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Williams v Queensland Building and Construction Commission[2017] QCAT 110

Williams v Queensland Building and Construction Commission[2017] QCAT 110

CITATION:

Williams v Queensland Building and Construction Commission [2017] QCAT 110

PARTIES:

Donald Williams

Naomi Williams

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR274-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

20 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision made by the Queensland Building and Construction Commission is set aside.
  2. The conduct of the building certifier constitutes unsatisfactory conduct for the purposes of the Building Act 1975 (Qld).
  3. Pursuant to s 204 of the Building Act 1975 (Qld) the Tribunal intends to take no further action.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – CERTIFIER – review of decision that certifier had not engaged in unsatisfactory conduct or professional misconduct – whether built-to-boundary garage wall exceeded allowable height – effect of siting relaxation obtained from the Council subsequent to development approval

Brisbane City Plan 2000

Building Act 1975 (Qld), s 20, s 21, s 30, s 33, s 84, s 132, s 190, s 194, s 204, s 205, Schedule 2

Code of Conduct for Building Certifiers 2003

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Sustainable Planning Act 2009 (Qld), s 77, s 78A, s 80, s 236, s 241, s 684

APPEARANCES AND REPRESENTATION:

 

This matter was heard on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This matter concerns the review of a decision made by the Queensland Building and Construction Commission (QBCC) on 2 September 2015 not to take disciplinary action against a certifier. 
  2. [2]
    The application for review was made by Mr and Mrs Williams on 27 October 2015.  Mr and Mrs Williams are the owners of a property at 5 Cusack Parade, Wynnum. They want the Tribunal to review the decision made by the QBCC that Mr Stephen Bartley (the certifier) did not engage in unsatisfactory conduct or professional misconduct in relation to certifying functions of building works at an adjoining property at 7 Cusack Parade, Wynnum.
  3. [3]
    Central to this application is the question of whether the height of a garage wall built to the boundary should be measured from natural ground level or from the minimum floor level required by the Council in order to achieve flood immunity.

Statutory framework

  1. [4]
    Pursuant to s 190 of the Building Act 1975 (Qld) (the Building Act) a person may make a complaint to the QBCC about the conduct of a building certifier. If it is not a matter recommended for mediation the QBCC must investigate it.[1]
  2. [5]
    After investigating the complaint, the QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.[2]
  3. [6]
    If the QBCC makes a finding of unsatisfactory conduct it must decide to do one or more of the things listed in s 204(4). These include issuing a reprimand; imposing conditions on the certifier’s licence; directing the certifier to undertake further education; requiring the certifier to report on his or her practice as a certifier; requiring the certifier take all necessary steps to ensure the certification complies with the Building Act and for self-assessable development is not inconsistent with the requirements for self-assessable development and directing the certifier to take necessary enforcement action under the Building Act or another Act.
  4. [7]
    Under s 204(4)(g) if the QBCC is satisfied the certifier is generally competent and diligent the QBCC may advise the certifier that it does not intend to take any further action.
  5. [8]
    If the certifier or complainant is dissatisfied with the decision by the QBCC in relation to whether the certifier has engaged in unsatisfactory conduct or professional misconduct or what the appropriate sanction should be, the certifier or complainant may apply to the Tribunal for a review of the decision.[3]
  6. [9]
    Here the relevant decision was the decision by the QBCC that the certifier had not engaged in unsatisfactory conduct or professional misconduct.[4]
  7. [10]
    Under s 19 of the Queensland Civil and Administrative Act (QCAT Act), the tribunal:
  1. (a)
    must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
  1. (b)
    may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
  1. (c)
    has all the functions of the decision-maker for the reviewable decision being reviewed.
  1. [11]
    In reviewing the decision, the tribunal has the power to confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the QBCC.[5]
  2. [12]
    The tribunal must hear and decide the review by way of a fresh hearing on the merits.[6] The tribunal, standing in the shoes of the QBCC, must produce the correct and preferable decision.[7]
  3. [13]
    The issue before the tribunal is whether the certifier has engaged in unsatisfactory conduct or professional misconduct and, if so, what the appropriate sanction should be.

