Victorian Numbered Acts Victorian Numbered ActsBefore Part 9 of the Local Government Act 1989 insert —
In this Part—
"building "has the same meaning as it has in the Owners Corporations Act 2006 ;
"cladding rectification agreement "means an agreement entered into in accordance with section 185I;
"cladding rectification charge" means a charge declared under section 185L;
"common property" has the same meaning as it has in the Owners Corporations Act 2006 ;
"existing mortgagee", in respect of rateable land to which a cladding rectification agreement will apply, means any holder of a mortgage for that land, whether registered or unregistered;
"lot" has the same meaning as it has in the Subdivision Act 1988 ;
"owners corporation" has the same meaning as it has in the Owners Corporations Act 2006 .
(1) Subject to section 185J, a Council may enter into a cladding rectification agreement in respect of rateable land with an existing building on it, to fund works that rectify cladding on buildings with—
(a) the owner of the rateable land or, in the case of rateable land that is managed by an owners corporation, the owners corporation; and
(b) a lending body, unless the Council is the lending body; and
(c) any other person that the other parties to the agreement agree should be a party to the agreement and agrees to be a party to the agreement.
(2) Sections 185J(1)(b) and 185M(1) and (2) do not apply to a cladding rectification agreement in respect of rateable land that is used for a residential purpose.
(3) The Minister administering the Building Act 1993 must publish a notice in the Government Gazette specifying the type of works that may be funded by a cladding rectification agreement.
(4) A Council must not enter into a cladding rectification agreement to fund works unless the works are of a type specified in a notice published under subsection (3).
(5) A cladding rectification agreement must—
(a) be in writing; and
(b) outline the works to be undertaken on the rateable land; and
(c) provide for the lending body to advance specified funds to conduct the works; and
(d) provide for the Council to levy a cladding rectification charge on the rateable land; and
(e) provide for the Council to use the money received under the cladding rectification charge—
(i) to repay the lending body the principal amount advanced plus any agreed interest accrued since that advance; and
(ii) for any agreed administrative charge to be retained by the Council.
(1) Before entering into a cladding rectification agreement, the owner of the rateable land or, in the case of rateable land managed by an owners corporation, the owner of each lot on the rateable land—
(a) must give the Council details in writing of—
(i) all taxes, rates and charges owing on the rateable land or lot (including the total amount owing in respect of each tax, rate or charge) imposed by or under an Act; and
(ii) all registered and unregistered mortgages over the rateable land or lot; and
(iii) if a relevant mortgage is held against 2 or more properties including the rateable land or lot, the proportion of the debt secured by the mortgage that applies to the rateable land or lot calculated in accordance with subsection (3); and
(b) subject to section 185M, may obtain the written agreement of an occupier to pay the cladding rectification charge that will apply in respect of their occupancy.
(2) For the purposes of satisfying itself of the matters required in subsection (1)(a), a Council must give written notice to each owner or, in the case of rateable land managed by an owners corporation, each owner of a lot on the rateable land—
(a) that the Council requires the details specified in subsection (1)(a); and
(b) stating that the owner has 60 days from the date of giving the notice to provide the details.
(3) For the purposes of subsection (1)(a)(iii), the proportion of the debt secured by the mortgage that applies to the rateable land or lot must be calculated by distributing the debt between all the properties against which the mortgage is held in proportion to the relative capital improved values of the properties in respect of the current financial year (as at the time of entering into the agreement).
(4) A Council must not enter into a cladding rectification agreement unless the Council is satisfied that the total amount of taxes, rates, charges and mortgages owing on the rateable land when added to the total value of the cladding rectification charge is an amount that does not exceed the capital improved value of the land after the completion of any works that would be undertaken as part of the cladding rectification agreement.
(5) A Council must not enter into a cladding rectification agreement in respect of rateable land that is managed by an owners corporation unless the Council is satisfied that, for each separate lot on the rateable land, the total amount of taxes, rates, charges and mortgages owing for that lot when added to the cladding rectification charge owing in respect of that lot does not exceed the capital improved value of that separate lot after the completion of any works that would be undertaken as part of the cladding rectification agreement.
(6) If a person who receives a notice under subsection (2) fails to provide the required details within the time specified in the notice, the Council can be taken to be satisfied of the matters required in respect of subsection (4) or (5) (whichever is applicable) in relation to the rateable land or relevant lot on the rateable land (whichever is applicable).
