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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Perera v Queensland Building and Construction Commission  QCAT 425
Queensland building and construction commission
Occupational regulation matters
10 November 2020
20 March 2020
Member Paratz AM
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS
building certifiers – disciplinary proceedings – where a Level 2 licensed building certifier issued certification for the fit out of a small retail shop – where the shop was located within a shopping centre having a floor area greater than 2,000 m² – whether the certification was within the powers of a Level 2 licensed building certifier
Building Act 1975 (Qld) s 153, s 204
D. McNulty (In–House Solicitor, QBCC)
REASONS FOR DECISION
- Mr Perera (the certifier) is a Level 2 building certifier. He performed certification in relation to a shop fit-out at the Burpengary Plaza shopping centre for a sushi shop, and gave an approval dated 8 August 2018.
- The shop had an area of 66.66 m². The shopping centre overall had an area of 3,384m².
- A complaint was made to the Queensland Building and Construction Commission (QBCC) by a builder on 4 March 2019 that the certifier had issued a building approval for a more than 2,000 m² building when he was only a Level 2 certifier and only licensed to certify a building up to 2,000 m².
- The QBCC made an initial decision on 3 April 2019 that the certifier ‘did engage in unsatisfactory conduct or professional misconduct’. That decision was the subject of an internal review, and a further decision was made on 14 May 2019 confirming the earlier decision.
- An infringement notice was issued by the QBCC on 15 May 2019 against the certifier for an offence under section 135(1) of the Building Act 1975 (the Building Act) that a private certifier must not provide a private certifying function for a building development application unless the certifier is appropriately licensed. A penalty of $1,044 was imposed, but enforcement has not been sought pending the resolution of this review.
- The certifier filed an application to review a decision on 6 June 2019 seeking to review the QBCC decision of 14 May 2019.
- In its Statement of Reasons filed in the proceedings, the QBCC referred to the Internal Review decision, and submitted that the decision should be read as follows:
- For the avoidance of any doubt. The QBCC considers that the correct and preferable decision is, as identified in the Original Decision, that:
- (a)the decision required by section 204(1) of the Building Act is a decision that the applicant engaged in unsatisfactory conduct, and
- (b)the decision required by section 204(4) of the Building Act is a decision that the applicant is reprimanded pursuant to section 204 (4) (a) of the Building Act.
- The QBCC submitted that the internal review decision was not sufficient and should be amended as follows:
- The decision failed to identify whether the conduct engaged in by the certifier was unsatisfactory conduct or professional misconduct as required by section 204 of the Building Act.
- The decision failed to identify what the QBCC had decided under section 204(4) of the Building Act, with respect to the sanction to be applied.
- The QBCC considers that it is appropriate for the tribunal to amend the decision to the extent necessary to ensure the decision complies with the relevant procedural and legislative requirements. The decision must state the relevant particulars set out in section 204(4) of the Building Act.
- I heard the matter by an oral hearing on 20 March 2020. Mr Perera gave evidence in person, and Mr Troy Williams, a QBCC certification officer, gave evidence by telephone. The parties made oral submissions at the conclusion of the hearing, and I reserved my decision. These are my reasons in the matter.
Evidence of the certifier
- The certifier agreed that he had approved the shop fit out of the 66.66 m² area, and that the shopping centre itself was greater than 2,000 m².
- He said that his dispute was that his actions were not a breach of the Building Act.
Evidence of the QBCC
- Mr Troy Williams gave evidence. He referred to the practice of a certifier. He said that he was a level 2 certifier, but that he had never acted on a large building.
- He said that whilst this was a small shop fit out, it was within the context of a whole building.
- Mr Williams pointed out that there are services spread throughout the building, and that interference with them can constitute a risk to the safety of occupants and other tenants. He said that approval of a single fit-out can affect the integrity of the whole building.
Submissions of the Certifier
- The certifier submitted that section 153 of the Building Act does not specify that Level 2 certifiers cannot issue prior approval for tenancy fit outs within major shopping centres, and that approval was given to the tenancy fit out – not the entire shopping centre.
