Understanding and Managing Conflicts of Interest in Building Surveying in Victoria

Building surveyors play a crucial role in upholding safety and compliance within Victoria’s construction industry. To safeguard the integrity of their work, the Victorian Building Authority (VBA) established the Code of Conduct for Building Surveyors in Victoria (2020), which came into effect on January 1, 2021. The Code of Conduct was developed in response to industry demands and was a key recommendation from the Building Confidence report by Professor Peter Shergold AC and Ms Bronwyn Weir.

Among its eight core principles, the requirement to "Act Independently" is particularly vital. Section 4 of the Code of Conduct explicitly prohibits building surveyors from participating in the design process of projects they assess, ensuring their judgments remain unbiased and free from conflicts of interest. Maintaining this professional independence is fundamental to fostering trust, transparency, and accountability in the building approval process.

What is a Conflict of Interest?

A conflict of interest arises when a building surveyor's personal, financial, or professional interests could compromise their ability to act impartially. These conflicts can be categorised as follows:

• Actual Conflict: A direct and existing conflict where impartiality is compromised.
• Potential Conflict: A situation that may lead to a conflict in the future.
• Perceived Conflict: A scenario where, even if no conflict exists, public perception suggests that one does.

Legislative Framework

Under Section 79 of the Building Act 1993 (Vic), building surveyors in Victoria are subject to clear statutory obligations when it comes to managing conflicts of interest. This section prohibits a relevant building surveyor from carrying out building surveying functions if they have a direct or indirect pecuniary interest in the building work, or any association that may give rise to a real or perceived conflict.

The provision is designed to safeguard the integrity of the regulatory system by ensuring that the exercise of statutory functions remains free from influence, bias, or personal gain. A breach of this section may constitute professional misconduct and expose the practitioner to disciplinary action by the Victorian Building Authority (VBA).

Adherence to the VBA Code of Conduct for Building Surveyors provides an established mechanism for managing these obligations in practice. The Code requires surveyors to identify, disclose, and appropriately manage conflicts—actual, potential, or perceived—and to maintain contemporaneous records of such disclosures and any mitigation measures adopted.

In aligning their professional conduct with the Code, building surveyors can demonstrate procedural compliance with Section 79, thereby supporting statutory accountability and maintaining confidence in the regulatory oversight of building work.

Practical Implications and Best Practices

Adhering to Section 4 of the Code of Conduct requires building surveyors to implement specific practices that reinforce their independence:​

1. Avoiding Design Involvement: Surveyors must refrain from engaging in the creation or modification of building designs or Performance Solutions. This includes not suggesting alternatives to standard compliance methods or developing performance-based solutions. Such involvement could compromise the surveyor's objectivity when later assessing the same designs for compliance.​
2. Providing Regulatory Guidance: While direct participation in design is prohibited, building surveyors can and should offer guidance on regulatory requirements. They may advise on compliance with the Building Act, the Building Regulations, and the National Construction Code (NCC). For example, a surveyor can inform a client about the general requirements for fire safety measures without specifying how to achieve them in the design.​
3. Clear Communication of Roles: During the procurement stage, it's essential for building surveyors to clearly define the scope of their services. Fee proposals and contracts should explicitly state that the surveyor's role is limited to assessment and certification, not design consultation. This clarity helps manage client expectations and reinforces the surveyor's commitment to independence.​
4. Establishing Referral Networks: To assist clients without compromising their independence, building surveyors can develop a network of design professionals to whom they can refer clients seeking design advice or Performance Solutions. This approach ensures that clients receive the necessary support while allowing surveyors to maintain their impartiality.​

Key Conflict-of-Interest Scenarios

Separation from the design process

One of the fundamental requirements under Clause 4.2.1 of the Code of Conduct is that a building surveyor 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 as the Relevant Building Surveyor (RBS).

Example of Inappropriate Conduct: A surveyor attends meetings as a consultant to provide design advice before planning approvals are obtained. Later, a building surveyor from the same organisation becomes the RBS for that project.

