Applied Building Approvals v Queensland Building Services Authority [2013] QCAT 580

CITATION: Applied Building Approvals v Queensland Building Services Authority [2013] QCAT 580 PARTIES: Gary John Holley t/as Applied Building Approvals (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR420-12 MATTER TYPE: General administrative review matters HEARING DATE: 30 July 2013 HEARD AT: Brisbane DECISION OF: P Hanly, Member DELIVERED ON: 18 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Queensland Building Services Authority dated 20 November 2012 is set aside. CATCHWORDS: Building certifier - whether evidence of unsatisfactory conduct Building Act 1975 Standard Building Regulation 1993 Integrated Planning Act 1997 APPEARANCES and REPRESENTATION (if any): APPLICANT: represented by Flehr Law RESPONDENT: represented by Eden Bird REASONS FOR DECISION [1] Mr Holley is a licensed building certifier. On 22 March 2006 he issued an approval for the construction of a new patio at a private residential site in Queensland. The approval included, amongst other things, the condition that the patio was not to be enclosed. -- 1 of 6 -- 2 [2] On 10 October 2011 a complaint was made to the Queensland Building Services Authorit against Mr Holley‟s building certification practices. [3] The complaint alleged that Mr Holley had failed in his duties as a building certifier. The complaints were particularised as follows: a) the decision notice/development permit issued by Applied Building Approvals was approved with incorrect engineering for the plan that was included in the approval; b) the decision notice/development permit contains a condition “patio not to be enclosed”; c) a Form 21 Final Inspection Certificate was issued even though there was an enclosure attached to the patio roof and the roofing did not conform to approved plans; d) both patio roof and enclosure do not meet Ausdeck engineering standards and therefore a final certificate should not have been issued; e) the certifier failed to inform (the owners) that the enclosure was not part of the approval and the sheets were not 90mm; and f) the certified must amend the building approval to include the enclosure and rescind the final inspection certificate. [4] After investigating the complaint, the Authority issued an Information Notice on 20 November 2012, which concluded that Mr Holley had engaged in unsatisfactory conduct, for which the Authority decided to impose a reprimand. [5] Mr Holley sought a review of that decision. [6] The Tribunal‟s jurisdiction in respect of reviews is set out in the Queensland Civil and Administrative Tribunal Act 2009.1 [7] The function of the Tribunal was detailed by Judge Kingham in Kehl v Board of Professional Engineers of Queensland. In particular, Judge Kingham stated „QCAT does not have to find legal or factual error in order to make a different decision. It is enough for QCAT to conclude that another decision is the correct and preferable decision‟.2 [8] Following the compulsory conference the Authority lodged submissions in the Tribunal that it no longer maintained that a finding of unsatisfactory conduct arose from Items 4 and 6 of the complaint (3(d) and 3(f) above). However the Authority remained of the view that Mr Holley had engaged in unsatisfactory conduct based on the remaining complaints. 1 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) Division 3 ss 17-24. 2 Kehl v Professional Board of Engineers of Qld [2010] QCATA 58 at [9] and [12]. -- 2 of 6 -- 3 [9] The relevant legislation in force in March 2006 is set out in the Authority‟s final submissions.3 [10] Unsatisfactory conduct is defined in the Building Act 1975.4 Further explanation and definition of unsatisfactory conduct is found in the Code of Conduct for Building Certifiers. [11] Mr Holley provided a statement (Exhibit 2). Amongst other things, Mr Holley stated that: a) the role of a building certifier is not intended to be one of supervisor; b) he was not a party to the contract between the owner and the builder; and c) he was not the owner‟s agent to ensure that the builder complied with the contract. [12] Mr Holley further stated that matters such as the selection of brands and materials as between the owner and the builder are beyond his jurisdiction. He continued: I can merely certify whether the materials and dimensions specified by the builder in the application are adequate to satisfy the relevant legislative and code requirements and then whether work meeting those specifications reasonably appears to have been done. If the owner then has the builder do other different work that was not part of my original approval, such work cannot constitute part of my final certification.5 [13] It is necessary to examine the context of the owners‟ complaint to appreciate the importance of Mr Holley‟s statement. The complaint was not lodged until October 2011, over five and half years after the Development Application was issued. It appears that the complaint was prompted by a dispute between the owner and the builder in respect of the enclosed area constructed under the patio roof. This was not referred to Mr Holley at the time. It can be assumed that the owner was well aware that it was being constructed. The only reasonable conclusion is that the owner instructed the builder to construct the enclosed area. That it was contrary to the approval is evident on the face of the Decision Notice dated 2 March 2006. 6 Clearly the owner did not avail himself of his appeal rights in respect of the condition imposed by Mr Holley that the patio was not to be enclosed. [14] Complaint 1. Mr Holley‟s evidence in respect of this complaint is set out in his statement.7 Further evidence was elicited by way of cross examination at the hearing. In summary, Mr Holley confirmed that his enquiries and investigations satisfied him that the 75mm product in either Ausdeck or Bondor (Solarspan) carried the necessary span capacity for 3 Authority‟s final submissions dated 27 August 2013 [5] – [7]. 4 Reprint 8E – Dictionary. 5 Exhibit 2 (Statement of Gary John Holley dated 8 May 2013) [5]. 6 Exhibit 4. 