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Meads v Queensland Building and Construction Commission[2020] QCAT 520

Meads v Queensland Building and Construction Commission[2020] QCAT 520

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Meads v Queensland Building and Construction Commission [2020] QCAT 520

PARTIES:

PHILLIP DANIEL MEADS

 

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION

COMMISSION

 

(respondent)

APPLICATION NO/S:

OCR047-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 December 2020

HEARING DATE:

12 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member LeMass

ORDERS:

1. The review decision is set aside.

2. The respondent to pay the applicant’s costs.

CATCHWORDS:

Private certification – unsatisfactory conduct – assessment of building solutions – deemed to satisfy.

Building Act 1975 (Qld) s 204, Schedule 2

Queensland Building and Construction Commission Act 1991 (Qld) s 86(2)(a), 87

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

Briginshaw v Briginshaw (1938) 60 CLR 366

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Represented by Samantha Nean, Senior Lawyer in house Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    This is an application to review a decision of the QBCC[1] made on 10 July 2020 to discipline Mr Meads for unsatisfactory conduct.[2]
  2. [2]
    The objects of this review are to proceed by way of fresh hearing on the merits and to produce the correct and preferable decision.[3]
  3. [3]
    The statutory framework is well summarised by the respondent in paragraphs 7 to 29 of its Opening Submissions.

Background

  1. [4]
    This Matter arises out of a complaint made against the applicant by an aggrieved neighbour with respect to the positioning of a pergola close to his boundary and causing him and his family a substantial loss of amenity. 
  2. [5]
    Despite the merits of his complaint the outcome of this review will not assist the neighbour, because the building works will remain unchanged.
  3. [6]
    During the course of investigating the complaint Mr Cooper of the QBCC found that the building solutions adopted by the applicant were unlawful because they failed to include a fire separation wall between the pergola and the neighbour.
  4. [7]
    This decision was the subject of an internal review by Mr Blackman who concluded that Mr Cooper's decision was specifically wrong because a fire separation wall was not required. 
  5. [8]
    Rather Mr Blackman found that the Applicant had assessed the building solution pursuant to the Deemed to Satisfy provisions, when he should have applied the Performance Provisions[4] and that such error amounts to Unsatisfactory conduct for which substantial penalties have been imposed.

The Building Solution

  1. [9]
    The construction approved by the applicant is an eave within 900 mm of the allotment boundary made of “Ausdeck”, a typical contemporary patio cover of steel sandwich construction with a sheet of colorbond steel on top, same on the bottom and a foam core, with a metal fascia.
  2. [10]
    When building work occurs within 900mm of a boundary it triggers consideration for fire separation from another building. The National Construction Code 2016 volume 2 Building Code of Australia will be considered in detail.

Assessment 

  1. [11]
    The Building Act contemplates two methods of assessing building work by Performance Requirements:
    1. 1.0.3 Performance solution; OR
    2. 1.0.4 Deemed to Satisfy solutions.[5] 

How does the Assessor, the Applicant make such an assessment?

  1. [12]
    Under section 1.0.4:
    1. A deemed to satisfy solution which complies with the deemed to satisfy provisions is deemed to comply with the performance requirements.
    2. a deemed to satisfy solution may be assessed according to one or more of the assessment methods as appropriate.
  2. [13]
    Section 1.0.5 provides the assessment methods;

1.0.5 Assessment Methods

The following assessment methods, or any combination of them, can be used to determine that a performance solution or a deemed-to-satisfy solution complies with the performance requirements, as appropriate;

 (d)  Comparison with the Deemed to Satisfy Provisions

  1. [14]
    The Applicant contends that he has “compared” the building solution with the Deemed to Satisfy provisions in 3.7.1.7 (b) ii:

 2.  “The encroachments allowed within 900mm of an allotment boundary…..

 (ii)  eaves with non-combustible roof cladding and non-combustible lining”

  1. [15]
    The applicant assessed the solution to be Deemed to Satisfy by the comparison method, 1.0.5 (d) in that it was an acceptable solution because it had a noncombustible cladding and a non-combustible lining, and issued the Form 21 for legal occupancy in December 2018.