Best Practice: An RBS should only provide compliance-related advice on requirements in the Building Act, Regulations, or NCC. 

Clear distinction between roles

Before engaging a client, a building surveyor must determine whether they will act as either of the following in accordance with Clause 4.2.2 of the Code of Conduct:

(a) A consultant on compliance matters, in which case they (or their organisation) cannot later be appointed as the RBS.

(b) The RBS, in which case the applicant must seek design advice from a separate building surveying company.

Example of Inappropriate Conduct: A company markets its services as both a consultant and RBS for the same project, leading to a conflict of interest.

Best Practice: Building surveying firms should clearly distinguish between consultancy and regulatory roles in their contractual engagements.

Prior involvement in design prohibiting appointment

According to Clause 4.2.3 of the Code of Conduct, if a building surveyor has already been involved in the design process, they cannot accept an appointment as the RBS for that project.

Example of Inappropriate Conduct: A building surveyor assists in the development of the concept design for a project, which is subsequently approved by an RBS from their firm.

Best Practice: The assessment and approval of designs must be conducted by an independent building surveyor from a different company.

Independent approval of Performance Solutions

Clause 4.2.4 of the Code of Conduct requires that an RBS must only approve Performance Solutions prepared by a separate company.

Example of Inappropriate Conduct: One individual prepares a Performance Solution for a project, which is then approved by an RBS working in another division of the same company. 

Best Practice: Where a building surveyor is engaged as the RBS, Performance Solutions must be prepared by third-party firm.

Advertising and promotion of services

Building surveyors must accurately advertise their services and avoid misleading clients about their roles in line with Clause 4.2.5 of the Code of Conduct. 

Example of Inappropriate Conduct: A firm's website states: “As the relevant building surveyor, we can provide you with advice about cost-saving design and negotiating with authorities.”

Best Practice: Surveyors should clearly state that they cannot act as both a consultant and RBS on the same project or for the same developer on different projects as part of marketing or promotional materials.

Independent third-party reviews

Per Clause 4.2.6 of the Code of Conduct, a building surveyor must not undertake a third-party review for a project where another building surveyor from their office is the RBS.

Example of Inappropriate Conduct: A building surveyor from a firm is the RBS for a project, while another building surveyor from the same firm issues a compliance certificate under section 238 of the Building Act.

Best Practice: Third-party reviews should be issued by a separate organisation to ensure impartiality and avoid conflicts.

Not arranging for design services to be performed on behalf of the applicant

When acting as the RBS, a building surveyor must not arrange specialist design advice to be provided by their firm on the same project, such as fire safety engineering. This principle is clearly articulated in Clause 4.2.7 of the Code of Conduct for Building Surveyors, which excludes a building surveyor from referring, recommending, or arranging design-related services where the surveyor or their employer may have a commercial interest.

Example of Inappropriate Conduct: A registered fire safety engineer employed by a firm prepares a fire engineering Performance Solution, and an RBS from the same firm subsequently assesses and approves that solution for a project.

Best Practice: To maintain impartiality and meet the requirements of Clause 4.2.7, the design and certification functions—particularly for Performance Solutions—must be carried out by independent companies with no shared commercial or employment relationship.

Conclusion

Understanding and managing conflicts of interest is essential for building surveyors to uphold the integrity and trust inherent in their profession. By adhering to the Code of Conduct for Building Surveyors in Victoria (2020), building surveyors can ensure their decisions remain unbiased and in the public interest. Vigilance in identifying, disclosing, and managing conflicts not only aligns with legal obligations but also reinforces the credibility and reliability of the building surveying industry in Victoria.​

For practitioners and project stakeholders navigating complex compliance obligations, independent and informed guidance is critical. As we do not practice as a Relevant Building Surveyor (RBS) in Victoria, Jensen Hughes can act as the Consulting Building Surveyor (CBS) on all projects. Our approach delivers clear, independent, and strategic solutions, while ensuring compliance with the Code of Conduct.

Get in touch today to discuss how we can support your next project! Learn more about our Building Code Consulting Services.