Edwards v Queensland Building and Construction Commission & Anor [2024] QCAT 397

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Edwards v Queensland Building and Construction Commission & Anor [2024] QCAT 397 DONALD BRUCE EDWARDS (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) RODNEY KEVIN RETELL (second respondent) APPLICATION NO/S: OCR208-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 15 August 2024 HEARING DATE: 9 February 2023 HEARD AT: Brisbane DECISION OF: Member Carrigan ORDERS: The Application for miscellaneous matters seeking to adduce further evidence filed in the Tribunal by Donald Bruce Edwards 23 February 2023 is dismissed. The decision of the Queensland Building and Construction Commission made on 19 May 2021 is confirmed. The Application to review a decision filed in the Tribunal on 16 June 2021 by Donald Bruce Edwards is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING ALL REGULATION OF OTHER PROFESSIONS, TRADES AND CALLINGS – building certifiers – disciplinary proceedings – where licensed building certifier issued an approval for a Development Application – where licensed building certifiers approval related to a Performance Solution – whether the building certifier’s conduct constituted “unsatisfactory conduct” – whether the building certifier’s conduct constituted “unprofessional conduct”. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18. s 19, s 20, s 24 -- 1 of 37 -- 2 Queensland Building and Construction Commission Act 1991 (Qld), s 86(2), s 87 Building Act 1975 (Qld), s 10, s 11(2), s 26, s 48, s 68, s 68A, s 136, s 137(2) Planning Act 2016 (Qld), s 68 Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Queensland Building and Construction Commission v Gerhardt [2015] QCATA 13 APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: Mr R Ensby, Special Counsel, Gardens Second Respondent: No appearance at the hearing REASONS FOR DECISION [1] The issue in these proceedings is whether the conduct of Rodney Kevin Retell (‘the Certifier’) was “unsatisfactory conduct” or “professional misconduct”, as defined under the Building Act 1975 (Qld) (‘Building Act’) by issuing a building approval on 22 August 2019 based upon a Performance Solution Report prepared by engineers for a building at 35 Cameron Street, Fairfield, Brisbane. [2] On 21 September 2020, Donald Bruce Edwards (‘the Applicant’) the registered proprietor of the property at 35 Cameron Street, Fairfield, lodged a complaint with the Queensland Building and Construction Commission (‘the Commission’) relating to the conduct of the Certifier by issuing the building approval on 22 August 2019. [3] Following an original decision by the Commission and then an internal review decision dated 19 May 2021 of the original decision, the Commission decided that the Certifier had not engaged in “unsatisfactory conduct” or “professional misconduct” relevant to the complaint made by the Applicant. [4] On 16 June 2021 the Applicant filed in the Tribunal an Application to review a decision made by the Commission on 19 May 2021. Background Facts [5] These proceedings are part of a lengthy dispute which the Applicant has maintained with the builder, Sovereign Homes (Qld) Pty Ltd (‘Sovereign Homes’) and the Certifier in respect of the construction of an extension of the premises at 35 Cameron Street, Fairfield. As this is an application to review the Commission’s decision made on 19 May 2021 the Tribunal does not propose to go into all of the facts that have been part of the history of this lengthy dispute relating to these premises, although some historical matters will be referred to by way of background. [6] The Certifier was originally licensed as an Assistant Building Surveyor from about August 1998 until approximately 1 November 2012 when he was then licensed as a -- 2 of 37 -- 3 Building Certifier Level I. That license remained current at all material times to these proceedings. [7] On about 17 July 2014 plans were approved for the construction of an extension to the Applicants premises at 35 Cameron Street, Fairfield. [8] Throughout 2014 construction of the home was undertaken by the Applicant’s builder, Sovereign Homes. [9] One issue that arose (amongst others) was whether the builder had constructed the roof gutters in accordance with the plans for the building approval. On 21 August 2018 the Tribunal held, in proceedings between the Applicant and Sovereign Homes, that the builder had not constructed the gutter for the roof according to the plans and specifications. The builder was held in breach of the contract.1 [10] The Applicant appealed the Tribunal’s decision on the basis of errors of law relating to substantive matters and costs and interest. The Appeal Tribunal on 23 October 2020 refused to grant the Applicant leave to appeal and dismissed the appeal.2 Applicant’s First Complaint to QBCC [11] The dispute in these proceedings has its beginning with the Applicant filing a complaint with the Commission on 21 November 2018 against the conduct of the Certifier for issuing a Form 21 on 8 January 2015 in reliance upon an Alternative Building Solution proposal and other building work in circumstances where the building work did not comply with the Building Act (‘the First Complaint’). [12] On 3 September 2020 the Commission made a decision with respect to that First Complaint by deciding that the Certifier had engaged in unsatisfactory conduct pursuant to s 204 of the Building Act but had not engaged in professional misconduct. The Applicant considered that decision was wrong and on 21 September 2020 requested an internal review of that decision. [13] The Commission conducted the internal review and on 4 November 2020 decided that the Certifier had engaged in unsatisfactory conduct in relation to number of matters but had not engaged in unsatisfactory conduct in relation to a number of other items referred to in the evidence. Applicant’s Second Complaint to QBCC [14] Previously, on 21 August 2019, a Performance Solution Report was prepared by Anthony Gerard Freeman, engineer, of Aqualogical Plumbing Design Solutions (‘Aqualogical’) in respect of the gutter for the roof drainage of the premises at Fairfield. [15] The next day, 22 August 2019, Mr Freeman issued a Form 15 certificate for the alternate gutter design. [16] On 22 August 2019 the Certifier issued a Development Application Decision Notice and a Statement of Reasons which approved a Development Application based upon the Alternative Building Solutions by Aqualogical for roof water drainage to the premises at Fairfield. The Development Permit Approval was to be read in 1 See Respondent’s Statement of Reasons, Exhibit SOR 33, page 1582 and particularly at page 1607 para 147. 2 See Respondent’s Statement of Reasons, Exhibit SOR 35, page 1620. -- 3 of 37 -- 4 conjunction with a number of documents including the approved drawings and documents, certificates and building certifier’s conditions and other applicable codes for a Self-Assessable Development. [17] The Applicant on 21 September 2020 gave the Commission a further complaint about the Certifier’s Decision Notice of 22 August 2019 based on the Alternative Building Solution for roof water drainage for the premises at 35 Cameron Street, Fairfield (‘the Second Complaint’). The Second Complaint raised the issue whether the Certifier had engaged in unsatisfactory conduct or professional misconduct. [18] By 25 March 2021 the Commission had finalised its investigations into the Second Complaint whether the Certifier had engaged in unsatisfactory conduct or professional misconduct. The Commission decided, on that date, that the Certifier had not engaged in unsatisfactory conduct or professional misconduct. [19] On 21 April 2021 the Applicant made a request for an internal review of the Commission’s decision on 25 March 2021 asserting that it was wrong as the earlier Decision Notice from the Certifier was false and misleading, contained errors and omissions and other defects. [20] The Commission completed the internal review on 19 May 2021 and notified the Applicant that it had decided that the Certifier had not engaged in “unsatisfactory conduct” or “professional misconduct” as defined in the Building Act relevant to the Second Complaint. [21] On 16 June 2021 the Applicant filed in the Tribunal an Application to review a decision of the Commission made on 19 May 2021. The Tribunal’s Jurisdiction to Review the Decision of 19 May 2021 [22] The Tribunal’s review jurisdiction is conferred by an “enabling Act” to review a decision made or taken to have been made by another entity under that Act.3 [23] The decision of the Commission on 19 May 2021 was made pursuant to the Building Act. Accordingly, that decision is a “reviewable decision”.4 [24] A person affected by a reviewable decision of the Commission may apply to the Tribunal for a review of that decision.5 Accordingly, in these proceedings, the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) is the “enabling Act”. [25] The Applicant has applied to the Tribunal in its review jurisdiction and the Tribunal may deal with that application.6 [26] In conducting the review the Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the QBCC Act, including related legislation and in particular the Building Act. The Tribunal has all the functions of the Commission for the reviewable decision being reviewed.7 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17 (‘QCAT Act’). 4 QBCC Act, s 86(2). 5 QBCC Act, s 87. 6 QCAT Act, s 18. 7 QCAT Act, s 19. -- 4 of 37 -- 5 [27] In conducting this review the Tribunal must hear and decide the review by way of a fresh hearing on the merits and is to produce the correct and preferable decision.8 As has been submitted by the Commission;9 It is not necessary for an error to be identified in the decision being reviewed. Accordingly, it has to be understood that these review proceedings do not involve an appeal from the Commission’s decision of 19 May 2021, but rather a “fresh hearing on the merits”. [28] In these proceedings in reviewing the decision the Tribunal may;10 (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the Tribunal considers appropriate. Applicant files Application after hearing completed [29] On 23 February 2023 the Applicant filed an Application for miscellaneous matters to adduce further evidence in a document titled “Submissions of the Respondent – In Response to the Applicant’s Submissions filed 23 August 2019”. This document had previously been filed in the Tribunal by the Applicant's builder, Sovereign Homes, in separate proceedings between the Applicant and that builder. The Applicant now seeks to rely on that document in these proceedings. [30] The Applicant explains the need to adduce this evidence on the basis that at the hearing in these proceedings on 9 February 2019 “doubt was raised as to whether the 4th approval was for the existing gutter construction in 2014 or for proposed work”. [31] The Applicant says that the evidence he now seeks to adduce; demonstrates that the 4th Approval was used by Sovereign Homes, the Builder to demonstrate to QCATA that the 4th approval was for the existing gutter. [32] The Applicant submits that “there is no impediment to Sovereign’s Submissions of 28 August 2019 to QCATA being allowed into evidence”.11 The Applicant relies on s 28 of the QCAT Act. The Applicant submits; (a) that at the hearing he always argued that the Approval was for existing work and that that was supported by various evidence to which he refers;12 (b) that no work has occurred on the gutter since it was installed by Sovereign Homes in late 2014;13 8 QCAT Act, s 20. 9 See the Statement of Reasons filed on 6 September 2021 at page 2 paragraph 7 and the Commission’s reliance upon Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416 at [18] citing Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]. 10 QCAT Act, s 24. 11 Applicant’s Submissions dated 27 March 2023 at paragraph 11. 12 Applicant’s Submissions dated 27 March 2023 at paragraph 4. 