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Maltby v Queensland Building and Construction Commission QCAT 66
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Maltby v Queensland Building and Construction Commission  QCAT 66
TREVOR FREDERICK MALTBY
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
15 March 2019
25 and 26 June 2018
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – private certifier engaged in professional misconduct and repeated acts of unsatisfactory conduct – fire damaged house removed and relocated whether approval was for base platform and footings for relocated dwelling or for complete renovation - certifier issued final certificate for foundation and excavation – whether final certificate could be issued for a stage of construction – compartmentalised approvals – certifier’s concern for dwelling which he considered structurally inadequate, contained asbestos and should have been demolished – yet failed to advise anyone as not within scope of his engagement – whether building certifying function in the public interest required the reporting of such matters – whether findings of unsatisfactory conduct not the subject of the review can be taken into account as repeated unsatisfactory conduct towards a finding of professional misconduct
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – ‘rebuilding’ and ‘relocatable building’
Building Act 1975 (Qld), s 71, s 94, s 95, s 99(2), s 136,
s 142, s 149, s 204
Building Code of Australia
Building Regulation 2006 (Qld), s 24(3), s 30, s 32
Local Government Act 2009 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 86(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20
Sustainable Planning Act 2006 (Qld), s 13, s 335(1)
Sustainable Planning Regulation (Qld)
Banool Developments Pty Ltd (1973) 129 CLR 138
Bragg v Hurstville Municipal Council (1971) 21 LGRA 292
North Sydney Municipal Council v Stevens (1992) 75 LGRA 337
Schwede v Queensland Building Services Authority  QCCTB 157
APPEARANCES & REPRESENTATION:
G I Thomson of Counsel, instructed by Barry Nilssen Lawyers
R C Schulte instructed by the Queensland Building and Construction Commission
REASONS FOR DECISION
- Mr Shaw purchased a renovated house property on 6 April 2014 for $300,000. It was advertised as ‘Completely renovated to a New Standard - No one has lived in this home, in this location’. It was renovated by owner/builder Peter Ruckman. The house was situated at 15 Starling Crescent, Condon. Hereafter, I will refer to it as the ‘Starling Crescent’ property. Prior to purchasing the house Mr Shaw investigated its history. As part of those investigations he obtained documents from the Burdekin Shire Council (‘BSC’). Those documents indicated to him that the construction of the dwelling had been stamped and approved by private certifier employed by the Council. The Form 21 Final Inspection Certificate had been signed by the Applicant, Mr Maltby.
- Shortly after settlement he moved into the property. Whilst moving a bed into the first bedroom the floor gave way.
- Subsequent investigations revealed that the house had been moved from Aitkenvale to Condon and that prior to its removal it had been substantially damaged by fire.
- On 19 August 2015 Mr Shaw was served with an Enforcement Notice issued by the Townsville City Council (‘TCC’). He was given an option to either repair the building up to a level that it complied with the applicable building codes and standards or, demolish it.
- To comply with the Enforcement Notice Mr Shaw engaged LCJ Engineers to provide a report. The report was scathing to say the least. The authors found:
- (a)multiple significant structural defects, several of which represent a hazard to the occupants;
- (b)the timber floor and beams under the kitchen area and adjacent to the rear deck were structurally inadequate;
- (c)the front bedroom 2 should be closed off as it represented a significant risk to the occupants and in each area fire damage was significant and compromised the structural integrity of the residence including the roof structure which, the author thought, may fail under cyclonic winds and should be demolished;
- (d)the cost to repair the structure was comparable to the costs to demolish and rebuild it;
- (e)the ground floor slab was not constructed in accordance with applicable standards of the code;
- (f)the house to be in such a state that it was recommended that it be demolished.
- The experience had a deleterious effect on Mr Shaw’s health, and he suffered an exacerbation of his major depressive illness. At the time of hearing Mr Shaw was not able to occupy the dwelling because of its structural inadequacy nor did he have sufficient means to either demolish it or carry out the extensive rectification it required.
- The parties have filed an Agreed Statement of Facts and Issues that greatly assisted me in reaching a decision in this matter. Where appropriate I have indicated in these reasons those facts/issues that are agreed.
- At the time of the events the subject of this review:
- (a)Mr Maltby was employed by the BSC as a private certifier;
- (b)He held a private certifier (class A) licence under the Building Act 1975 (Qld); and
- (c)A licence issued by the Commission in class of building certifier level 2. As from 6 January 2016 the licence has not been renewed.
- (d)He resigned from the BSC in August 2014. These matters are agreed.
- By a letter dated 19 March 2015 Mr Shaw lodged a complaint with the Queensland Building and Construction Commission (‘the Commission’) in relation to Mr Maltby's conduct in certifying the completion of the dwelling. The letter set out in detail particulars of his complaint. Subsequently, the previous homeowner, Peter Ruckman made a complaint about Mr Maltby's conduct in issuing a Form 21 Final Certificate.
History of approvals and inspections
- Mr Peter Ruckman on behalf of the building owners (I H, R & P Ruckman) lodged IDAS Forms 1 and 2 with the BSC. A Form 2 was required for development applications for building works requiring assessment against the Building Act 1975 (Qld).
- For the proposed nature of the building work Mr Ruckman ticked ‘new building or structure’. He was then referred to Table A which required a ‘Description of new buildings, structures, repairs, alterations and additions’. He inserted in hand writing ‘RELOCATION OF DWELLING’. It is accepted that someone in the office of the BSC, subsequently, changed the entry to read ‘Erect Relocated RELOCATION OF DWELLING’. Other information provided in hand writing included the building classification which was ‘1a’ and the maximum number of storeys as ‘1’. Other entries include the proposed value of the work $25,000. Under proposed construction material, Mr Ruckman had ticked External walls – timber, Frame – timber, Floor – timber and Roof covering – steel. The form was undated but has an electronic imprint of 22/7/2010 and consisted of 24 pages in total. It is agreed that the application had attached:
- (a)BSA confirmation of insurance for work described as ‘1 x RE-STUMPING AND/OR ASSOCIATED WORK AS PER CONTRACT’. A Notified Contract Value of $25,000 is insured;
- (b)Cardno Site Classification Investigation Report dated 22 June 2010;
- (c)Copy of rates notice with hand marked identification of payment;
- (d)A BERS Pro-Building Energy Rating Certificate dated 20 August 2010;
- (e)Compliance Certificate for Building design specification dated 28 June 2010 certifying footings and floor slab design;
- (f)Quote from Ace House Relocators (ACE) dated 26 May 2010. The quoted price was $40,000 and had specific inclusions/exclusions noted;
- (g)Architectural plans (Noel Steele, June 10- Sheet numbers 1-4);
- (h)Engineering drawings and design (Northern Consulting Engineers MJ1188)
- Mr Maltby gave notice of his engagement as a private certifier to Mr Ruckman pursuant to s.43 of the Building Act 1975 (Qld). The date of the engagement is recorded in the Form as 22 September 2010. The Form is accompanied by notes for the benefit of the owner of detailed information about the certifier’s responsibilities. The Applicant had ticked 4 stages for which fees would be payable, namely ‘Foundation and excavation, Slab stage, Frame stage and Final stage’. The land was described as being in the TCC local authority.
- A Development Application Decision Notice – Development Permit – Building work dated 28 September 2010 signed by Mr Maltby issued under the letter head of BSC. It bore the development permit No BLD10\0926 and related to the removal of dwelling.
- A Development Application Decision Notice – Development Permit – Building work dated 28 September 2010 signed by Mr Maltby issued under the letter head of BSC. It stated that Development Application No BLD10\0928 was assessed and approved with conditions. It names the builder as ACE and described the building work as Class 1A – Erect Relocated Dwelling. Under nominated conditions that applied to the approval the following warrants mention:
- This approval is valid for a period of two (2) years OR for six 6 months for pools/spas and will lapse unless it is commenced and completed in that time. Building work relating to demolition or relocation must be commenced within two (2) months of the approval being given and completed within six (6) months of the approval being given please note that in terms of the Sustainable Planning Act, the currency period can only be extended if the request is received before the approval lapses.
- The following inspections will be required for your building project:
- On or about 23 December 2010, before the building was removed, it was extensively damaged by fire. According to the records of the Queensland Fire and Emergency Services 75% of the dwelling was involved in the fire and if not destroyed was damaged.
