Landmark decision: VCAT clears building surveyor in combustible cladding disciplinary action

Snart v Victorian Building Authority [2026] VCAT 650

The Victorian Civil and Administrative Tribunal (VCAT) has, in a landmark ruling, overturned disciplinary action taken by the Victorian Building Authority (VBA) against registered building surveyor Nicholas Snart, finding that the VBA failed to prove allegations arising from the approval of combustible cladding on three developments in Victoria.

Lander & Rogers was pleased to represent Mr Snart, assisted by Dr Ian Freckelton AO KC, Andrew Woods SC and Arjunan Thangarajah of counsel.

What was the case about?

The VBA investigated permits issued by Mr Snart between 2008 and 2016 for developments in Prahran, Brunswick East and Glen Iris. Following the Lacrosse tower fire and the subsequent focus on combustible cladding, the VBA alleged that Mr Snart:

• approved building permits that included combustible cladding when he could not have been satisfied the buildings complied with building laws;
• failed to carry out his work competently and to a professional standard; and
• in relation to one project, issued occupancy permits for buildings that were not suitable for occupation.

The VBA initially reprimanded Mr Snart, suspended his registration and imposed financial penalties. After an internal review, some of the allegations were dismissed, but the remaining findings and penalties remained. Mr Snart then sought review in VCAT.

The key issue: what does it mean to be “satisfied”?

A central question was whether Mr Snart could have been satisfied, when issuing the permits, that the building work complied with the Building Act 1993 (Vic) and Building Code of Australia (BCA).

VCAT emphasised that the legal test focuses on the surveyor’s actual state of satisfaction at the time, not simply whether later views might differ. The Tribunal found the VBA had to prove that Mr Snart could not honestly and reasonably have reached the view that the projects complied with the relevant requirements. On the evidence before it, the Tribunal was not persuaded that Mr Snart lacked that satisfaction.

Mr Snart’s evidence

The Tribunal found Mr Snart to be a generally credible and honest witness. It accepted his evidence about the way he assessed the projects and the materials available to him at the time. It also noted that some of the permits had been issued more than 15 years earlier and accepted that many supporting documents were no longer available.

Importantly, the VBA did not call expert evidence to contradict the expert evidence presented on Mr Snart’s behalf.

The low-rise building concession

One of the major issues concerned the interpretation of clause 3.10 of Specification C1.1 of the BCA, often referred to as the “low-rise concession”. The VBA argued that the provision only permitted the use of timber framing and did not allow combustible cladding.

VCAT rejected the VBA's interpretation. It held that the ordinary meaning of the provision allowed greater use of combustible materials in eligible low-rise residential buildings that met specified criteria. The Tribunal considered that the VBA’s interpretation placed an unacceptable strain on the wording of the provision.

This finding was significant because it supported Mr Snart’s position that the combustible cladding used on the Brunswick East development could qualify under the concession.

The attachment concession

VCAT also confirmed that combustible cladding may be permitted under the BCA’s “Attachment Concession” (clause 2.4 of Specification C1.1 of the BCA) where it is used as an attachment to a building, rather than as part of an external wall, provided specified fire safety requirements are met. The Tribunal found that Mr Snart had genuinely assessed those requirements and was entitled to be satisfied that the cladding complied with the concession, despite the absence of detailed documentation recording his reasoning. Accordingly, VCAT rejected the VBA’s allegation that the building permits had been issued unlawfully.

Documentation

The Tribunal accepted that, in some instances, formal performance solutions or supporting documentation required by the BCA had not been prepared or retained. However, it drew an important distinction between failing to document an assessment and failing to make the assessment at all.

VCAT repeatedly observed that the VBA had not alleged failures to document assessments or follow particular administrative steps. Instead, the allegations focused on whether Mr Snart could have been satisfied that the projects complied with the Building Act and BCA. VCAT therefore found that the case before it was not about record-keeping deficiencies. Rather, it was about whether Mr Snart could have been satisfied that the building work complied with the law. The Tribunal accepted Mr Snart's evidence that he had considered issues such as fire performance, weatherproofing and structural adequacy when assessing the permit applications.

VCAT's findings on the projects

For each of the Brunswick East, Glen Iris and Prahran developments, VCAT concluded that the VBA had not proven that Mr Snart lacked the required state of satisfaction when issuing the permits. It also found that the VBA had not established that Mr Snart acted incompetently or below professional standards.

In relation to the Brunswick East development, the Tribunal also rejected the allegation that occupancy permits were issued when the buildings were unsuitable for occupation.

Key takeaways

This decision has wide-reaching implications for combustible cladding disciplinary proceedings in Victoria, considering that the issues that the Tribunal was required to consider are not unique to Mr Snart's case.

VCAT's decision confirms, among other things, that:

• the low-rise concession allows for use of combustible materials in eligible low-rise residential buildings that meet specified criteria;
• the attachment concession allows for use of combustible materials in certain circumstances where it is used as an attachment to a building, rather than as part of an external wall;
• there is a distinction between proving that a building surveyor could not have honestly and genuinely reached the requisite level of satisfaction, and proving a different interpretation of the BCA; and
• there is a distinction between deficiencies in record-keeping and failure to make an assessment.

Outcome

VCAT set aside the VBA’s internal review decision and substituted a new decision finding that none of the remaining disciplinary grounds had been proven. All disciplinary action against Mr Snart was removed.

Lander & Rogers gives special thanks to the team of counsel representing Mr Snart in this landmark case: Dr Ian Freckelton AO KC, Andrew Woods SC and Arjunan Thangarajah.