Modification and Compliance Assessment proceedings

Modification – section 160 of the Building Act 1993 (Act)

An application under s 160(2) of the Act may be made to the Building Appeals Board (Board) to determine whether a particular provision of the Building Regulations 2018 (Regulations) or the Building Code of Australia should not apply or apply in modified or varied form to a building or land.

You must not apply under s 160(2) of the Act if you are seeking a determination that an access provision should not apply; or applies with modification or variations. You should apply, instead, under s 160B of the Act. Further information on this type of application is provided below.

A modification application under s 160(2) may be made by:

  • the owner of a building or land; or
  • 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
  • a Department Head within the meaning of the Public Administration Act 2004; or
  • a public authority; or
  • a municipal building surveyor.

The applicant may authorise a representative to act on their behalf by signing the ‘Authority to Act (PDF, 156.8 KB)’ form.

If you are asking the Board to modify a provision of the Regulations that apply to the building or land, you must satisfy the Board that modifying that provision is reasonable and not detrimental to the public interest (s 160(2)(b)).

If you are asking the Board that a provision of the Regulations should not apply to a building or land, you must satisfy the Board that the provision applying to that building or land is inappropriate in the particular circumstances (s 160(2)(a)).

Information submitted with a modification application should include, but is not limited to:

  • Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
  • Recent register search statement (title search) (less than three months) and plan of subdivision/lot plan;
  • Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
  • Comments from the adjoining property owner/s, if affected, for matters that relate to modification of a siting regulation;
  • Details of any proposed measures to mitigate the risk of any adverse consequences of non-compliance with the relevant provision of the building regulations; and
  • Justify why the provision of the building regulations applying to the building or land is inappropriate in the particular circumstances or why it is reasonable and not detrimental to the public interest to modify or vary the provision of the building regulations.

To apply for a modification, download the modification application.

Form

Section

Application form – Modification Application (PDF, 448.13 KB)

160

Payment Details Form (PDF, 142.86 KB)

 

Resources to help you prepare your application

To find out how much your application will cost, please visit our Forms & fees page.

Modification – section 160B of the Act (access provisions)

An application under s 160B(1) of the Act may be made to the Board to determine whether a particular provision of the building regulations should not apply or apply in a modified or varied form to a building or land if the provision is an access provision of the building regulations.

An access provision of the building regulations is defined under s 160B(8) of the Act.

An modification application under s 160B(1) of the Act may be made by:

  • The owner of the building or land; or
  • 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
  • A lessee of the building, who proposed to have, or is having building work carried out in respect of the building; or
  • Any person acting on behalf of a person referred to in paragraph (a), (b) or (c), other than the relevant building surveyor.

The applicant may authorise a representative to act on their behalf by signing the ‘Authority to Act’ form.

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.

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

  • 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;
  • 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;
  • the extent to which the construction of the building has or will be financed by government funding;
  • the extent to which the building is used for public purposes; and has a community function;
  • the financial position of the applicant;
  • any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;
  • 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;
  • 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;
  • 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;
  • 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;
  • 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;
  • 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;
  • 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;
  • 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 Authority under section 64 of that Act, the terms of the action plan and any evidence of its implementation; and
  • 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.

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

  • the extent to which substantially equal access to public premises is or may be provided (otherwise than by compliance with the specific access provision of the building regulations which the application to the Board relates to);
  • any measures undertaken, or to be undertaken to ensure substantially equal access is being provided; and
  • the maximum extent an access provision can be complied with without causing unjustifiable hardship.

The applicant should therefore address the above in the materials filed with the application.

To apply for a modification application under s 160B(1) of the Act, download the application form.

Form

Section

Application form – Modification of access provision (PDF, 586.97 KB)

160B

Payment Details Form (PDF, 142.86 KB)

 

To find out how much your application will cost, please visit our Forms & fees page.

Compliance Assessment – section 160A of the Act

An application under s 160A of the Act may be made to the Board to determine whether a particular design of a building or an element of a building complies with the Act, the Regulations or any document applied, adopted or incorporated in the building regulations, such as the Building Code of Australia, which references some Australian Standards or other documents.

A compliance assessment application may be made by:

  • the owner of the building or land; or
  • 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
  • the relevant building surveyor; or
  • the Authority.

The applicant may authorise a representative to act on their behalf by signing the ‘Authority to Act’ form.

