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Drew v Queensland Building and Construction Commission[2015] QCAT 11

Drew v Queensland Building and Construction Commission[2015] QCAT 11

CITATION:

Drew v Queensland Building and Construction Commission [2015] QCAT 11

PARTIES:

Richard Douglas Drew

(Applicant)

 

v

 

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR358-13 / GAR359-13 / GAR364-13 / GAR372-13 / GAR373-13 / GAR378-13 / OCR241-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

7, 8 and 9 October 2014

HEARD AT:

Bundaberg

DECISION OF:

Member Paratz

DELIVERED ON:

16 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

GAR358-13

  1. The decision of the Queensland Building and Construction Commission made on 30 October 2013 is confirmed.

GAR359-13

  1. The decision of the Queensland Building and Construction Commission made on 20 September 2013 is confirmed.

GAR364-13

  1. The decision of the Queensland Building and Construction Commission made on 23 September 2013 is confirmed.

GAR372-13

  1. The decision of the Queensland Building and Construction Commission made on 23 September 2013 is confirmed.

GAR373-13

  1. The decision of the Queensland Building and Construction Commission made on 23 September 2013 is confirmed.

GAR378-13

  1. The decision of the Queensland Building and Construction Commission made on 30 October 2013 is confirmed.

OCR241-13

  1. The decision of the Queensland Building and Construction Commission made on 28 August 2013 is confirmed.

CATCHWORDS:

BUILDING CERTIFIER – UNSATISFACTORY CONDUCT –Where a building certifier was found to have engaged in unsatisfactory conduct in seven matters by the QBCC – where an ongoing conflict between the certifier and the local authority – whether the conduct of the certifier breached the Code of Conduct and legislative requirements

Building Act (Qld) 1975

Drew v Bundaberg Regional Council [2011] QCA 359

Bundaberg Regional Council v Ross & Drew [2011] QPEC 137

Chief Executive, Office of Fair Trading v Fuller [2008] QCCTPAMD041

Re Seidler [1986] 1 Qd R 486

Briginshaw v Briginshaw (1938) 60 CLR 366

Oliver v Pool Safety Council [2014] QCAT

APPEARANCES:

 

APPLICANT:

Mr Drew in person

RESPONDENT:

Mr S.E. Seefeld of Counsel

REASONS FOR DECISION

  1. [1]
    Mr Drew is a building certifier. He is seeking review of seven separate decisions by the Queensland Building and Construction Commission (QBCC) that he had engaged in “unsatisfactory conduct” pursuant to section 204 of the Building Act 1975 (the Act).
  2. [2]
    The seven separate applications were heard together. The case numbers, the date of the QBCC decision and addresses of the relevant properties are as follows:

GAR358-13

30 October 2013

2 Jasper Court, Branyan (Jasper Court)

GAR 359-13

20 September 2013

6 Seahorse Court, Innes Park (Seahorse Court)

GAR364-13

23 September 2013

39 Palm View Drive, Moore Park Beach (Palm View Drive)

GAR372-13

23 September 2013

22 Blain Street, Bargara (Blain Street)

GAR373-13

23 September 2013

87 Commodore Drive, South Bingera (Commodore Drive)

GAR378-13

30 October 2013

54 Grahams Road, Sharon (Grahams Road)

OCR241-13

28 August 2013

17 Clipper Court, Innes Park (Clipper Court)

  1. [3]
    The matters all relate to approvals of carports or sheds by Mr Drew as a building certifier. He operated a business known as Burnett Country Certifiers.
  2. [4]
    The matter was heard over three days in Bundaberg. Oral evidence was given by Mr Drew, Mr Hough of the QBCC and Ms Honour of the Bundaberg Regional Council.
  3. [5]
    There are several significant threads discernible in these cases:
    1. In several cases Mr Drew did not visit the site, and approved the works on the basis of information provided to him. He argues that it would not be commercially feasible for him to visit rural sites for low-value works where his fee is in the order of $400 or less.
    2. There was an ongoing dispute between Mr Drew and the Bundaberg Regional Council (the Council) as to when a Material Change of Use application for a shed or carport was required, and as to what was a Design and Siting issue as opposed to an Amenity and Aesthetics matter.
    3. There has clearly been a severe conflict of personality and professional approach between Mr Drew and the Town Planning section of the Council. This has led to a breakdown of a normal working relationship, and has made the council critically assess Mr Drew’s work, and has made Mr Drew more dogmatic, and less able to work with the Council, as it sought to follow its policies and procedures.
  4. [6]
    There is a significant history to these matters. They have already been the subject of consideration and review, variously in the Magistrates Court, the Planning and Environment Court, and the Court of Appeal. A very large body of material has developed. It is symptomatic of the toxic relationship that developed between Mr Drew and the Council that so much time and resources have been expended on what are relatively minor works.
  5. [7]
    I will canvass the previous proceedings, but overall it is fair to say that Mr Drew has been unsuccessful in each of these matters, on each occasion, to date. He has displayed a dogged obstinence to accept any opinion that diverges from his own, or the views of the various Courts. It is unfortunate that the matters have become so protracted, expensive and extensive. The course of events has been consuming for him, and has had considerable adverse financial and personal impact on him.
  6. [8]
    My assessment of Mr Drew was that he was passionate about, and committed to his work, and probably has a high degree of skill and has extensive experience. Unfortunately, his inability to accept dissenting opinion, or to work with the Council, where he personally had a differing view, has caused both him and his clients a great deal of angst and expense.
  7. [9]
    From comments by Mr Drew, it appears that his relations with the Council have now stabilised. He puts this down to a change of the staff in the relevant section of the council. Whether that is so, or whether Mr Drew has modified his own attitudes, it is to be hoped that the stabilisation of their relations will continue, and that the determination of these reviews will enable Mr Drew to accept the outcomes of the past matters, and to move on with his professional practice in a more accommodating and less stressful way.
  8. [10]
    I will discuss each property separately, and then make some general comments.