(7) The owner of rateable land, or owner of a lot on rateable land (whichever is applicable) must advise, in writing, at least 28 days before a cladding rectification agreement is entered into, any existing mortgagee in respect of the rateable land to which the agreement will apply—
(a) that the rateable land or lot (as the case may be) is intended to be subject to a cladding rectification agreement; and
(b) of the details of all cladding rectification charges that are expected to be declared by a Council in respect of the rateable land or lot (as the case may be) under the cladding rectification agreement.
(8) If a Council is not satisfied of the matters set out in subsection (4), the Council may enter into a cladding rectification agreement if all the existing mortgagees of the rateable land agree in writing to the proposed cladding rectification charge.
(9) If a Council is not satisfied of the matters set out in subsection (5) in relation to one or more lots on rateable land, the Council may enter into a cladding rectification agreement if all the existing mortgagees of those lots agree in writing to the cladding rectification charge.
(1) If a proposed cladding rectification agreement is in respect of rateable land that is managed by an owners corporation—
(a) the owners corporation must not enter into the agreement without the written consent of the owners of no less than 75 per cent of the total lots affected by the owners corporation in respect of the land; and
(b) the owners corporation must, before entering into the agreement—
(i) give to the Council in writing the names and postal addresses of all of the owners of the lots affected by the owners corporation in respect of the land; and
(ii) specify to the Council which of the owners consented to entering the agreement.
(2) If an owners corporation enters into a cladding rectification agreement—
(a) the agreement is taken not to be a mortgage or charge of common property for the purposes of section 17 of the Owners Corporations Act 2006 ; and
(b) works undertaken under the agreement are taken not to be upgrading works for which the owners corporation can levy a fee under section 53 of the Owners Corporations Act 2006 ; and
(c) the agreement is taken not to be a maintenance plan for the purposes of the Owners Corporations Act 2006 ; and
(d) any levying and collection of the cladding rectification charge by the Council under the agreement is taken not to be a maintenance fund for the purposes of the Owners Corporations Act 2006 .
(3) A cladding rectification charge declared and levied in respect of rateable land that is managed by an owners corporation—
(a) does not apply to the part of the land that is common property; and
(b) must be apportioned based on the separate lots or occupancies on the land.
(4) An owners corporation is not liable for any failure by an owner or any occupier to pay a cladding rectification charge.
(1) After entering into a cladding rectification agreement a Council must, in accordance with the conditions of that agreement, declare a cladding rectification charge in respect of the rateable land that is the subject of the cladding rectification agreement.
(2) Subject to the provisions of the cladding rectification agreement, the cladding rectification charge may be varied to provide for any of the following—
(a) a variation in the works;
(b) a variation in the cost of the works;
(c) an additional penalty interest in the event of a failure to pay the charge in accordance with the cladding rectification agreement.
(3) This Act applies to a cladding rectification charge as if it were a service charge.
(4) A Council may, by instrument of delegation, delegate to the Chief Executive Officer the power to declare and levy a cladding rectification charge.
(5) A cladding rectification charge must not exceed the expected value of the rateable land after the works are completed, unless all the existing mortgagees agree.
(6) A cladding rectification charge must be expressed to be repayable in equal instalments over a period of no less than 10 years.
(1) Despite any provision of any existing lease or agreement between an owner of a rateable land which is subject to a cladding rectification charge and an occupier, the occupier is not liable to pay any part of the cladding rectification charge unless the occupier of the rateable property has specifically agreed in writing to pay the cladding rectification charge.
(2) If an occupier has agreed in writing to pay a cladding rectification charge and the occupier fails to do so by the due date, the occupier is liable to pay any penalty interest accruing as a result of that failure.
(3) An owner must not require an occupier to assume liability to pay any part of a cladding rectification charge as a condition of a residential tenancy agreement and an occupier is not liable to pay the charge merely by signing a residential tenancy agreement that contains such a condition.
(1) Subject to subsections (2) and (3), a Council must use its best endeavours to recover a cladding rectification charge in accordance with any requirements imposed on it by this Act and the cladding rectification agreement.
(2) Neither a Council nor an owners corporation (if applicable) is liable for any failure by an owner or any occupier to pay a cladding rectification charge.
(3) A failure by an owner or any occupier under
subsection (2) does not make the Council or owners corporation (if applicable)
liable to pay the outstanding amount under the
cladding rectification charge to the lending body.".
Part 7—Repeal of amending Act