13 Applicant’s Submissions dated 27 March 2023 at paragraph 7. -- 5 of 37 -- 6 (c) no Form 16 or Form 21 have been issued for the 4th Approval. The gutter remains unapproved [33] The Commission submits that this Application for miscellaneous matters is to reopen the proceedings pursuant to s 138 of the QCAT Act.14 The Commission further submits; (a) the evidence in the form of Sovereign’s Submissions is not new evidence that has arisen but was reasonably available when these proceedings were heard on 9 February 2023. For that reason alone, the Applicant’s Application must fail. (b) The evidence in the form of Sovereign’s Submissions is not relevant; (c) the Applicant did not seek an adjournment of the hearing on 9 February 2023, when the Certifier did not attend that hearing, for the purposes of cross- examining the Certifier, whose case was that the approval was not in respect of existing work; (d) allowing the evidence in the form of Sovereign Homes’ Submissions would be likely to cause prejudice and would likely result in a significant delay in the final hearing. [34] The Applicant filed Submissions in Reply arguing that the Application for miscellaneous matters was not a reopening as s 136 of the QCAT Act only “enlivened” s 138 “after a decision is made” in the proceedings.15 The Applicant says no decision has been made by the Tribunal in respect of the proceedings of 9 February 2023. Further, the Applicant submits that reliance is made on the Tribunal’s discretion to allow further evidence as made in the Directions by S M Aughterson of 7 June 202 which stated; no further material may be filed in the proceedings without leave of the Tribunal. The Applicant does not accept that there is any prejudice to the other parties. The evidence sought to be adduced “speaks for itself” and “nearly re-enforces” the evidence at paragraph 4 of the Applicant’s Submissions of 27 March 2023. [35] The Tribunal accepts that s 136 makes the “reopening” provisions dependent upon the proceedings being “heard and decided by the Tribunal”. That is not the case in these proceedings as no decision has been given. [36] The Applicant relies upon the Tribunal’s discretion. A number of factors need to be taken into account in the exercise of any discretion. Considerations of natural justice, fairness, opportunity to be heard and of course the interests of the public and the need for finality in proceedings as well as the proper and appropriate use of Tribunal resources need to be part of the Tribunal’s decision whether to grant, or dismiss, the Application for miscellaneous matters. [37] The Submissions by the Commission are that the evidence contained in the Sovereign Homes Submissions is not new evidence arising since the hearing of these proceedings on 9 February 2023. The document dated 28 August 2019 which the Applicant seeks to now adduce in evidence related to earlier proceedings between the 14 QBCC Submissions dated 27 April 2023 at paragraph 2. 15 Applicant’s Submissions in Reply dated 19 April 2023 at paragraph 3. -- 6 of 37 -- 7 Applicant and the Builder, Sovereign Homes. The document predates these proceedings by several years and there is no explanation why those submissions were not filed in these proceedings prior to 9 February 2023. [38] The Tribunal afforded the Applicant opportunities to file the material he relied on in these proceedings. Those opportunities arose as follows; (a) on 9 July 2021 the Tribunal gave directions for the Applicant to file “all material upon which he intends to rely at the compulsory conference”; (b) on 2 February 2022 the Tribunal gave directions for the Applicant to file his statement of evidence, including “[a] statement from each witness to give evidence for him at the hearing including any experts” and any documents referred to in any statements of evidence. On 21 March 2022 the Tribunal gave directions for an extension of time for the Applicant to comply with the directions of 2 February 2022; (c) also, on 2 February 2022 a direction was made for any party to file further statements of evidence in response to any statements of evidence by any other party. On 11 April 2022 the Tribunal extended the time for any party to file further statements of evidence in response to any of the statements of evidence filed by any other party; (d) on 7 June 2022 directions were made for the proceedings to be listed for a hearing and it was also directed that; (i) no further material may be filed in the proceedings without leave of the Tribunal. (ii) no Party will be allowed to present any evidence at the hearing that is not contained in the statements filed in the Tribunal without justifying the need for such additional evidence to the Tribunal. [39] These directions of the Tribunal demonstrate that the parties, including the Applicant, were given the opportunity in the period from 9 July 2021 until 9 February 2023 in which to file in the Tribunal their statements of evidence, including witness statements of evidence and supporting documents. It should be expected that this period, in excess of 18 months, was a more than reasonable time for the parties to file their evidence in these proceedings. That reasonable time is also reinforced by the fact that the Applicant in these proceedings was no stranger to proceedings in this Tribunal and the Development Tribunal with which he had earlier involvement and experience in disputing with his builder, Sovereign Homes. [40] The Applicant makes the concession that in respect of his argument that the 4th Approval was for existing work his argument was supported by ample evidence before the Tribunal.16 [41] The Applicant submits that he seeks to adduce the evidence in Sovereign Homes’ Submissions to “re-enforce the evidence at paragraph 4 of my 27 March 2023 submissions that the 4th decision notice was primarily for existing work and complements the evidence in Edwards Response Submissions ……..”. 16 Applicant’s Submissions dated 27 March 2023 at paragraph(a)-(f). -- 7 of 37 -- 8 [42] The Applicant does not deal with the issue raised in the Statement of Philip John Godfrey filed in the Tribunal on behalf of the Commission on 21 April 2022, where he states; ………..the building approval issued by the Second Respondent relates to a design put forward in respect of roof drainage. The building approval relates to the proposed construction; it is not an approval in respect of the existing works (in this case, there are existing works). At some time after building approval is granted for the proposed construction, an inspection will be carried out to determine if the works constructed comply with the building approval granted, so that, if appropriate, a final inspection can be issued by the certifier. The function of the certifier in issuing a final certificate for the construction works is not a function that is subject to the second complaint. In considering the Applicant’s second complaint, all the Commission is concerned with is whether the Second Respondent’s conduct in assessing the application for the building approval, and making a decision in relation to the application, involved any unsatisfactory conduct or professional misconduct. [43] The Applicant had to have been alerted from at least about 21 April 2022 that the Commission was proceeding on the basis that the 4th Approval (referred to in the above quote as the “building approval issued by the Second Respondent”) was for a design put forward in respect of roof drainage and was contrary to his case that it related to the existing works. The Applicant had the opportunity from 21 April 2022 to put before the Tribunal any relevant evidence which he sought to contest the evidence from Philip John Godfrey that the approval related to a design in respect of roof drainage. [44] The Tribunal is also concerned with the limited extent to which the Applicant seeks to adduce additional evidence. The Applicant seeks to rely on Sovereign Homes’ Submissions but not on the evidence from which those Submissions are drawn in affidavits17 and other evidence will not be before the Tribunal in these proceedings. The Applicant seeks to rely on the submissions but not the evidence on which those submissions depend. The Applicant has not explained why the evidence will not be before the Tribunal in these proceedings. [45] The Tribunal is also concerned in terms of whether any prejudice is likely to be suffered by the Commission or by the Certifier in these proceedings if the Application for miscellaneous matters is granted. It is noted that the submissions from the Commission do not go as far as to state that prejudice will occur but merely referred to prejudice which is “likely” to occur. However, the Tribunal is concerned with statements by a third party in the Sovereign Homes Submissions which on proper analysis, and depending upon the affidavit or evidence on which they depend, may require either further material or cross examination of the Applicant or a third party. [46] The Tribunal is also concerned that this evidence is not a statement made by one of the parties which could be in support of, or against, the interest of that party. Such a statement can have probative value. Rather, the evidence the Applicant seeks to adduce is a statement by a third party to these proceedings. The Tribunal is not bound by any statement from a third party, such as Sovereign Homes, and as such it has little, if any, probative value for the purposes of these proceedings. 17 The "affidavits and other evidence" in the Sovereign Homes Submissions which were available in other proceedings but are not being provided to the Tribunal in these proceedings. -- 8 of 37 -- 9 [47] The Tribunal is concerned with the functions of the Certifier in these proceedings to receive and assess a building development application.18 The Certifier’s approval was based upon a Performance Solution Report which had to contain details of how the performance solution is different from the relevant deemed-to-satisfy provisions under the Building Code of Australia (‘BCA’) or acceptable solutions under the Queensland Development Code (‘QDC’).19 [48] In the circumstances as discussed above the Tribunal is not persuaded that it should grant the Application for miscellaneous matters so as to allow the Applicant to rely on Sovereign Homes’ Submissions referred to in its Application. The Tribunal rejects the Applicant’s submissions and will dismiss the Application for miscellaneous matters. Onus of Proof in these Proceedings [49] The Commission in written submissions refers to several authorities and then submits;20 The applicable standard of proof in disciplinary actions is the Briginshaw standard which is the standard of proof on the balance of probabilities but on the basis that the more serious the allegations, the higher the degree of probability that is required. [50] The Commission also adds that;21 …..it is also noteworthy that it has been held that a certifier is entitled to rely on material a client gives him or her and has no independent obligation to verify the truth of those documents save that a certifier may have an obligation to inquire if the documents, on their face, suggest any regularity. [51] The Applicant in his written submissions implies that he accepts the Briginshaw standard in the following submission;22 The QBCC post hearing submission highlighted the Briginshaw standard of proof on the balance of probabilities. The evidence that I seek to admit seeks to heighten the standard of proof and authentication that the 4th Approval is for existing work. [52] The Tribunal accepts the submissions of both parties on the basis that the onus of proof in these proceedings is the balance of possibilities as stated in the Briginshaw standard. The Tribunal will apply that standard to the facts of these proceedings. Requirements of the Certifier for a Building Development Application [53] A certifier must prepare the statement of reasons for a decision to approve an application on the basis of a performance solution.23 The statement of reasons is to contain the following;24 18 Building Act, s 48(1)(a). 19 Building Act, s 26(b)(i). 20 Commission’s submissions dated 16 February, 2023 at paragraph 4. 21 Commission’s Submissions dated 16 February 2023 at paragraph 7 relying upon QBCC v Gerhardt [2015] QCATA 13 at paragraph 34. 22 Respondent's Submissions dated 27 March 2023 at paragraph 5. 23 Building Act, s 68A. 24 Building Act, s 68A(3). -- 9 of 37 -- 10 The statement must contain details of- how the performance solution is different from the relevant deemed-to- satisfy provisions under the BCA or acceptable solutions under the QDC; and inspection or test results and any other documents or information relied on to make the decision. [54] The Certifier in these proceedings was the relevant assessment manager for the approval granted on 22 August 2019.25 [55] On 22 August 2019 a Form 15 was given by Mr Freeman, Engineer, approving the Performance Solution Report for the ‘alternative gutter design’ at the Applicant’s property. [56] A certifier may accept and, without further checking, rely on a certificate from a ‘competent person’26 provided the requirements in s 46 and s 49 of the Building Regulation 2006 (Qld) (‘Building Regulation’) Part 7, Division 2 has been satisfied or otherwise complied with. Reliance on the certificate is dependent upon;27 (a) whether the certifier has decided the person is a competent person of a type relevant to the function; (b) if the person was decided to be a competent person only for a particular aspect of the decided type certificate relates to the aspect; and (c) if the person was described to be a competent person only for particular assessable building work-the certificate relates to the building work; and (d) the person was, under Part 5 and this part, permitted to give this certificate; and (e) for a certificate that is an inspection certificate, the person complied with section 47A; and (f) the certificate complies with section 48. [57] A further method, or alternate means, for a certifier to rely on evidence to show that the National Construction Code (‘NCC’) requirements are met and the solution is “fit for purpose” which is provided in the NCC, Part A5. While that Part of the NCC refers to a “building” (as well as plumbing or drainage installation) the form of evidence must be appropriate for the use of the material, form of construction or design to which it applies.28 Of particular significance is that evidence of suitability relates to evidence to support the use of a material, product, form of construction or design will meet a Performance Requirement or a Deemed-to Satisfy Provision if it is in the form as follows;29 A Certificate or report from a professional engineer or other appropriately qualified person that – 25 Building Act, s 11(2). 