Modification and Compliance Assessment applications

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) 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, 447.08 KB)

160

Payment Details Form (PDF, 112.57 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 provision)

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.

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, 532.43 KB)

160B

Payment Details Form (PDF, 112.57 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, Australian Standards or any 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 delegate the authority to 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:

  • Plans drawn to scale
  • Certificate of title, plan of subdivision/lot plan
  • Details of any proposed performance solution/s
  • A report detailing the proposed alternative method and/or material, prepared by an expert in the relevant field
  • Test reports, CodeMark certificates, building product accreditation certificate issued by the Authority
  • Specifications and/or data sheet for any proposed alternative 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, 1413.83 KB)

160A

Payment Details Form (PDF, 112.57 KB)

 

Resources to help you prepare your application

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

What to submit to the Board

As part of your application you must submit:

  1. The completed application form(s);
  2. A detailed written submission with supporting documentation; and
  3. A  completed Payment Details Form for payment of the prescribed application fee.

Providing sufficient evidence with your application is very important. You can include drawings, photographs, plans and expert reports.

You must send copies of your initial application and all subsequent correspondence to all parties concerned in the matter.

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 submitted your application

We will send you a letter of acknowledgement upon receipt of your application.

We aim to list your application for hearing within six weeks of us receiving your fully completed application.

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 six weeks.

Please note that modification and compliance assessment applications cannot be fast tracked.

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

For information regarding when the next mapping review is likely to take place in your area, please contact the Department of Environment, Land, Water 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 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 site conducted by a BAL assessor (provide copy of the BAL Assessment report);
  2. Photos of the site and surrounding vegetation to assist the Board in considering the matter;
  3. A Register Search Statement (Title Search) for the site address which is less than three months old;
  4. A copy of the relevant Plan of Subdivision;
  5. A copy of Staged Development Plan (available from the land developer);
  6. A copy of Building Permit and endorsed plans for proposed building;
  7. Written comments from the Relevant Building Surveyor;
  8. Payment of the prescribed application fee; and
  9. It is suggested that you seek the assistance of a building practitioner, i.e. the services of a consulting building surveyor in preparing the application if you are not familiar with relevant building legislation or if you are unable to interpret the above requirements.

Please note the general timeframe for an application of this type to be assessed is up to 12 weeks, however, this may vary should further information be required or where the application is received incomplete.