- On or about 16 or 17 December 2011 it is stated that the dwelling was transported in two separate sections to its new site at Starling Crescent. However, in addition to the dwelling being split the roof was removed, so in fact, there were 3 sections. It was still fire damaged.
- ACE spliced the relocated dwelling parts together and constructed the ground level support structure including metal support columns, beams and bracing. They also carried out the footing excavation and poured the concrete slab.
- Mr Ruckman then carried out the remaining building work as an owner-builder. Initially, he was unlicensed as an owner-builder. Subsequently, he obtained a licence.
- On 9 January 2012, the Applicant inspected the foundation and excavation stage of the building's footing systems. He issued a Form 16 stage inspection certificate.
- On 13 January 2012 the Applicant inspected the building sub-floor supporting structure and on 18 January 2012 issued a Form 21 Final Inspection Certificate.
- The certification clause contains the following entry:
I certify that on an inspection carried out in accordance with best industry practice, the building work for the above building or structure was inspected and complies with the building approval or certificates of inspection were accepted from competent persons at the following stages of the construction.
Date of inspection
Date of certificate
Foundation and excavation stage
- At the time of the two inspections the Starling Crescent approval had lapsed and was no longer effective. At the time of the Final Inspection Certificate the building was far from complete. At that time, work had reached a stage where:
- (a)rebuilding rectification of the dwelling's fire damaged timber framework was still taking place; and
- (b)other aspects, including but not limited to the installation of windows, roof cladding, internal linings, waterproofing of wet areas, external stairs, balustrades and smoke alarms, had not yet been installed.
The Commission’s findings and reviews
- On receipt of the complaint by Mr Shaw the Commission investigated and on 7 December 2015 pursuant to section 204 of the Building Act 1975 (Qld) the Commission provided to the Applicant and Mr Shaw an Information Notice. It determined that the Applicant was guilty of 3 counts of unsatisfactory conduct and one count of professional misconduct. That determination was a pre-cursor to the Commission implementing disciplinary proceedings in the Tribunal under section 208 of the Building Act 1975 (Qld).
- The decision was reviewable pursuant to section 86(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
- The Applicant sought an internal review under section 86C of the QBCC Act. In his application he submitted that he had complied with section 71 of the Building Act 1975 (Qld) in that, on his interpretation, that section applied to demolition and removal and not to relocation approval for re-siting of the building at Starling Crescent. His argument was that the term ‘rebuilding’ refers to rebuilding of a structure following the demolition on the same site. That interpretation was rejected by the reviewer.
- The reviewer rejected a finding by the Commission that the Applicant should have undertaken an inspection of the dwelling or obtained a condition report of the structural condition of the building prior to issuing the building permit as there was no legislative requirement for him to do so. However, the reviewer found that the Applicant’s conduct in issuing a final inspection certificate, his failure to take an appropriate course of action to resolve his concerns about the building’s structural adequacy, his failure to identify that the building approval had lapsed and his failure to notify all relevant parties of his concerns, in writing in an official form amounted to professional misconduct. By Notices dated 1 April 2016 and 15 April 2016 the Commission notified the Applicant of its decision that the Applicant had engaged in professional misconduct.
- On 26 July 2016 the Commission notified the Applicant that he had engaged in professional misconduct in respect of Mr Ruckman’s complaint,
Review by this Tribunal
- Mr Maltby now seeks an external review of the decision under s 86(2) of the QBCC Act and section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- Under s 19 of the QCAT Act, the Tribunal:
- (a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
- (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
- (c)has all the functions of the decision-maker for the reviewable decision being reviewed.
- The Commission found 12 counts of unsatisfactory conduct and/or professional misconduct on the part of the Applicant arising from the Shaw decision and the Ruckman decision. They are as follows:
Count 1 Unsatisfactory Conduct – Applicant’s approval of application when not demonstrating compliance with building assessment provisions.
Count 2 Unsatisfactory Conduct – Approval of use and/or reuse of asbestos-cement sheeting.
Count 3 Unsatisfactory Conduct – Inspection and certification of development when approval had lapsed – foundation and excavation stage inspection
Count 4 Unsatisfactory Conduct – Inspection and certification of development when approval had lapsed – sub-floor supporting structure inspection
Count 5 Unsatisfactory Conduct – Failure to give builder stage inspection certificate
Count 6 Professional Misconduct/Unsatisfactory Conduct – Inspection and certification of building when Applicant believed the building to be structurally unsound, containing fire damaged asbestos and instead should be demolished.
Count 7 Unsatisfactory Conduct – Certification of dwelling by the issue of a final inspection certificate when all aspects of the building were not complete.
Count 8 Unsatisfactory Conduct –Final inspection certificate not given to building owner.
Count 9 Unsatisfactory Conduct – Failure to give final inspection certificate and other inspection documents to local government.
Count 10 Unsatisfactory Conduct – Failure to ensure ground floor level concrete slab was inspected and certified before certifying completion of dwelling.
Count 11 Unsatisfactory Conduct – Disclosed failure to assess aspects of development related to relocated building and failure to specify the need for further approvals (if required).
Count 12 Unsatisfactory Conduct – Application and development permit extended to the development as a whole and failure to disclose refusal of part of application (if part refused).
- The Commission has referred to a further 7 counts of unsatisfactory conduct on the part of the Applicant. These counts relate to other properties. They are as follows:
Count 13 Unsatisfactory Conduct – Failure to undertake final stage inspection and certifying completion of work before all aspects of the work had been completed.
Count 14 Unsatisfactory Conduct – Failure to ensure compliance with conditions and inspection guidelines at the final stage inspection.
Count 15 Unsatisfactory Conduct – Certifying completion of building without firstly ensuring earlier stage inspection certified for slab stage inspection.
Count 16 Unsatisfactory Conduct – Certification of dwelling by the issue of a final inspection certificate when all aspects of the building were non-compliant.
Count 17 Unsatisfactory Conduct – Certifying completion of building when the building works were not consistent with the building works approved (timber decks instead of reinforced concrete decks approved).
Count 18 Unsatisfactory Conduct – Failing to identify and ensure adequate corrosion protection to structural steel elements.
Count 19 Unsatisfactory Conduct – Issuing amended final inspection certificate when building work non-compliant.
- The Commission noted that the Applicant had engaged in one instance of professional misconduct and 17 to 19 repeated individual instances of unsatisfactory conduct in his private certifying functions which amounted to professional misconduct for repeated unsatisfactory conduct.
- The Applicant addressed the respective counts on which the findings of unsatisfactory conduct and professional misconduct were made with the assistance of an expert certifier Mr Stacey Kennedy. The Applicant’s response in respect of each count is contained in the Statement of Agreed Facts and Issues. They are:
- (a)For counts 1, 2, 4, 6, 7, 10, 11, and 12 whether:
- The building work, the subject of the Development applications, was confined to the erection of the relocated dwelling at Starling Crescent;
- The Development Approvals were confined to the erection of the relocated dwelling at Starling Crescent and did not permit any other building work;
- The Applicant was only required to approve the base platform works to support the relocated dwelling; and
- The Applicant and the BSC were, in accordance with the applicable legislation, entitled to have treated the Development Applications as they did.
- (b)Count 3
- Whether failure to prepare a Form 16 inspection certificate referable to the inspection on 13 January 2012 supports a finding of unsatisfactory conduct;
- (c)Counts 8 and 9
- Whether an alleged failure on the part of the Applicant to provide Mr Ruckman and the TCC with a Form 16 and Form 21 constitute unsatisfactory conduct.
- (d)Counts 13, 14, 15, 16, 17, 18 and 19
- Whether the findings of unsatisfactory conduct against the Applicant in respect of these counts can be taken into account in the Tribunals consideration of the Applicant’s external review of the Shaw and Ruckman decisions
- Whether the finding of unsatisfactory conduct against the Applicant in respect of these counts can be taken into account in the Tribunal’s consideration of whether the applicant has engaged in ‘repeated unsatisfactory conduct’.
- For the purpose of assisting the Tribunal in this review hearing, the Commission prepared a Position Paper.
- The paper sets out relevant definitions of unsatisfactory conduct and professional misconduct contained in schedule 2 to the Building Act 1975 (Qld); it is appropriate to refer to those definitions at this stage.
Unsatisfactory conduct, for a building certifier or former building certifier, includes the following-
- (a)conduct that shows incompetence, or a lack of adequate knowledge, skill, judgement, 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.