Jasper Court

  1. [11]
    An agreed statement of facts was filed on 28 April 2014. It is convenient to set it out in full:
  1. On or about 9 August 2010, the certifier was engaged to carry out building certification functions at the site pursuant to sections 10 and 48 of the Building Act 1975.
  2. On or about 1 September 2010, the certifier issued a building development approval for two free-standing carports at the site.
  3. At no time prior to or including 1 September 2010 was the building development application referred to the Council as a concurrence agency.
  4. On or about 30 May 2011, Bundaberg Regional Council filed legal proceedings against the certifier in the Magistrates Court, alleging a contravention of section 83(1)(d) of the Building Act 1975 occurred when the certifier approved the two free-standing carports at the site on 1 September 2010.
  5. On 17 July 2012, the certifier was found guilty of contravening section 83(1)(d)of the Building Act 1975 in the Magistrates Court.
  6. The certifier appealed the Magistrates Court decision of 17 July 2012 to the District Court. On 30 November 2012, the appeal by the certifier against the charge was dismissed by the Judge. The decision was delivered on 3 January 2013, where the District Court upheld the previous decision that the certifier had contravened section 83(1)(d) of the Building Act 1975.
  1. [12]
    The site plan which was drawn up by the builder, Steeline, and was approved by Mr Drew, shows an existing shed of 6.0m x 3.6m with a new proposed carport being built on the right hand side of 4.0m x 9.0m; and another on the adjoining wall of 7.0m x 6.0m. This gives a total floor area of 99.6 square metres.
  2. [13]
    Mr Drew said that he had approved two free-standing carports, and had not approved anything attached to the building. He said that he had been misled by the Steeline representative. In cross-examination he conceded that if the carports were attached to the building, that would have changed the situation.
  3. [14]
    In actual fact the carport that was shown as being 6.0m x 3.6m was 9.0m x 6.0m. The effect of the larger sizing of the existing building was that it made the total floor area 132 square metres, which was greater than the threshold size of 100 square metres, and therefore required referral to the council. It also made the new carports abut and fit onto the existing building to make one large rectangle.
  4. [15]
    Mr Drew said that the representation to him as to the size of the existing building was fraudulent, and he had relied on that representation. He had not gone out to see the site and the existing building himself.
  5. [16]
    Mr Drew said that the site was 15 to 20 minutes away from his office at Bundaberg. He said that he has 1,000 clients, and does jobs at Gladstone, Longreach, Hervey Bay and Rockhampton, and that it is impossible for him to go to every site. He said that he doesn’t see how he can run his business competitively and charge $400 if he goes out to the site.
  6. [17]
    Mr Drew’s contention was that the Building Act requires a client to provide truthful information, and he was entitled to rely on that information.
  7. [18]
    The contention of the QBCC was that a Certifier should satisfy himself as to the property he is certifying.
  8. [19]
    Ms Honour from the Council gave evidence that a free-standing carport would not be included in the calculation of Gross Floor Area, but that the definition of a “shed” included a structure that was partly enclosed. She described a structure as being partly enclosed if it was not possible to walk in or out of the structure and access all four sides. She said that once a carport abuts a structure it becomes enclosed, and is no longer free-standing, and becomes a shed.
  9. [20]
    Mr Hough, a QBCC Senior Audit and Investigation Officer, and qualified building certifier, agreed that there was no specific provision in the Building Act which required a certifier to go to a site. He said enquiry could be made by looking at Council aerial photography, or photos from NearMap or Google, if the application was for a standard installation such as a shed on a block clear of the boundaries. He said that if there was something unusual, then an alarm bell would go off, and he would make further enquiries from the applicant. He said that he had driven 30 to 40 kilometres to look at a site.
  10. [21]
    Mr Hough said that the carports were shown as placed up against an existing shed, and that if he were assessing it he would make enquiry as to whether they were attached or not.
  11. [22]
    Mr Drew said that he does not use Google map photographs because he finds them difficult to use, and to be unreliable. He said that there was not one thing in any piece of legislation that required him to go out to see if the applicant was telling him the truth or not.
  12. [23]
    In his judgment of 17 July 2012 in the related prosecution, the learned Magistrate made the following comments in relation to the evidence and conduct of Mr Drew:[1]

Mr Richard Douglas Drew was unimpressive as a witness. His reliability is extremely questionable as is his honesty in relation to the processing of the application.

(and)

I hold grave reservations as to the evidence of Mr Drew that he actually considered properly and professionally the application as a qualified certifier.

(and)

Both honesty of the beliefs of Mr Drew and the reasonableness of his beliefs in relation to the building development application for 2 Jasper Court, Branyan in 2010 are in question.

There exists a grave doubt that the evidence of Mr Drew of actually carrying out appropriate assessment before his purported approval was honest.

Evidence is convincing, beyond reasonable doubt, that no compliance was made by Richard Douglas Drew with the mandatory requirements of section 313(3)(b) of the Sustainable Planning Act 2009.

Evidence is convincing, beyond reasonable doubt, that Mr Drew did not follow the standards of conduct and professionalism in the code of conduct for building certifiers whereby as a building certifier he failed to satisfy the mandatory requirements for taking all reasonable steps to obtain all relevant facts when performing building certifying functions.

(and)

It is clear, on my observations of Mr Drew, whilst hearing testimony and what was related during this testimony was that he put pecuniary reward ahead of carrying out professional actions as a private certifier in compliance with statutory provisions and the code of conduct applicable to him in that professional capacity.[2]

  1. [24]
    The QBCC, in its Information Notice of 30 October 2013, found that the certifier had engaged in unsatisfactory conduct. Its reasons were because he was found guilty of contravening section 83(1)(d) of the Act in the Magistrates Court; and that the judgment in the Magistrates Court and the District Court which found that the certifier had contravened the legislative requirements of the Act, was a finding of an act which is contrary to the “Code of Conduct for building certifiers” because the certifier was found to have failed to comply with legislative requirements. It issued a reprimand.