- He submitted that the relevant sections of the Act related only to new buildings, and not to existing buildings:
Level 2 certifiers are simply restricted to max. 3 floors and max 2,000 m² and these restrictions only to new buildings. Since s153 is silent about existing buildings, the code of conduct clarifies issue by adding another restriction. Which is to prevent certifier Level 2 approving additions to existing building over 2,000 m². Both the Building Act and the Code of Conduct are silent about fit-out tenancies. This may be due to the fact that tenancy fit outs over 2,000 m² within shopping centres are rare.
- Mr Perera submitted that section 190 of the Building Act required a complaint to be made, and that this complaint was not certain as it did not identify the building.
- Mr Perera agreed that there were elements of the fire protection system connected to the tenancies as to smoke detectors, spitfire lights, and warning speakers. He said there was a fire control panel at the entrance of the shopping centre. He said that it was up to the electrician to check compliance of these systems.
- He said that he had been reprimanded previously, but these were for different matters.
Submissions of the QBCC
- The QBCC submitted that it was simply the case that the certifier was not entitled to certify a building of more than 2,000 m², and that it was comparable to driving a truck which needed a specific licence.
- The QBCC noted that section 153 refers to the size and complexity of an existing building. Mr Williams said there are systems that integrate to the whole building, and protect the whole building, not just a single shop. In his statement he referred to these systems:
- Large buildings, for example the shopping complex in this case, may be fitted out with complex systems which protect the building as a whole.
- Examples of whole building systems include fire safety systems and air handling systems. There is a potential for the systems to be disrupted by minor works.
- Each part of a larger building, including ‘small shop fit outs’ potentially contain components of larger whole building systems and, consequently, alterations to any part of the building has the potential to compromise whole building systems and create risks to property and life safety.
- The QBCC submitted there was nothing within the Act that supports the proposition that the Code of Conduct only applies to new buildings, and that it explicitly states it applies to existing buildings. It referred to section 5 of the Code of Conduct which provides as follows:
5. A building certifier must not perform building certifying functions beyond their level of competence or outside their area of expertise.
A building certifier, when performing building certifying functions must have: the appropriate level of accreditation and level of licensing – limitations are placed on the number of storeys and the floor area of buildings that may be assessed according to the level of accreditation and licensing of the building certifier. These limitations also apply to existing buildings where building work is being carried out.
For example, a building certifier accredited and licensed at the level of assistant building surveyor cannot decide a development application for a minor addition to an existing building with a rise of three stories and a floor area of 2,000 m²
- The QBCC submitted that the certifier had engaged in unsatisfactory conduct, and that the certifier had been reprimanded on two previous occasions. It submitted that given this was not the first occasion on which the certifier had engaged in unsatisfactory conduct, that the appropriate sanction was a reprimand.
- The facts in this matter are not in dispute. The certifier certified as to a shop fit out, which involved building work on an existing small tenancy. The tenancy was located within a shopping centre that was larger than 2,000 m².
- The certifier attributes the matter as arising because of a complaint by a disgruntled builder who was originally engaged to construct the fit-out, but who was subsequently dismissed, who objected to the certifier’s involvement.
- Section 153 of the Building Act refers to the powers of a Level 2 certifier:
153 Role of building certifier–level 2
A building certifier–level 2 may only—
- (a)without the supervision of a building certifier–level 1—perform building certifying functions on buildings and structures having a rise of no more than 3 storeys and a total floor area no more than 2,000m2; or
- (b)under the supervision of a building certifier–level 1—help in assessing and inspecting all classes of buildings and structures.
- The certifier urges a narrow interpretation of section 153 of the Building Act, and argues that because section 153 does not specifically refer to an existing building, that it must only apply to new buildings.
- This restricted view of the interpretation of section 153 advocated by the certifier is not based upon any recognised principle of interpretation. The section refers to building certifying functions on buildings and structures – in the absence of any further definition of the expression ‘buildings and structures’, that expression must be taken to refer to all buildings and structures, whether old and being altered, or new.
- It is not disputed that the tenancy in question has multiple services provided to it that integrate with the rest of the shopping centre. The certifier submits that it is not his role to approve these separate systems, referring to an electrician’s role as to compliance of the smoke detectors and the alarm system.
- It is unrealistic to separate an individual tenancy from the whole of the shopping centre. Clearly, the whole of the shopping centre works is one integrated system. The ‘building’ that is under consideration in this matter is the whole of the shopping centre, not just a portion of it represented by the individual tenancy.