Professional misconduct, for a building certifier or former building certifier, includes the following-
- (a)conduct that:
- (i)shows incompetence, or a lack of adequate knowledge, skill, judgement, integrity, diligence or care in performing building or private certifying functions;
- (ii)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
Example of significantly conflicts with a local planning scheme -
The approved building work compromises the outcomes sought by the planning scheme.
- (iii)is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work close bracket, including, for example-
(A) acting outside the scope of the building certifies powers in common and
(B) acting outside the scope of the building certifies powers in common and
(C) acting beyond the scope of the building certifier is competence and
(D) contravene the code of conduct them, and
(E) falsely claiming the building 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 billing 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 certifier functions;
- (e)other improper or unethical conduct;
- (f)repeated unsatisfactory conduct.
- The Code of Conduct relevantly provides:
Building certifier must:
- Perform building certifying functions in the public interest.
- Maintain satisfactory levels of competence.
- Comply with legislative requirements.
- Not perform building certifying function where there is a potential for a conflict of interest.
- Not perform building certifying functions beyond their level of competence or outside their area of expertise.
- Maintain confidentiality
- Abide by moral and ethical standards expected by the community.
- Take all reasonable steps to obtain all relevant facts when performing building certifying functions.
- Clearly document reasons for building certifying decisions.
- Ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit.
- Pursuant to section 136(1) of the Building Act 1975 (Qld), a private certifier, in performing a private certifying function, must always act in the public interest. Under subsection (2) not acting in the public interest relevantly includes, but is not limited to, the certifier doing the following:
- (a)acting in a way contrary to a function of the certifier under the Building Act 1975 (Qld) or the Sustainable Planning Act 2009 (Qld);
- (b)acting outside the scope of certifiers powers under the Building Act 1975 (Qld) or the Sustainable Planning Act 2009 (Qld);
- (c)contravening the Code of Conduct; or
- (d)acting in a way, in relation to the certifier’s practice, that is grossly negligent or grossly incompetent.
- At the commencement of the hearing an application was made to excuse Mr Maltby from giving evidence on medical grounds. On the basis of the medical evidence tendered in support of the application I excused Mr Maltby from attendance. Consequently, his evidence, which comprises his statement filed in these proceedings on 26 August 2016, has not been tested by cross-examination.
- Mr Maltby summarised his understanding of the usual processes followed at the BSC for an application to relocate a dwelling and an application to erect a relocated dwelling. He distinguished between an application which involved relocation and re-stumping and an application which involved relocation, re-stumping and renovation. He detailed the steps taken by office staff to review the material and prepare documents following a checklist. This culminated in a ‘Decision Notice - Building Approval’ which is signed by the certifier. It is this document he says that is relied upon by the certifier to undertake inspections and issue certificates.
- Much of the preparatory work was done by Mr Maltby's assistant who was a cadet certifier. Nevertheless, Mr Maltby signed the approval. It was his understanding that the application and the approvals were limited to the relocation of the house from Wotton Street to Starling Crescent. He understood that building work, the subject of the application, was confined to the erection of the structure at 15 Starling Crescent and the application did not seek approval for any building work beyond that. The reasons for his understanding he set out as:
- (a)the description of the proposal was ‘relocation of dwelling’;
- (b)it showed amendment from ‘no’ to ‘yes’ as to whether any further building work were proposed;
- (c)the application identified the builder as ACE;
- (d)the application identified the proposed construction materials as existing relocation ticking only timber and steel roofing
- (e)BSC had received the ACE contracting quote and evidence of the QBSA insurance certificate for the works;
- (f)QBSA confirmation of insurance was for work described as ‘1x re-stumping and/or associated work as per contract’. A notified contract value of only $25,000 was insured;
- (g)the quotation from ACE dated 26 May 2010 to relocate the house quoted $40,000.
- Although he says he would normally have reviewed the plans he has no recollection of doing so. If the full set of plans included not only re-stumping, but other works/renovations to the house, he would have identified the inconsistency.
- In relation to the Starling Crescent approval he states that the standard terms and conditions do not appear to have been tailored to the application because they include matters that are not relevant to a Class 1A Erect Relocated Dwelling application that did not include additional renovations.
- It records two inspections were required namely Footing/Slab stage and Framework/Final stage. He says that is incorrectly recorded as the footing and slab inspections are not undertaken together nor are framework and final inspections. He says the reason for the error appears to be the person typing the application misunderstood the handwritten checklists and it was not suggested in the checklist that they be performed together.
- In respect of the inspections he carried out Mr Maltby says he was not informed that the building had been fire damaged before it was removed from Wotton Street. He had not carried out any inspections of the Wotton Street property prior to its removal. He undertook two inspections of the Starling Crescent property, the first inspection he undertook was a pre-pour footing inspection on 9 January 2012. No one was present at the time and he was surprised to note that the house had been damaged by fire. He says that while his role was limited to inspection of the pre-pour footings he did not turn his mind to whether he should take any steps in respect of the fire damage, he observed. He did not believe he was required to take any steps because it was not relevant to his function and the owner would be required to submit further applications following the inspection. He contacted ACE to advise they could proceed with footings pour but he does not recall mentioning any fire damage.
- He undertook the second and final inspection of the relocated house on 13 January 2012. When he attended the site the owner, Mr Ruckman, was there and he advised Mr Ruckman that he was shocked that the TSC had not issued a demolition order for the house as it appeared to be structurally unsound. He recalled that Mr Ruckman asked him to look at the house to ascertain for himself that state. He declined. In the conversation there was discussion about the need for future building approvals for the additional work, Mr Ruckman advised, that he intended to undertake. He further advised that he was going to undertake the work as an owner/builder and that the relevant applications would be lodged with the council after he had obtained his owner/builder licence. Mr Maltby concedes that, at the time of the final inspection, the building was clearly not fit for occupation. He says it was obvious to anyone that the house was not at the stage where a final inspection of the whole house could be undertaken or provided.
- He says that the Form 21 Final Inspection Certificate is clear on its face that no slab inspection of frame inspection was undertaken. He says it is simply a certification with respect to the approved relocation and re-stumping building works
- Based on his dealings with Mr Ruckman he was in no doubt that Mr Ruckman was fully aware that the final certificate was not certification that all necessary building work had been completed, that the building could be occupied, and that further building works were not required.
- Mr Kennedy was a private building certifier and has been so since 1988. He has extensive experience with the implementation of the Building Act 1975 (Qld) and its subordinate legislation. He is also a registered builder and architect. He was retained by Mr Maltby to provide a report in relation to the building certification functions performed by him in respect of the Starling Crescent property.
- The report is extensive and detailed. Essentially, Mr Kennedy identified the distinction between the practices of urban local authorities and their regional counterparts in respect of building approvals for the erection of relocatable dwellings. The practices differed.
- I should interpolate here that a fundamental difference of opinion exists between the Commission and Mr Kennedy in the manner of assessing the Starling Crescent property depending upon whether it is a relocatable dwelling or just a typical building application for a new building or an alteration to a building.
- The term ‘relocatable dwelling’ or ‘relocatable building’ is not defined in the legislation. Mr Kennedy considered them to be ready built structures and as such would have been subjected to previous compliance vetting rigours. In cross examination, his explanation was that as it could be relocated to another site it was relocatable. Mr Blackman on the other hand says that the term refers to a building purposely built for that purpose, that is, a building constructed in a factory, supported by a subfloor structure typical of a chassis and designed to be moved from site to site. I prefer that description as being appropriate.
- If the Starling Crescent property was not a relocatable dwelling it should have been treated and assessed as any other application for building approval.
- Mr Kennedy went on to explain that of concern to local authorities regarding imported dwellings into a neighbourhood were considerations pertinent to ‘Aesthetics and Amenities’ and the potential impact relocatable dwellings may bring to an area. The Sustainable Planning Act 2006 (Qld) (repealed) facilitates the ability under Chapter 6, for a local authority to integrate and implement a planning procedure where it becomes a concurrence agency to give effect to vetting processes prior to issuance of any building approval. These processes usually include ‘Aesthetics and Amenities’ considerations, siting, structural adequacy of the imported building and bond monies to guarantee against any failure by an applicant to meet any imposed conditions. Such conditions could include the acquiring of a structural report on the imported structure. He says that in these instances, the building certifier is given a clear view of this framework and additional regard is then focused upon maintaining consistency with the local authority concurrence agency conditions and ensuring the issue of approvals are sequenced accordingly.