Background to the application

  1. [14]
    On 7 March 2014, the firm Bartley and Burns prepared a Planning Report Application under the Sustainable Planning Act 2009 for a Development Permit for: Material Change of Use: House in Demolition Control Precinct and Preliminary Approval for Building Works on land at 7 Cusack Parade, Wynnum (Lot 137 on RP 33048).
  2. [15]
    On 17 June 2014 the Brisbane City Council issued a Decision Notice with Conditions for a Material Change of Use Development Permit and Carry Out Building Work Preliminary Approval under s 241 of the Sustainable Planning Act 2009 (Qld) (the Planning Act).
  3. [16]
    A preliminary approval approves development only to the extent stated in the approval.[8]
  4. [17]
    The preliminary approval document states on every page in a text box in red that “This approval does not include any assessment for compliance with the Residential Design – Small Lot Code of Brisbane City Plan 2000.” It also advises that: “If the proposal does not comply with the Acceptable Outcomes of the Small Lot Code, a further development approval will be required”.
  5. [18]
    The certifier first became aware of the building works when the application for building approval was lodged on 3 September 2014.
  6. [19]
    On 24 October 2014 the certifier issued a Decision Notice for building works for a new dwelling on the property with approval conditions which included: Construction of the proposed development to be in accordance with Brisbane City Council Development Approval dated 17/06/2014 (the building approval).
  7. [20]
    Building works commenced on the property in November 2014 and the applicants identified an issue with the garage wall and notified the Brisbane City Council (the Council) in December 2014.
  8. [21]
    The applicants notified the Council of a complaint by telephone in December 2014. They were told by the Head of the Council Approvals Team that the wall was approved to a height of less than 3.5 metres and that the height was to be measured from natural ground level.  A formal complaint was then lodged with the Council but by the time the complaint was investigated (some 8 weeks later) the wall brickwork had been laid.
  9. [22]
    A Council Compliance Officer measured the wall in late January 2015 and stated that it was 4.3 metres at its lowest. Later correspondence from the Compliance Team was that the certifier had not included the garage floor in his measurement of the height and that the Compliance Team agreed with that approach.
  10. [23]
    On 20 January 2015, the QBCC received a complaint from the applicants that the certifier had engaged in unsatisfactory conduct or professional misconduct.
  11. [24]
    The applicants’ complaint was investigated by the QBCC and on 20 May 2015 a decision was made that the certifier had not engaged in unsatisfactory conduct or professional misconduct.
  12. [25]
    On 6 June 2015 the applicants sought an internal review of the decision by the QBCC. This decision was subject to an internal review which was conducted following a site inspection on 16 July 2015. The decision was made on 2 September 2015 to confirm the initial decision by the QBCC.

What did the certifier certify?

  1. [26]
    The certifier issued a Building Approval (or Decision Notice) for a new residential dwelling. The building approval shows the built to boundary wall roofline as constructed. The building certifier assessed his approval against Council’s development approval and the Small Lot Code of Brisbane City Plan 2000. The preliminary approval issued by Council on 17 June 2014 made it clear that the Council had not considered the Small Lot Code, but the certifier’s view was that the built to boundary wall complied with the Small Lot Code and the Building Approval (Decision Notice) was issued by the building certifier accordingly. 
  2. [27]
    Under the Sustainable Planning Act 2009 (Qld) (Planning Act) a development permit is not necessary for self-assessable development.[9]

The principal issue

  1. [28]
    The principal issue is the level of assessment for the development application. The certifier proceeded on the basis that the application was compliant with the Small Lot Code and was self-assessable. The applicant contends that the application was impact assessable. The outcome of the dispute depends upon the proper interpretation of the Residential Design-Small Lot Code. 