- The submissions of the QBCC, that interference with one aspect of any of these integrated systems may create a risk to the health and safety of that tenancy, and other tenancies, is well founded.
- I do not discern any uncertainty or ambiguity in the provisions of section 153 of the Building Act. The section simply refers to buildings on which a Level 2 building certifier may perform building certifying functions. That section encompasses both old and new buildings.
- Section 204 of the Building Act provides that the QBCC’s actions, if a disciplinary ground is found, are as follows:
204 Decision after investigation or audit completed
- (1)After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.
- (4)If QBCC decides the building certifier has engaged in unsatisfactory conduct, QBCC must decide to do 1 or more of the following—
- (a)reprimand the building certifier;
- (b)impose the conditions it considers appropriate on the building certifier’s licence;
- (c)direct the building certifier to complete to the satisfaction of QBCC the educational courses stated by QBCC;
- (d)direct the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated by QBCC;
- (e)require the building certifier to take all necessary steps to ensure the certification of building work—
- (i)complies with this Act; or
- (ii)for other assessable development related to the building work—is not inconsistent with all other necessary development approvals that apply to the work; or
- (iii)for accepted development that may affect the position, height or form of building work—is not inconsistent with the requirements for the self-assessable development;
- (f)direct the building certifier to take necessary enforcement action under this or another Act, including, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building work or owner of the building;
- (g)if QBCC is satisfied the building certifier is generally competent and diligent—advise the building certifier it does not intend to take any further action.
- (6)If QBCC decides the building certifier has engaged in professional misconduct, QBCC must apply to the tribunal to start a disciplinary proceeding against the building certifier.
- The Tribunal has similar powers on a disciplinary hearing under section 211:
211 Orders relating to current building certifier
- (1)If the tribunal decides that proper grounds exist for taking disciplinary action against a building certifier who is licensed at the time of the decision, the tribunal may make 1 or more of the orders mentioned in subsections (2) to (7).
- (2)The tribunal may make an order—
- (a)reprimanding the building certifier; or
- (b)imposing conditions it considers appropriate on the building certifier’s licence; or
- (c)directing the building certifier to complete the educational courses stated in the order; or
- (d)directing the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated in the order; or
- (e)suspending the building certifier’s licence for the term the tribunal considers appropriate; or
- (f)cancelling the building certifier’s licence; or
- (g)disqualifying, indefinitely or for a stated period, the building certifier from obtaining a licence as a building certifier from QBCC.
- In proceeding to certify the works on this shop fit out, the certifier has exceeded the provisions of his licence. The definition of ‘unsatisfactory conduct’ in the Building Act, schedule 2, is as follows:
unsatisfactory conduct, for a building certifier or former building certifier, includes the following—
- (a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, 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 private certifiers for building work), 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 than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
- That definition in (b)(ii) includes ‘acting outside the scope of the building certifier’s powers’.
- As I have found that the actions of the certifier were outside the scope of his powers, they constitute unsatisfactory conduct.
- The QBCC has submitted that a reprimand is an appropriate sanction. A reprimand is a less severe sanction of the options available to the QBCC and to the Tribunal.
- There is no evidence that the actions of the certifier did in fact cause a risk to the health or safety of any person, or that any harm arose from his certification. Whilst I do not see validity in the certifier’s interpretations of the legislative provisions, it is not suggested that he has acted in a reckless or scandalous way.
- The certifier has also had a financial penalty of $1,044 imposed, enforcement of which has been put into abeyance pending outcome of this review, and which he will be required to comply with.
- In the circumstances, I consider that the imposition of a reprimand is a suitable and sufficient sanction in this matter.
- The QBCC has sought that the internal review decision be amended. I consider that the inclusion of a reprimand in the decision is more than a mere amendment, and that the appropriate course is to set aside the Internal Review decision and substitute a new and comprehensive decision in its place.
- I order that:
- The decision of the Queensland Building and Construction Commission made on 14 May 2019 is set aside.
- A new decision is substituted as follows:
- (b)Bernard Perera is reprimanded for the unsatisfactory conduct.
- Published Case Name:
Perera v Queensland Building and Construction Commission
- Shortened Case Name:
Perera v Queensland Building and Construction Commission
 QCAT 425
Member Paratz AM
10 Nov 2020