Holley v Queensland Building and Construction Commission
[2015] QCAT 177
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- Unreported Judgment
- Holley v Queensland Building and Construction Commission[2015] QCAT 177
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Holley v Queensland Building and Construction Commission[2015] QCAT 177
Holley v Queensland Building and Construction Commission[2015] QCAT 177
CITATION: | Holley v Queensland Building and Construction Commission [2015] QCAT 177 |
PARTIES: | Gary John Holley t/as Applied Building Approvals (Applicant) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | OCR034-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 23 July 2014 |
HEARD AT: | Brisbane |
DECISION OF: | Dr Cullen, Member |
DELIVERED ON: | 20 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
4:00pm on 3 June 2015.
4:00pm on 17 June 2015.
9:00am on 18 June 2015. |
CATCHWORDS: | OCCUPATIONAL REGULATION – building disciplinary proceedings – unsatisfactory conduct – where certification of building work – where complaint made and investigated –whether alleged conduct is substantiated – reprimand imposed Building Act 1975 (Qld), s 83, s 204, Schedule 2 |
REPRESENTATIVES: |
|
APPLICANT: | Gary John Holley t/as Applied Building Approvals represented by Mr K G Flehr of Flehr Law |
RESPONDENT: | Queensland Building and Construction Commission represented by Mr G I Thomson of counsel instructed by Ms Emily Roberts of QBCC Legal |
REASONS FOR DECISION
Background to the disciplinary proceedings
- [1]This decision concerns the classification by Gary John Holley t/as Applied Building Approvals (‘Mr Holley’), a private building certifier, of a building located at 8 Ryena Street, Stafford. The certification of 8 Ryena Street was called into question following a complaint made on behalf of the Brisbane City Council to the Queensland Building and Construction Commission (‘QBCC’) on 1 December 2011.
- [2]The QBCC claim that Mr Holley incorrectly classified 8 Ryena Street, and thereby gave it building approval before the necessary planning applications had been made. This led to the Brisbane City Council (‘BCC’) receiving complaints from neighbours, as it appeared to them that 8 Ryena Street was operating as a share house, accommodating many students under the one roof.
- [3]As a consequence of Mr Holley’s certification, the QBCC have commenced these disciplinary proceedings Mr Holley.
Relevant legislation
- [4]Section 83(1)(a) of the Building Act 1975 (Qld) sets out the general restrictions that exist in relation to the granting of building development approval by private certifiers.
- [5]It relevantly provides:
- (1)The private certifier must not grant the building development approval applied for—
- (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 involves 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 of the lot.
Classification of the building
- [6]Under the BCA, the classification of buildings and structures, or part of a building, is determined by the purpose for which the building is designed, constructed or adapted to be used. Self-evidently, the role of a building certifier is crucial, as the classification that they give a building under the BCA classifications determines what regulations, legislative requirements, and policies will apply. An incorrectly classified property can have serious repercussions, particularly for neighbouring properties.
- [7]The QBCC agrees that Mr Holley correctly classified 8 Ryena Street as a “Class 1b building”. Relevantly, under the BCA classifications, a “Class 1b” building is defined as “a boarding house, guesthouse, hostel or the like …..in which not more than 12 persons would ordinarily reside…”
- [8]Despite correctly classifying 8 Ryena Street as a Class 1b building, the QBCC says that Mr Holley did not then go on to correctly categorise the building as a “Multi-Unit Dwelling” under the applicable Brisbane City Plan 2000. The Tribunal agrees, for the reasons that follow. It is this lapse of judgment that has led to these disciplinary proceedings.
- [9]As explained in the affidavit of Mr Michael Roy Pehrson,[1] a Senior Audit & Investigation Officer with the QBCC and himself a Building Certifier, given that 8 Ryena Street is located in a “Low Density Residential Area” under the City Plan, an “impact assessment” was required prior to Mr Holley issuing approval for the building. Alongside the impact assessment, a “material change of use” application should have been sought and obtained prior to final building approval being given by Mr Holley.
- [10]This did not happen.