- Mr Kennedy said that to implement this process the local authority, under the Local Government Act 2009 (Qld), must formally resolve to implement the ‘Aesthetics and Amenities’ process to become a concurrence agency as well as an assessment manager. The significance of this process is that it affords the opportunity to have all aspects of a relocatable structure application tied into one all-embracing and coherent system. That allows for the framework for all necessary considerations to be made for decisions exercised by community, local authority and the building certifier collectively. In his experience most urban shires and councils have such a resolution in place and exercise concurrence agency functions in this regard, however, in his experience very few regional authorities have implemented such a process. In the case of the BSC he was advised no such processes has ever been implemented. As a consequence, the BSC along with many other regional local authorities have responded by developing strategies to fill the nexus. The nexus he explained was the connection between the stages of approvals that would normally occur with a relocatable dwelling. They have done this by utilising existing statutes of compartmentalising building permits and relying upon communication with applicants to seek and obtain the multiple permits necessary for regularising ‘the whole’ of the relocation works.
- In his report, Mr Kennedy reviewed the relevant legislation and concluded that the Commission’s reference to, and reliance on, the various provisions of the Building Act 1975 (Qld) and Sustainable Planning Act 2009 (Qld) which, it submitted, precluded compartmentalisation of building permits, he considered to be ‘baseless’.
- In those regional shires or councils, Mr Kennedy said that the requirement to make other applications for approval was communicated orally or via letter or email between the certifier and the applicant but was not contained on the forms previously lodged or approvals previously given.
- The following exchange between Mr Schulte and Mr Kennedy explains the position:
MR SCHULTE …. so we’ve established what you’re saying has to be communicated orally and that’s what I’ve suggested to you, which was that the certifier indicates orally to the applicant that they need to seek and obtain multiple permits necessary for the regularisation of the whole of the relocation works but in the absence of that oral communication, where else would you find – is there anywhere else you can look to in writing that would give you that indication?---Yes, the Building Act.
I see? … The Building Act requires that before you undertake building works you must obtain a building approval. It would have been up to the applicant to have realised that if he wanted to proceed with ongoing works beyond what he’s got approval for, he must seek those other approvals. It’s in the statute. It’s the Building Act.
- Later on, Mr Kennedy was asked and responded as follows:
In your professional opinion, do you think it’s in the interests of the public to simply give such a warning orally?---It’s not for me to say. It’s just the way it is and there’s no other mechanism but to do that. If there’s no regime in place like an aesthetics and amenities application and what you’re left with is a person wanting to make a series of building applications, there’s nothing else that can be done other than to inform the applicant that “My work takes you to this point. If you’re seeking to go to that point, you need a new building – you need another building approval”. That’s all that’s left.
So it also places emphasis, doesn’t it, on how the building work’s actually described, doesn’t it?---Yes.
And it means that the way in which the building work’s described needs to be really quite clear?---I agree with that.
- Mr Kennedy was referred to IDAS Form 2 the Application for building work and asked what, in the document, to a reasonable reader of the document, would indicate that the application is compartmentalised. Mr Kennedy identified that the box indicating it was a new building had been ticked. Secondly, he referred to Table A where it said ‘Erect relocated building’. Mr Kennedy went on to explain that this indicated there was going to be stumping framework for a new house to be positioned on and if there was an element of doubt then a reasonable certifier would look at the QBCC insurance premium notice of payment which would indicate what the applicant has taken insurance out for. In this particular instance it states ‘restumping for a relocatable house’. He then explained that for the sum of $25,000 (the amount in the policy) one would not get more than restumping.
- It is clear that the document itself, on its face, does not refer to restumping.
Mr Kennedy says that it was up to a reasonable certifier to clarify it with the applicant.
- Mr Kennedy was questioned as to a certifier’s responsibilities, in the absence of an Aesthetic and Amenity regime, to communicate to the public that a particular development application or approval has been compartmentalised. It was Mr Kennedy’s opinion that there was no obligation for a building certifier to communicate anything to the public. He explained: ‘In terms of notifying the public, there’s no obligation under the Building Act that the certifier communicate by some means to the public and say, “This is what’s happening here.” No obligation whatsoever.’
- Mr Kennedy declined to say whether it is in the public interest for the development approval to communicate that compartmentalisation has taken place. That was a matter for the legislature, he said.
- Mr Great was Manager of Planning and Development at the BSC. He corroborated Mr Maltby in that he considered the approval granted to Mr Ruckman was limited to the relocation of the building carried out by ACE. The approval granted was consistent with BSC’s adopted procedures. He confirmed that the BSC did not have a specific policy/procedure for the assessment of structural stability, health and amenity, asbestos issues etc. for buildings proposed to be relocated to other sites.
- He confirmed that the opinions expressed by Mr Kennedy were consistent with the practices and procedures at the BSC. He confirmed that the BSC operated without Aesthetics and Amenities benefits and in accordance with the applicable legislation the BSC compartmentalised building permits. He confirmed that the development application submitted for approval by Mr Ruckman on 21 July 2010 was limited to the base part of the relocatable dwelling and did not include the whole works associated with rebuilding the relocated dwelling. Mr Great also confirmed the development approval did not extend to the building work associated with the rebuilding of the relocatable dwelling.
- Finally, he confirmed that in treating the Development Application as he did, Mr Maltby was acting in accordance with the practice adopted at BSC and consistent with his duties and responsibilities as an employee of the BSC.
Wayne John Blackman
- Mr Blackman is the Senior Technical Internal Review Officer at the Commission and the decision-maker in respect of the matters under review. Objection was taken to his evidence where he expressed matters of expert opinion as it was submitted that his evidence could not be considered to be disinterested. I reserved my decision but intimated that I saw the issue as rather a matter of weight rather his opinions being inadmissible. The Commission’s response is that Mr Blackman has provided a Position Paper as part of his responsibilities as a decision-maker and his obligation to assist the Tribunal.
- Mr Blackman does express opinions throughout the Opinion Paper and elsewhere that he considered Mr Maltby’s conduct fell short of the standard that his peers would regard as appropriate. I accept Mr Blackman’s evidence as evidence of the decision maker and consider the Tribunal is able to make its own findings in relation to Mr Maltby’s conduct based on all the evidence.
- Mr Shaw was the unfortunate individual that has become the ‘meat in the sandwich’ in this dispute.
- In his affidavit he deposes to the steps he took prior to purchasing the property. It is not necessary to detail all his investigations but he did obtain and review documents from the BSC being those already referred to in detail in these proceedings, save for the Form 21 Final Certificate.
- He stated he was advised by the real estate agent that the building had all government certification and all paperwork was in order. I accept that to be the case.
- I also find that Mr Shaw placed reliance on other investigations including the Pre-Purchase Building Report.
- Following settlement and whilst moving a bed into the first bedroom the floor gave way, and, subsequently, all was revealed.
- Mr Shaw gave evidence. He was not in good health and suffered from major depression and anxiety.
- It was apparent from the cross examination that the Form 21 Final Certificate document assumed some importance to Mr Shaw. Although, he was provided by the real estate agent with some of the BSC documents relating to the Development Approval the Form 21 Final Certificate was not one of them. Mr Shaw said he went to the TCC and carried out searches. He also went to the Commission in Townsville where it was told that the Form 21 Final Certificate was the document he needed which would show that everything had been done. He obtained that document from Mr Ruckman, via the real estate agent, and then searched the TCC records and matched the certificates up.
- Following the pre-purchase building report, Mr Shaw noted that there was mention of minor fire damage. On inspection further fire damage was noted. However, he was assured it was minor and the building certifier had signed off on it and Mr Shaw appeared to rely on that fact.
- The Pre-Purchase Building Report contained a photograph of the roof trusses. That was relied upon by the inspector showing that there was little damage. Unfortunately, for Mr Shaw that photograph was not a photograph of his house. He only became aware of this fact six months later. He conceded that he placed some reliance on the photograph.
- Mr Shaw referred to conversations that he had with the agent which relayed statements made by Mr Ruckman which were to the effect of: ‘Well, it has all been checked by the building certifier, I was there and the certifier said it was all repaired to his satisfaction.’
- I am reluctant to make a finding on the basis of hearsay evidence but I have no doubt that Mr Ruckman would have relied upon the Form 21 Final Certificate as indicating that all was well. That was consistent with his evidence. I make no finding in relation to the assertion that Mr Maltby was satisfied that all was repaired satisfactorily.