26 Building Regulation, ss 17, 18. Certifier must keep a record of decisions about assessments of competent persons (s 19). 27 Building Regulation, ss 48, 49(1)(a)-(f), (2). 28 NCC Part 5A s A5.0 and s A5.1. 29 NCC Part 5A s 5.2(1)(e). -- 10 of 37 -- 11 certifies that a material, product, form of construction or design fulfils specific requirements of the BCA; and sets out the basis on which it is given and the extent to which relevant standards, specifications, rules, codes of practice or other publications have been relied upon to demonstrate it fulfils specific requirements of the BCA. The Applicant’s Grounds for a Review of the Decision dated 19 May 2021 [58] The Applicant sets out in the Application to review a decision filed in the Tribunal a number of grounds why the review of that decision should be successful. The Applicant has also filed affidavits in the course of these proceedings and has filed submissions for consideration by the Tribunal. [59] In the Application to review a decision the Applicant considered the Commission’s decision to be wrong or not properly made based on the following grounds; (a) three (3) previous Approvals were found to be deficient by the QBCC and the Development Tribunal. It is unreasonable for the Commission to treat this decision as a mutually independent approval and ignore all previous issues as if they did not exist; (b) all Decision Notices are for the same gutter and by the same Certifier; (c) administrative decision making requires that all relevant facts be taken into account. The Applicant relies upon Standard 8 of the Certifier’s Code of Conduct. The Applicant asserts “it is folly for precedent to be ignored and the Certifier make another approval suffering the same deficiencies”; (d) the Commission’s decision means that certifiers can continue to certify knowingly wrong Building Applications without any deterrent. It is the public that bears the costs of such decisions. This decision does nothing to uphold the Commission’s role in maintaining standards within the industry or achieving balance between the interests of building contractors and consumers; (e) given the considerable antecedents, a higher degree of rigour would have reasonably been expected from the Certifier when making the Decision Notice dated 22 August 2019; (f) it is reasonable that a consumer is entitled to receive approvals that are an accurate representation of the building work both done and proposed to be done in respect of the roof guttering system for the building. This has not been the case now on four occasions; (g) The Applicant relies upon other facts including the plans, size of the area where the gutter is installed, a category 1 defect, and matters before the Development Tribunal. [60] The Applicant says that the Second Complaint against the Certifier is for issuing a “knowingly incorrect” Decision Notice on 21 August 2019 for an Alternative Building Solution for roof water drainage.30 The facts on which the Applicant relies include the following; 30 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 5. -- 11 of 37 -- 12 (a) Sovereign Homes installed a gutter system in August 2014 which the Tribunal has found was in breach of the contract and not in accordance with the contract plan;31 (b) none of the 4 approvals by the Certifier represent what was built in 2014 and the approvals 2, 3 and 4 seek to cover errors made by the builder and certifier in 2014;32 (c) the gutter profiles relied on for each approval keep changing. All are much larger than the original gutter installed by the builder in 2014. The profile in the Performance Solution Report of 21 August 2019 is much larger.33 In comparing measurements of the existing gutter (as shown in photographs) with the profiles relied by Performance Solutions of 21 August 2019, the profile in the Performance Solution Report is considerably wider than the available area for the gutter.34 The Applicant says;35 The report by Aqualogical provides the basis for the DN. However, it relies upon profiles for a gutter that does not exist. Neither of the gutter profiles, referred to in the Aqualogical report match the dimensions of the gutter that Sovereign as constructed. I believe that the factual basis upon which Aqualogical has based its report is flawed. (d) the plan is for the Performance Solution Report of 21 August 2019 which provides insufficient detail of what was installed.36 The plan provided by the builder is deficient in that it did not include design details including dimensions of the width of the gutter, gutter falls and other detail which plans were relied upon by the Certifier in the 4th approval.37 This plan does not represent what was installed and “infects” the information in the Performance Solution Report, Form 15 and the Statement of Reasons which form part of the Certifier’s Decision Notice dated 22 August 2019. In the circumstances the Decision Notice has no relevance to what has been installed; (e) the Certifier is required to consider all available evidence and has failed to heed earlier decisions of the QBCC and the Development Tribunal38 which upheld earlier appeals; (f) the Hydraulic Engineer and author of the Performance Solution Report has never visited the Applicant’s home or spoken with the Applicant about the gutter installed by the builder; (g) in 2016 QBCC investigations determined that the gutters installed by the Builder were a Category 1 defect and the certifier’s Decision Notice does not address this defect by the full approval; 31 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 6. 32 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 8. 33 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 10. 34 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 37. 35 See the Applicant’s Affidavit filed 19 September 2019 at paragraph 9. 36 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 57. 37 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 53. 38 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 59-65. -- 12 of 37 -- 13 (h) the same conclusion can be applied to the Decision Notice as has already been stated by the earlier Development Tribunal decisions;39 (i) Sovereign Homes and the Certifier conveniently used a loop hole in the legislation which allows any person to make a building development application without the written consent of the owner of the premises to which the application relates.40 The Applicant says that the plans in the Performance Solution of 21 August 2019 have not been approved by him as the homeowner and are not the contract plans of 30 June 2014.41 The Applicant says;42 No one from Aqualogical has inspected the gutters installed by Sovereign in 2014 nor discussed their report with me as the home owner. No one from Aqualogical has contacted me that has been constructed. The Aqualogical’s Report does not list or detail the documents or information it considered in preparing the report. (j) the Performance Solution Report of 21 August 2019, as was the case in the earlier approvals by the Certifier, was made knowing it would be used and available by the builder. To ensure the Application is received from the builder were true and correct however, the Certifier has shown a blatant disregard for his responsibilities as a certifier and has not acted in the public interest;43 (k) accordingly, the Performance Solutions Report 21 August 2019, and the Form 15 cannot relate to the Applicant’s home at Fairfield and are both irrelevant. The approval is a nullity.44 Similarly, the Notice of Reasons of 21 August 2019 are also a nullity. [61] The Applicant also refers to provisions in the Building Regulations45 and the approved Guidelines46 relating to the Commission deciding on the competency of a certifier. [62] Most of these grounds overlap to a greater or lesser extent and can be summarised as follows; (a) the three previous approvals involved the same subject matter as the fourth approval and it is unreasonable to treat the fourth approval differently from the earlier three approvals; and (b) in the fourth approval the Certifier is required by Standard 8 to take into account “all relevant facts” which includes the approvals found to be deficient; and (c) the Certifier’s conduct shows that he engaged in unsatisfactory conduct or professional misconduct. [63] The Applicant submits that, apart from earlier findings by the Commission that the Certifier had engaged in unsatisfactory conduct in relation to previous approvals,47 the Certifier has breached a number of legislative provisions as follows; 39 See Application to review a decision filed 16 June 2021 in the Attachment at page 3, paragraph 22. 40 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 18. 41 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 55. 42 See the Applicant’s Affidavit filed 19 September 2019 at paragraph 12. 43 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 70-74. 44 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 76. 45 Building Regulation, s 18(4). 46 Guidelines 1, 4 and 5. 47 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 86-99. -- 13 of 37 -- 14 (a) s 63 of the Planning Act 2016 (Qld) (‘Planning Act’) as the required documents were in breach of;48 (i) s 63(3) which requires that the notice must state, or be accompanied by, the documents prescribed by regulation (the plan, Form 15 and Alternative Solution); (ii) s 63(5)(d) which requires the notice to state the reasons for the assessment managers decision – i.e. the Notice of Reasons; (b) s 68A of the Building Act as the Certifier did not prepare a valid Notice of Reasons;49 and (c) s 136 of the Building Act as the Certifier has not acted in the public interest.50 [64] The Applicant also submits that the Certifier is in breach of the Code of Conduct relating to a number of the following provisions.51 Code of Conduct – Standard 3 [65] Standard 3 requires that a Certifier must comply with legislative requirements. [66] The Applicant submits that the Certifier is in breach of this Standard. The Applicant relies upon his submissions relating to the breaches of the legislation which have already been referred to in his submissions.52 [67] The “breaches of legislation” relied upon relate to; (a) a breach of s 63(3) of the Planning Act as the Notice of Decision of 22 August 2019. The Applicant contends that the documents breach the legislation and should not have been accepted or approved by the Certifier as; (i) the plan was in breach of s 43(b) of the Planning Regulation 2017 (Qld) as it was wholly deficient; (ii) the Form 15 contents did not meet the requirements of s 48 of the Building Regulation as the Alternative Solution relied on a builder; (iii) the Alternative Solution is a breach of s 26(a)(ii) of the Building Act as it did not compare the building work completed by the builder in 2004 with the performance requirements. Accordingly it was wholly deficient; (b) a breach of s 68A of the Building Act as the Statement of Reasons; (i) failed to identify how the Alternative Solution installed in a 2014 gutter would differ from the DTS provisions. The Certifier accepted the Alternative Solution which does not exist at the property; (ii) the Certifier relied upon information which does not reflect the gutters installed by the builder in 2014. The Hydraulic Designer of the Alternative Solution Report and the Certifier have not inspected the gutters. 48 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 106. 49 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 106. 50 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 106. 51 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 104-117. 52 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 104 and paragraph 103. -- 14 of 37 -- 15 Code of Conduct – Standard 4 [68] Standard 4 requires that the Certifier must not perform building certifier functions where there is a potential for a conflict of interest. [69] The details of the conflict of interest alleged relate53 to the relationship between the Certifier and the builder, Sovereign Homes, and the failure to act in the public interest. [70] The Applicant submits that the certifier was receiving a benefit courtesy of Sovereign Homes.54 Code of Conduct – Standard 7 [71] Standard 7 requires that the Certifier must abide by moral and ethical standards expected by the community. [72] The Applicant contends that the Certifier’s conduct in the Approval dated 22 August 2019 was a breach of Standard 7 as the Certifier must, when performing a building certifier’s functions; (a) apply all relevant building laws, regulations etc. reasonably and without favour; (b) perform the functions with honesty, integrity and impartiality; (c) not knowingly enter into any conduct that could bring, or tend to bring, the profession of building certifiers into disrepute. [73] The Applicant says that there has been a lack of honesty, integrity and impartiality in the Certifier performing his duties because of his long involvement in this project (over six years) and having access to;55 (a) 4 voluminous submissions from the Applicant in two previous Appeals; (b) sitting through two (2) Development Tribunal appeal hearings, hearings about all the issues with the gutters; and (c) two (2) Development Tribunal Decisions. Code of Conduct – Standard 8 [74] Standard 8 requires that the Certifier must take all reasonable steps to obtain all relevant facts when performing building certifying functions. [75] The Applicant relies on statements from the Certifier that he does not climb onto roofs. The Applicant contends that the Certifier, or someone else on his behalf, should have made an inspection of the Applicant’s roof and gutter. [76] The Applicant contends that the Certifier had access to considerable material which was ignored by him. That material consisted of; (a) evidence before the Development Tribunal hearings which was in his possession at the time he gave his approval on 22 August 2019; 53 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 98-99. 