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Lam v Queensland Building and Construction Commission QCAT 437
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lam v Queensland Building and Construction Commission  QCAT 437
Queensland Building and Construction Commission
17 December 2018
5 February 2018
The decision of the Respondent, the Queensland Building and Construction Commission, made 8 May 2017 is confirmed.
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – general administrative review – complaint of unprofessional conduct by a certifier in failing to ensure payment of infrastructure charges – issue of certificate of classification
Building Act 1975 (Qld), s 6, s 7, s 30, s 32, s 36, s 102(1)(c)
Sustainable Planning Act 2009 (Qld) (repealed), s 77, s 89
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
APPEARANCES & REPRESENTATION:
E Roberts, Solicitor, Robinson Locke Litigation Lawyers
REASONS FOR DECISION
- This is an application for a review of a decision of the Queensland Building and Construction Commission (QBCC) made on 8 May 2017. The purpose of the review is to produce the correct and preferable decision.
- The following course of events is uncontentious:
- (a)The applicant Mr Lam entered into a contract for the purchase of a house and land package dated 3 May 2013. The land is situated at 8 Hurse Street, Chinchilla.
- (b)By letter dated 17 June 2013, Western Downs Regional Council (WDRC) issue a Decision Notice granting a Development Permit for Material Change of Use to Smart Build Qld Pty Ltd, subject to compliance with certain conditions:
- Clause 3 of the Schedule of Conditions provides that all conditions of the approval shall be complied with before the change occurs (prior to the commencement of use) and whilst the use continues, unless otherwise noted within these conditions. All costs associated with compliance shall be the responsibility of the developer unless otherwise noted.
- Clause 8 provides that all infrastructure charges levied under the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act) are payable in conjunction with the Development Permit.
- (c)6 June 2013 – Infrastructure charges in the sum of $22,000.00 were levied by WDRC to Smart Build Qld Pty Ltd, said to be payable before the change occurs.
- (d)Searches undertaken by Mr Lam’s Solicitors on 4 July 2013 were not directed to infrastructure charges.
- (e)19 July 2013 – Settlement of the land component of the purchase by Mr Lam.
- (f)31 July 2013 – WDRC issued a Development Permit for Building Works to Smart Build Qld Pty Ltd. Clause 6 of the Schedule to the Development Application decision provides that the applicant is required to comply with the Development Permit for a Material Change of Use. The conditions attached to the Permit provide at clause 32 that development of the site is to be carried out in accordance with the Material Change of Use Assessment Approval and all conditions of the permit must be complied with.
- (g)Building work was completed December 2013.
- (h)20 December 2013 – Kevin Mizen, Building Certifier, issued a Certificate of Classification (Form 11) for the duplex at 8 Hurse Street, Chinchilla constructed by Smart Build Qld Pty Ltd.
- (i)21 October 2016 – The Planning and Environment Manager of WDRC issued a charge for outstanding infrastructure charges to Mr Lam.
Mr Lam’s Complaint
- Mr Lam complains that Mr Mizen should not have issued the Form 11 Certificate of Classification for an attached duplex, prior to payment by the developer of infrastructure charges. Mr Lam says that if Mr Mizen had addressed the issue Mr Lam would not have had to bear the charges in an amount of $22,000.00.
- Mr Lam complains that the building certifier engaged in unsatisfactory conduct or professional misconduct by failing to ensure compliance with the Material Change of Use condition requiring payment of infrastructure charges. Mr Lam says that Mr Mizen failed in his obligation under s 102(1(c) of the Building Act 1975 (Qld) (Building Act).
- On 8 May 2017, the QBCC decided that Mr Mizen had not engaged in unsatisfactory conduct or professional misconduct.
- Mr Lam seeks a review of that Decision.
Issues to be Determined
- The issues for consideration are:
- (a)Did Mr Mizen fail in his obligations under s 102 of the Building Act in force as at 31 July 2013?
Section 102 of the Building Act sets out an obligation on a Building Certifier to give a Certificate of Classification on inspection after particular events. The events are that the building has been substantially completed and a list of all prior safety installations and their locations have been given to the Building Certifier; and further by s 102(1)(c) that:
Any requirement under the building assessment provisions or a condition of the building development approval for a referral agency inspection of the building has been complied with or has ceased to apply.
- (b)Is the certifier responsible for ensuring that infrastructure charges are paid before issuing a certificate of classification?
- (c)If so, does that failure constitute unsatisfactory conduct or professional misconduct?
- Mr Lam argues that by amendment to the Building Act, made in 2006, an obligation was placed on a Certifier in s 102(1)(c) of the Act to consider if building assessment provision requirements have been met. By s 30 of the Building Act, building assessment work must be carried out under building assessment provisions which include local planning instruments. He submits that a local planning instrument is covered by the Sustainable Planning Act and by s 77 and s 89, a local planning instrument includes infrastructure charges.
- By that route, Mr Lam argues that the obligation of a Certifier extends to ensuring infrastructure charges, as part of a material change of use under the town planning requirements, have been met.
- The QBCC submits that the reference to a local planning instrument in s 30 of the Building Act is a reference to the Town Plan, not conditions attached to a Material Change of Use Application.