- On 9 February 2016 Mr Ruckman made a complaint to the Commission about the Applicant. He was critical of Mr Maltby’s actions of:
- (a)reducing the scope of his engagement without his knowledge;
- (b)misleading the TCC about the extent of the works;
- (c)recording the frame stage inspection as the final inspection without his knowledge;
- (d)failing to provide him with a copy of the Form 21 Final Certificate within 5 days as required under the Building Act;
- (e)failing to record further development permits were required and the Development Permit;
- (f)failing to ensure the necessary insurance was in place.
- Mr Ruckman says that he spoke to someone at the BSC and outlined what he wanted to do, which was to renovate the house that was to be shifted onto the block at Starling Crescent in Townsville. He asked what needed to be done, as he was intending to bring the house up to a good standard, which included but was not limited to replacing completely all the electrical work, all new plumbing, new linings inside, new roof, new bathroom, new kitchen, all new windows and doors. He cannot recall the exact details but he knows he asked the person at the Council to give him all the forms needed and he rang back a few times to clarify what was required of him.
- He acknowledged receipt of a copy of the certificate of insurance issued by the Commission confirming the insurance for the building work to be performed by ACE. Mr Ruckman says that based on discussions with Mr Patterson of ACE he was of the understanding that Mr Maltby had been properly engaged to carry out all certification functions needed to be able to both move the dwelling to the final site and renovate it in accordance with the plans attached to the building permit.
- Subsequently, the fire occurred. On 16 & 17 December 2011 the house was moved in parts by ACE to the final site. ACE moved the house onto the block, positioned it and the site and installed to galvanised posts that supported it. The roof was upgraded to satisfy Council requirements.
- On 9 January 2012 a foundation and excavation inspection was carried out. On 13 January 2012 Mr Ruckman was at the site when Mr Maltby arrived to inspect it. Mr Ruckman says that at that time, he was on the roof having a look at what had been done. He asked Mr Maltby whether he would like photos taken of the roof to save him, Mr Maltby, climbing up as he thought it would be difficult for him to get up onto the roof. He says Mr Maltby readily agreed. Having taken photographs they viewed them together and Mr Maltby appeared to be satisfied.
- At the time of this inspection, the dwelling consisted of a timber frame and external cladding to the external walls only. There was no roof sheeting or stairs to the dwelling. Mr Ruckman also showed Mr Maltby photos of the framework.
- In the discussions Mr Ruckman had with Mr Maltby, Mr Ruckman says there was no discussion whatsoever about extra permits being required or any other approvals to complete the home to the Council's requirements.
- Mr Ruckman says he did not receive a copy of the final inspection certificate until early 2014 when he requested a copy from the BSC. There was no doubt in his mind that all the work he was doing was covered by the Development Permit because he says he spelt out those things they were going to do in the application to the Council. He heard nothing to the contrary after lodging the application and, if there was a problem, he thought he would have been told about it. He was not aware that Mr Maltby was doing a final inspection on the day they met on site.
- In respect of the concrete slab, which appears to have been completed after Mr Maltby attended the site, Mr Ruckman says that the concreter was to arrange that inspection and he presumed that had been done so. On completion of the house he asked the BSC for a final inspection certificate which they forwarded to him. Although, it was dated two years earlier, he did not notice that and merely filed the document away.
- In early October 2012, Mr Ruckman was talking to someone from the Building Services Authority (as it was then known) and mentioned that he was renovating a home. It was only then that he became aware that he required an Owner/Builder licence and that he faced a hefty fine if he did not have one. He then undertook the examination and obtained a license. His Statement of Attainment is dated 23 October 2012 and the Owner/Builder permit is dated 10 December 2012.
- That Permit identified the work to be carried out as follows:
Renovation to existing removal home-lining to all walls of dwelling, new doors, skirting, all internal surfaces, lining to ceilings, upgrade of existing bathroom and kitchen, plumbing, electrical work, interior and exterior painting, front and rear stairs, driveway, concrete underneath dwelling, general finishes to liveable standard and fencing.
- Under cross-examination, Mr Ruckman was taken through his application for building approval and it was pointed out that nowhere in the application was a description of the work that was detailed in his Owner/Builder permit. He explained that he presumed that the information was available at the time and was contained in the plans that accompanied the application. He expressly denied that the application made to Mr Maltby was not for a complete renovation but was for the relocation and for the platform on which the relocated house was to be placed.
- It was put to Mr Ruckman that his description of what occurred at the time he met Mr Maltby on-site was wrong. He denied any conversation with Mr Maltby that, he, Mr Maltby, was shocked at the state of the house and that the TCC had not issued a demolition order. Mr Ruckman said nothing of that kind was discussed. He denied any conversation with Mr Maltby where the need for further approvals was required or mentioned. Indeed, Mr Ruckman denied any awareness that further approvals were required.
- At the end of the project, Mr Ruckman said that he telephoned the BSC and requested a final inspection. He was surprised when they told him that there was a Final Certificate and that they would send it out. He conceded that he was aware from the Owner/Builder course he had completed that at least four inspections would be necessary during the course of the construction of a completed house. His explanation was that he thought the inspections had been done.
The Commission’s and Applicant’s case before the Tribunal
- The Applicant submits that the Commission’s criticism of Mr Maltby’s conduct mostly concerns the scope of the Development Application Decision Notice 0928 issued by Mr Maltby on 28 September 2010. That application described the subject matter of the approval as ‘Erect Relocated Dwelling’. The issue is whether the approval of the application:
- (a)Extended to a complete renovation of the house comprising all work including that work detailed in Mr Ruckman’s Owner/Builder Permit of 10 December 2012, the Commission’s view or
- (b)Was limited in scope to work required for a base platform to act as a receptacle for the removed building such as footings and supporting posts as Mr Maltby maintains.
- The parties agree that counts 1, 2, 4, 6, 7, 10, 11 and 12 raised by the Commission depend upon resolution of this issue. The agreed Facts and Issues Statement set the issues out in detail. They were:
- (a)the building work, the subject of the Development Applications, was confined to the erection of the relocated dwelling at Starling Crescent;
- (b)the Development Approvals were confined to the erection of a relocated dwelling at Starling Crescent and did not permit any other building work;
- (c)the Applicant was only required to approve the base platform works to support the relocated dwelling; and
- (d)the Applicant and the BSC were, in accordance with the applicable legislation, entitled to have treated the Development Applications as they did.
- The IDAS Form 2 was filled out by Mr Ruckman. The Form was accompanied by all of the material referred to above. The Applicant submits that in construing the Form regard should be had not only to the plans but also the application for BSA insurance confirmation which described the work as ‘1 x RESTUMPING AND/OR ASSOCIATED WORK AS PER CONTRACT’. Further the notified contract value was $25,000 for the purposes of insurance.
- The only builder named in the ISAD Form 2 was ACE. The quotation that was attached was limited to relocation and restumping for a contract price of $40,000. It is submitted that the work ultimately undertaken by Mr Ruckman would have exceeded that amount which Mr Ruckman conceded.
- The Applicant is critical of the Commission's view about the scope of the development application. It is submitted on his behalf that the Commission's view lacks any specific support in the statutory scheme.
- It is argued that Mr Blackman appears to concede a theoretical ability to obtain individual building development permits for separate parts of a given building but says that the process is not appropriate for developments involving the rebuilding of a building after it has been relocated. To do so may effectively bypass the operation of section 71 of the Building Act 1975 (Qld) for those types of developments.
- Mr Maltby is criticised for failing to identify in his approvals any other necessary development permits or compliance permits in terms of the Sustainable Planning Act 2009 (Qld) section 335(1)(i). This relates not only to the issue of scope but also a specific complaint in count 11 of failure to identify further approvals.
- The Applicant says that the Commission's approach to identification of ‘the development as a whole’ is flawed. The Applicant refers to section 13(b) of the Sustainable Planning Act 2009 (Qld) which provides that ‘development or the development’ is a reference to development the subject of the application. Section 16 of the Building Act 1975 (Qld) similarly limits to (respectively) ‘building work the subject of the application’ and ‘the development the subject of the application’. The Applicant then submits that given that the scope of the ‘the development’ is limited by the application, then under the Sustainable Planning Act 2009 (Qld) section 335(1)(i) ‘any other development permits or compliance permits necessary to allow the development be carried out’ are also limited.