54 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 98-99. 55 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 1109-112. -- 15 of 37 -- 16 (b) four (4) voluminous submissions from the Applicant in two (2) previous Appeals; (c) sitting through two (2) Development Tribunal appeal hearings, hearings about all the issues with the gutters; and (d) two (2) Development Tribunal Decisions. [77] The Applicant contends that the Certifier took no steps to satisfy himself that the information received from the Builder and/or Hydraulic Designer was valid.56 Code of Conduct – Standard 9 [78] Standard 9 requires that the Certifier must clearly document reasons for decisions. [79] The Applicant contends that the Certifier’s reasons for deciding the competency of Aqualogical are not valid as the Certifier did not keep a record of the competency of the author of that document pursuant to s 19 of the Building Regulation. [80] The Applicant contends the Certifier is in breach of Standard 9. Unsatisfactory Conduct [81] The Applicant submits that the Certifier has engaged in separate counts of unsatisfactory conduct and has contravened codes of conduct Standards 3, 4, 7, 8 and 9 by reason of; (a) demonstrating incompetence, lack of adequate knowledge, skill, judgement, integrity, diligence and care in a number of aspects57 of his conduct as a Certifier. Professional Misconduct [82] The Applicant submits that the Certifier has engaged in Professional Misconduct by reason of knowingly being deceptive.58 The Applicant relies upon the same grounds as have already been stated above for “Unsatisfactory Conduct”59 as well as repeated unsatisfactory conduct.60 [83] The Applicant seeks a penalty far greater than a reprimand and submits strong action must be taken to cease this ongoing conduct.61 The QBCC’s Response to the Application. [84] The Commission relies upon evidence from Philip John Godfrey, a Principal Certification Officer of QBCC, who provided historical background information relating to the earlier proceedings and to these proceedings. However, he stated in respect of the Certifier’s Approval of 22 August 2019; 56 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 116. 57 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 122(a)-(c). 58 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 123-126. 59 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 123 and the reliance upon paragraph 122. 60 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 123 and reliance upon paragraphs 86 to 91. 61 See the Applicant’s Statement of Evidence filed 8 March 2022 at paragraph 124-126. -- 16 of 37 -- 17 It is important to note that the building approval issued by the Second Respondent relates to a design put forward in respect of the roof drainage. The building approval relates to the proposed construction; it is not an approval in respect of the existing works (in this case, there are existing works). At some time after building approval is granted for the proposed construction, an inspection will be carried out to determine if the works constructed comply with the building approval granted, so that, if appropriate, a final inspection certificate can be issued by the certifier. [85] Mr Godfrey went on to discuss the purpose of the Alternative Building Solution in these terms; The purpose of the ‘alternative building solution’ (Performance Solution) is to provide a roof drainage design that complies with the BCA performance requirements for P2. 2. 1 Rainwater Management and P 2. 2. 2 Weatherproofing. The Performance Solution submitted by Anthony Freeman demonstrates compliance through a combination of ‘Expert Judgement” and comparison with the Deemed-to-Satisfy Provisions. Expert Judgement means the judgement of an expert who has the qualifications and experience to determine whether a Performance Solution complies with the Performance Requirements (BCA 2019 volume 2, Schedule 3 Definitions). [86] Mr Godfrey said that the Performance Solution Report requires an amendment to the gutter as follows; The overflow weir shall be 400 mm long and extend down to 95 mm above the base of the rain head. [87] In response to the Applicant’s statement that the Performance Solution internal gutter dimensions are inconsistent with the as-constructed gutter, Mr Godfrey said; (a) the certifier had the DA Form 2 where Sovereign Homes had checked the box confirming all information in the development application was true and correct; and (b) the certifier accepted the application as “properly made” and was required to assess the application against the building assessment provisions including the performance requirements of the BCA. [88] Mr Godfrey says that the approval of 22 August 2019 approved a design that is compliant with the Performance Requirements of the BCA. He says that approval does not approve the current as-constructed internal gutter. Final certification occurs after the approved works have been carried out and inspected to determine whether they comply with the building approval issued. [89] Mr Godfrey concludes his statement of evidence by stating; It is my view that until the competent person can inspect the roof gutter and can certify that building works have been carried out to satisfy the performance solution, the Second Respondent cannot certify the roof drainage design subject to the third approval (approval of 22 August 2019) has been complied with. [90] The Commission commences its submissions by identifying that these proceedings relate to the Certifier’s conduct in issuing the approval dated 22 August 2019 by the adoption of a Performance Solution Report with respect to construction of the gutter between the Applicant’s existing dwelling and the new extension. That approval noted -- 17 of 37 -- 18 that the documentation included not only the Alternative Performance Solution but also; (a) Architectural Plans-Sovereign Homes DWG NoWD-01A-WD05A; (b) Hydraulic-Form 15 dated 22 August 2019 Anthony Gerard Freeman and referenced Job No A190823 Performance Solution Report. [91] The Commission’s submissions consider a number of the concepts which the Applicant was critical of relating to the Performance Solution Report, alleged deficiencies in the Plans, the Decision Notice and other matters which will be discussed in further detail below. Commission’s Submissions-Performance Solution [92] The Commission refers to s 26 of the Building Act for the required contents of a performance solution. That solution must; (a) state (i) the performance requirements with which the building work purports to comply; and (ii) how the building work complies with the performance requirements; and (b) contain details of (i) how the alternative solution is different from the relevant deemed to satisfy provisions under the BCA or acceptable solutions under the QDC; and (ii) inspection or test results and other documents or information relied on to prepare the application. [93] The Commission submits that the NCC is a performance-based code containing the “performance requirements” which must be met to achieve compliance. The NCC Volume 1 and Volume 2 provisions are included in the BCA. The performance requirements in the NCC;62 may be satisfied by a “performance solution”, a “deemed-to-satisfy solution”, or alternatively by a combination of a “performance solution” and a “deemed- to-satisfy solution” [94] The Commission submits that it is satisfied the Aqualogical Performance Solution Report satisfies the requirements of s 26 of the Building Act as;63 (a) the Report states the relevant performance requirements with which the building work purports to comply; (b) states how the author believes the building work complies with the performance requirement; (c) contains details of how the performance solution is different from the relevant deemed-to-satisfy provisions under the NCC; and 62 Statement of Reasons for the Decision filed on 6 September 2021 at page 29 paragraph 110. 63 Statement of Reasons for the Decision filed on 6 September 2021 at page 31 paragraph 120. -- 18 of 37 -- 19 (d) includes documents and information relied on to prepare the performance solution. [95] The Commission submits that the Certifier was able to rely upon the assessment within the Performance Solution Report pursuant to NCC 2019, Volume 2 Part A2.2 as the author is an appropriately qualified person to provide the report, being licensed by the QBCC in the class of Hydraulic Services Design.64 [96] The Commission further submits that the Certifier was entitled to accept and rely upon the Aqualogical Performance Solution Report as an accurate representation of the building work both done and proposed to be done in respect of the roof guttering system for the building.65 [97] In the circumstances as set out, the Commission submits that the Certifier did not engage in unsatisfactory conduct or professional misconduct in issuing the Decision Notice relating to building work both done and proposed to be done in respect of the roof guttering system for the building.66 [98] The Commission submits it is satisfied that the Statement of Reasons issued by the Certifier on 22 August 2019 complied with the requirements of s 68A(3) of the Building Act as; (a) it details how the performance solution differs from the relevant ‘deemed-to- satisfy provisions’ under the NCC; and (b) includes information about the documents and other information relied on by the Certifier in making the decision to approve the Performance Solution. [99] The Commission submits that as the Certifier failed to provide information regarding the assessment of Mr Freeman, Engineer, as a “competent person”, it is not satisfied that the Certifier has assessed Mr Freeman as the required “competent person” relating to the issue of the Form 15. However, the Commission is satisfied that the Form 15 was able to be relied upon by the Certifier based upon his reliance of Mr Freeman being a QBCC licensee of the relevant class pursuant to the provisions of the NCC Part A5. The evidence is that Mr Freeman is licensed in the class of Hydraulic Services Design, which allows him, amongst other things, to prepare the plans, specifications and other documents associated with rainwater and stormwater drainage. Alleged Deficiencies in the Plan [100] The Commission says that it has considered;67 (a) the builder’s plan for the property in the approval of 22 August 2019; and (b) the deficiencies alleged by the Applicant in the approved plan and concluded;68 (i) there is sufficient detail provided on the plan to demonstrate that the proposed box gutter complies with performance requirements P2.2.1 and P2.2.2.69 64 Statement of Reasons for the Decision filed on 6 September 2021 at page 31 paragraph 121. 65 Statement of Reasons for the Decision filed on 6 September 2021 at page 32 paragraph 122. 66 Statement of Reasons for the Decision filed on 6 September 2021 at page 32 paragraph 123. 67 Statement of Reasons for the Decision filed on 6 September 2021 at page 29 paragraph 111-115. 68 Statement of Reasons for the Decision filed on 6 September 2021 at page 29 paragraph 112. 69 For this statement the Commission refers to SOR-27 at p 1482; SOR-21 at p 1111. -- 19 of 37 -- 20 [101] The Commission therefore submits that the Aqualogical Performance Solution Report in the Certifier’s approval of 22 August 2019 contained and assessed the relevant detail for the performance solution including, but not limited to;70 (a) additional information specific to the ‘the gutter’ design, including: (i) roof catchment areas; (ii) design flow rate; (iii) gutter gradient for each component; and (b) a comparison with deemed to satisfy provisions for a box gutter. [102] The Commission submits that the Performance Solution Report and the Approved Plans are to be assessed together. In doing so the Commission considers the Certifier did not engage in unsatisfactory conduct or professional misconduct due to any failure in the approved plans to determine that the relevant gutter complied with the relevant performance requirements.71 The Statement of Reasons of 21 August 2019 [103] On 22 August 2019 the Certifier provided a Statement of Reasons for the approval of the Aqualogical Performance Solution Report. The Statement of Reasons is required by s 68A of the Building Act. That Statement must contain specified details.72 (a) how the performance solution is different from the relevant deemed-to-satisfy provisions under the BCA or acceptable solutions under the QDC; and (b) inspection or test results and other documents or information relied on to make the decision. [104] The Commission submits that the Certifier complied with the requirement for the specified details in the Statement and accordingly it considers the Certifier did not engage in unsatisfactory conduct or professional misconduct in giving the approval.73 The Form 15 of 22 August 2019 [105] On 22 August 2019 the engineer, Mr Freeman, issued a Form 15 in conjunction with the Aqualogical Performance Solution Report. [106] The Form 15 when given by a “competent person” to a certifier is a certificate that a building design or specification will, if installed or carried out under the certificate, comply with the building assessment provisions.74 A certifier may decide an individual is a "competent person".75 [107] The significance of such a certificate is that the certifier, in carrying out functions under the Act, may accept and without further checking, rely on the certificate from 70 Statement of Reasons for the Decision filed on 6 September 2021 at page 29 paragraph 113. 