- The QBCC submits that the obligations of a Certifier, when issuing a Certificate of Classification relate only to structural issues associated with a building.
- In considering this matter I have referred to the version of the Building Act in force as at the date of issue of the Development Permit on 31 July 2013.
- Section 102 was inserted into the Building Act by the Building and Other Legislation Amendment Bill 2006 (Qld). The explanatory memorandum for the Bill refers to s 102(1)(c) but does not mention the obligation with respect to a requirement under the building assessment provisions. It simply says that the section provides that the Certificate of Classification cannot be issued to the owner unless any referral agency conditions or inspections have been complied with.
- Mr Pehrson, Senior Audit and Investigations Officer for the QBCC, filed affidavits in the proceeding and gave evidence. He lists in his qualifications having been a building certifier in Queensland since 1993. The QBCC have relied on a News Flash published by the then Queensland Department of Communication and Information Local Government and Planning, dated 16 December 1998, in relation to the extent of a certifier’s obligations in issuing a Certificate of Classification, as a guide to interpreting s 102 of the Building Act.
- I am reluctant to place too much reliance on that document because of its age and the fact that s 102(1(c) is a new provision which contains some differences to the previous arrangements appearing in the relevant Regulations.
- Mr Pehrson was cross examined by Mr Lam at the hearing. Mr Pehrson agreed with Mr Lam that s 102(1)(c) contains two separate conditions. I take that to mean that the first condition is that before a certificate of classification can be issued, any requirement under the building assessment provisions must have been complied with or ceased to apply. The second condition to be met before a certificate of classification can be issued is that a condition of the building development approval for a referral agency inspection of the building has been complied with or has ceased to apply. I agree that is how the subsection should be interpreted. I note that this is a different interpretation of the section than the interpretation set out in the statement of reasons for the decision.
- The key question is: what is meant by “any requirement under the building assessment provisions”? Do the words encompass payment of infrastructure charges which formed a condition of the material change of use approval?
- I do not think the words encompass payment of infrastructure charges for two reasons.
- The first reason is that in issuing a Certificate of Classification, Mr Mizen was not engaged in work covered by s 30 of the Building Act as contended for by Mr Lam.
- Section 30 of the Building Act provides that building assessment work must be carried out under laws and documents known as building assessment provisions. Those laws and documents are:
- (a)the Integrated Development Assessment System (IDAS);
- (b)Chapter 3 and this chapter;
- (c)the fire safety standard;
- (d)the fire safety standard (RCB);
- (e)any provisions of a regulation made under the Act relating to building assessment work or self-assessable building work;
- (f)any relevant local law, local planning instrument or resolution made under s 32 or any relevant provision under s 33;
- (g)the Building Code of Australia (BCA); and
- (h)subject to s 33, the Queensland Development Code (QDC).
- Section 7 of the Building Act defines building assessment work as the assessment under the building assessment provisions of a building development application for compliance with those provisions.
- Reading s 7 and s 30 together one sees that assessment of a building development application must be undertaken by reference to the laws and documents listed in s 30.
- Mr Mizen was not engaged in building assessment work when he issued the certificate of classification. Building assessment work relates to assessment of a building development application, which is an early step in the process before a development can commence. Section 6 of the Act defines a building development application as an application for development approval under the Planning Act to the extent it is for building work.
- The second reason why s 102(1)(c) of the Building Act does not encompass payment of infrastructure charges, relates to the proper construction of s 30(1)(f) of the Act. The sub-section is directed to the work of s 32 of the Act, whereby a local government may make or amend:
- (a)a local planning instrument that designates for the BCA or QDC matters under a regulation, for example designated bush fire prone areas for the BCA; and
- (b)a provision of a local law, planning scheme or resolution, about a matter incidental to building work under a regulation, for example swimming pool fencing or land liable to flooding.
- In all, s 30 requires that assessing a building development application must be carried out under certain laws and documents including any local planning instrument made under s 32. Section 32 does not cover infrastructure charges.
Conclusion in relation to Certifier’s obligations
- In this case care must be taken to fully understand what s 102(1)(c) requires. In plain terms, it provides that a Certificate of Classification must be be issued by a building certifier if three events have occurred. The first two events specifically require the involvement of the certifier through inspection of the building and receipt of fire safely installation information. The third event in s 102(1)(c) does not expressly require the involvement of the certifier.
- It is not possible in this matter to say what “requirement” under the building assessment provisions is being referred to in s 102(1)(c). However, it can be said that the requirement does not include payment of infrastructure charges, because there is no such requirement in the building assessment provisions referred to in s 30 of the Building Act.
- I find that Mr Mizen was not required to ensure payment of infrastructure charges forming part of the Material Change of Use conditions, before issuing the certificate of classification.
- For this reason, I find that Mr Mizen has not engaged in unsatisfactory conduct or professional misconduct as defined in the Building Act.
- I confirm the decision of the QBCC of 8 May 2017.
- Published Case Name:
Yewchai Lam v Queensland Building and Construction Commission
- Shortened Case Name:
Lam v Queensland Building and Construction Commission
 QCAT 437
17 Dec 2018