- It is submitted that Mr Maltby had to take account of the ‘public interest’ but that was not the ‘public interest at large’ but rather in respect of his obligations when ‘performing a private certifying function’.
- The Applicant maintains that given the content of the contemporaneous documents and other matters raised in its submissions the contention of the Commission that the scope of the development approval covered all building work associated with the relocation rebuilding of the dwelling on site cannot be established.
- The Commission’s response is that it is not necessary for the Tribunal to be concerned with construing the intent of the planning scheme, rather it need only refer to the Form 21 Final Certificate issued by the Applicant on 18 January 2012. That form it submits is ambiguous about what it was certifying as approved. The Commission contends on the basis of Mr Kennedy’s evidence one might require many years of experience to make sense of it. It says the construction of the form by the Tribunal should not be undertaken from the point of view of an expert with many years’ experience, but rather from the point of view of a member of the public.
- A Form 21 Final Certificate is a building certifying function that must be done by the certifier in the public interest. Completion of a Form 21 Final Certificate should be done in a way that accurately describes what has been certified. It is entitled to be relied upon by the owner and subsequent owners as certifying that all necessary works had been undertaken on the dwelling, that the works were compliant, and the dwelling was fit for habitation.
- The Commission also notes that it was not impermissible to provide clear description of what was actually being certified.
- I am satisfied on the basis of Mr Kennedy’s evidence that it was not uncommon in some shires for development approvals to be compartmentalised. Whether that was permissible under the legislation in place at the time raises difficult and complex issues. Mr Kennedy referred to legislation and planning regulation to establish that there was no clear prohibition against such a practice. Such is conceded by the Commission.
- On the other hand, the practice of compartmentalising development approvals does create problems as this case has demonstrated. If development approvals are compartmentalised then care should be taken that all parties and the public are aware of that fact. It became tolerably clear from Mr Great’s evidence and from Mr Kennedy that there was no system in place at the BSC (or if there was, it was not operating) to record and follow up cases where further applications and approvals may be necessary. Too often it seems that the local authority relied upon the applicants’ own knowledge that further approvals were required whether prompted or not by the building certifier. This appeared to be the case with Mr Maltby and Mr Ruckman.
- It appears to me that if approval was given only for a base platform for the relocatable building, footings and supporting posts, (here I deliberately have reverted to the description used by Mr Kennedy and the Applicant in submissions made on his behalf), then the Decision Notice should have clearly stated such. The Form 21 Final Certificate is clearly misleading and susceptible to intentional and unintentional misinterpretation.
- As compartmentalising approvals were permitted, Counts 1 and 2 cannot be established.
Count 4 Unsatisfactory Conduct – Inspection and certification of development when approval had lapsed – sub-floor supporting structure inspection
- The final stage inspection on 13 January 2012 Mr Maltby says was limited to an inspection of the ground floor level structural steel work, including columns, beams and bracing supporting the dwelling above. He denies he carried out any other inspections. Mr Ruckman says he conducted a frame stage inspection based on photographs provided by Mr Ruckman. Mr Ruckman says that work was carried out by ACE. The proprietor of ACE, Mr Patterson is now deceased and the evidence cannot be tested. If the work was carried out by ACE then that formed part of the Starling Crescent approval which covered all work performed by ACE. Nevertheless, I am unable to make a finding on this issue.
- However, there is a second limb to the Count and that, at the time the Starling Crescent approval had lapsed, Mr Maltby was aware of that fact. Consequently, he had no authority to proceed and acted outside the scope of his powers. I address the Applicant’s submissions on this point when considering Count 3. For those reasons I am satisfied that Mr Maltby’s conduct amounts to unsatisfactory conduct in that regard.
Count 6 Professional Misconduct/Unsatisfactory Conduct – Inspection and certification of building when Applicant believed the building to be structurally unsound, containing fire damaged asbestos and should instead be demolished
- On his own admission Mr Maltby:
- (a)Held genuine concerns for the structural adequacy of the fire damaged building at the time of the inspection;
- (b)Was concerned about the presence of fire damaged asbestos sheeting and generally thought that the building should have been the subject of a demolition order by the local government;
- (c)Would have, if he had known earlier that the building had been damaged by fire, taken steps to cancel the Starling Crescent approval and discontinued his engagement as a private certifier.
- The Commission submits that despite these concerns, the Applicant took no action to attempt to address his concerns about the structural adequacy of the dwelling or of the presence of fire damaged asbestos sheeting at the material time. Whilst he could have the Applicant did not:
- (a)proceed to undertake a thorough inspection of the dwelling for the purpose of identifying whether the timber framework was or is not structurally adequate or compliant with the building assessment provisions;
- (b)provide a notice, for example a non-compliance notice, an inspection report or any other document to the builder outlining what rectification work would be required to bring the building into a structurally acceptable state, as considered by the Applicant, or to comply with the building assessment provisions;
- (c)request the inspection by or the furnishing of a certificate or report from a registered professional engineer, attesting to the structural adequacy of the fire damaged dwelling or a schedule works required to bring the building into a structurally sound condition and compliance with the building assessment provisions;
- (d)request the safe removal of asbestos-cement sheeting material by appropriately licensed persons; or
- (e)inform the Townsville City Council as the relevant local government, either verbally or in writing about the fire damaged state of the dwelling, his concerns about building’s structural adequacy or asbestos nor recommended to them that they should take any form of enforcement action to require the demolition or rectification of the building
- It is alleged that the Applicant’s conduct as a private certifier, in that instance, showed not only a lack of judgement, diligence and care in performing his functions but compromised the health of the owner and others that, subsequently, may have worked on the property.
- It is submitted in his defence that there was no obligation on the Applicant to do any of the matters referred to by the Commission. I disagree. Some of the steps it is suggested that he could have taken went beyond his responsibilities as a private certifier. Nevertheless, at the very least he should have reported to the BSC and/or the TCC, in writing, the substantive matters outlined above, namely the structural adequacy of the building and the presence of asbestos material.
- He advised Mr Ruckman that he was shocked that the TCC had not issued a demolition order for the house as it appeared to him to be structurally unsound. Mr Ruckman denies any such conversation. It is difficult for me to determine whether the conversation took place. Mr Maltby did not give evidence and I was not impressed by Mr Ruckman.
- It was not as though Mr Maltby was a stranger who by coincidence came across the serious defects in the dwelling. Putting aside the scope of his responsibilities, he was there to inspect the footings and the slab. He became aware of matters that should have caused him to intervene. At least to the extent of advising the BSC and the TCC of his concerns and should have taken action to ensure that building did not proceed without further approvals.
- At a time well before the inspections the Starling Crescent approval had lapsed with the Applicant having no lawful authority to inspect and certify the work, the Applicant instead proceeded to inspect and certify the unauthorised fire damaged dwelling at the Starling Crescent site. He was aware that the approval had lapsed but let the approval continue as he said it was taking time for them to get their finances together. Had he required the applicants to resubmit their applications, the inadequacies would have been highlighted.
- Instead Mr Maltby certified an incomplete building which allowed others to take advantage either intentionally or unintentionally.
- I was referred to the decision of Schwede v Queensland Building Services Authority where the Member commented at :
When professional misconduct is found, the Building Act requires the BSA to commence disciplinary proceedings in the Tribunal against the private certifier. No such requirement attends a finding of unsatisfactory conduct. Plainly, professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care; it is conduct that compromises the safety of persons using buildings, the amenity of a property or significantly conflicts with local planning laws; it is unlawful conduct – in the sense of conduct contrary to the Acts regulating the functions of private certifiers; it is corruption in the sense of seeking or taking benefits in return for breaching the regulating Act or seeking to corrupt other private certifiers in the same way; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct. Repeated unsatisfactory conduct is a type of professional misconduct that appears at the end and in the context of the balance of the definition.
- For the reasons expressed in the preceding paragraphs I find that Mr Maltby, contrary to s 136 of the Building Act 1975 (Qld), has acted in a way contrary to a function of a private certifier under the Building Act or the Planning Act, has acted outside the scope of his powers under the Building Act or the Planning Act and has acted in a way that is grossly negligent and grossly incompetent and has breached the Code of Practice.
- I find that Count 6 of Professional Misconduct and Unsatisfactory Conduct has been made out.
- Counts 7, 10, 11 and 12 for the reasons already given cannot be established.
