who commenced building work more than 3 years before the commencement of this clause cannot, on or after the commencement of this clause, be charged with an offence because he or she was required to obtain a certificate of occupancy in respect of that building work and did not do so.
(3) If the municipal building surveyor has received a notice under regulation 6.3 of the Victoria Building Regulations 1983 but has not issued a certificate of occupancy before the date of commencement of this clause, the municipal building surveyor may issue a certificate of occupancy in respect of that building on or after that commencement under those regulations.
(4) If a municipal building surveyor has received advice under regulation 6.5 of the Victoria Building Regulations 1983, and has not revoked the existing certificate of occupancy under those regulations, that certificate of occupancy may be revoked and a new certificate of occupancy may be issued under those regulations on or after the commencement of this clause.
(5) If a person has commenced building work 3 years or less than 3 years before the commencement of this clause but, at that commencement, has not obtained a certificate of occupancy in respect of that building work—
(a) a certificate of occupancy may be obtained on or after that commencement under the old Act and the Victoria Building Regulations 1983 in respect of the building work; and
(b) the old Act and the Victoria Building Regulations 1983 apply to any failure by that person to obtain a certificate of occupancy in respect of the building work whether before or after that commencement.
(6) A certificate of occupancy issued after the commencement of this clause under subclause (3), (4) or (5) is deemed to be an occupancy permit under Division 1 of Part 5 of this Act.
(7) Subject to this clause, on and from the commencement of this clause—
(a) no further certificate of occupancy can be issued under the Victoria Building Regulations 1983; and
(b) a certificate of occupancy cannot be revoked under those regulations.
13 Instruments and other matters under the building regulations
(1) Clause 11 and the amendment of the old Act do not affect the continuity of any instrument issued or served, or thing done, under the building regulations under the old Act before the commencement of this clause.
(2) If—
(a) a matter can be dealt with by issuing a building notice, building order or emergency order under Part 8 of this Act; and
(b) the Victoria Building Regulations 1983 provide a mechanism for dealing with that matter (whether by notice, direction, requirement or otherwise)—
that mechanism cannot be used to deal with that matter on or after the commencement of this clause.
(3) A notice served under regulation 57.1 or 57.2 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be an emergency order under Part 8 of this Act.
(4) A notice served under regulation 3.2(1) or 57.3 of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a building notice under Part 8 of this Act.
(5) A notice issued under regulation 3.2(3) of the Victoria Building Regulations 1983 is deemed, on the commencement of this clause, to be a building order under section 111 of this Act.
14 Building actions
Division 2 of Part 9 does not apply to building work commenced before the commencement of this clause or to building work for which an application for building approval was made before that commencement.
Sch. 4 cl. 15 repealed by No. 46/2008 s. 271.
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Sch. 4 cl. 16 repealed by No. 21/2017 s. 100(5).
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17 Agreements required by determinations
If, before or after the commencement of this clause, an agreement has been entered into in accordance with—
(a) a determination of a Building Referees Board under the old Act; or
(b) a determination of a Building Referees Board or the Building Appeals Board in a proceeding referred to in clause 16—
this Act applies to the variation or release of the agreement as if it had been made in accordance with a determination under Part 10.
18 Accreditation
(1) Anything which, immediately before the commencement of this clause, was for the time being accredited by the Building Control Accreditation Authority is deemed to be accredited by the Building Regulations Advisory Committee for the purposes of this Act.
Sch. 4 cl. 18(2) repealed by No. 21/2017 s. 100(5).
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19 Building surveyors and inspectors
(1) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building surveyor issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building surveyor.
(2) A person who, immediately before the commencement of this clause, holds a current certificate of qualification as a building inspector issued or deemed to have been issued under the old Act is deemed to be registered under Part 11 of this Act as a building inspector.
(3) If a certificate of qualification referred to in subclause (1) or (2) was suspended immediately before the commencement of this clause, the deemed registration of the person concerned is suspended for the remainder of that period of suspension.