7 Exhibit 2 [6] - [11]. -- 3 of 6 -- 4 the patio roof and that if a 90mm or heavier product were used, the span capacity was even greater. [15] The Authority‟s witness, Mr Petzel, was of the view that Mr Holley should have attached to the Development Approval voluminous documentation (detailed in Mr Petzel‟s evidence) confirming what information Mr Holley had relied upon in making his decision, rather than merely attaching the documentation which had been supplied by the builder for the purposes of the application. Mr Petzel was unable to point to any regulation or industry practice requiring such a procedure. [16] The Tribunal does not accept Mr Petzel‟s view. The Tribunal considers such a requirement would be absurd. Not only would there potentially be hundreds of pages of material appended to development applications, but also the magnitude of the approval process would potentially escalate costs to a prohibitive level. [17] The Tribunal is satisfied that Mr Holley exercised appropriate judgment and skill in determining, by the various means outlined in his evidence, that the materials proposed met the required minimum standards, thereby permitting the development approval. Furthermore, the Tribunal is satisfied that the evidence also establishes that, as constructed, the materials did in fact meet the required minimum standards. [18] Complaint 2. Mr Holley‟s provided a detailed explanation for imposing this condition on the development approval.8 The Decision Notice set out the owner‟s rights of appeal in respect of the Notice. The owner did not avail himself of those rights. [19] The Tribunal is not satisfied that this complaint constitutes unsatisfactory conduct on the part of Mr Holley. [20] Complaint 3. Mr Holley elaborated upon this complaint in his statement.9 He noted that he issued the Form 21 in respect of the patio roof, posts and beams which work was the subject of his initial approval and which work was done satisfactorily. He endorsed the certificate to note that the unauthorised work was not certified. [21] Mr Petzel confirmed that if the work the subject of the approval complies, then the certifier is obliged to issue a final inspection certificate10. Mr Petzel also agreed with Mr Holley‟s assertion that if, upon inspection, the certified decides that the works do not comply with the approval the certifier must give the builder a written notice stating how the works do not comply.11 8 Exhibit 2 [13]. 9 Exhibit 2 [15]. 10 Standard Building Regulations 1993 s 87(d)(i). 11 Standard Building Regulation 1993 s 87(d)(ii). -- 4 of 6 -- 5 [22] Mr Holley confirmed that he issued the Final Inspection Certificate Form 21 for the patio. On the Statement of Substantial Completion he set out the limitations upon a certifier‟s role and confirmed his satisfaction with „Reasonable compliance with approval plans and standard building regulations’. He gave the builder written notice that the patio was not to be enclosed, and that the enclosure constructed under the patio roof therefore did not comply with the approval, by endorsing the Stage Inspection Report with the words „Enclosure not part of this approval‟. [23] By taking these steps, Mr Holley was of the view that he had satisfied the dual obligations placed upon him by s 87. [24] Mr Petzel had a different view, although he conceded that he could „see where Mr Holley is coming from‟. Mr Petzel stated that he did not think a Form 21 should have been issued at all whilst the enclosure was in place. [25] Mr Petzel did not deny that Mr Holley had the dual obligations imposed by s 87. [26] In the Tribunal‟s view Mr Holley made a considered decision in relation to the Form 21. Whilst it is arguable that the existence of a non-approved enclosure could have been noted on the Form 21 in Item 7 (although of course it was not minor), Mr Holley made it quite clear in the Stage Inspection Report (issued on the same date as the Form 21) that the enclosure was not part of the approval. [27] The Tribunal is not satisfied that Mr Holley‟s actions in this regard constitute unsatisfactory conduct. [28] Complaint 5. Mr Holley stated that the approval notice was given directly to the owner and to the builder at the time it was issued. The condition that the patio was not to be enclosed was clearly stated on the notice. Mr Holley denies that a joint meeting took place on site, and no evidence to this effect was adduced by the Authority. [29] In relation to the thickness of the roof sheeting, Mr Holley stated that he based his approval on a 75mm double skin insulated product. As he explained, if heavier material were used it would have even greater span strength, so in his view no issue arises. He pointed out that he was not required to undertake destructive examination of the work, and Mr Petzel did not challenge that assertion. [30] The Tribunal is not satisfied that Mr Holley‟s actions in respect of this complaint constitute unsatisfactory conduct. [31] In these circumstances, the Tribunal is satisfied that the correct and preferable decision on all of the evidence is that there is no basis to find that Mr Holley has engaged in unsatisfactory conduct. -- 5 of 6 -- 6 [32] Costs. Mr Holley‟s solicitor has submitted that the Authority should be ordered to pay Mr Holley‟s costs, on the basis that he has been put to significant expense seeking this review. It was pointed out that the decision had the potential to have a substantive negative impact on Mr Holley‟s ability to earn his income. [33] It was submitted that significant parts of the original complaint were either clearly wrong, unreasonable or unsustainable on their face. It was further submitted that in assessing the complaint the Authority had a duty to act reasonably and with “common sense”, and should therefore have properly assessed Mr Holley‟s response in the first instance so as to have recognised the lack of merit in the owner‟s complaint. [34] Whilst the Tribunal accepts that the complaints were largely unmeritorious, there was nonetheless an arguable case in relation to the issuing of the Form 21. Accordingly the Tribunal finds that that there is no sufficient basis to depart from the usual position in relation to costs12. 12 QCAT Act s 100. -- 6 of 6 --