71 Statement of Reasons for the Decision filed on 6 September 2021 at page 30 paragraph 115. 72 Building Act, s 68A(3). 73 Statement of Reasons for the Decision filed on 6 September 2021 at page 30 paragraph 127-128. 74 Building Regulation, Part 7, Division 2, s 46. 75 Building Regulation, Part 5, s 17. -- 20 of 37 -- 21 the “competent person” provided a number of criteria are satisfied76 and must, for at least seven years, keep a record that an individual is a “competent person”.77 [108] The Commission says that the Certifier in these proceedings failed to provide any information about an assessment of whether Mr Freeman, the engineer, was a competent person and is not satisfied that the proper assessment has been made. It does not accept the Form 15 on that basis. [109] However, the Commission refers to an alternative means by which the Form 15 was able to be relied upon by the Certifier pursuant to the NCC 2019, Volume 2. It considers that the Certifier was able to accept Mr Freeman as an appropriately qualified person holding a QBCC licence in the class of Hydraulic Services Design. The Commission submits that this allows Mr Freeman to prepare the plans, specifications and other documents associated with rainwater and stormwater drainage. On that basis the Commission considers that the Certifier did not engage in unsatisfactory conduct or professional misconduct by accepting the Form 15 in association with issuing the approval on 22 August 2019. [110] The Applicant contends that the Certifier is in breach of several provisions of the Code of Conduct. The Commission responded to those contentions as set out below. Code of Conduct – Standard 3 [111] Standard 3 requires a certifier to comply with legislative requirements. [112] The Commission submits that the relevant legislative requirements in these proceedings are as follows; (a) a certifier’s function is to carry out building assessment work, other than a part of the building assessment work under s 46 of the Building Act a referral agency may carry out;78 and (b) a private certifying function is to receive and assess a building development application and decide the building development application and give a decision notice for the application.79 [113] The Commission submits, for the reasons advanced in its Statement of Reasons, that it does not consider that the Certifier failed to comply with the relevant legislative requirements in giving the approval on 22 August 2019. Code of Conduct – Standard 4 [114] Standard 4 requires a building certifier not to perform a building certifying function where there is a potential conflict of interest. [115] There are a number of occasions prescribed in the legislation which provide where a certifier has a conflict of interest in performing a private certifying function.80 [116] The Commission submits that it does not consider the Certifier in these proceedings had a conflict of interest as there was no evidence to suggest that; 76 Building Regulation, Part 7, Division 2, s 49. 77 Building Regulation, Part 5, s 19. 78 Building Act, s 10. 79 Building Act, s 48. 80 Building Act, s 137(2). -- 21 of 37 -- 22 (a) the Certifier was to carry out building work the subject of the relevant approval; (b) the Certifier was engaged by the owner for other functions; or (c) the Certifier has a direct or indirect pecuniary interest in the building subject of the relevant approval. [117] The Commission acknowledged the common practice for building contractors to utilise the services of the same licensed private certifier on an ongoing basis for various building projects. It acknowledged that in these proceedings there was an ongoing working relationship between the Certifier and the builder. However, it was not satisfied that a conflict of interest on the part of the Certifier was made out with respect to the giving of the approval on 22 August 2019. Code of Conduct – Standard 7 [118] Standard 7 requires a building certifier to abide by moral and ethical standards expected by the community. [119] The Commission submits that this Standard is in issue because of the Applicant’s contention that the Certifier;81 has been dishonest and his conduct clearly lacks integrity and impartiality.82 [120] The Commission says that it considered this issue. [121] The Commission submits it does not consider the Certifier’s conduct in issuing the relevant approval contravened Standard 7. Code of Conduct – Standard 8 [122] Standard 8 requires a building certifier to take all reasonable steps to obtain relevant facts when performing building certifying functions. [123] The Commission refers to the Building Regulations83 which outline the various stages for inspection of assessable building work and submits that there is no legislative provision which stipulates that a building certifier is required to undertake a site inspection before granting any building development approval.84 Nor does the Commission consider it a reasonable expectation for a Certifier to enter upon the roof of a property to take measurements of the stormwater gutters given the relevant approval from the Engineer. [124] The Commission submits that a certifier is able to rely on and accept information provided to him including the Form 15 and the Aqualogical Performance Solution Report. [125] It does not consider that the Certifier’s conduct contravened Standard 8. Code of Conduct – Standard 9 [126] Standard 9 requires a building certifier to clearly document reasons for building certifying decisions. 81 Statement of Reasons filed 6 September 2021 at page 38 paragraph 150. 82 Statement of Reasons filed 6 September 2021 at SOR-21 at page 1121 paragraphs 106-109. 83 Building Regulation, s 24. 84 Statement of Reasons filed 6 September 2021 Page 39, paragraph 155. -- 22 of 37 -- 23 [127] The Commission submits, for reasons set out in this Statement of Reasons, the Certifier complied with the obligations with respect to the Statement of Reasons and documentary evidence required when issuing the relevant approval. [128] It does not consider the Certifier contravened Standard 9. Code of Conduct – Standard 1 [129] Standard 1 requires a building certifier perform building certifier functions in the public interest. [130] The Commission refers to the Building Act85 which provides that it is an offence for a private certifier not to act in the public interest in performing private certifying functions. A list of occasions is set out where a private certifier is not acting in the public interest.86 [131] the Commission submits it does not consider the Certifier’s conduct was contrary to the public interest as; (a) there is no evidence that the Certifier sought or obtained a benefit to act other than in accordance with the Building Act; (b) the Certifier did not act in a way contrary to the functions of a private certifier under the Building Act or Planning Act; (c) for the reasons listed in the Statement of Reasons, the Certifier did not contravene the Code of Conduct; and (d) the Certifier’s conduct was neither grossly negligent or grossly incompetent. Unsatisfactory Conduct and Professional Misconduct [132] The Commission submits that its investigations concluded the Certifier had not engaged in relevant unsatisfactory conduct or misconduct as provided in the definitions in Schedule 2 of the Building Act. The Certifier’s Evidence and Submission [133] The Certifier relies upon a Statement of Evidence filed in the Tribunal on 4 April 2022. That Statement exhibits a number of forms and other documents related to the approval of 22 August 2019. [134] One such exhibit is the Form 2 provided by Sovereign Homes seeking a Development Permit where the level of assessment is “Code assessment” in respect of a “Performance Solution For A Gutter System”. This Form 2 forms part of the Certifier’s Engagement Agreement. [135] The Certifier relies upon the “Building Certification Decision Notice” of 22 August 2019. That document states; This approval is given on the basis of an Alternate building Solution against the BCA Vol 2 2019 - for collection and disposal of roof water from the dwelling as required by the Performance Solution prepared by AQUALOGICAL Plumbing Design Solutions Anthony Freeman Rev B dated 21/08/2019. 85 Building Act, s 136. 86 Building Act, s 136(2). -- 23 of 37 -- 24 [136] The Applicant includes the Notice of Reasons for the approval, the Form 15 for the alternative gutter design and the Performance Solution Report along with other documents. He also includes the Curriculum Vitae of Anthony Freeman and Neil Blair, a licensed plumber, drainer and gas fitter. Meaning of “Unsatisfactory Conduct” or “Professional Misconduct” [137] The Building Act defines the term “unsatisfactory conduct” for the purpose of these proceedings as including the following conduct by a certifier; (a) conduct that shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity diligence or care in performing building or private certifying functions; (b) conduct that is contrary to a function under this Act or another Act regulating building certifiers ……… including, for example – (i) disregarding relevant and appropriate matters; and (ii) acting outside the scope of the building certifier’s powers; and (iii) acting beyond the scope of the building certifier’s competence; and (iv) contravening the code of conduct; (c) conduct that is of a lesser standard the standard that might reasonably be expected of the building certifier by the public, or the building certifier’s professional peers. [138] The term “professional misconduct” is also defined in the Building Act. It is an extensive definition containing a number of significant descriptions of various conduct that comes within the meaning of this term. It is not necessary to set out those provisions in full. However the definition includes incompetence, lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing certifying functions of conduct which is categorised as a component of “professional misconduct”. Conclusions relating to the Certifier’s Approval of 22 August 2019 [139] The evidence in these proceedings establishes that although the Certifier gave approval based on the Performance Solution Report on 22 August 2019 there has been no building work undertaken in accordance with the approval. These proceedings are concerned with the Certifier’s approval and whether that is conduct that constitutes “unsatisfactory conduct” or “professional misconduct”. [140] The Applicant by filing the Application to review a decision in the Tribunal on 16 June 2021 seeks to have the Tribunal review the decision of the Commission made on 19 May 2021. The Commission’s decision related to the Second Complaint made by the Applicant about the Certifier’s conduct and whether it was “unsatisfactory conduct” or “professional misconduct”. As previously stated the Tribunal’s function is to review the Commission’s decision by means of a “fresh hearing on the merits” and to produce the “correct and preferable decision”. Accordingly, this is not an appeal from the Commission’s decision and there is no onus on the Applicant to prove that the Commission’s decision was ‘made in error” or otherwise a wrong decision. These proceedings in the Tribunal are a “fresh hearing on the merits” to produce the -- 24 of 37 -- 25 correct and preferable decision relating to the conduct of the certifiers approval dated 22 August 2019. [141] The Applicant’s material filed in the Tribunal raises a number of issues why the Applicant says the Certifier’s conduct was allegedly “unsatisfactory conduct” and/or “professional misconduct”. The Tribunal has already referred to the Applicant’s evidence and submissions which contain a number of grounds on which the Applicant supports this contention about the Certifier. At one level, the Applicant relies on everything that has occurred since 2014 up to the Commission’s decision of 19 May 2021 to demonstrate the alleged misconduct by the Certifier. That includes the three earlier approvals by the Certifier, the First Complaint to QBCC, material which had previously been provided to the Commission, the Tribunal and the Development Tribunal decisions and other matters to support the Applicant’s contention. The Applicant says that the Certifier failed to take all the facts relating to this history since 2014 into