Count 3 Unsatisfactory Conduct – Inspection and certification of development when approval had lapsed – foundation and excavation stage inspection
- The Starling Crescent approval was granted by the Applicant on 28 September 2010. Pursuant to the lapsing period condition and the demolition/removal completion condition, the Starling Crescent approval remained effective for not more than six months.
- Contrary to those conditions:
- (a)no work toward the relocation of the dwelling and to Starling Crescent site had occurred within two months; and
- (b)all building work associated with the relocation rebuilding of the dwelling had not been completed within six months;
from the date that Starling Crescent approval was granted.
- At the time of undertaking his inspection on 9 January 2012 and certifying the footings the Starling Crescent approval had already lapsed. Mr Maltby was aware of that fact as evidenced by his email correspondence to the Commission dated 21 April 2015.
- Mr Maltby deliberately and knowingly proceeded to inspect and certify a stage of the development when the Starling Crescent approval had lapsed and was no longer effective. He had no statutory authority to do so in his capacity as a private certifier under the Building Act 1975 (Qld).
- The Development Approval 0928 had endorsed the time limitations by which building work relating to demolition or relocation was to be commenced. That was in this case six months. Section 71(3) of the Building Act 1975 (Qld) also provided that the building work must be completed within six months after approval is given.
- It is not an issue that Mr Maltby was of the belief that there was a six-month limit and that he did not enforce it, he admits that he was advised by the applicant, Mr Ruckman, that they needed time to get their finances together and for that reason did not enforce the limitation.
- It is submitted on his behalf that section 71 of the Building Act 1975 (Qld) is inapplicable to approval 0928 because it was not an approval, in terms of section 71(1)(b) to ‘rebuild, after removal, a building or structure’. It is argued that the application was not for a dwelling to be ‘rebuilt’ in situ and the original site, but rather for the erection of the relocated dwelling on a different site. Reliance was placed on the decision of North Sydney Municipal Council v Stevens. In that case, ‘rebuild’ meant ‘replace the existing structure with a new structure’. It is argued that was not the approval provided in this case.
- The decision of North Sydney Municipal Council v Stevens concerned planning and environment legislation and attempts by developers to alter, extend and/or rebuild structures on a site where there was an existing use thereby avoiding a requirement for a separate development approval. The opponents in each of the cases reviewed by Pearlman J were the local authorities who argued that in each case it was not a rebuild but a new structure. In Bragg v Hurstville Municipal Council, Hardie J held that the distinction drawn in the decisions he reviewed between replacing a destroyed or demolished building with another building on the one hand and the rebuilding of the original structure on the other hand was essentially one of fact and degree. Dissimilarity in size, shape, design and appearance do not necessarily negative the concept of rebuilding.
- That view subsequently fell into disfavor following cases such as Banool Developments Pty Ltd. Pearlman J held, on the basis of some more recent authorities, that the term ‘rebuild’ should not be confined by some internal limitation of meaning as Hardie J had enunciated. His Honour, after referring to the many earlier decisions on the meaning of ‘rebuild’, said at 343:
When one turns, however, to the present statutory provisions, one finds that the concepts of alteration and extension are separated by means of a different clause from the concept of rebuilding.
Accordingly, I am of the opinion that in cl 53, the word ‘rebuild’ must be read as standing alone, and not fettered by concepts of alteration and enlargement.
- It is tolerably clear that the decisions reviewed by Pearlman J and the decision of North Sydney Municipal Council v Stevens relate to the peculiarities of the Environmental and Planning legislation and the concept of ‘existing use’ and should be confined to that area. On the other hand, the Building Act 1975 (Qld) has a much wider import.
- The term rebuild is an ordinary English word which is defined in the Shorter Oxford Dictionary as meaning ‘to build again - to reconstruct.’
- In my opinion, to divide a house into two parts or three and remove it from its foundations and move it to another site and reassemble it, in my opinion, is a ‘reconstruction’ or a ‘rebuilding’ of the house.
- The Applicant then refers to sections 94 and 95 of the Building Act 1975 (Qld) which relates to the reminder notice requirements for lapsing. However, as I have found that section 71 applies it follows that the ‘demolition/removal completion condition’ applies. In those circumstances, sections 94 and 95 of the Building Act 1975 (Qld) have no application to the instant case.
- I find that Count 3 has been made out.
Count 5 Unsatisfactory Conduct – Failure to give builder stage inspection certificate
- Section 32 (2) of the Building regulation required Mr Maltby to give to the builder a certificate of inspection for the stage inspected. It is not disputed that he failed to give such a certificate to ACE.
- The Commission alleges that in failing to do so the Applicant:
- (a)Has not complied with his obligation to always act in the public interest in contravention of section 136 (1) of the Building Act by breaching the Code of Conduct.
- (b)Has breached point 3 of the Code of Conduct by not complying with the legislative requirements under the Building Regulation.
- (c)has engaged in conduct that is contrary to a function of a building certifier under the Building Act 1975 (Qld) by contravening the Code of Conduct; and
- (d)has engaged in conduct, that is of a lesser standard than the standard that might reasonably be expected of a building certifier by the public or the building certifier's professional peers.
- Had Mr Maltby given such a certificate the ambiguity, subsequently caused, may have been avoided.
- Such conduct, it is alleged, amounted to unsatisfactory conduct within the meaning of Schedule 2 of the Building Act 1975 (Qld).
- In his defence it is submitted that this is an administrative matter, that Mr Maltby reasonably relied upon the administrative staff of the BSC to comply. If established, it alleged that the breach is minor. In my opinion, Mr Maltby’s responsibilities as a private building certifier in this regard cannot be delegated. Ultimately, he is responsible. Submissions made on his behalf more appropriately address mitigation of penalty.
- I find this Count to be established.
Count 8 Unsatisfactory Conduct – Final inspection certificate not given to building owner
- Under section 99 (2) of the Building Act 1975 (Qld) Mr Maltby was required to ensure that the owner of the building was given the final inspection certificate within 5 business days from the date of the final inspection. It is not disputed that he did not do so.
- Quite clearly, if complied with Mr Ruckman could not have been confused, or pretended to be confused, as to the meaning of the certificate and to what it related. Mr Maltby says he gave the certificate to the nominated builder the late Mr Patterson of ACE. That cannot be verified but, in my opinion, it is irrelevant. His obligation was to give it to the owner.
- It is submitted that this, also was an administrative matter, that Mr Maltby reasonably relied upon the administrative staff of the BSC to comply. If established, it alleged that the breach is minor.
- I find this Count to be established.
Count 9 Unsatisfactory Conduct – Failure to give final inspection certificate and other inspection documents to local government
- Under section 149 (1) (a) of the Building Act 1975 (Qld) Mr Maltby was obligated to give the TCC a copy of all inspection documentation prepared by or for the applicant for the building work within 5 business days from the giving of the Final Inspection certificate. It is not disputed that he did not do so.
- It is submitted that this, also was an administrative matter, that Mr Maltby reasonably relied upon the administrative staff of the BSC to comply. If established, it alleged that the breach is minor.
- I find this Count to be established.
- The remaining Counts relate to other properties. Counts 13 relates to a property at 34 Wareham Street, Aitkenvale. Count 14 concerns 16 Hicks Street, Charters Towers and Counts 15, 16, 17, 18 and 19 related to a property at 1 Tracey Street Bengal Beach.
Count 13 Unsatisfactory Conduct – Failure to undertake final stage inspection and certifying completion of work before all aspects of the work had been completed
- It is alleged by the Commission that Mr Maltby issued a Form 21 Final Inspection Certificate certifying the completion of alterations for assessable building work which included the installation of a new metal roof to an existing dwelling. It is further alleged that at the time of the final stage inspection on 19 May 2010, the new roof had not been commenced and that he inspected only the roof frame work and purlins. Subsequently, there was a complaint about defects with the roof cladding which were confirmed following an inspection by the Commission.
Count 14 Unsatisfactory Conduct – Failure to ensure compliance with conditions and inspection guidelines at the final stage inspection
- On 23 June 2010 Mr Maltby granted a building development approval for the relocation and rebuilding of a dwelling at 16 Hicks Street, Charters Towers. A condition of the approval was that all roof water from the development was required to be taken to the kerb or channelling or other legal discharge point.
- Mr Maltby issued a Form 21 Final Inspection Certificate certifying the work as approved. However, he did not inspect it himself but relied upon a cadet building certifier to carry out the task.