Seahorse Court

  1. [25]
    An agreed statement of facts was filed on 24 April 2014. It is convenient to also set it out in full:
    1. On or about 14 January 2010, the certifier was engaged to carry out building certification functions at the site pursuant to sections 10 and 48 of the Building Act 1975.
    2. On or about 25 March 2010, the certifier issued a building development approval for a shed on the site.
    3. At no time prior to or including 25 March 2010, did the Council issue an approval for a Material Change of use for the proposed shed at the site.
    4. On a date after 25 March 2010, a shed was built at the site.
    5. On or about 23 December 2012, Bundaberg Regional Council filed legal proceedings against the certifier in the P & E Court, alleging a contravention of section 83(1)(a) of the Building Act 1975 occurred when the certifier approved the shed at the site on 25 March 2010.
    6. On 9 June 2011, the Judge delivered a judgment in the P & E Court where it was found that the certifier had contravened section 83(1)(a) of the Building Act 1975 in relation to the building approval for the site on 25 March 2010.
    7. On 9 December 2011, an appeal by the certifier was heard in the Court of Appeal, where it delivered a Judgment which refused the certifier’s application to have the previous decision overturned.
  2. [26]
    The site is a 1008 square metre triangular shaped lot located in the Urban Residential Zone of the Coastal Towns Planning Area of the Burnett Planning Scheme. It was vacant. The owners of the site also owned an adjoining property at 14 the Esplanade, Innes Park, which was their home. There is direct access from one property to the other through the rear boundary of the house.
  3. [27]
    The owner, Mr Loeskow, sought to build a shed 134.4 square metres in area, comprising a 9.0m x 7.2m section with a wall height of 3.0m and overall height of 4.0m together with an 8.0m x 8.7m section with wall height of 4.2m and overall height of 5.0m.[3]
  4. [28]
    Because the shed was over 60 square metres in area, it exceeded the acceptable solutions of the Burnett Shire Planning Scheme 2006 and Detached Dwelling and Domestic Storage Code Table 8.4, and a variation from Table 8.4 was required from the Council.
  5. [29]
    The Council wrote to the owner on 4 February 2010 advising that the application was refused, as the building would be visually obtrusive; not appear residential in nature or scale; not be compatible with the locality and affect the amenity of the neighbouring properties; and not contribute to an attractive landscape.
  6. [30]
    Mr Kenney of Burnett Country Certifiers wrote back to the Council on 10 February 2010. That reply was at the least surprising, and was confrontational, taking a very legalistic approach which contraverted the Council’s determination.
  7. [31]
    Whilst Mr Kenney was an employee, it is apparent that he was acting under the supervision of Mr Drew, and had absorbed the attitudes and demeanour of Mr Drew towards the Council, and his correspondence reflects the culture of the business at the time.
  8. [32]
    The reply noted that the Council’s Concurrence Agency assessment period expired on 2 February 2010, and that the owner received notification from council on 8 February 2010 by way of the letter dated 4 February 2010 that the application was refused. The letter expressed that:

As can be seen this greatly exceeds the assessment period detailed in Schedule 15 of the regulations and therefore it is deemed that Council has no requirements in relation to this application.

  1. [33]
    The letter further went on to address what was clearly a long-running point in contention between Mr Drew’s business and the Council:

On numerous occasions, Council has tried to convert Amenity and Aesthetics applications to Design and Siting in relation to SBR Alternative requirements under the planning scheme on matters that address the floor area of the building. Please be advised that nowhere in parts MP1.1 and MP 1.2 of the Queensland Development Code is the floor area of buildings addressed. As such this type of application will always be for Amenity and Aesthetics and I would advise Council that if this behaviour continues we will be lodging a complaint with the Director General of the Department of Infrastructure and Planning.

  1. [34]
    The letter then concluded that unless Council provided material to support its position within 5 business days, that at the end of that period the building approval would be issued if no response was received.
  2. [35]
    The Council replied by letter dated 17 February 2010 that:

It is noted that your company has been consistently advised of Bundaberg Regional Council’s Planning services interpretation of its position in administering a Concurrence Agency role for the design and siting of Sheds and domestic Storage in areas incorporated in the Burnett Shire Planning Scheme 2006.

  1. [36]
    Notwithstanding the Council’s reply, Mr Drew gave a decision notice on 25 March 2010 approving the proposed shed. The Council applied by originating application to the Planning and Environment Court for a declaration that the building development approval was invalid, and for orders restraining the owners from carrying out the work until they obtained an effective development permit for the material change of use; and an order for the removal from the land of all things in connection with the use for the purposes of domestic storage. The Judge made the declaration and orders sought.
  2. [37]
    Mr Drew then appealed to the Court of Appeal. The Court noted that only one ground of appeal was identified, as to the interpretation of Table 3.4 and the meaning of the expression “otherwise”. The Court rejected Mr Drew’s interpretation of the section, and found that “otherwise” plainly related to both column 1 and column 2 and that Table 3.4 was plainly intended to specify the mode of assessment applicable to the specific material changes of use.[4] Leave to appeal was refused.
  3. [38]
    The QBCC, in its Information Notice of 20 September 2013, found that the certifier had engaged in unsatisfactory conduct. Its reasons were because the judgment in the Planning and Environment Court finding that the certifier had contravened the legislative requirements of the Act, was a finding of an act which is contrary to the “Code of Conduct for building certifiers” because the certifier was found to have failed to comply with legislative requirements. It issued a reprimand.

Palm View Drive

  1. [39]
    An agreed statement of facts was filed on 24 April 2014. It is convenient to also set it out in full:
    1. On or about 18 August 2009, the certifier issued a building development approval for a shed at the site which was a building certifying function pursuant to sections 10 and 48 of the Building Act 1975.
    2. On a date after 18 August 2009, a shed the subject of the certifier’s approval was erected on the site.
    3. On or about 5 July 2011, Bundaberg Regional Council filed legal proceedings against the certifier in the Planning and Environment Court, alleging a contravention of section 83(1)(a) and (d) and section 84 of the Building Act 1975 occurred when he approved the shed at the site on 18 August 2009.
    4. On 18 November 2011, a judgment was delivered, and on 19 December 2011 and 24 January 2012, formal orders were made which found the shed constituted a material change of use (contravention of s 83(1)(a) of BA), the certifier contravened section 84 of the Building Act 1975 because the building development application was inconsistent with earlier approvals, and that the application should have been referred to council as a concurrence agency assessment (contravention of s 83(1)(d) of BA).
  2. [40]
    The property was a tourist park where six cabins had been built. Approval had been granted for eight cabins. The owners wanted to erect a carport and shed in place of one of the cabins in the corner of the site. Mr Drew approved the application on 18 August 2009.[5]
  3. [41]
    The Council sought declarations that the approval was invalid and subsequent orders from the Planning and Environment Court. The Court found that there was a material change of use, and that the approval by Mr Drew was inconsistent with the previous approvals:[6]

Running through the paragraphs of s 83(1), in my view the building development application does relate to an earlier development approval granted by the Council, it being presented as ancillary to the use approved in 1996. Yet it puts a large shed where the 1996 approval stipulated an accommodation unit (and the 2008 approval stipulated a swimming pool with landscaping) and compromises the visitor parking required.