Information submitted with a compliance assessment application should include, but is not limited to (where relevant):

  • Documentation, such as drawings, photographs and plans drawn to scale, which are numbered or clearly described. Any drawings should be marked up clearly to highlight the determination sought;
  • Recent register search statement (title search) (less than three months) and plan of subdivision/lot plan;
  • Details of any proposed performance solution/s;
  • A report detailing the proposed alternative method (if any) and/or material, prepared by an expert in the relevant field;
  • Test reports, CodeMark certificates, building product accreditation certificate issued by the Authority;
  • Specifications, detailed work methodology and/or data sheet for the proposed alternative material (if an alternative material is proposed instead of a deemed to satisfy material);
  • Detailed work methodology for the proposed alternative method; and/or
  • Written submission to describe how the proposed material and/or method of construction meets or exceeds the relevant performance requirements.

To apply for a compliance assessment, download the application form.

FormSection
Application form – Compliance Assessment Application (PDF, 1016.95 KB)

160A

Payment Details Form (PDF, 142.86 KB)

 

Resources to help you prepare your application

To find out how much your application will cost, please visit our Forms & fees page.

Applying to modify the bushfire construction provisions in the Building Code of Australia

For information regarding when the next map review is likely to take place in your area, please contact the Department of Transport and Planning on 136 186 or email bpa@delwp.vic.gov.au.

Should you wish to apply to the Board for a modification to the relevant building regulation applicable to your building site, please complete a modification application form.

In addition to completing the application form, you will be required to provide the following documentation to support your submission:

  1. A Bushfire Attack Level (BAL) assessment of your building site conducted by a BAL assessor (provide copy of the BAL Assessment report);
  2. Photos of the allotment and surrounding vegetation to assist the Board in considering the matter;
  3. Recent register search statement (title search) (less than three months) and plan of subdivision/lot plan;
  4. A copy of a staged development plan (available from the land developer);
  5. A copy of any relevant building permit and endorsed plans for the proposed building;
  6. Written comments from the relevant building surveyor; and
  7. Payment of the prescribed application fee(s).

It is recommended that you seek the assistance of a building practitioner, for example; a consulting building surveyor, in preparing the application if you are not familiar with the relevant building legislation or if you are unable to interpret the above requirements.

What to serve on the Board and other parties concerned

  1. The completed application(s) in the form containing the nature of the proceeding, the grounds for commencing the proceeding and the relief sought;
  2. A detailed written submission with supporting documentation; and
  3. A completed Payment Details Form for payment of the prescribed fee for each application.

You must send copies of your application and all correspondence and material filed with the Board to the other parties concerned in the proceeding.

Where to send your application

By e-mail
registry@buildingappeals.vic.gov.au

In person
Building Appeals Board
Goods Shed North
733 Bourke Street
Docklands VIC 3008

By mail
Building Appeals Board
PO Box 536
Melbourne VIC 3001

Once you have served your application

We will send you an email acknowledging receipt.

We aim to list completed applications for hearing within four to eight weeks.

Provided the Board does not require any additional information after a hearing has been conducted, it will aim to make a determination on your application within one to eight weeks.

Please note the above time frames are subject to the complexity of the application(s) and the business of the Board.

Frequently asked questions

Do I need to appoint a building surveyor before I serve on the Board an application?

No.

What fees are payable when I apply under s 160(2) of the Act for a provision of the building regulations to be modified or varied or for that provision of the building regulations to not apply to the building or land?

A fee is payable for each application made under s 160(2) of the Act for a determination to modify or vary a provision of the building regulations or for it not to apply.

Can a modification or compliance assessment application be fast-tracked?

There is no formal statutory mechanism to fast-track a modification or compliance assessment application. However, cl 15(3)(f) of Schedule 3 to the Act states that the Board ‘must proceed…with as much expedition as the requirements of the Act and the regulations, and the proper consideration of the matter before the Board permit’.

Can you recommend a building surveyor?

The Board must remain independent and impartial and therefore may not make recommendations as to which building surveyor to appoint. You can visit the Victorian Building Authority’s website for further information on appointing a building surveyor.

Can I apply for a retrospective (after building work has commenced) modification?

It is a matter for you to decide whether you wish to lodge a modification application after building work have commenced. You may wish to consult with a building surveyor or a solicitor that specialises in the building sector about the most suitable course of action.

I would like to withdraw my application. What do I do?

If you wish to withdraw your application, you should complete the Application for leave to Withdraw Form (PDF, 157.68 KB) and send it to the registry email.

Please email your request to the Board as early as possible to minimise costs and inconvenience and ensure you copy in all other parties to the proceeding.