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Building Complaints – Know the Drill

The legislation regulating building services and the associated mechanisms for resolving building disputes has recently changed.

Do you know how the new Building Services (Complaints Resolution and Administration) Act 2011 (BSA) applies to you and your situation? Read on to make sure you know the brick-and-mortar basics.

What can be complained about?

There are some complexities surrounding who a complaint can be made against and what a complaint can be made about.

You don’t need to have a contract with a builder to be able to access the dispute resolution mechanisms of the BSA. A person may make a complaint to the Building Commissioner about a regulated building service which is faulty, unsatisfactory or not being carried out in a proper and proficient manner, as measured against relevant building codes and standards.

A “regulated building service” is defined as home building work that is carried out by a person for another person under a home building work contract or arrangement, covering the full process of construction, including design, building, certification and maintenance. It also includes altering, improving or repairing a dwelling.

Determining who the claim should be against

It is not necessary that the person with the complaint be the person who engaged and paid the builder or the regulated building service. A subsequent owner of a building can make a complaint, as can neighbours or other people affected by a building. The difficulty those potential complainants will face is identifying who the complaint should be made against.

Consider who carried out the work. , a registered builder who is the holder of a building license is responsible for the construction, but this is not an absolute rule. You need to be able to show the State Administrative Tribunal (SAT) that the respondent to proceedings did in fact carry out the work about which you are complaining and that the work is associated with the construction of the dwelling.

What’s the process?

Having accepted a building service complaint, the Building Commissioner is then required to cause an investigation to be carried out and, after considering any report given, may refer the complaint to the SAT for it to deal with. The SAT will either make a building remedy order or decline to make a building remedy order.

A “building remedy order” is an order that a person who carried out a regulated building service must remedy the building service, or pay to the aggrieved person the costs of remedying the building service, as specified by the SAT.

The legislation includes time limits for making complaints. Works must have been completed no more than six years prior to the making of the complaint.

A final word

There have been a number of complaints made under the new legislation to the Commissioner which have been referred to the SAT. Many recent decisions of the SAT demonstrate that the types of building disputes which the Commissioner and the SAT can deal with are relatively specific.

Many complainants who thought they had a basis for making a complaint have had their claims dismissed because their complaints, while being “building disputes” are not the types of disputes that fall under the Complaint Resolution process.

While it is easy enough to make a complaint, and to get that complaint referred to the SAT, the SAT will throw it out if it isn’t about a matter which the legislation permits complaints to be made about or if it is not about a “regulated building service.” Care needs to be taken to ensure that the parameters of the legislation are understood.

While parties are not required to be legally represented in these complaints, the cases decided to date suggest there should be more involvement of lawyers to avoid people wasting time and money on complaints that hit a dead end.

This article was written by Gibson & Gibson Perth Lawyers, who deal with a variety of legal disputes and complaints. For more information, contact them on (08) 6313 6100.