Blain Street

  1. [42]
    An agreed statement of facts was filed on 28 April 2014. It is convenient to also set it out in full:
    1. (deleted)
    2. (deleted)
    3. On or about 25 February 2010, the certifier was engaged to carry out building certifying functions at the site pursuant to sections 10 and 48 of the Building Act 1975.
    4. On or about 4 March 2010, the certifier issued a building development approval for a shed at the site.
    5. (deleted)
    6. On a date after 4 March 2010, a shed the subject of the certifier’s approval was built at the site.
    7. At no time prior to or including 4 March 2010, did the council purport to issue an approval for a Material Change of Use for the proposed shed at the site.
    8. On or about 23 December 2012, Bundaberg Regional Council filed legal proceedings against the certifier in the P & E Court, alleging a contravention of section 84 of the Building Act 1975 occurred when the certifier approved the shed at the site on 4 March 2010, because the development approval issued by the certifier was inconsistent with the development approval issued by council.
    9. On 16 May 2011, the certifier consented to an order of the Planning and Environment Court where it was declared that the certifier’s decision notice of 4 March 2010 was invalid and of no effect, due to him granting a building development approval that was inconsistent with an earlier development approval granted by the Council.
  2. [43]
    The property is a church. The original plans had shown a 6.0m x 3.0m garage at the rear of the church beside an overflow car park.[7] That garage was not built, and it was proposed to build a shed 9.0m x 6.0m at the edge of the property.
  3. [44]
    The issue was whether the construction of the shed constituted a Material Change of Use. Mr Drew described it as a “tiny little shed” of 54 square metres. He said that it did not even need building approval, and it was nonsense to say it was a Material Change of Use. The shed was used to store toys, a mower and whipper-snipper.
  4. [45]
    The view of the Council was expressed in an email dated 22 March 2010 from the Council to the certifier:[8]

As per our conversation this morning, I advise the following regarding the Uniting Church site located at 22 Blain Street, Bargara.

  • The use of the site is bound by a development permit (322.2004.50308.3)
  • Section 580 of the Sustainable Planning Act 2009 clearly states “A person must not contravene a development approval, including any condition in the approval”
  • The proposed 6.0m x 9.0m shed does not form part of the approval and the approved plan indicates that no structures are located in the vicinity of the proposal; and
  • A defined Special Use facility constitutes a Material Change of Use

Due to proposed outbuilding not forming part of the existing approval, two possible solutions exist for gaining the necessary approvals. In this regard, a change to the existing approval or another Material Change of Use for the additional component to the defined Special Use facility. It is advised that a change to the existing approval would not be considered a permissible change to the approval as it would be likely that the proposed change may cause a person to make a properly made submission objecting to the proposed change (See section 367 of the Sustainable Planning Act). Therefore it is Planning Services consideration the only available option is to lodge a Material Change of Use for the additional structure associated with the Special Use of the site.

  1. [46]
    The certifier took issue with the opinion of the Council and by letter of 29 March 2010 said that unless Council was able to support its actions, that at the end of 5 business days their client would be advised that building work was to recommence on the property.
  2. [47]
    The Council responded by letter of 30 March 2010 standing by its interpretation and recommending the certifier engage the services of expert planning or legal representation to clarify the issue, if it continued to disagree. The Council “clearly advised” that Council reserved its right to commence compliance action in the matter should any Planning or Building legislation be breached in the future.
  3. [48]
    The subsequent response by Mr Drew to the Council by email dated 6 April 2010 highlights the degree of conflict between them:

As such, the proposed development does not require an MCU just because someone at the council thinks it does and the building approval as issued is valid and work can commence immediately. Please do not hesitate to take whatever action you like against me as it provides me the opportunity to make you identify which of the 3 criteria for an MCU you are working on to decide that a planning application is required and also convince the Court that a storage facility is actually for religious purposes.

No doubt an attack will be made on the client, as bullying has become a major method of Council officers standover tactic. In any case I will be supporting our client throughout the ordeal and this will be just another matter addressed in my complaint to the Director General of the Dept of Infrastructure and Planning.

  1. [49]
    The work was conducted. Subsequent proceedings led to the Planning and Environment Court making an Order on 16 May 2011 declaring that the building development approval issued by the certifier was invalid and of no effect, and ordering the removal of all things in connection with the shed; unless a request for a permissible change to the 2004 approval, and an effective development approval for building works, was made and obtained by 29 July 2011.

Commodore Drive

  1. [50]
    An agreed statement of facts was filed on 24 April 2014. It is convenient to also set it out in full:-
    1. On or about 13 July 2010, the certifier was engaged to carry out building certifying functions at the site pursuant to section 10 and 48 of the Building Act 1975.
    2. On or about 26 July 2010, a concurrence agency application was made to Council in relation to the building of the shed at the site.
    3. On or about 28 July 2010, Bundaberg Regional Council sent a copy of a letter to the certifier, advising that an application for a material Change of Use requiring impact assessment was required for the proposed shed at the site.
    4. The Council states it did not receive a reply to the above-mentioned letter from the certifier.
    5. At no time prior to or including 30 August 2010, has evidence been presented to this office that the Council issued a decision notice in relation to the concurrence agency application. The Council did not approve or refuse the application. However, the Council did send a letter advising that a Material Change of Use application was required, as referred to at 2, above.
    6. On or about 30 August 2010, the certifier issued a building development approval for a shed at the site which was a building certifying function pursuant to sections 10 and 48 of the Building Act 1975.
    7. At no time prior to or including 30 August 2010 did the Council issue an approval for a Material Change of Use for the proposed shed at the site.
    8. On or about 30 May 2011, Bundaberg Regional council filed legal proceedings against the certifier in the Magistrates Court, alleging a contravention of section 83(1)(a) and 83(1)(d) of the Building Act 1975 occurred when he approved the shed at the site on 30 August 2010.
    9. On 9 August 2012, the certifier entered a “guilty” plea in the Magistrates Court to the allegation of contravening section 83(1)(a) and 83(1)(d) of the Building Act 1975 in relation to the building approval for the site.
  2. [51]
    The property was a vacant block of land with an existing 7m x 12m shed on it. The owner of the land, Mr Dekoke, wrote to the Council advising that he wished to build a further 6.6m x 6.0m x 2.7 m shed on the property, and that as this would make a total area of 123.6 square meters, he sought a relaxation of the allowance of 100 square meters. He said that he wanted the shed to store a ride-on mower and block equipment.
  3. [52]
    The Council advised the owner by letter of 28 July 2010 that the incorrect development application had been submitted, and that a Material Change of Use (Impact Assessment) was required for a “Domestic Storage”.
  4. [53]
    Subsequently the certifier approved the development.

