Small Business Commissioner makes application for advisory opinion on the effect of s 251 of the Building Act and the costs of repair and maintenance under s 52 of the RLA

A hot issue for retail and commercial leasing practitioners over the last few years has been whether s 251 of the Building Act 1993 (Vic) prevents a landlord from recovering from its tenant as an outgoing under the lease the cost of essential safety measures or other steps required to comply with obligations under the Building Act.

A related issue is whether a landlord can recover the costs of repair and maintenance as an outgoing under s 52 of the RLA 2003.

In an interesting new development, the Small Business Commissioner has applied to the President of the VCAT for an advisory opinion on this issue.

The questions on which the Commissioner has sought advice are set out on the OSBC’s website as follows:

The matters referred to VCAT essentially seek to clarify:

• the responsibilities of a landlord or tenant under a commercial lease concerning compliance with essential safety measures requirements under the Building Act 1993 and Building Regulations 2006;
• who should pay for the costs of essential safety measures compliance under the Building Act 1993; and
• who should pay for the costs of repairs and maintenance obligations under the Retail Leases Act 2003.

This is the first time the Commissioner has used his new power under the Small Business Commissioner Act 2003 (Vic) to seek an advisory opinion from the Tribunal.

The OSBC’s website also says that:

His Honour Justice Greg Garde AO RFD, President VCAT, has directed by Orders made at VCAT on 20 June 2014, that relevant peak industry bodies and government entities and other interested persons should have an opportunity to make, in the first instance, submissions in writing in relation to the matters referred to VCAT.  Any submissions in writing are directed to be provided to the VSBC and the VCAT’s Principal Registrar by 4:00pm on Wednesday, 27 August 2014.

Submissions should be forwarded to the VCAT at GPO Box 5408, Melbourne VIC 3001 or electronically at thomas.patereskos@supremecourt.vic.gov.au and to the VSBC at GPO Box 4509, Melbourne VIC 3001 or electronically at enquiries@vsbc.vic.gov.au .

Written notice of any application seeking the Tribunal’s leave to make oral submissions in addition to any written submissions previously made shall be provided in writing to the VSBC and the VCAT’s Principal Registrar on or before 4:00pm on Tuesday 1 October 2014.

For more information, refer to the OSBC’s website here.

For background to the issue about s 251 of the Building Act, see an earlier post here and the links within that post.

For background on the issue about the recover of the costs of repair and maintenance under s 52 of the RLA, see here.

Thanks again to Jamie Bedelis of Moray & Agnew for alerting me to the note on the OSBC’s website.