8 Ryena Street is a “Multi-Unit Dwelling”
- [11]The definition of a “Multi-Unit Dwelling” is set out in Chapter 3, Section 10 of the City Plan as follows:
a use of premises as the principal place of longer term residence by several discreet households, domestic groups or individuals irrespective of the building form. Multi-unit dwellings may be contained on one lot or each dwelling unit may be contained on its own lot subject to Community Title Schemes. Examples of other forms of multi-unit dwellings include a boarding house, retirement village, nursing home, orphanage or children’s home, aged care accommodation, residential development for people with special needs, hostel, institution (primarily residential in nature) or community dwelling (where unrelated people maintain a common discipline, religion or similar). The term multi-unit dwelling does not include a house or single unit dwelling as defined elsewhere. (Emphasis is by the Tribunal)
- [12]Mr Holley had the role of assessing 8 Ryena Street’s actual or intended use when deciding to issue development approval. He describes the building as a “new dwelling” and refers to Chapter 5 of the City Plan, which relates to “houses” as the basis for his not classifying 8 Ryena Street as a “Multi-Unit Dwelling”. The Tribunal accepts the evidence of Mr Pehrson that a conclusion that 8 Ryena Street was a “house” should have led Mr Holley to the conclusion that the building needed to comply with the Brisbane City Council’s “House Code”. The House Code places limits upon the numbers of people who can live in a building.
- [13]There is no convenient developmental loophole to escape compliance with the House Code, or the need to perform an impact assessment, by classifying a building as a Class 1b building under the BCA, and then cutely arguing that because the building is a “house” that it falls outside the scope of the definition for “Multi-Unit Dwelling“. Yet, this is exactly what Mr Holley argues before the Tribunal.
- [14]In this instance, Mr Holley asserts that his classification of the building as a “new dwelling” is based upon his understanding that 8 Ryena Street was to be a housing development for disabled people and their carers. His argument is as offensive as it is counterintuitive.
Housing for disabled persons and their carers?
- [15]In making this argument, Mr Holley relies upon “Item P8” of the definition of “house” contained in Chapter 5 of the City Plan, providing that a “house” must be “used for domestic residential purposes”. In providing guidance for this definition, “Item P8” then includes what is referred to in the City Plan as “Acceptable Solution A8”. It is “Acceptable Solution A8” and its application to 8 Ryena Street (or more appropriately, lack of application) that is fundamental to the Tribunal’s determination that Mr Holley’s conclusion that 8 Ryena Street is a “house” is without any logical foundation.
- [16]Acceptable Solution A8 states that:
the main dwelling…is used by a house hold group comprising…(c) not more than six persons not necessarily related by blood, marriage or adoption…or (e) not more than six persons with disabilities permanently occupying a dwelling where care or assistance is provided by other persons provided that no more than two of those other persons reside in the dwelling.
- [17]If the Tribunal accepted this argument, it would assist Mr Holley in that the occupancy at 8 Ryena Street could properly be increased from 6 to 8 persons under A8, on the basis that some combination of the residents fell within the definition above.
- [18]There is no evidence before the Tribunal capable of establishing that Mr Holley’s belief that 8 Ryena Street was intended to be a housing development for disabled people and their carers was plausible. Mr Holley’s client, Mr David Manteit, for whom the building certification work at 8 Ryena Street was performed, did not appear before the Tribunal and apparently cannot be located to provide evidence. This is of note, as a significant portion of Mr Holley’s explanation for his belief rests upon the hearsay evidence given by him regarding Mr Manteit’s instructions.
- [19]Essentially, Mr Holley’s argument is that whilst onsite, he was told by Mr Manteit that the persons wandering around were disabled people, or homeless people, being variously “cared for”. Mr Manteit also developed a virtually identical dwelling (for which Mr Holley also did the building certification work) which Mr Manteit led Mr Holley to believe was for the assistance of this diffuse group of variously disabled people.
- [20]Yet, there is also no evidence before the Tribunal that 8 Ryena Street was user-friendly for disabled people. It did not accommodate them in any way. Any reasonable adult, short of any reasonable building certifier, is aware that disabled housing necessitates special requirements, such as larger bathrooms, or extra rooms for carers. The drawings before the Tribunal reveal none of these additional considerations.
- [21]Further, there is no evidence that any of the persons seen by Mr Holley were actually disabled. There is no evidence of any involvement of any disability agencies in providing funding, or of any government agencies that work in the disability sphere having had involvement with any of the residents. Rather, the Tribunal is invited to conclude that somehow the absent Mr Manteit was, of his own volition and without any funding, seeking to provide a home space for disabled persons and, at times, homeless people. It is rather ridiculous to categorise the social housing needs of disabled persons and homeless persons as capable of being met within the same space, but that is the impact of Mr Holley’s evidence.