Grahams Road

  1. [54]
    An agreed statement of facts was filed on 28 April 2014. It is convenient to also set it out in full:
    1. On or about 17 September 2010, the certifier was engaged to carry out building certifying functions at the site pursuant to sections 10 and 48 of the Building Act 1975.
    2. On or about 22 September 2010, the certifier issued a building development approval for a farm shed (with GFA of 135 m2) at the site which was a building certifying function pursuant to sections 10 and 48 of the Building Act 1975.
    3. (deleted)
    4. (deleted)
    5. At no time prior to or including 22 September 2010 did the Council issue an approval as concurrence agency for the proposed shed at the site, approving the 135m2 shed.
    6. On or about 30 May 2011, Bundaberg Regional Council filed legal proceedings against the certifier in the Magistrates Court, alleging a contravention of Section 83(1)(d) of the Building Act 1975 occurred when he approved the shed at the site on 22 September 2010.
    7. On 9 August 2010, the certifier entered a “guilty” plea in the Magistrates Court to the allegation of contravening Section 83(1)(d) of the Building Act 1975 in relation to the building approval for the site.
  2. [55]
    The owner of the property wanted to build a 135 square meter shed on his property. Mr Drew explained in evidence that if it had been just a “shed” rather than a “farm shed” that it would have required approval through council. He said a farm shed was “ancillary to agriculture”’. Mr Drew approved it as a “Class 10a Farm Shed”.
  3. [56]
    The shed was contained wholly on the property which has a house built on it. An aerial photograph shows that the property is fenced, and that behind the rear boundary there appears to be a farm, but that this separate from the property.[9]
  4. [57]
    There is an implication that approval was sought for the shed as a “Farm Shed” to circumvent the requirement for Council approval, and that in reality the shed is in conjunction with a residential house as storage, and is not truly a farm shed.
  5. [58]
    Mr Drew said in evidence that he had made enquiry of the owner as to the shed. He said the owner was entitled to ask for approval of a farm shed, and that is what they got.
  6. [59]
    Mr Drew said that he did not go out and inspect the property. He said that can rely on information given to him by the owner, and there was nothing in the legislation requiring him to visit the property. He said it would “not be competitive” for him to visit the property. He said that some jobs are 2,000 kilometres away, and that certifiers were meant to be competitive. He said that he did not look at aerial photographs as they can’t be relied on, that he is not good at using “Google Earth”, and that planners pay to get more up to date aerial photographs.
  7. [60]
    I note that it appears that the certifiers fee for this job was a total of $533.00 which was comprised of an “archiving fee” of $140.00 plus the “Building application fee” of $357.27 plus GST.[10]

Clipper Court

  1. [61]
    An agreed statement of facts was filed on 24 April 2014. I will set out the most relevant paragraphs:
    1. On or about 19 May 2010, the certifier was engaged to carry out building certifying functions at the site pursuant to sections 10 and 48 of the Building Act 1975.
    2. On or about 24 June 2010, a development application was made to council using the mandatory IDAS Form6. Table A of the form requests “What is the nature of the building work made assessable in the planning scheme..”. Written in the appropriate box is the response “Shed within Innes Park blasting overlay”. This form, along with the other forms, plans, and specifications were accepted by Council as a properly made application and processed on that basis.
    3. On or about 30 June 2010, Bundaberg Regional Council issued a “Development Permit for Code Assessable Building Works – Garage” for the site (Council reference: 324.2010.29345.1) which was approved in full with conditions.
    1. On 9 August 2010, the Detached Dwelling and Domestic storage Code of the Burnett Shire Planning Scheme required a 5 metre setback for a shed at the time Council issued a “Development Permit for Code Assessable Building Works – Garage” for the site (Council reference: 324.2010.29345.1)
    1. On or about 9 August 2010, the certifier issued a building development approval for a garage at the site (BUDA719/10) which was a building certifying function pursuant to sections 10 and 48 of the Building Act 1975.
    2. On or about 9 August 2010, the certifier issued a building development approval for a garage at the site (BUDA719/10) which included a site plan (Job No. 1259) showing the proposed garage sited 2 metres from the right hand side boundary (as viewed from the street), consistent with the site plan approved by Council in Code Assessment reference: 324.2010.29345.1.
    3. On or about 30 May 2011, Bundaberg Regional Council filed legal proceedings against the certifier in the Magistrates Court, alleging a contravention of Section 83(1)(d) of the Building Act 1975 occurred when he approved the garage at the site.
    4. On 8 December 2011, the certifier entered a “guilty” plea in the Magistrates Court to the allegation of contravening Section 83(1)(d) of the Building Act 1975 in relation to the building approval for the site.
  2. [62]
    The property had a residential house built on it. It was proposed to build a Garage 6.0m x 6.0m x 2.7m about 15 metres away from the house, and 2 metres off from the boundary.
  3. [63]
    Mr Drew said in evidence that the approval given by the Council on 30 June 2010 should have included the setback, and that the Council officer who approved it “had a shocking day”. He argued that the approval should have dealt with siting.
  4. [64]
    The approval by the Council shows it is approved with conditions which are set out in attachment 1. On Attachment 1 the “Approval Detail” is “Garage (Overlay Assessment)”. The conditions are as follows:

Part 1 (a) Conditions imposed by the Assessment Manager

  1. Development is to be undertaken generally in accordance with:
  1. Site Plan Job number 1259 and dated 24/6/10, and
  2. Elevation Plan Sheet 1/1 and dated 7/5/2010

Part 1(b) Assessment Manager’s advices

  1. This decision notice does not represent an approval to commence Building Works
  2. This determination only relates to the proposed development’s compliance with the Extractive and Mineral Resources Overlay. This development must comply with the acceptable solutions of all other relevant requirements of the relevant Planning Scheme.
  1. [65]
    The Council advised in an email to the QBSA of 9 August 2013 that:[11]

The requirements of s 249 sensibly aims to avoid duplication where an “entity” has both an assessment manager and concurrence roles. Council has undertaken this dual assessment role frequently in the past (where an applicant has applied for such) and particularly around MCU’s for a land use which may also be an environmentally relevant activity (ERA), which is also assessable by Council (usually our health program) as a concurrence agency (devolved ERA). A review of the Overlay Assessment in this case indicates that council (as Assessment Manager) did not approve the siting aspects for the shed as discussed s 249. More specifically, the advice provided at attachment 1 of the decision notice narrows the assessment to only those things relating to the Overlay component.

  1. [66]
    It is clear from the conditions noted on the approval that the development must comply with the acceptable solutions of all other relevant requirements of the relevant Planning Scheme. The siting of the shed in relation to the boundary would be one of those requirements.
  2. [67]
    The conditions of the approval also clearly state that it is an Overlay Assessment which only relates to the proposed development’s compliance with the Extractive and Mineral Resources Overlay. There can be no confusion that the approval applied to siting.

