Code of Conduct for Building Surveyors in Victoria to take effect on 1 January 2021

With the attention of the construction industry focused squarely on dealing with the implications of Covid-19 and the ongoing cladding crisis, the release of the new Code of Conduct for Building Surveyors in Victoria (‘Code’) by the Victorian Building Authority (VBA) in June 2020 appears to have gone largely unnoticed. In this update, we will discuss the key aspects of the Code and its implications for practitioners and insurers.

The Code, which has come in response to Professor Peter Shergold and Bronwyn Weir’s 2018 report ‘Building Confidence: Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia’ and which comes into effect in January 2021, appears designed to restore public confidence in the construction sector by providing greater clarity around the scope of the role and professional obligations of building surveyors.

The Code establishes principles and rules for professional conduct and outlines the standards building surveyors in Victoria must, at a minimum, adhere to when providing building surveying services. Failure to adhere to the requisite standard as set out in the Code may lead to disciplinary action being taken by the VBA against a registered building surveyor.

The Code contains the following 8 core principles that building surveyors must comply with:

1. Act in accordance with the law and in the public interest
2. Act with integrity, honesty, objectivity and impartiality
3. Perform competently and within the required level of expertise and experience
4. Act independently
5. Avoid conflicts of interest
6. Document and maintain records
7. Communicate promptly and effectively
8. Provide a complaint handling process and address issues of non-compliance.

The two core themes throughout the Code are competence and independence. In addition, frameworks surrounding record keeping, communication standards and complaints processes have been introduced. We have summarised how the Code addresses these topics below.

Competence

Building surveyors must ensure that they do not perform any work that is outside their area of expertise or experience unless under the direct supervision of a building surveyor who holds the required expertise or experience. The Code notes that if a building surveyor is unsure as to whether a function falls outside their capacity or conditions of registration they should seek guidance from the VBA or relevant professional body.

By way of example, a building surveyor who has only had experience in low rise buildings for the last 10 years should not undertake work for a high rise building despite the role being within their registration, as they do not have the experience or expertise to competently discharge their duty.

The Code also places an onus on surveyors to take reasonable steps to ensure that any reports or advice that they rely on for work outside of their area of expertise or experience have been completed honestly, independently (as required), competently and to a professional standard by an appropriately qualified person. This means that surveyors must be more active in satisfying themselves that compliance is occurring.

The Code provides the following examples of inappropriate conduct by a surveyor in this context:

1. Allowing a builder and engineer to organise inspections on structural matters between themselves and leaving it to them to notify the building surveyor at a later stage.
2. Not requiring all notifications at the completion of a mandatory stage to be made to the building surveyor or not causing an inspection to be done in accordance with the Building Act.
3. Asking for and accepting a certificate of compliance from the engineer just prior to issuing the occupancy permit without asking about details of any inspections, if any problems were identified by the engineer, if the builder and engineer agreed to variations to the building work, or if any re-inspections were conducted.
4. Receiving and filing an inspection certificate from a structural engineer without reviewing it to ensure the certification was done applying the appropriate compliance standards and by someone with the appropriate expertise.

Consistent with the above, the Code makes it clear that under section 128 of the Building Act, a municipal or private building surveyor is not liable for anything done or omitted to be done in ‘good faith’ in reliance on a certificate given by a registered building practitioner under section 238 of the Building Act. However, good faith does not mean blind acceptance. The building surveyor must review the certificate and consider whether the person providing it had the skills and experience to do so.

Under the Code it is also deemed inappropriate conduct for a surveyor to:

• not adequately or appropriately supervise unregistered staff who work for them;
• not adequately ascertain the qualifications, registration and experience of a building inspector who is inspecting building work on their behalf; or
• accept a statutory declaration in lieu of a mandatory inspection.

Independence

Building surveyors must avoid situations that a reasonable person may conclude has or could compromise their impartiality or professional judgement. The Code relevantly provides the following examples of what may be, or perceived to compromise independence:

• Having an office in the premises of a builder or developer for which the building surveyor is performing work;
• Wearing shirts or caps with the logo of a building company that is the builder on projects for which the building surveyor or their company are the relevant building surveyor; or
• Accepting gifts or hospitality (other than token gifts or hospitality valued at less than $50) from builders, designers or suppliers who are often engaged on projects for which the building surveyor is the relevant building surveyor.

Building surveyors must not participate in or give advice on the development of designs or performance solutions for proposed building work before or after accepting an engagement to be the relevant building surveyor for that building work. If they have already been involved in the design process or provided advice on design solutions on a project, they must not accept appointment as the relevant building surveyor for that project.

Building surveyors must avoid conflicts of interest and not provide building surveying services where there is a conflict of interest or a significant risk of a conflict of interest, for example:

• Where a family member of a building surveyor, who is a registered domestic builder is appointed to work on a project for which the building surveyor is the relevant building surveyor; or
• Where a building surveyor is a director of a company that is engaged in building work, such as drafting or engineering, and an application is made to the building surveyor to be the relevant building surveyor for a project that is designed by that company.

Beyond actual conflicts, surveyors must also avoid any conduct that could give rise to a conflict such as:

• Offering to be a consultant building surveyor to a developer when the building surveyor is already acting as the relevant building surveyor for another project for the same developer; or
• Where a builder or developer seeks to influence a building surveyor to make decisions in their favour, for example, by threatening to take their business elsewhere if they do not agree; or
• Where a developer “promises” to provide a building surveyor with the next job if they issue an occupancy permit even though the building may not be suitable for occupation.

Record keeping, Communication & Complaints

Building surveyors must ensure all advice, opinions, decisions and actions (such as enforcement action) are reasonably supported by appropriate documentation including findings of fact and references to evidence or materials relied on.

Building surveyors must also comply with a reasonable request of a client, the VBA or relevant parties in a co-operative manner and keep clients or relevant parties informed of any changes to agreed timeframes and any professional costs associated with changes to scope.

Building surveyors must also have a complaints management process for the handling of complaints that explains the steps they will take to address and resolve a complaint.

Implications

Many in the construction industry will welcome the Code as it will provide greater clarity on the scope of professional obligations of building surveyors by providing, in effect, a set of practical guidelines. However, it is likely that the Code will have an unintended consequence of placing building surveyors at a greater risk of civil claims and regulatory complaints in circumstances where, on its face, the Code will broaden the scope and standard for the professional obligations of building surveyors.