- [22]The Tribunal considers that a reasonable person in the position of Mr Holley, and with his years of experience, would have required that Mr Manteit’s implausible assertions be substantiated with objective evidence that, in fact, the building was going to be used for these purposes. Whilst Mr Holley’s Counsel argued that he was obliged to perform the certification work or risk potentially being sued by Mr Manteit (presumably for breach of contract), the Tribunal does not accept this line of argument. Mr Holley is the licensed professional – if he refused to act in circumstances where Mr Manteit failed to provide some evidence of the actual purpose of the building, it is difficult to contemplate what realistic cause of action Mr Manteit would have against him.
- [23]For these reasons, the Tribunal finds that Mr Holley’s assertions that he had noticed people on the property he thought were carers, are farcical at work, and implausible at best.
Mr Holley’s arguments about the building being classified to attract increased fire safety requirements
- [24]Mr Holley’s lawyer argues that he did the right thing in classifying the building as a 1b building, and not a 1a building, due to the increased fire safety requirements for the 1b classification, and that he should not be punished for this. He states that Mr Holley was extra conservative and even imposed additional expense on the owner.
- [25]Strictly speaking, this argument is not relevant as it is not in dispute that the 1b classification was correct. The issue as to the 1b classification being correct, or otherwise, is not a matter that the Tribunal need consider. Regardless, as these are disciplinary proceedings, the Tribunal has considered, and rejected, the argument raised.
- [26]It is the case that Mr Holley had also performed the certification work for Mr Manteit in relation to a virtually identical dwelling next door, at 10 Ryena Street. However, in that instance, he issued a Decision Notice classifying 10 Ryena Street as a “Class 1a” building. The Building Code of Australia classifies a Class 1a building as:
- (i)a detached house; or
- (ii)one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or
…
- [27]Had Mr Holley classified 8 Ryena Street as a Class 1a building, it would then be necessary for the building to also comply with the BCC’s “House Code” restricting the number of persons who could live in it. The objective evidence before the Tribunal, based upon the number of unrelated persons (and there is no evidence that any of them were disabled) who were discovered living in the house by the Council, is that 8 Ryena Street was not intended to operate as disabled housing.
- [28]Despite correctly classifying 8 Ryena Street as a class 1b building, Mr Holley only followed through on the first of his requirements as a building certifier. After classifying the building as a 1b building, he needed to go a step further and classify it under the City Plan as a multi-unit dwelling. It is clear to me that this building fell under this definition from reading the plain literal meaning of the words and what the building appeared to be catered for. The bedrooms were aligned around a central kitchen and ‘common’ area.
Unsatisfactory conduct
- [29]The QBCC submits that Mr Holley has breached s 83(1)(a) by incorrectly categorising the building at 8 Ryena Street, and thus granting approval before all of the requirements, including the impact assessment and material change of use application had been made. QBCC submits that this amounts to unsatisfactory conduct as Mr Holley did not take all necessary steps to ensure the certification of the building work was brought into compliance with the Building Act 1975 (Qld) through ensuring that the necessary applications for proper development approvals were made.
- [30]Unsatisfactory conduct is defined in the Building Act 1975 (Qld) under Schedule 2 of the Act to include:
- (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.
- [31]The Tribunal finds that Mr Holley disregarded relevant and appropriate matters in performing the work at 8 Ryena Street, namely that it was obviously intended to be a multi-unit dwelling. There are grounds for the QBCC to have taken disciplinary action against Mr Holley.
Reprimand
- [32]The conduct before the Tribunal is one where there has been a clear failure to properly classify a building, that has resulted in many complaints being made to the Brisbane City Council by neighbouring property owners.
- [33]The QBCC asks that the Tribunal impose a reprimand under s 204(4)(a) of the Building Act 1975 (Qld). Mr Holley is an experienced private certifier, who has not had any disciplinary matters bought against him previously. The Tribunal has taken this into consideration in making a decision that a reprimand is appropriate.
Footnotes
[1]Affidavit of Michael Roy Pehrson, sworn to 15 May 2013, at [46]-[52].