Discussion

  1. [68]
    Section 204 of the Building Act 1975 (the Act) provides that the QBCC has an obligation after investigating a complaint as follows:

204 Decision after investigation or audit completed

  1. (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.
  1. [69]
    “Unsatisfactory conduct” is defined in schedule 2 to the Act as follows:

Unsatisfactory conduct for a building certifier or former building certifier, includes the following –

  1. (a)
    conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
  2. (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 –
    1. disregarding relevant and appropriate matters; and
    2. acting outside the scope of the building certifier’s powers; and
    3. acting beyond the scope of the building certifier’s competence; and
    4. contravening the code of conduct;
  3. (c)
    conduct that is of a lesser standard than the standard that might be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
  1. [70]
    A building certifier is also subject to the “Code of conduct for building certifiers”.[12] Section 129 of the Act provides that this is the Code referred to in the Act. The Code provides for standards of conduct and professionalism as follows:

A building certifier must:

  1. Perform building certifying functions in the public interest.
  2. Maintain satisfactory levels of competence.
  3. Comply with legislative requirements.
  4. Not perform building certifying functions where there is a potential for a conflict of interest.
  5. Not perform building certifying functions beyond their level of competence or outside their area of expertise.
  6. Maintain confidentiality.
  7. Abide by moral and ethical standards expected by the community.
  8. Take all reasonable steps to obtain all relevant facts when performing building certifying functions.
  9. Clearly document reasons for building certifying decisions.
  10. Ensure decisions are carried out to ensure building work complies with the Building Act 1975 and the development permit.
  1. [71]
    The QBSA made seven separate determinations. In each case it decided that Mr Drew had engaged in unsatisfactory conduct, and imposed a reprimand.
  2. [72]
    On review, the Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker.[13]
  3. [73]
    The Tribunal has all the functions of the decision-maker for the reviewable decision.[14] The purpose of the review is to produce the correct and preferable decision, following a fresh hearing on the merits.[15] The Tribunal stands in the shoes of the decision-maker and makes the decision afresh.
  4. [74]
    Each of the seven decisions was preceded by court proceedings brought by the Bundaberg Regional Council against Mr Drew. Four were brought in the Magistrates Court (Jasper, Commodore, Blain and Clipper) and three were brought in the Planning and Environment Court (Seahorse, Palm view and Blain).
  5. [75]
    Each of the seven decisions of the QBCC is based on a finding that Mr Drew had breached either s 83(1)(a), s 83(1)(d) or s 84(1) of the Act. The QBCC submits that each of those findings was founded on the decisions of the various courts.[16]
  6. [76]
    The QBCC submits that the Tribunal would be very reluctant to find contrary to the decisions of the Magistrates Court and District Court. It submits that the decision in Fuller[17] provides authority for the proposition that the Tribunal may proceed to review the convictions on the merits, so far as the evidence before the Tribunal permits that to be done, however the onus is on Mr Drew to prove that the facts leading to those convictions are not made out.
  7. [77]
    The relevant sections of the Act are as follows:

83 General restrictions on granting building development approval

  1. (1)
    The private certifier must not grant the building development approval applied for –
  1. (a)
    if the building development application includes development other than building work – until, under the Planning Act, all necessary development permits and SPA compliance permits are effective for the other development; and

Example – A proposal includes building work, a material change of use and reconfiguring a lot, under the Planning Act. The private certifier is engaged to carry out the building assessment work and decide the building development application. The application must not be decided until all necessary development permits and SPA compliance permits are effective for the change of use and reconfiguring the lot.

…

  1. (d)
    if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work –
  1. (i)
    that part has been assessed by the concurrence agency, under the building assessment provisions; and
  1. (ii)
    if the concurrence agency is the local government – any security it has required for the carrying out of the building work has been given.

84 Approval must not be inconsistent with particular earlier approvals or self-assessable development

  1. (1)
    The private certifier must not approve the application if –

(2) (a) the building development application relates to an earlier development approval granted by the local government or an SPA compliance permit; and

  1. (b)
    the earlier approval or permit has not lapsed; and
  1. (c)
    the application is inconsistent with the earlier approval or permit
  1. [78]
    The findings of the previous courts were variously as follows:

Jasper Court

Bundaberg Magistrates Court

Charge of breaching s 83(1)(d)

Plea of Not guilty

Convicted 17 July 2012

Fined $7,500 and ordered to pay costs of $21,727.39

Appealed to District Court

Decision 3 January 2013

Appeal against conviction and costs order dismissed

Fine reduced to $5,000

Order no conviction be recorded

Seahorse Court

Council brought action in P & E Court seeking declaration and consequential orders as to construction

Breach of s 83(1)(a) alleged

Decision 9 June 2011

Finding that the approval was invalid

Appealed to Court of Appeal

Decision 9 December 2011

Application for leave to appeal refused, with costs

Palm View Drive

Council brought action in P & E Court seeking declaration and consequential orders as to construction

Breach of s 83(1)(a) and 84(1) alleged

Decision 18 November 2011

Finding that the approval was invalid

Blain Street

Council brought action in P & E Court seeking declaration and consequential orders as to construction

Breach of s 83(1)(a) and 84(1) alleged

Heard 16 May 2011

Orders without hearing that the approval was invalid

Commodore Drive

Bundaberg Magistrates Court

Charge of breaching s 83(1)(d)

Plea of Guilty

Fine with no conviction recorded

Grahams Road

Bundaberg Magistrates Court

Charge of breaching s 83(1)(d)

Plea of Guilty

Fine with no conviction recorded

Clipper Court

Bundaberg Magistrates Court

Charge of breaching s 83(1)(d)

Plea of Guilty

Fine with no conviction recorded

  1. [79]
    I do not consider that my discretion to make a fresh decision is constrained by these previous findings. However, where a specialist Court such as the Planning and Environment Court has made a determination as to a technical interpretation of the law within its province, the Tribunal would of course have significant respect and regard for its findings, and would be very slow to depart from them.
  2. [80]
    The issues that I have to consider are however slightly different from the matters brought before the previous courts. Those were prosecutions for breaches of the act, and proof beyond reasonable doubt was required. I am being required to make a decision as to whether “unsatisfactory conduct” has been made out.
  3. [81]
    The standard of proof in these proceedings is different. This is a disciplinary matter. Carter J made the following comments in Re Seidler:[18]

In Australia and in England the appropriate standard of proof in disciplinary actions has been closely examined by the courts and this standard is regularly applied in practice by disciplinary bodies. The standard of proof is proof on the balance of probabilities possessing as that standard does the required measure of flexibility so that the more serious the allegation, the higher the degree of probability that is required.

  1. [82]
    In disciplinary matters the Briginshaw standard is often referred to. It can be described as reasonable satisfaction having regard to the nature and consequence of the facts to be proved.
  2. [83]
    Briginshaw was a decision of the High Court of Australia.[19] Dixon J made the following comments as to the standard required in a matter that is not a criminal case, but goes beyond a civil case in its ramifications:[20]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists which may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

  1. [84]
    I am concerned with conduct. My role is to look at the behaviour of Mr Drew in performing his duty as a certifier under the Act, and to decide whether he has fallen below the required standard in these particular instances.
  2. [85]
    I have canvassed each of the properties separately, and have made comments as to where I see deficiencies in the conduct of Mr Drew. The question is not whether Mr Drew has made poor or wrong decisions as to interpretation and application of these difficult and technical pieces of legislation. A certifier who acts properly and responsibly may make a decision which another expert would disagree with, without falling below the standard of conduct required.
  3. [86]
    A parallel may be seen in a matter I heard as to a Pool Safety Inspector[21] where I made the following comments:

[23] Issues will regularly arise as to the proper interpretation of the regulatory provisions. Disciplinary proceedings are justified where a properly founded allegation arises that a practitioner has failed to adhere to a proper expected standard of behaviour. That standard may be found in specific legislation or by application of established principles in common law.