account in his approval of 22 August 2019 which gives rise to the alleged conduct claimed. The Applicant does not seek to differentiate between relevant and irrelevant factors in that chronology but seeks to rely on all events that have occurred since 2014 notwithstanding that what is before the Tribunal in these proceedings relates to a Performance Solution Report by Mr Freeman, a Form 15, the Plans and the Certifier’s approval. Whether the Applicant considers the circumstances of the Certifier’s approval on 22 August 2019 different in some way than the earlier events occurring since 2014 has not been demonstrated by the Applicant in his submissions. Rather, the Applicant seeks to have all matters since 2014 before the Tribunal demonstrating the alleged misconduct by the Certifier in providing the approval on 22 August 2019. [142] At another level the Applicant does refer to specific instances as indicating the alleged misconduct of the Certifier. For example, the Applicant’s material before the Tribunal refers to the failure of the Certifier and Mr Freeman, engineer, to visit the Applicants property and inspect the roof and the gutter in dispute at any time prior to 22 August 2019. The fact that the Certifier and the Engineer did not inspect the gutter does not appear to be controversial. The evidence from the Commission and that of the Certifier does not attempt to establish that such an inspection took place. The Tribunal can conclude that there was no inspection but, in the circumstances, that does not satisfy the contention of alleged misconduct by the Certifier. The Applicant does not address the provisions in the Building Regulation that a certifier, in carrying out functions under that Act, may rely upon the certificate/form from a “competent person” provided the relevant criteria is satisfied there is no need to check the contents of the certificate/form.87 The Applicant does not explain why his submissions should be accepted ahead of the statutory provisions in the Building Regulation relating to the carrying out of a certifier’s functions under the Act. [143] The Applicant also refers to a number of deficiencies in the plans and documents associated with the Performance Solution Report and the approval. For example, the Applicant has taken measurements of the gutter at his premises and says the measurements for the gutter in the plans do not fit his gutter and must be for some other gutter, but not his. Against this, the Commission’s evidence and submissions are that it has considered these alleged deficiencies in the approved plans and has concluded that there is sufficient detail provided in the plans to demonstrate that the 87 Building Regulation, Part 7, ss 19, 49. -- 25 of 37 -- 26 proposed box gutter complies with the performance requirements in P2.2.1 and P2.2.2.88 The Applicant relies on his own evidence in these proceedings and does not provide evidence from an independent person with technical or professional qualifications. If the Applicant has technical or professional qualifications they are not, or are not satisfactorily, set out in the evidence before the proceedings. The Applicant holds himself out as the owner89 of the property situated at 35 Cameron Street Fairfield. This is a factual dispute between the parties but the Applicant does not provide any technical or professional evidence whether or not there is compliance with the performance requirements in P2.2.1 and P2.2.2. The Performance Solution Report has been completed by an engineer. The Applicants case is his calculations should be accepted by the Tribunal ahead of the Report prepared by an engineer. In the absence of any evidence from an appropriately qualified expert, it is difficult, in those circumstances, to prefer the evidence of the Applicant ahead of a Report by an engineer. The Applicant brought these proceedings and bears the onus of proof of establishing his claims and needs evidence which, on the balance of probabilities if accepted by the Tribunal, is sufficient to establish his claim. Merely because the Applicant has a contrary view to that of the engineers in his Report is not sufficient. Just to challenge the Report with his own evidence does not satisfy the onus of proof to establish his claim when unsupported by any evidence from an appropriately qualified person. The Tribunal is not satisfied by the Applicants evidence that there are a number of deficiencies in the plans and documents associated with the Performance Solution Report and the approval. The Tribunal prefers and accepts the submissions of the Commission. The Tribunal rejects the claim by the Applicants which will be dismissed. [144] There does appear to be common ground in respect of the issue that any person may make a building development application incorporating a performance solution without the written consent of the owner of the premises to which the application relates. The Commission refers to various provisions in the Planning Act which produce this result.90 While both parties expressed some degree of surprise that the legislature has not made it mandatory that development application involving as assessable building work be accompanied by the written consent of the owner of the property, there does not appear to be any dispute between the parties as to these circumstances where the owner is not involved in the process. [145] If an alternative solution is used the Building Act specifies the requirements for the relevant documentation.91 The contents of documents relied on must state the particular performance requirements with which it is to comply and how that is different from the relevant deemed-to-satisfy provisions. The Performance Solution Report relied on by the Certifier deals with these matters as follows; (a) by setting out the performance provisions relating to rainwater management and waterproofing;92 (b) the building work complies with the performance requirements;93 88 Statement of Reasons filed 6 September 2021 at page 29, paragraph 112, & SOR-27 at page 1111. 89 Affidavit of Donald Bruce Edwards file 19 September 2019 paragraph 1. 90 Decision Notice of the Commissioner 19 May 2019 at paragraphs 14-15; paragraphs 19-25. 91 Building Act, s 26. 92 Performance Solution Report exhibited to the Statement of Evidence of the Certifier at page 33. 93 Performance Solution Report exhibited to the Statement of Evidence of the Certifier at page 34-35. -- 26 of 37 -- 27 (c) set out details of how the performance solution is different94; and (d) includes documents and information relied on to prepare the Report.95 [146] This evidence as demonstrated by the contents of the Performance Solution Report satisfies the Tribunal that the Performance Solution Report complies with s 26 of the Building Act. [147] A certifier in carrying out duties under the Act in relation to the approval of a building development application relying on a performance solution is required to prepare a statement of reasons.96 To comply with that requirement the statement of reasons must contain the following details;97 (a) how the performance solution is different from the relevant deemed-to-satisfy provisions under the BCA or acceptable solutions under the QDC; and (b) inspection or test results or other documents or information relied on to make the decision. [148] The Certifier prepared a statement of reasons on 22 August 201998 which; (a) contains a discussion of how the Performance Solution is different from the relevant deemed-to-satisfy provisions contained in the NCC 2019;99and (b) identifies documentation including the “Report, Form 15 and plans”100 as well as referring to the “Supporting Documentation”.101 The Tribunal is satisfied on the basis of the contents of the Performance Solution Report, as referred to in (a) and (b) above, the Certifier complied with the requirement to provide a statement of reasons as required by the Building Act. [149] An issue arose in the proceedings whether Mr Freeman, the engineer, could be regarded as a “competent person” for the purposes of the Certifier issuing the approval to 22 August 2019. This required the Certifier to comply with various statutory requirements relating to keeping of records in connection with establishing that a person is a “competent person”. The evidence before the Tribunal clearly establishes that the Certifier failed to comply with the statutory requirements and has not kept a record of decisions about assessments of competent persons required by the Building Regulation. However, as has already been explained, an alternative procedure for establishing a person is a competent person is provided by the NCC and a certifier can rely on evidence needed to show that the NCC requirements are met and the solution is “fit for purpose”. The NCC provides that a certificate or report from a professional engineer certifying that any material or form of construction or design fulfils specific requirements of the BCA and sets out the basics on which it is given and the extent to which it is being relied upon fulfils specific requirements of the BCA. The evidence before the Tribunal is that Mr Freeman is a licensed engineer with the QBCC in the 94 Performance Solution Report exhibited to the Statement of evidence of the Certifier at page 36-39. 95 Performance Solution Report exhibited to the Statement of evidence of the Certifier at page 41-59 Appendices. 96 Building Act, s 68A. 97 Building Act, s 68A(3). 98 Statement of Reasons attached to the Certifier’s Statement of Evidence at 15-27. 99 Statement of Reasons attached to the Certifier’s Statement of Evidence at page 19-26. 100 Statement of Reasons attached to the Certifier’s Statement of Evidence at page 19. 101 Statement of Reasons attached to the Certifier’s Statement of Evidence at page 27. -- 27 of 37 -- 28 relevant class of Hydraulic Services Engineer and holding the licence in the grade of Nominee Supervisor which permits him to prepare plans and specifications in respect of properties such as the Applicant’s. Mr Freeman is authorised to provide the certificate/report including the Form 15. The Tribunal accepts that evidence and finds that Mr Freeman was at all relevant times a “competent person” to provide the Performance Solution Record and the Form 15. [150] The Certifier was able to rely upon these documents, including the plans, without the need for the Certifier to personally check the information or to physically inspect the roof gutter. The Tribunal finds that the Certifier was under no relevant obligation to enter upon the roof of the premises and inspect the dimensions of the roof gutter to which the Performance Solution Report applies. The Certifier was relying upon the information provided by Mr Freeman in the various documents associated with Performance Solution Reports of 22 August 2019. [151] The Performance Solution Report was accompanied by a Form 15 provided by Mr Freeman, engineer, relating to gutter design compliance. The Certifier can rely on the Form 15 and in particular s 46 of the Building Regulation which provides; A competent person…may give the building certifier a certificate that a building design or specification will, if installed or carried out under the certificate, comply with the building assessment provisions. The certificate must comply with section 48. [152] The Form 15 specifies that there is compliance with NCC 2019 Building Code of Australia, AS/NZS 3500 Part 3 and the Performance Solution Report. The Certifier was entitled to rely upon that Form 15 as a compliance certificate for building gutter design. [153] A further issue raised by the Applicant related to a conflict of interest on the part of the Certifier because in the past he had performed other numerous certifying tasks for Sovereign Homes. The fact that a professional person has undertaken previous engagements of the same contractor is not by itself evidence of a conflict of interest. In any industry, including the building industry, there is no embargo on professional services being rendered on more than one occasion for another person, such as a building contractor. The Applicant has not referred to any statutory provision or other issue which would otherwise prevent the Certifier from carrying out duties as a certifier under the Building Act for Sovereign Homes. For example, although it is not an exhaustive list of conflicts of interest, it is clear that on the evidence in these proceedings the Certifier; (a) was not carrying out building work the subject of the building certifying functions; or (b) engaged by the builder to perform a function other than; (i) a building certifying function: or (ii) to manage a development application; or (iii) give regulatory advice about any matter; or (c) has a direct or indirect pecuniary interest in the building. -- 28 of 37 -- 29 [154] The Applicant has not provided evidence in the course of these proceedings in the Tribunal to establish any of the above conflicts of interest. Neither has the Applicant provided any evidence of any other category of conflict of interest. The Applicant has provided his own personal view of what he regards as being a conflict of interest. The test whether there is a conflict of interest is not subjective. Rather, it is an objective test identified by reference to events or facts which a reasonable person would regard as being a