The height of the garage wall

  1. [29]
    At the heart of the complaint is the issue whether the certifier’s decision to approve the overall height of the garage built to boundary wall was inconsistent with the Small Lot Code, Brisbane City Plan 2000.
  2. [30]
    The applicant says that it was because the height of the wall is to be measured from natural ground level. The certifier argues, on the other hand, that the height is not measured from natural ground level but, in this case, where minimum floor levels are required to achieve flood immunity, from the floor level. If the height of the wall is to be measured from natural ground level, then it offends the Small Lot Code. On the other hand, if the height is to be measured from the minimum floor level for flood immunity it does not.

What are the relevant requirements?

  1. [31]
    All building work is assessable development unless it is exempt or self-assessable development.[10]  Building work is self-assessable if it is prescribed under a regulation and complies with relevant provisions of a planning scheme.[11] A planning scheme is a local planning instrument under the Planning Act.[12] It also has the status of a statutory instrument with the force of law.[13]
  2. [32]
    Under s 78A of the Planning Act, a local planning instrument must not include provisions about building work to the extent the building work is regulated under the building assessment provisions, unless permitted under the Building Act. Section 32 of the Building Act provides that a local government may make alternative provisions that may form part of the building assessment provisions under s 33. Section 33 applies, relevantly, to building assessment work or self-assessable building work for a single detached class 1 building. If there are alternative provisions the QDC boundary clearance and site cover provisions only apply to the extent the alternative provisions do not apply to the work.[14]
  3. [33]
    The development approval was given with conditions on 17 June 2014.  The Brisbane City Plan 2014 came into effect on 30 June 2014. The development application is not assessable under the Brisbane City Plan 2014 because new planning instruments cannot affect existing development approvals.[15] A development approval is defined to include a decision notice that approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it).[16] Development approval was obtained from the Council on 17 June 2014. The relevant applicable planning instrument is therefore the Brisbane City Plan 2000.
  4. [34]
    The property is approximately 563sqm in area and has an average width of less than 15m which means it is classified as a small lot under the Brisbane City Plan 2000.[17] It is therefore subject to the requirements of the Residential Design-Small Lot Code.
  5. [35]
    The Wynnum Manly Neighbourhood Plan (Chapter 4) does not impact on the house as the subject site is not located within a defined precinct under the Neighbourhood Plan where any alternate Level of Assessment Table is deemed to apply.

What is the level of assessment?

  1. [36]
    Under the Small Lot Code, Brisbane City Plan 2000[18] (Small Lot Code), a house that complies with the Acceptable Solutions of Part 1 of the Code is self-assessable against Part 1 only and does not have to be assessed against Part 2 of the Code.[19] If the house does not comply with the Acceptable Solutions of Part 1 of the Code then it is impact assessable against Part 1 and Part 2 of the Code.[20]
  2. [37]
    When the Small Lot Code is listed in a level of assessment table in Chapter 3 of the Brisbane City Plan 2000 as an Applicable Code for self-assessment the Code is to be read as being the Acceptable Solutions of Part 1 only.[21]
  3. [38]
    When the Small Lot Code is listed in a level of assessment table in Chapter 3 as an Applicable Code for code assessment or as a Relevant Code for impact assessment the Code is to be read as being the Purpose, Performance Criteria and Acceptable Solutions.[22]
  4. [39]
    The property is in a Low Density Residential Area; Demolition Control Precinct and is subject to the Wynnum Manly Neighbourhood Plan. It is also land affected by creek/waterway and/or Brisbane River Flooding.
  5. [40]
    Under Chapter 3 of the Brisbane City Plan 2000 there is a section titled Brisbane Interim Flood Response. The Brisbane Interim Flood Response sets the levels of assessment as follows:

Development specified in Table 1, Column 1 of the Brisbane Interim Flood Response on lots, any part of which are affected by the IRFL…have the level of assessment specified in Table 1, Column 2 and must comply with the applicable Brisbane City Plan 2000 (City Plan) codes specified in column 3 and the Additional Purpose, Additional Performance Criteria and Additional Acceptable Solutions specified in Table 1, Columns 4, 5 and 6.[23] 

  1. [41]
    Table 1 is titled Assessment table for specific development where affected by creek/waterway and/or Brisbane River Flooding. Under Table 1, a house in a Low Density Residential Area affected by flooding which is a small lot and in a Demolition Control Precinct is:
    1. Self-assessable - where complying with the Acceptable Solutions in the House Code as varied by the additional Acceptable Solutions in column 6 and where complying with the Acceptable Solutions in Part 1 of the Residential Design – Small Lot Code and where complying with the Residential Design – Character Code.
    2. Code Notifiable – where complying with the Acceptable Solutions in Part 1 in the Residential Design-Small Lot Code as varied by the deletion of Acceptable Solution A2 relating to building heights;
    3. Impact Assessable (generally inappropriate) – where not complying with the Acceptable Solutions in Part 1 of the Small Lot Code as varied by the deletion of Acceptable Solution A2 relating to building heights.[24]
  2. [42]
    I will return to the Brisbane Interim Flood Response below.

Have the Acceptable Solutions in Part 1 of the Small Lot Code been met?

  1. [43]
    The relevant development is only self-assessable if it complies with the Acceptable Solutions in Part 1 of the Small Lot Code.
  2. [44]
    In interpreting a planning scheme the document should be read broadly rather than pedantically, and adopting a sensible, practical approach.[25]  As in the construction of any statutory document, it is appropriate to construe the scheme consistently with its relevant purpose.
  3. [45]
    The Acceptable Solutions represent the preferred way of complying with the Performance Criteria.
  4. [46]
    Part 4 of the Small Lot Code provides, by Performance Criteria 1:

Houses on small lots must minimise amenity impacts on other dwellings and their open space in terms of access to sunlight and daylight.

Building size and bulk is consistent with surrounding development

Building size and bulk must not create overbearing development for neighbouring dwellings and their open space

Small lots must include an appropriate balance of built form and open space.

  1. [47]
    Performance Criteria 1 of the Small Lot Code which concerns Building Envelope is intended to protect the amenity of adjoining lots by: minimising impacts on other dwellings and their open space in terms of access to light; and by providing that building size and bulk must not create overbearing development for neighbouring dwellings.  The Acceptable Solutions should be construed in that context.
  2. [48]
    Part 1, Acceptable Solutions provides in relation to “Building Envelope” that:

A1.2 Built to boundary walls are as specified in Table 1 Building Envelope Requirements.

  1. [49]
    Table 1, Building Envelope Requirements, provides:

Element

Requirement

Side boundary setback and built to boundary walls

Minimum of 1.5 to wall, with minimum 0.9m setback for eaves and window hoods.

Built to boundary walls are:

  • limited to one side boundary
  • limited to non-habitable rooms with no windows or openings to the side boundary
  • a maximum total length of 9m
  • a maximum average height of 3.5m
  • a maximum height of 4.5m
  • no closer than 1.5m to a window in a habitable room of an adjoining dwelling
  1. [50]
    It is noted that Table 1 does not, in its terms, deal with the level from which the various heights are to be measured.  In my opinion, the correct level from which to measure the wall height is ground level. I am of that opinion for the following reasons:
    1. this interpretation is more consistent with the intent of the Performance Criteria;
    2. to accept the position of the QBCC would mean that the point from which the height of a wall was to be measured, that is, the proper interpretation of the Acceptable Solution, would differ from one parcel of land to another;
    3. elsewhere in the Small Lot Code, namely Chapter 5 Technical drawings and illustrations[26] display ground levels and indicate heights are to be measured from there; and
    4. because, as I shall come to shortly, the subsequently promulgated Additional Performance Criteria concerning land subject to flooding does not take the opportunity to provide differently in respect of flood prone land.
  2. [51]
    The “Definitions” section of the Brisbane City Plan define “ground level” as the level of the land at the time the original estate was subdivided, and the roads through the estate created, as determined by a licensed cadastral surveyor using best evidence.
  3. [52]
    As the wall clearly exceeds the height requirement of the Acceptable Solution in the Small Lot Code it is not self-assessable.
  4. [53]
    Because it does not comply with the Acceptable Solutions it is Impact Assessable.
  5. [54]
    The certifier has not adopted the correct level of assessment.