[24] In considering whether a proper standard of behaviour has been achieved, it will probably be necessary to look at the various regulatory provisions and consider whether due regard has been had to them.

[25] Disciplinary proceedings are not however a forum for the basic adjudication of the interpretation of industry regulatory provisions.

[26] The issue in this Application is not whether Mr Oliver got the interpretation of the relevant regulatory provisions wrong, but whether he acted below a proper standard of behaviour.

[27] I will necessarily discuss aspects of the pool barrier provisions in this decision, but this decision is not to determine whether “internal corralling” is allowed within the relevant provisions – it is to consider the behaviour of Mr Oliver.

  1. [87]
    In this matter I have been very concerned, as I have discussed, with the effect that the aggressive and uncompromising attitude of Mr Drew had, in his ongoing conflict with the Council, on the interest of his clients.
  2. [88]
    In each case Mr Drew has “taken the council on”, and in each case an adverse finding was eventually made. It was reckless of Mr Drew to embark on this ongoing course of action. I am sure that his clients, who were simply wanting a shed put up, would not have had any idea that they were going to be embroiled in a bitter Town Planning dispute where they were caught between Mr Drew (who they probably do not know in any way, and who was probably introduced by the shed manufacturer) and the Council.
  3. [89]
    It is one thing for Mr Drew to have a different professional view as to when a material Change of Use Application was required to be made to the Council, or as to when a matter concerned Siting as opposed to Aesthetics, and to pursue this by a healthy debate with the Council. It is quite another thing to inflame the situation by defiantly proceeding to approve a development in the face of the stated opposition of the council, and daring the Council to take the matter to court, as he clearly did, as discussed.
  4. [90]
    In terms of the Briginshaw standard, the question becomes whether I am reasonably satisfied that Mr Drew engaged in unsatisfactory conduct, having regard to the serious consequences of that finding. I will consider each matter in turn:-
  5. [91]
    In the Jasper Court matter, I find that the approach outlined by Mr Hough to be a professional and prudent assessment as to when to inspect a site. There is clearly an onus on a certifier to act with care and prudence. This is implicit in the Code of Conduct to abide by ethical standards expected by the community.
  6. [92]
    There is also an onus on a certifier under the Code of Conduct to take all reasonable steps to obtain all relevant facts. The explanatory statement to the Code of Conduct as to Clause 8 gives as an example the need to visit a site where possible:

For example, a building certifier should undertake a site investigation where possible to make themselves aware of any site conditions that may influence a decision on the development application (i.e. the contours of a site which may influence site drainage).

  1. [93]
    By relying solely on information given to him by a client, and not exercising any independent judgment, Mr Drew was acting in an unsatisfactory way – he cannot divest himself of the obligation on him as a certifier to satisfy himself as to the situation by passing all the responsibility onto the applicant, and then seeking to rely on that information. He thereby breached the Code of Conduct by not taking all reasonable steps to obtain all relevant facts.
  2. [94]
    Whilst Mr Drew places great emphasis on his being misled as to the dimensions of the existing shed, the drawing that he approved nevertheless show the carports as abutting, and this in itself should have caused him to make enquiry as to what the configuration was, and whether the carports were truly free-standing.
  3. [95]
    I accept that Mr Drew has breached the legislative requirements as found by the Magistrates Court and the District Court in this matter, and find that the breach arose not solely because of a defensible disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  4. [96]
    I therefore find that there has been a breach of the Code of Conduct, and of legislative requirements, thereby constituting unsatisfactory conduct.
  5. [97]
    In the Seahorse Court matter, the action of Mr Drew in proceeding to issue a building approval in the face of the stated objections of the council, in a cavalier way, and the combative nature of his exchange put his client at risk of expense and delay, and were not prudent and professionally responsible actions.
  6. [98]
    By acting in this way, the certifier has breached the Code of Conduct requiring him to abide by the ethical standards expected by the community.
  7. [99]
    I accept that Mr Drew breached the legislative requirements as found by the Planning and Environment Court and upheld by the Court of Appeal in this matter, and find that the breach arose not solely because of a defensible disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  8. [100]
    I therefore find that there has been a breach of legislative requirements, and of the Code of Conduct, thereby constituting unsatisfactory conduct.
  9. [101]
    In the Palm View Drive matter, in his evidence, when discussing the issue of a Material Change of Use, Mr Drew said “You are asking me questions based on a normal Council”. He said that he was in conflict with a certain Council officer following on from the Seahorse Court matter, where the Council “did not take the five days seriously”, and that their argument was “you’re wrong, let’s go to war” and “that’s where it all started”.
  10. [102]
    That history of conflict may be accurate, but the difficulty is that by engaging in a “feud” with the Council that Mr Drew exposed his clients to liability, and placed them at the risk of expense, and of having the approval overturned, as occurred in this case. Again it is not acting prudently, and breaches a duty to the client by the certifier.
  11. [103]
    By acting in this way, the certifier has breached the Code of Conduct requiring him to abide by ethical standards expected by the community.
  12. [104]
    I accept that Mr Drew breached the legislative requirements as found by the Planning and Environment Court in this matter, and find that the breach arose not solely because of a genuine disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  13. [105]
    I therefore find that there has been a breach of legislative requirements and of the Code of Conduct, thereby constituting unsatisfactory conduct.
  14. [106]
    In the Blain Street matter, the difficulty again here was that the certifier, by pursuing a belligerent and antagonistic approach against the council, had placed his client at the risk of expense and further applications.
  15. [107]
    At the end of the day it is likely that the shed would have been approved, and that this same result could have been obtained with a professional degree of co-operation and working in with the Council, with considerably less expense and trouble for all concerned.
  16. [108]
    By acting in this way, the certifier has breached the Code of Conduct requiring him to abide by ethical standards expected by the community.
  17. [109]
    I accept that Mr Drew breached the legislative requirements as found by the Planning and Environment Court in this matter, and find that the breach arose not solely because of a defensible disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  18. [110]
    I therefore find that there has been a breach of legislative requirements and of the Code of Conduct, thereby constituting unsatisfactory conduct.
  19. [111]
    In the Commodore Drive matter, in his evidence, Mr Drew said that he knew the Council had concerns, but he went ahead nevertheless. He was asked whether he wrote back to the Council to say they were wrong, and replied “We had been in conflict for so long. There was no point in my going back to this Council”.
  20. [112]
    Mr Drew said there was an ongoing debate about “design and siting” requirements as opposed to “amenity and aesthetics”. He said he did not communicate back to Council because “No, enough is enough”.
  21. [113]
    This behaviour again disregards the interests of the certifier’s client, and exposes the client to the risk of further expense and worry.
  22. [114]
    By acting in this way, the certifier has breached the Code of Conduct requiring him to abide by ethical standards expected by the community.
  23. [115]
    I accept that Mr Drew breached the legislative requirements as found by the conviction in the Magistrates Court in this matter, and find that the breach arose not solely because of a defensible disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  24. [116]
    I therefore find that there has been a breach of legislative requirements and of the Code of Conduct, thereby constituting unsatisfactory conduct.
  25. [117]
    In the Grahams Road matter, it is difficult to see, on the evidence of Mr Drew alone, how it could be accepted that he acted properly and professionally in assessing this application when he neither inspected the property, or even looked at any photographs of it.
  26. [118]
    Again, Mr Drew has sought to transfer his responsibility for making an independent expert assessment onto his client, on the premise that the client is meant to give him proper instructions. This is a clearly unmaintainable argument that seeks to avoid the basic responsibility of a certifier.
  27. [119]
    By acting in this way, the certifier has breached the Code of Conduct requiring him to take all reasonable steps to obtain all relevant facts when performing building certifying functions.
  28. [120]
    I accept that Mr Drew breached the legislative requirements as found by the conviction in the Magistrates Court in this matter, and find that the breach arose not solely because of a defensible disagreement as to proper interpretation of the legislative provision, but because of conduct by the certifier.
  29. [121]
    I therefore find that there has been a breach of legislative requirements and of the Code of Conduct, thereby constituting unsatisfactory conduct.
  30. [122]
    In the Clipper Court matter, it is very difficult to appreciate Mr Drew’s argument that he did not have to turn his mind to consideration of the siting issue. His argument that the Council should have considered the siting, but failed to do so, does not in any way entitle him to not consider that issue, and to go ahead and approve the development overall.
  31. [123]
    At the very least, having regard to his duty as a certifier to ensure that matters were properly considered, he should have referred the matter back to Council if he saw, and thought, that Council had made a mistake or overlooked something, not just proceed regardless and without giving his independent consideration.
  32. [124]
    Mr Drew did not have regard to the boundary clearance in approving the development. By failing to do so, and by acting without reference back to Council, he has breached the Code of Conduct by failing to abide by ethical standards expected by the community, and by failing to comply with legislative requirements.
  33. [125]
    I accept that Mr Drew breached the legislative requirements as found by the conviction in the Magistrates Court in this matter, and find that the breach arose not because of a defensible disagreement as to proper interpretation of the legislative provision, but because the certifier failed to properly address the boundary issue.
  34. [126]
    I therefore find that there has been a breach of legislative requirements and of the Code of Conduct, thereby constituting unsatisfactory conduct.