conflict of interest. The Applicant has not provided evidence to establish on reasonable grounds that there is such a conflict. The Tribunal is not satisfied that the Certifier in conducting the certifying procedures under the Building Act for Sovereign Homes was in any way in a conflict-of-interest situation. The Tribunal accepts the submissions by the Commission that the Certifier was not in a conflict of interest in certifying procedures for Sovereign Homes. The Tribunal rejects the allegations of the Applicant that the Certifier has been in a conflict-of-interest situations.. [155] The evidence in these proceedings establishes that the Certifier was involved in assessing a Development Application from the builder, Sovereign Homes. Building work on the roof gutter the subject of the Development Application had not commenced. The only matter before the Certifier was whether to approve the Development Application on the basis of the Performance Solution Report, the Form 15 and the relevant plans. In that situation the functions of a Certifier under the Building Act were to;102 (a) receive and assess the building development application; and (b) decide the building development application, and give a decision notice for the application. [156] The evidence before the Tribunal is that the Certifier carried out those statutory functions and provided his approval and statement of reasons on 22 August 2019. The Certifier carried out those functions without any relevant breach of the building legislation and in a manner which was free of any conflict-of-interest issues. [157] The Applicant also maintains that the Certifier was in breach of several provisions of the Code of Conduct. Those alleged breaches will be considered below. Code of Conduct - Standard 3 [158] The Applicant relies upon breaches by the Certifier of s 63(3) and s 63(5)(d) of the Planning Act.103 [159] The requirement in s 63(3) relates to the Notice of Decision stating or accompanied by documents. That requirement states; The notice must also state, or be accompanied by, the documents prescribed by regulation. 102 Building Act, s 48(1), (3). 103 Applicant’s Statement of Evidence filed 8 March 2022 page 15, paragraph 107 and paragraph 106. -- 29 of 37 -- 30 [160] The Applicant contends this provision is breached because pursuant to s 43(b) of the Planning Regulation 2017 (Qld) the plans are wholly deficient.104 The deficiency is said to be as the “plan notes”;105 (a) “Do not scale of drawings”; and (b) “Gutter system to be measured on site”. [161] The difficulty with the Applicant’s first contention that the plan was in breach of s 43(b) of the Planning Regulation 2017 (Qld) rather than a breach of s 63(3) of the Planning Act is that to establish this breach the evidence needs to demonstrate that the Notice of Decision did not “state, or be accompanied by, the documents prescribed by regulation”. The Applicant’s argument appears to be that because the plans had the above alleged deficiencies in the “plan notes” it was “wholly deficient” and therefore “should not have been accepted and approved by” the Certifier. The evidence and submissions by the Applicant on this issue do not direct themselves to the requirement that the Notice of Decision “must also state, or be accompanied by, the documents prescribed by regulation”. The evidence before the Tribunal is that the Notice of Decision of 22 August 2019 did state the plans relied upon in Attachment A to that Notice under the heading “Approved Documentation”.106 The plans stated in the notice were the Architectural Plans “Sovereign Homes DWG N0WD-01A-WD05A”. As the Notice of Decision clearly stated the plans, contrary to the submissions of the Applicant, the Tribunal is not satisfied that there has been a breach of s 63(3) of the Planning Act as contended for by the Applicant. The Tribunal rejects the Applicant’s submissions on this issue and finds that the Applicant has not established a breach of s 63(3) of the Planning Act. [162] The Applicant’s second contention is that the Form 15 was in breach of s 49 of the Building Regulation as the certificate did not meet the requirements of s 48 of the Building Regulation as the Alternative Solution Report relied on was not for the gutters installed by the builder. This second contention seeks to establish breaches of s 48 and s 49 whereas the issue raised by the Applicant is whether the Notice of Decision was a breach of the requirements to “state, or be accompanied by, the documents prescribed by regulation”.(s 63(3) of the Planning Act). Again, the Applicant’s argument appears to be that because the Form 15 was allegedly in breach of s 48 and 49 of the Building Regulation it was “wholly deficient” and therefore “should not have been accepted and approved by” the Certifier. The Applicant’s evidence is, or rather implies, that the Form 15, accompanied the Notice but for the reasons advanced did not comply with ss 48 and 49 of the Building Regulation. This second contention relates to a breach of s 63(3) on the basis that the Notice did not state or be accompanied by, as the Applicant suggests, the Form 15. The evidence before the Tribunal establishes the Form 15 not only accompanied the Notice, but that Notice also stated that it relied upon the Form 15 as set out in Attachment A of the Notice referred to in “Approved Documentation”.107 The second contention relied upon by the Applicant is that the Form 15 was not for the gutter installed by the builder. If that statement means that the Form 15 was not intended for the Applicant’s roof gutter, then that statement is also factually incorrect. As the Notice of Decision 104 Applicant’s Statement of Evidence filed 8 March 2022 page 14-15, paragraph 106. 105 Applicant’s Statement of Evidence filed 8 March 2022 page 8-9, paragraphs 44-59 particularly at paragraph 45. 106 Certifier’s Statement of Evidence filed for April 2022 at pages 7-10, particularly page 8. 107 Certifier’s Statement of Evidence filed for April 2022 at pages 7-10, particularly page 8. -- 30 of 37 -- 31 clearly stated the Form 15 was one of the approved documents, contrary to the submissions of the Applicant, for the gutter to the Applicant’s premises. The Tribunal accepts that the Form 15 was given in respect of the Applicant’s property and is not satisfied that there has been a breach of s48 and s 49 as contended for by the Applicant. The Tribunal accepts the Commission’s submissions. The Tribunal rejects the Applicant’s submissions on this issue and finds that the Applicant has not established a breach. [163] The Applicant’s third contention is that the Alternative Solution was in breach of s 26(a)(ii) of the Building Act as it did not compare the building work completed by the builder in 2014 with the performance requirements. This third contention has the same defects as has already been referred to in the first and second contention above. This third contention sets out to establish breaches of s 26(a)(ii) of the Building Act rather than to deal with the issue raised in the Applicant’s Statement of Evidence that there has been a breach of s 63(3of the Planning Act. The Tribunal has already made findings in these proceedings to the effect that the Alternative Solution did make the comparison which the Applicant contends was not made in that document. The evidence before the Tribunal is that the Notice of Decision did state that the Aqualogical Plumbing Design Solution Performance Solution Report was one of the documents in its “Approved Documentation”.108 As the Notice of Decision clearly stated the Performance Solution Report was one of the approved documents, contrary to the submissions of the Applicant. the Tribunal is not satisfied that there has been a breach of s 63(3) of the Planning Act as contended for by the Applicant. The Tribunal rejects the Applicant’s submissions on this issue and finds that the Applicant has not established a breach of s 63(3) of the Planning Act. [164] Even if (as the Applicant contends) these various Plans, the Form 15 and Alternative Solution Report are deficient, this has not been demonstrated on the evidence before the Tribunal. Nevertheless, each document has been referred to in the Notice of Decision and meets the requirements of s 63(3) of the Planning Act. [165] The Applicant’s fourth contention is that the Notice of Decision is in breach of s 63(5)(d) of the Planning Act as it did not state the reasons for the assessment manager’s decision.109 The Applicant submits that this breach is made out because the Notice of Decision did not; (a) identify how the Alternative Solution for the gutters installed in 2014 differ from the DTS provisions; and (b) contained inspection or other results and other documents or information relied on to make the decision. [166] The requirement in s 63(5)(d) Planning Act is that the Notice of Decision must state; the reasons for the assessment manager’s decision; [167] This fourth contention is that the decision notice must state the reasons for the assessment manager’s decision as required by s 63(d) (presumably the Applicant means s 63(5)(d) of the Planning Act). The Applicant then argues that the decision 108 Certifier’s Statement of Evidence filed for April 2022 at pages 7-10, particularly page 8. 109 Applicant’s Statement of Evidence filed 8 March 2022 page 14-15, paragraphs 106. -- 31 of 37 -- 32 notice was not valid in accordance with s 68A of the Building Act as that notice did not; (a) identify how (a valid) Alternative Solution for the gutters installed in 2014 differs from the DTS provisions. The Certifier accepted an Alternative Solution which analyses gutters which do not exist at the property; and (b) contained inspection or other results from other documents or information relied on to make the decision. The hydraulic engineer and the Certifier have not inspected the gutters. [168] The Applicant’s argument proceeds on the basis that there was a relevant decision notice but it was not valid and “should not have been accepted and approved by” the Certifier. There are several aspects in which it can be said that the fourth contention should not be accepted. Firstly, that contention does not address the requirements of s 63(5)(d) but rather seeks to establish that the Notice of Decision was not valid by reason of failure to comply with s 68A of the Building Act. Secondly, the Applicant’s submissions are not established to the Tribunal’s satisfaction as those submissions; (a) require the decision notice to state how the Performance Solution Report analyses gutters which do not exist at the Applicant’s property, presumably based upon the Applicant’s own measurements compared to the measurements in the Alternative Solution. This issue has already been dealt with previously in terms of the Certifier being able to rely upon the certificates/Form 15 provided by a competent person such as Mr Freeman, engineer; and (b) do not justify why information was relied upon from others rather than an inspection of the gutters by the author of the Alternative Solution Report for the Certifier. Again, the Certifier was entitled to rely upon certificates/the Form 15 from Mr Freeman. [169] The Applicant appears to accept a decision notice was given by the Certifier, but says that it was invalid as it was non-compliant with s 68A. That non-compliance has not been established by the Applicant. [170] The evidence from the Commission is that the approval of 22 August 2019 is for an approved design that is compliant with the performance requirements of the BCA. It contends that as the Certifier had a DA Form 2 where Sovereign Homes have clicked the box confirming all information in the development Application is true and correct, which was accepted by the Certifier as “properly made”, the Certifier was required to assess the application against the building assessment provisions including the performance requirements of the BCA. The Commission also submits that it was satisfied the Statement of Reasons comply with the requirements of s 68A(3) as; (a) it details how the performance solution differs from the relevant “deemed-to- satisfy provisions” under the NCC; and (b) includes information about the documents and other information relied upon by the Certifier in making the decision to approve the Performance Solution. [171] The Tribunal is satisfied that the Certifier provided a decision notice as required by the legislation. The Tribunal is not satisfied that there has been any relevant breach of s 63(5)(d) of the Planning Act as contended for by the Applicant. The Tribunal rejects the Applicant’s submissions on this issue and finds that the Applicant has not -- 32 of 37 -- 33 established a breach of the Planning Act. The Tribunal accepts the submissions by the Commission. [172] The Applicant’s fifth contention is that the Certifier has not acted in the public interest and is in breach of s 136 of the Building Act. The Applicant relies upon a number of matters including that the Certifier; (a) seeks, or agrees to accept, a benefit as a reward or inducement to act other than under the Building Act, or (b) acts in a way contrary to the function of the Certifier; and/or (c) has acted in a way, in relation to the certifier’s practice, that is grossly negligent or grossly incompetent. [173] These allegations are extremely broad and of a wide-ranging