What is the effect, if any, of the Additional Performance Criteria for land subject to the Brisbane Interim Flood Response?

  1. [55]
    I referred above to Chapter 3 of the Brisbane City Plan 2000 and to the Brisbane Interim Flood Response (BIFR). The BIFR qualifies the levels of assessment prescribed by the Small Lot Code where the BIFR applies in such a manner as to do so.
  2. [56]
    The effect of the application of the BIFR to this development is not to change the level of assessment but to impose an additional requirement, namely, that in column 5. For the reasons above, the house did not comply with the Acceptable Solutions in Part 1 of the Small Lot Code which meant it was Impact Assessable.
  3. [57]
    I would add that the Additional Performance Criteria in Chapter 3, Table 1 which permit buildings to be higher to the extent required to achieve flood immunity do not, in my view, address the issue of boundary wall height.
  4. [58]
    Table 1, column 5 provides:

Buildings may be higher than adjoining properties to the extent required to achieve flood immunity for the IRFL and creek/waterway flooding.

  1. [59]
    Column 5 refers to building height, not to the height of built to boundary walls. It may be that a component of a building of greater height to adjoining properties would also involve boundary walls higher than the Small Lot Code permits: that would be a question of design.
  2. [60]
    However, as stated above, column 5 does not affect the level of assessment. Its effect, so far as it may be relevant to a particular proposal, may concern whether there is a conflict with the planning scheme and, if so, whether there are sufficient grounds to permit the proposal notwithstanding the conflict. It is not necessary for me to determine that particular matter here.
  3. [61]
    Further, it is no answer to say that the Council approved the plans. The development approval issued by the Council clearly states that it does not include any assessment for compliance with the Residential Design – Small Lot Code of Brisbane City Plan 2000. In other words, it was up to the certifier to ensure that the building works complied with the Small Lot Code.
  4. [62]
    The wall is obtrusive and unsightly. In the words of the performance criteria, it does not minimise amenity impacts on adjoining lots and it is overbearing.
  5. [63]
    In these circumstances, I find the certifier has not acted consistently with the provisions of the Small Lot Code in that the height of the wall as constructed exceeds the height allowed. The consequence of this is that the house was impact assessable and not self-assessable. The certifier proceeded to assess the house as though it was self-assessable in circumstances where the height of the wall did not comply with the height requirements in Part 1 of the Small Lot Code.

Effect of the siting relaxation for the wall

  1. [64]
    The respondent has brought to the attention of the Tribunal that on 19 May 2015, after the Decision of the certifier but before the decision of the Respondent, the Council granted a relaxation in respect of any relevant non-compliance with the Small Lot Code.
  2. [65]
    The respondent contends that the relaxation notice was not necessary because the application was compliant with the Small Lot Code.
  3. [66]
    I have found above that the proposal was impact assessable. If that is correct, then, in my view, Council had no power to grant the relaxation unless and until the process of impact assessment had been followed.