Conclusion

  1. [127]
    I am reasonably satisfied, having regard to the seriousness of the consequences, that in each matter, that Mr Drew has breached legislative requirements and the Code of Conduct, thereby constituting unsatisfactory conduct.
  2. [128]
    I confirm each of the seven decisions of the QBCC that Mr Drew engaged in unsatisfactory conduct. I will make formal orders accordingly.

Footnotes

[1]Referred to in 13.20 of the Bundle of Documents GAR373-13 at p 36 – 37.

[2]Referred to in 13.21 of the Bundle of Documents GAR373-13 at p 38.

[3]Bundle of Documents p 85.

[4]Drew v Bundaberg Regional Council [2011] QCA 359 at [16].

[5]Bundle of Documents p 142.

[6]Bundaberg Regional Council v Ross & Drew [2011] QPEC 137.

[7]Bundle of documents p 103.

[8]Bundle of documents GAR372-13 p 140.

[9]Bundle of Documents GAR378-13 p 95.

[10]Bundle of Documents GAR378-13 p 220.

[11]Bundle of Documents OCR241-13 p 269.

[12]In these matters, the relevant Code is that effective 14 November 2003.

[13]QCAT Act s 24.

[14]QCAT Act s 19(c).

[15]QCAT Act s 20.

[16]QBCC submissions at [53].

[17]Chief Executive, Office of Fair Trading v Fuller [2008] QCCTPAMD041.

[18][1986] 1 Qd R 486 at 490.

[19]Briginshaw v Briginshaw (1938) 60 CLR 366.

[20]At p 362.

[21]Oliver v Pool Safety Council [2014] QCAT 276.

Close

Editorial Notes

  • Published Case Name:

    Drew v Queensland Building and Construction Commission

  • Shortened Case Name:

    Drew v Queensland Building and Construction Commission

  • MNC:

    [2015] QCAT 11

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    16 Jan 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 CLR 366
3 citations
Jump To
Cite 1 - (1938) 60 CLR 366
Cite 2 - (1938) 60 CLR 366
Cite 3 - (1938) 60 CLR 366
Bundaberg Regional Council v Ross [2011] QPEC 137
2 citations
Jump To
Cite 1 - [2011] QPEC 137
Cite 2 - [2011] QPEC 137
Drew v Bundaberg Regional Council [2011] QCA 359
2 citations
Jump To
Cite 1 - [2011] QCA 359
Cite 2 - [2011] QCA 359
Office of Fair Trading v Fuller [2008] QCCTPAMD 41
2 citations
Jump To
Cite 1 - [2008] QCCTPAMD 41
Cite 2 - [2008] QCCTPAMD 41
Oliver v Pool Safety Council [2014] QCAT 276
2 citations
Jump To
Cite 1 - [2014] QCAT 276
Cite 2 - [2014] QCAT 276
Re Seidler [1986] 1 Qd R 486
2 citations
Jump To
Cite 1 - [1986] 1 Qd R 486
Cite 2 - [1986] 1 Qd R 486

Cases Citing

Case NameFull CitationFrequency
Brooks v Queensland Building and Construction Commission [2023] QCAT 252 citations
Hart v Queensland Building and Construction Commission [2022] QCAT 2382 citations
Marigliano v Queensland Building and Construction Commission & Anor [2025] QCAT 572 citations
Priddle v Queensland Building and Construction Commission [2016] QCAT 2802 citations
QBCC v Geoffrey Mitchell, GMA Certification Pty Ltd [2017] QCAT 232 citations
1

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