- Contrary to the condition the roof water did not discharge to the kerb or other legal point but to the ground onto a splash pad where it ponded as surface water and became a nuisance to neighbouring properties and the subject of a complaint. The Commission investigated the complaint and determined that Mr Maltby had engaged in unsatisfactory conduct.
- Counts 15, 16, 17, 18 and 19 related to a property at 1 Tracey Street Bengal Beach.
Count 15 Unsatisfactory Conduct – Certifying completion of building without firstly ensuring earlier stage inspection certified for slab stage inspection
- On about 16 September 2010, Mr Maltby granted a development approval for a new dwelling at the above address.
- On or about 24 September 2010 a Mr Hughes issued a Form 16 stage inspection certificate for the foundation excavation and bored piers stage. Mr Hughes did not hold a license as a building certifier at the time.
- On about 4 October 2010 a Mr Stennett issued a document styled as a ‘site inspection report’ for the slab inspection undertaken by him. Mr Stennett was a licensed private certifier (Class A).
- On 29 November 2010 a Form 16 stage inspection certificate for the frame stage inspection was conducted by a cadet building certifier acting under the supervision of Mr Maltby. On 11 August 2011 Mr Maltby issued a Form 21 final inspection certificate for the dwelling.
- On 6 March 2017 the Commission received a complaint from the homeowner in relation to the conduct of Mr Maltby in inspecting and certifying the completion of her dwelling.
- By section 142 of the Building Act 1975 (Qld), the engagement of a private certifier for a building development application is taken to be an engagement of the private certifier to also inspect and certify all building work authorised by the development approval for the application.
- By section 24 (3) (b) and section 30 (2) of the Building Regulation 2006 (Qld), a slab stage inspection was required to be undertaken by Mr Maltby, or by a competent person, after the placement of formwork and steel for the reinforced concrete slab but before concrete was poured.
- In the performance of his private certifying functions Mr Maltby sought inspection help from another licence private certifier Mr Stennett for the performance of the slab stage inspection. Contrary to section 32 (2) and (3) of the Building Regulation 2006 (Qld), Mr Stennett produced and gave Mr Maltby a slab stage inspection report instead of a certificate of inspection given in the approved form. Whilst Mr Stennett was the inspecting person and the person responsible for certifying the slab stage inspection, Mr Maltby was a relevant certifier and person responsible for certifying completion of the building. As a prerequisite to giving of a final inspection certificate, it is incumbent upon the building certifier to firstly check and verify that all earlier stage inspections required for building work have been carried out and certified. Mr Maltby failed to ensure that the earlier slab stage inspection had been certified in the approved form.
- The acts and omissions of Mr Maltby in this instance led to the following further counts of unsatisfactory conduct
Count 16 and 19 Unsatisfactory Conduct – Certification of dwelling by the issue of a final inspection certificate and amended final inspection certificate when all aspects of the building were non-compliant
- At the time of issuing the final inspection certificate and the amended final inspection certificate, the approved work relevant to site works and drainage and damp and weatherproofing had not been completed and/or were non-compliant with building development approval or building assessment provisions. In particular, the roof water had not been taken to the roadside curb and channel or other approved point discharged. The land area to the underside of the timber decks and perimeter of the dwelling had not been graded to drain the surface water away from the dwelling. Flashings to the roof junctions and window openings had not been appropriately sealed and finished.
Count 17 Unsatisfactory Conduct – Certifying completion of building when the building works were not consistent with the building works approved (timber decks instead of reinforced concrete decks approved)
- The development approval included the approval of external ground level patios and the terrace proposed to be constructed of reinforced concrete. During the construction of the dwelling, the builder substituted timber decks for the reinforced concrete patios. Despite these changes no change to the building development approval was ever sought. The change in the approved development required Mr Maltby or another private certifier to reassess the application for the timber decks with respect to matters of structural adequacy, termite control, site drainage, subfloor ventilation and corrosion protection to external steel elements. Mr Maltby certified completion of the building work which was inconsistent with the building work approved.
Count 18 Unsatisfactory Conduct – Failing to identify and ensure adequate corrosion protection to structural steel elements.
- When substituting the reinforced concrete patios and terrace with timber decks, the builder utilised steel columns for the support of the timber decks and other timber framing members. The steel columns were installed into an external environment in contact with moisture from the ground and subject to additional corrosion factors associated with an outdoor swimming pool located in close proximity. The steel columns have been subject to much corrosion and there was no evidence to suggest that the required degree of corrosion protection prescribed by the BCA had been carried out.
Relevance to external review
- Mr Maltby did not seek to review these findings of unsatisfactory conduct by the Commission. They are not decisions required to be reviewed by this Tribunal.
- The Commission relies upon these and the earlier counts of unsatisfactory conduct as repeated unsatisfactory conduct sufficient to amount to professional misconduct.
- It is submitted on Mr Maltby’s behalf that findings in respect to other properties being the subject of Counts 13 to 19 are irrelevant to the external review application as Mr Maltby did not seek a review of these decisions of the Commission. That is true and I agree that they are not and cannot be the subject of a review by this Tribunal. However, they are decisions of the Commission which Mr Maltby has chosen not to dispute, at least not to the stage of seeking an internal review. Section 204(4) of the Building Act 1975 (Qld) does not prevent the Commission, or indeed this Tribunal, from taking the matters the subject of investigation into consideration at a later time as part of a pattern of conduct that may result in disciplinary proceedings against the certifier.
- I confirm the internal review decision of the Commission that Mr Maltby’s actions in issuing a Final Inspection Certificate, his failure to take an appropriate course of action to resolve his concerns about the structural adequacy of the building, his failure to express to the BSC or TCC his concerns about asbestos material present in the dwelling, his failure to identify and act on the fact that the building approval had lapsed and his failure to notify all relevant parties of his concerns, in writing in an official form constituted professional misconduct.
- I confirm the unsatisfactory conduct in Counts 3, 4, 5, 7, 8, and 9 to be established. These instances of unsatisfactory conduct amount to repeated unsatisfactory conduct and, accordingly, professional misconduct. The additional undisputed counts of unsatisfactory conduct being counts 13 to 19, alone and or together with Counts 3, 4, 5, 7, 8, and 9 also amount to repeated unsatisfactory conduct and, accordingly, professional misconduct.
 Class A licensed private certifiers are empowered to receive and assess building development applications. See ss 9 and 48 of the Building Act 1975 (Qld).
 Only extracts of the Form are in evidence.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
 Ibid s 24.
 In the Statement of Agreed Facts and Issues, counts 13 and 14 erroneously relate to 34 Wareham Street Aitkenvale, whereas in fact only count 13 relates to that property.
 Count 13 relates to a property at Wareham Street Aitkenvale, Count 14 to a property at Hicks Street Charters Towers and counts 15, 16, 17, 18 and 19 related to another property at Tracey Street, Bengal Beach.
 Exhibit WJB-2.
 Transcript 1-9 lines 5-10.
 Transcript 1-16 lines 42-46; Transcript 1-17 lines 1-7.
 Transcript 1-17 lines 42-46.
 Transcript 1-18 lines 1-10.
 Exhibit J to Mr Kennedy’s report.
 Transcript 1-25 lines 7-10.
 Transcript 2-5 lines 10-26.
 Transcript 2- 5 lines 10-25.
 Transcript 2-8 line 8.
 Transcript 2-11 line 27.
 Transcript 2-25 lines 1-10.
 Transcript 2-31 lines 20-31.
 Agreed Statement of Facts and Issues dated 14 June 2018 page 5, paragraph .
 Reasons paragraph .
 WJB - 3 page 7, third paragraph.
 Undated response to the Commission Ex TM – 13 to statement of Trevor Maltby.
 Indeed, that would not have been necessary as the approval had lapsed.
 See Applicant’s email to QBSC dated 21 April 2015.
  QCCTB 157.
 See s 71 Building Act 1975 (Qld).
 The email from the applicant read in part ‘this permit was for 6 months only however we let it continue as we were advised was taking time to get his finances together.’
 (1992) 75 LGRA 337, 345 (Pearlman J).
 (1971) 21 LGRA 292.
 Bragg v Hurstville Municipal Council (1971) 21 LGRA 292, 295.
 (1973) 129 CLR 138.
- Published Case Name:
Maltby v Queensland Building and Construction Commission
- Shortened Case Name:
Maltby v Queensland Building and Construction Commission
 QCAT 66
15 Mar 2019