nature. They are not particularised by the Applicant so as to identify the specific conduct said to be caught by these allegations. In the absence of particulars of the alleged conduct the Tribunal is placed in a difficult position to know exactly what it is that the Applicant relies upon to establish the alleged failure to act in the public interest. What is known is that the Applicant has made multiple allegations of breaches and failures by the Certifier in relation to the approval dated 22 August 2019. However, none of these allegations already considered by the Tribunal have found any failure on the part of the Certifier. Those allegations considered have not been successful. For instance, the Tribunal has already considered above the allegations relating to the Certifier’s alleged conflict of interest. The Tribunal has already found that there was no conflict of interest by the Certifier and has in effect dismissed those allegations. In the circumstances, the Tribunal is not satisfied that the Certifier has acted contrary to the public interest and is not satisfied that the Applicant has made out the allegations relating to this issue. The Tribunal rejects the Applicant’s submissions on this issue and finds that the Applicant has not established a breach of the Planning Act or Building Act. [174] The evidence provided by the Applicant has not satisfied the Tribunal that the Certifier has failed to comply with legislative requirements and rejects the Applicant’s submissions. The Commission made submissions in relation to Standard 3 and the Tribunal accepts its submissions for the reasons advanced in the Statement of Reasons. The Tribunal dismisses the Applicant’s claim that the Certifier’s conduct failed to comply with the alleged requirements and that there was a breach of Standard 3 of the Code of Conduct. Code of Conduct – Standard 4 [175] The Applicant relies upon the conflict of interest allegations. [176] The Commission submits that there are a number of occasions prescribed in the legislation which provide where a Certifier has a conflict of interest. However, it submits that it does not consider the Certifier in these proceedings had a conflict of interest and there is no evidence available to support that allegation. [177] The Tribunal has already considered the conflict of interest allegations above and came to the conclusion that is not satisfied that there was such a conflict. The Tribunal has in effect rejected the Applicant’s allegation of a conflict of interest and repeats and relies upon those above reasons. Accordingly, the Tribunal rejects the Applicant’s allegations of a conflict of interest and rejects the Applicant’s conclusion that the Certifier is in breach of Standard 4 of the Code of Conduct. The Tribunal rejects the -- 33 of 37 -- 34 Applicant’s submissions on this issue and finds that the Applicant has not established a breach of the Planning Act. The Tribunal dismisses the Applicant’s claim that the Certifier’s conduct was a breach of Standard 4 of the Code of Conduct. Code of Conduct – Standard 7 [178] The Applicant contends that the Certifier’s conduct in granting the approval dated 22 August 2019 was in breach of Standard 7 as the Certifier did not abide by moral and ethical standards expected by the community. [179] The Applicant refers to the Certifier’s alleged failure of lack of honesty, integrity and impartiality in performing his duties. [180] The Commission says that it has considered these issues and does not consider the Certifier’s conduct in issuing the relevant approval as having contravened this Standard. [181] The Applicant refers in particular to its previous Appeal submissions and the proceedings involved in two (2) Development Tribunal proceedings and appeals. All of those matters predated the Certifier’s decision of 22 August 2019. No doubt the Applicant contends that that prior history is evidence of a failure to abide by moral and ethical standards expected by the community. The evidence considered by the Tribunal in these proceedings has not so far established any breach or failure by the Certifier in the performance of a certifier’s functions under the Building Act. The Applicant has failed to adduce any evidence as to what might be the “moral and ethical standards expected by the Community” and how those standards have not been met by the Certifier. The Applicant has made many allegations against the Certifier but has failed to establish that any of them amount to a failure to abide by moral and ethical standards expected of the community. The Tribunal does not accept the Applicant’s allegations and finds that it is not satisfied that the Certifier is in breach of Standard 7. The Tribunal dismisses the Applicant’s claim that the Certifier’s conduct was a breach of Standard 7 of the Code of Conduct. Code of Conduct – Standard 8 [182] The Applicant contends that there has been a breach of Standard 8 which requires the Certifier to take all reasonable steps to obtain all relevant facts when performing building certifying functions. [183] The Applicant relies upon, amongst other matters, the failure of the Certifier to climb onto the roof of the Applicant’s property and to inspect the gutter which is the subject of these proceedings. This overlooks the statutory provisions in the Building Act that absolve the Certifier from having to check the information provided in a certificate/Form 15 in the Development Application. [184] The Applicant also relies on other matters such as evidence before the Development Tribunal hearings, submissions and the decisions on those hearings. In general what the Applicant is submitting is that the Certifier took no steps to satisfy himself that the information received in certificates or similar forms from the builder and/or the Hydraulic Designer was valid. As previously stated the legislation does not require the Certifier to check this information. [185] The Commission submits that the Certifier is able to rely on and accept information provided to him including the Form 15 and the Aqualogical Performance Solution Report. It does not consider that the Certifier contravened Standard 8. -- 34 of 37 -- 35 [186] The Tribunal has already referred above to the statutory provisions that the Certifier is not required to check the information provided in the Development Application. The Applicant does not specify any other relevant provisions which require the Certifier to verify that all details provided to him are in fact valid. As the Applicant has not provided to the Tribunal any relevant statutory provision in support of his contention requiring the Certifier to check the validity of information provided, the Tribunal is not satisfied that the Certifier is in breach of Standard 8. The Tribunal dismisses the Applicant’s claim that the Certifier’s conduct was a breach of Standard 8 of the Code of Conduct. Code of Conduct – Standard 9 [187] The Applicant contends that the Certifier is in breach of Standard 9 as there was no record of the competency of the author of the Aqualogical Solutions Report. This is a breach of the Standard as it is alleged there is a clear failure to document reasons for the decision of 22 August 2019. [188] The Commission submits that for the reasons set out in its Statement of Reasons the Certifier complied with his obligations when issuing the relevant approval. [189] This issue of failure to document details about the role the Aqualogical Solutions Report has already been discussed and decided above in these proceedings. While the Certifier did not keep a record as required, there was compliance with the NCC requirements and sufficient information existed by which it could be determined that the author of the Alternative Solution was a “competent person”. Accordingly, the Tribunal is not satisfied that the Certifier has acted in breach of Standard 9 of the Code of Conduct. The Tribunal dismisses the Applicant’s claim that the Certifier’s conduct was a breach of Standard 9 of the Code of Conduct. Unsatisfactory Conduct [190] The definition of “unsatisfactory conduct” requires conduct that shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing private certifying functions. [191] The functions of a private certifier include in these proceedings;110 (a) receiving and assessing a building development application; and (b) deciding the building development application, and giving a decision notice for the application. [192] The evidence before the Tribunal is that the Certifier did perform those functions and notwithstanding multiple allegations of alleged breaches and failures by the Certifier, no finding has been made by the Tribunal of any such breach or failure. [193] The Applicant has not established, to the satisfaction of the Tribunal, any basis upon which the Certifier’s conduct could be categorised as being incompetent, or displaying a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing private certifying functions. The Applicant has been unsuccessful in providing any evidence to the Tribunal relating to these criteria for a determination of unsatisfactory conduct. In these circumstances the Tribunal dismisses the Applicant’s 110 Building Act, s 48. -- 35 of 37 -- 36 claim that the Certifier engaged in unsatisfactory conduct in relation to those matters involving the approval given on 22 August 2019. Professional Misconduct [194] The definition of “professional misconduct” for a building certifier involved conduct relating to the following three elements which are all cumulative. Professional misconduct is conduct that; (a) shows incompetence or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building certifying functions; and (b) compromises the health or safety of a person or the amenity of a person’s property, significantly conflicts with a local planning scheme; and (c) is contrary to a function under this Act or another Act regulating building certifiers. [195] The first element of the definition involves concepts already discussed above in relation to “unsatisfactory conduct”. So far as professional misconduct involves these elements the Tribunal is not satisfied that the Certifier has engaged in conduct which shows incompetence or a lack of adequate knowledge skill, judgement integrity, diligence or care in performing building certifying functions. That finding is repeated here and the Tribunal is not satisfied there is, or any sufficient, evidence to establish that the conduct of the Certifier infringes the first element of the definition of “professional misconduct”. [196] As the definition of “professional misconduct” involves three elements which are cumulative, it would follow that failure to establish one of those elements may well mean that a finding of professional misconduct cannot be established. However, putting that to one side for a moment, Tribunal will consider the remaining two elements in the definition. [197] The second element involves conduct that compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme. There is no evidence of any conflict with a local planning scheme. There is simply no evidence that the health or safety of a person or that person’s amenity is compromised so far as their property is concerned. The evidence fails to establish this second element The Tribunal is not persuaded that the Certifiers conduct, as alleged in these proceedings, infringes the second element of the definition of “professional misconduct. As this part of that definition has not been established the assertion of professional misconduct against the Certifier should be dismissed. [198] The third element in the definition refers to conduct under this Act or another Act regulating building certifier. The Applicant has made multiple allegations of breaches or failures by the Certifier in the approval dated 22 August 2019. Those matters, or the main allegations, have already been considered by the Tribunal above in these proceedings and resulted in the Tribunal not being satisfied that there was any relevant breach or failure by the Certifier. It follows that the evidence fails to establish this third element. The Tribunal is not persuaded that the Certifiers conduct, as alleged in these proceedings, infringes the third element of the definition of “professional misconduct. As this part of that definition has not been established the assertion of professional misconduct against the Certifier should be dismissed. -- 36 of 37 -- 37 [199] Accordingly, the Tribunal is not satisfied on the evidence in these proceedings that the Certifier has engaged in professional misconduct within the meaning of the definition stated in the Building Act. The Tribunal dismisses the Applicant’s claim that the Certifier engaged in professional misconduct in terms of the allegations brought in these proceedings. [200] The Tribunal will, for the reasons set out above, dismiss the Application to review the decision made by the Commission on 19 May 2021. Orders [201] The Application for miscellaneous matters to adduce further evidence filed in the Tribunal by Donald Bruce Edwards on 23 February 2023 is dismissed. [202] The decision of the Queensland Building and Construction Commission made on 19 May 2021 is confirmed. [203] The Application to review a decision filed in the Tribunal on 16 June 2021 by Donald Bruce Edwards is dismissed. -- 37 of 37 --