(4) The Building Qualifications Register existing under the old Act immediately before the commencement of this clause is deemed to form part of the Register of Building Practitioners.
(5) A person deemed to be registered by this clause may apply to the Registrar of the Building Practitioners Board for a building practitioner's certificate. The application must include written proof that the applicant is covered by any insurance required under Part 9.
(6) Without delay after receiving an application in accordance with subclause (5), the Registrar of the Building Practitioners Board must issue the applicant an appropriate building practitioner's certificate in accordance with Part 11.
(7) No fee is payable for the issue of a building practitioner's certificate under subclause (6).
(8) A building practitioner's certificate issued under subclause (6) remains in force for 12 months after the date of its issue.
(9) A reference in Part 11 to the anniversary of the registration of a person under that Part is deemed to be a reference to the anniversary of the date of issue of a building practitioner's certificate under subclause (6) in relation to a person deemed to be registered under this clause.
(10) An application made to the Building Control Qualification Board before the commencement of this clause but not determined at that commencement is deemed to be an application made to the Building Practitioners Board for registration under Part 11 of this Act.
Sch. 4 cl. 20 repealed by No. 21/2017 s. 100(5).
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21 Offences by unregistered people—exemptions
An approval in force under section 127A(2)(d) of the old Act immediately before the commencement of this clause is deemed to be an exemption under section 176(5)(b) of this Act.
22 Fire protection
(1) Subject to this clause, Part VIII of the old Act continues to apply to a building if, before the commencement of this clause, a joint report or fire protection notice has been issued or an order has been made under that Part.
(2) Part VIII of the old Act ceases to apply to a building if a building notice, building order or emergency order under Part 8 of this Act is issued for that building.
(3) Part VIII of the old Act ceases to apply to a building at the end of twelve months after the day on which action was last taken by the council or the municipal building surveyor under that Part in respect of the building.
Sch. 4
cls 23, 24 repealed by No. 21/2017 s. 100(5).
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Sch. 4 cl. 25 amended by No. 9/2020 s. 390(Sch. 1 item 8.7).
25 Delegations
A document evidencing a resolution in force under section 163 of the old Act issued before the commencement of this clause is deemed to be an instrument of delegation under section 11 of the Local Government Act 2020 .
26 Re-enacted provisions
A provision of the old Act specified in Column 1 of the Table is deemed to be re-enacted (with modifications) by the provision of this Act appearing opposite in Column 2 of the Table.
TABLE
|
Old Provision |
New Provision |
|---|---|
|
Part 12 Division 6 | |
|
Section 27 | |
|
Sections 178A to 178C |
Part 13 Division 5 |
|
Part IX |
Part 7 |
|
Part 13 Division 1 | |
Sch. 4 cl. 27 inserted by No. 2/1996 s. 13.
27 Saving Provision
A building permit issued in April 1996 in respect of prescribed building work within the meaning of section 27 of this Act as in force before the commencement of section 138 of the Domestic Building Contracts and Tribunal Act 1995 is deemed to have been validly issued even if the certificate referred to in section 27(4) had not been given to the relevant building surveyor before the building permit was issued.
Sch. 4 cl. 28 inserted by No. 26/2001 s. 15.
28 Saving provision—repeal of additional levy
(1) The repeal of section 201(1A) by section 14 of the House Contracts Guarantee (HIH) Act 2001 does not affect—
(a) any liability to pay any levy imposed under that provision before that repeal; or
(b) any right, obligation or power of any person relating to the payment, collection, recovery or receipt of any levy so imposed.
(2) The provisions of subsection (1) are in
addition to and not in derogation of the provisions of the
Interpretation of Legislation Act 1984 .
Sch. 5 repealed by No. 34/1997 s. 30(f), new Sch. 5 inserted by No. 75/1998 s. 20, amended by Nos 96/2004 s. 19(2), 33/2010 s. 53, 21/2017 s. 44(2).