The Planning Application and the character of the area

  1. [67]
    Although the issue is not expressly dealt with by the QBCC, the applicants, in their application for review under the heading, Briefly describe any other facts you think are important, state:

The applicant…stated that Bartley Burns town planners (who Stephen Bartley worked for at the time of the build), had submitted false and misleading documents in their application in regards to the character overlay and had continued to provide misleading information in their response to council documents through the development process…

  1. [68]
    Further, in Attachment H to the application, which is a letter from the applicants to the Head of the Development Team East (Brisbane City Council) it is stated:

Council has not addressed our concerns in regards to the planning submission from Bartley Burns and the council response in regards to the existing character overlay for our area. We believe that Bartley Burns have supplied documentation which does not accurately convey the character overlay. The selection of properties photographs which they have supplied the council are the least representative of any properties in our local area and their explanations and responses in regards to surrounding properties does not accurately reflect what is in fact representative of the surrounding properties.

  1. [69]
    Under s 587(2)(b) of the Planning Act, a person must not give to a concurrence agency a document containing information that the person knows is false or misleading in a material particular. ‘Person’ includes a body of persons, whether incorporated or unincorporated.[27]
  2. [70]
    The applicants have the onus of establishing that the provision has been contravened.[28] It is accepted that proof of the commission of a development offence under the Planning Act is to be assessed by reference to the civil standard and the “sliding scale” contemplated in Briginshaw v Briginshaw.[29]
  3. [71]
    The applicants are of the view that the development application submitted by the firm which employed the certifier at the relevant time, was false or misleading because it did not accurately represent the character of the area. In establishing this, the applicants rely on photographs of adjoining properties to the development which are older, traditional homes and on photographs of 3 other older style properties in the street.
  4. [72]
    In my opinion, there is insufficient evidence to prove to the requisite standard the alleged contravention of the Act.
  5. [73]
    First, the relevant Planning Report (the Report) was prepared by a Senior Town Planner in March 2014. The evidence from the certifier is that he first became aware of the development on 3 September 2014, after the Report was submitted.[30] 
  6. [74]
    The Report states that the proposal is “compatible with other development in the immediate area” and “is sympathetic to the scale and character of surrounding development and warrants approval subject to reasonable and relevant conditions”.  Further, that the proposal is “generally consistent with the provisions of the Residential Design – Character Code”.[31]  Under the heading “Characteristics of Surrounding Environment” in the Report it is stated:

Houses within the surrounding area represent a consistent mix of timber and tin, and brick and tile dwellings, along with multi-unit dwellings of the “6 pack” development style.

It is evident that there is significant variation in housing type, era and design within the immediate and general surrounds. Accordingly, the ability for the proposed design to sit comfortably within the streetscape is far greater, given the lack of identifiable “theme” (design/era/bulk or scale) along the street.[32]

  1. [75]
    In my view, the applicants have not produced sufficient evidence to establish that statements concerning the character of the surrounding area contained within the Report were misleading in a material way. Whether or not a particular proposal is consistent with the character of an area is a matter of judgment and opinion. Further, the character of an area requires identification of the area under consideration and an assessment of “character” which, in my view, is likely to require a more detailed and comprehensive assessment of an area than can be gleaned from the photographs submitted by the applicants.
  2. [76]
    The material in the Report suggests that if, once, the character of the area consisted of old timber and tin houses it has, at least partly, been changed by that which has been developed since.
  3. [77]
    There is, put simply, insufficient material upon which I can identify the character of the area or whether the character of the area is offended by the proposal.
  4. [78]
    For these reasons, and because the certifier was not involved at the planning application stage, I am not satisfied that the certifier has contravened s 587 of the Planning Act.

Was this conduct unsatisfactory conduct or professional misconduct

  1. [79]
    The definition of ‘unsatisfactory conduct’ is:

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

  1. conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
  2. 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;
  1. 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.[33]
  1. [80]
    The definition of ‘professional misconduct’ is:-

Professional misconduct for a building certifier or former building certifier, includes the following –

(a) conduct that –

  1. shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
  2. compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and
  3. is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including. For example –

(A) disregarding relevant and appropriate matters; and

(B) acting outside the scope of the building certifier’s powers; and

(C) acting beyond the scope of the building certifier’s competence; and

(D) contravening the code of conduct; and

(E) falsely claiming the builder certifier has the qualifications, necessary experience or licence to be engaged as a building certifier

(b) seeking, accepting or agreeing to accept a benefit, whether for the benefit of the building certifier or another person, as a reward or inducement to act in contravention of –

(i) this Act; or

(ii) another Act regulating building certifiers, including private certifiers for building work;

(c) failing to comply with an order of the QBCC or the tribunal;

(d) fraudulent or dishonest behaviour in performing building certifying functions;

(e) other improper or unethical conduct;

(f) repeated unsatisfactory conduct.[34]

  1. [81]
    The certifier, by his conduct, proceeded to assess the building application as if it were self-assessable in circumstances where it was, in fact, impact assessable.
  2. [82]
    If a building certifier does not comply with a provision of the Building Act about building or private certifying functions and there is no penalty for the failure to comply, the failure is taken to be conduct that is contrary to a function under the Act, for the purposes of “unsatisfactory conduct”.[35]
  3. [83]
    Here, the certifier did not comply with s 30(1)(a) of the Building Act as he did not carry out the building assessment work in accordance with IDAS. There is no penalty for the failure to comply. This failure is therefore taken to be unsatisfactory conduct. If I am wrong about whether s 30 is a provision to which s 132 applies, I find also that the certifier did not comply with s 127 in that he contravened the code of conduct.[36] The code of conduct is that made by the chief executive on 20 October 2003 and tabled on 14 November 2003.[37] The code is subordinate legislation[38] and lists standards of conduct and professionalism required to be met by certifiers. In this case the certifier did not comply with legislative requirements that govern building certifiers in the performance of building certifying functions in breach of clause 3 of the code.
  4. [84]
    I turn now to consider sanction.
  5. [85]
    Section 204(4) of the Building Act provides that if the QBCC (in the position of which the tribunal now stands) decides the building certifier has engaged in unsatisfactory conduct it must decide to do one or more of the things set out therein. The options include reprimanding the certifier; imposing conditions on the certifier’s licence; directing the certifier to complete further education; directing the certifier to report on his practice as a certifier; requiring the certifier to take all necessary steps to ensure the certification of building work complies with the Building Act and any other necessary development approvals; directing the certifier to take necessary enforcement action; or advising the certifier that no further action will be taken.
  6. [86]
    The certifier has provided reasons for measuring the wall height from the minimum floor level rather than from ground level.  The certifier relies on the following:
    1. The Council stamped approved plans showed compliance with condition 14 which required minimum floor levels to achieve flood immunity and the height of the wall as measured from the floor level in the elevation plans.
    2. The height taken from the minimum floor level was reasonable in view of the absence of an express direction that the height was to be taken from natural ground level;
    3. The effect of Table A, column 5 in Chapter 3 of the City Plan permits buildings to be higher than adjoining properties to the extent necessary to achieve flood immunity and applies to the height of a built to boundary wall; and
    4. The materials used to construct the footing structure for the wall and the wall itself were different.
  7. [87]
    There are reasons why, notwithstanding the nature of the breach, it would be inappropriate to direct the building certifier to take enforcement action or action under s 204(4)(e).
  8. [88]
    First, the authorities show such an order to be very rare in circumstances the relevant building has been completed, which is the case here.[39] Alone, that would, in my opinion, be reason enough here not to make such an order.
  9. [89]
    Secondly, the building owner is not a party to the proceedings and has not had an opportunity to be heard on the issue. I note the building owner would not be bound by my findings concerning the meaning of the relevant Code provisions.
  10. [90]
    Because the contravention involved a difference of opinion about the interpretation of the Code, in circumstances when the view taken was open, I do not propose to impose conditions on the building certifier’s licence; or to direct the certifier to complete any educational courses. For the same reason, I decline to direct that the certifier be subject to reporting requests.
  11. [91]
    I have considered whether to reprimand the certifier. Had the certifier taken a view of the Code which was plainly untenable I would have been inclined to do so. However, that is not the case here.
  12. [92]
    There is no material before me which suggests that the certifier is otherwise than generally competent and diligent. I note, in particular, that the QBCC has not advised me otherwise. In the absence of any material to the contrary, and in the absence of a suggestion to the contrary by the QBCC, I am prepared to find that I am satisfied that the building certifier is generally competent and diligent.
  13. [93]
    Accordingly, I will pursuant to s 204(4)(g) advise the building certifier that the Tribunal does not intend to take any further action.
  14. [94]
    I am conscious that the applicants brought the contravention to the attention of Council as soon as they became aware of it and in a timely way. Unfortunately, the Council did not advise the applicants of the view of the Council for a period of some eight weeks and then advised a view which, in my opinion, was incorrect.
  15. [95]
    Be that as it may, it may nevertheless have been open for the applicants to have sought declaratory relief in the Planning and Environment Court, although I express no final view about whether such an application would have been successful.
  16. [96]
    It is important to note that the primary purpose of the proceedings brought by the applicants against the building certifier is to have the QBCC assess whether the certifier should be disciplined for contravening the provisions of the Building Act.  Thus, in these proceedings I am concerned to assess the conduct of the building certifier. The building certifier took a view of the Code which was different from mine and, in my opinion, was incorrect. The view however, was one which was open, and to take a different view which was open does not, in my opinion, amount to conduct warranting a reprimand or other sanction.

Conclusion

  1. [97]
    The decision of the QBCC is set aside.
  2. [98]
    The conduct of the building certifier constitutes unsatisfactory conduct for the purposes of the Building Act 1975 (Qld).
  3. [99]
    Pursuant to s 204 of the Building Act 1975 (Qld) the Tribunal intends to take no further action.

Footnotes

[1] Building Act 1975 (Qld), s 194(1)(a), s 194(2).

[2] Ibid, s 204(4).

[3] Building Act, s 204, s 205.

[4] Ibid, s 204(1).

[5] QCAT Act, s 24.

[6] Ibid, s 20(2).

[7] Ibid, s 24.

[8] Sustainable Planning Act 2009 (Qld), s 241(1)(i).

[9] Planning Act, s 236.

[10] Building Act, s 20.

[11] Ibid, s 21(2).

[12] Planning Act, s 77.

[13] Ibid, s 80.

[14] Building Act, s 33(4).

[15] Planning Act, s 684.

[16] Planning Act, Schedule 3.

[17] Residential Design-Small Lot Code, 1. Application, at 155.

[18] The Residential Design – Small Lot Code is contained in Chapter 5, Volume 1 of the Brisbane City Plan 2000.

[19] Small Lot Code, 155.

[20] Ibid.

[21] Ibid.

[22] Ibid, at 156.

[23] Brisbane City Plan, Chapter 3, Schedule A, 10.

[24] Brisbane City Plan 2000, Chapter 3, Table 1, 17-18.

[25] Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41.

[26] Small Lot Code, 164-164f.

[27] Planning Act, Schedule 3.

[28] Phillips v Wareham [2015] QPEC 5, [11].

[29] Ibid.

[30] Certifier’s Response to Complaint dated 12 February 2015.

[31] Planning Report by Bartley Burns, 5.

[32] Ibid, 8.

[33] Building Act, Schedule 2.

[34] Building Act, Schedule 2.

[35] Ibid, s 132.

[36] Ibid, s 127(2)(e).

[37] Ibid, s 129(1).

[38] Ibid.

[39] Nimmo v Land One Solutions Pty Ltd [2006] QPEC 58 at [14].

Close

Editorial Notes

  • Published Case Name:

    Donald Williams and Naomi Williams v Queensland Building and Construction Commission

  • Shortened Case Name:

    Williams v Queensland Building and Construction Commission

  • MNC:

    [2017] QCAT 110

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    20 Mar 2017

Appeal Status

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

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