Disagreement 

  1. [16]
    The Respondent says this is incorrect, because the product is only one thing, it may have non-combustible top and lining but because it is glued together and the middle combustible then it is now categorised as combustible roof cladding which does not comply with 3.7.1.7 (b) ii.
  2. [17]
    Therefore it could not be assessed as a Deemed to Satisfy solution and should have been assessed as a Performance solution.

The Evidence

  1. [18]
    The Applicant, unrepresented, says that his interpretation is open upon the plain wording of the Act.
  2. [19]
    His witness Mr Thomas is a Fire Engineer and a building certifier with extensive academic and practical experience. With respect to the QBCC assessment he says[6]:

The roof sheet is one product and it could be interpreted that not all parts of the Ausdeck insulated roof are non-combustible therefore the construction overall does not satisfy the definition as non-combustible however that is a limited interpretation and is not agreed. 

Meads v Queensland Building and Construction Commission [2020] QCAT 520

The standard construction of an eave to a building with non-combustible roof cladding and non-combustible soffit lining that surrounds timber (combustible) framing to support the sheets is allowable construction for an eave within 900 mm of the side boundary under clause 3.7.1 .7 (b) of BCA 2016 notwithstanding the definition of non-combustible which refers to construction as a whole or part.[7]

The proposed ausdeck sheet therefore is an acceptable eave construction in accordance with clause 3.7.1 .7 (b) of NCC-BCA 2016.[8]

…

The construction of the patio with non-combustible gutter at 450mm from the boundary therefore has a 400% more resistance to fire spread than the deemed to satisfy solution with combustible fascia at 400mm from the boundary.[9]

  1. [20]
    Mr Thomas concludes that the applicant certifier was entitled to use at the comparison method, that he has discretion in assessment of the solution. That the building work approval was issued and the construction to that approval was in accordance with the requirements of the Building Act and Building Regulation. The building certifier can not be described as performing in an unsatisfactory manner or acting contrary to the Code of Conduct.[10]
  2. [21]
    The Applicant says that he is entitled to compare an element of proposed building work to the DTS provisions without that element being exactly in accordance.[11]
  3. [22]
    He raises the following to support such contention:

 1. 1.0.5(d) Comparison is not required for identical solutions.[12]

  1. [23]
    The diagram above shows non-combustible roof cladding and eaves surrounding combustible timber trusses and fascia similar to his solution but considerably worse for fire spread.
  2. [24]
    The Definition of Deemed to Satisfy Solution means a method of satisfying the Deemed to Satisfy Provisions.[13]
  3. [25]
    The Applicant says there may be many methods.[14]
  4. [26]
    The wording of the previous section which has diagrams similar to the above, is:

3.7.1.5 Construction of External Walls 

Explanatory Information

The intent of the typical construction details shown in figure 3.7.1.3 is to ensure … other forms of construction may also be acceptable provided that they achieve this intent.[15]

Respondent’s Evidence

  1. [27]
    In Mr Blackmans statement;[16]

while patio 2 is in part able to be considered an “eave” as part of the roof overhangs the metal posts and beam and extends to which 450mm of the allotment boundary:

  1. (i)
    the roof has a polystyrene core which is glue-laminated, using thermosetting two part polyurethane adhesive, to two separate outer layers of pre-painted steel sheeting, the upper being ribbed or corrugated and forming the outer roof covering, the lower being flat and forming the under roof lining;
  2. (ii)
    while pre-painted steel sheeting is of non-combustible material, however, the polystyrene core is combustible;
  3. (iii)
    section 1.1.1 of the BCA defines non-combustible as:

“non-combustible - 

  1. (a)
    applied to a material - means not deemed combustible AS1530.1Combustibility Tests for Materials; and
  2. (b)
    applied to construction or part of a building - means constructed wholly of materials that are not deemed combustible”; 
  1. [28]
    Mr Blackman was questioned about the conflict between the definition above and the DTS figure 3.7.1.9 above
  2. [29]
    Mr Blackman says:[17]

you may very well have a situation today where some of the deemed to satisfy provisions actually won't comply with the performance requirements if you were to sit down and scrutinise them…might not come up to scratch…

…as I suggested there before, Member it's a legacy ok all the original prescriptive requirements out of the original building code from 1990 back to 1988, if not all most of the prescriptive requirements have continued on ok - just wait for performance Solutions under the current BCA we have it now probably had a situation in this one where if it was put the to the rigors of the performance based assessment that combustible , the combustible timber framing might not actually comply with the performance requirements. I don’t say it doesn't doesn't - OK but we are stuck with it.[18]

  1. [30]
    With respect to the Comparison Assessment he says:

and if you come up with something different that's not exactly as per the Deemed to satisfy provisions then you are in the area of Performance ...but we are definitely member in the area of performance.[19]

…comparison with the Deemed to satisfy provisions is going back to 10 1.0.3 performance solution to be at least equivalent to the Deemed to Satisfy provisions. So comparison with the Deemed to Satisfy provisions is not an appropriate assessment method for complying with the Deemed to satisfy Solutions ok, it's only appropriate for complying with the performance requirements as a performance solution.[20]

They are stand alone provisions but must be read holistically from 1.0.1.[21]

If we are comparing with a Deemed to Satisfy solution then that is not an appropriate assessment method...we are in performance territory.[22]

How to determine which method, Deemed to Satisfy OR Performance Solution is appropriate

  1. [31]
    Unfortunately there is no test or assistance in the Act and I am not referred to the same.
  2. [32]
    The Applicant says the justification for his decision is the unambiguous and straightforward meaning of the English words as used in the act. He says that unless it's a dead set minimum i.e. 30 metres to the nearest fire exit and you can't provide it, then you need to propose a performance solution.[23] 
  3. [33]
    The intent of the act and the test is for, the discretion provided to the assessment manager, the certifier, to be exercised in an acceptable manner. If his decision could not possibly or reasonably comply with the requirements of the act, then the exercise of his discretion and decision would be wrong, unacceptable and may amount to misconduct.
  4. [34]
    The Respondent contends for a more sophisticated interpretation and examination consistent with the rules of Statutory Interpretation. They say fire safety is a central and important consideration (and of course I agree) that one must look at the purpose of the act holistically and consider the instrument as a whole.[24] 
  5. [35]
    The Respondent submits that “where two meanings are open ...it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”.[25]
  6. [36]
    To engage with the Respondent’s argument one must first accept its factual contention that the roof is one product “not complying” with the DTS and not two products, as the applicant contends, which comply with the DTS.
  7. [37]
    This is not the simple “dead set 30 metres to a fire exit”[26] example of the Applicant’s which if drawn at 20 would be demonstrably wrong. But here we have a difference of opinion, without an empirical test. Mr Blackman tells me “member we are definitely in performance territory” and that is the highest it is put.
  8. [38]
    Further, acknowledging the overarching need to provide safety, the evidence is that the solution would pass the performance solution tests if documented and that it is 400% safer than the DTS Solutions (noting Mr Blackman’s statements that the DTS are a legacy and may not now pass Performance standards). So I'm not dealing with a compromise of individual safety or where the product will be removed or altered, and to this extent it is an academic exercise.
  9. [39]
    For the purposes of this proceeding, I find as a matter of fact that the interpretation made by the Applicant and Mr Thomas of an appropriate  DTS solution was an honest and valid comparison of the Building Solution with the words “non-combustible cladding” and “non-combustible lining” upon the ordinary and usual meaning of those words. 
  10. [40]
    The applicant certifier in those circumstances was not required to engage in a more esoteric, holistic investigation of those words when he found them clear on their face and the product was a safer choice.
  11. [41]
    I say, for the purposes of this proceeding[27] because the substantial allegations of this matter require me to consider such a decision in light of the punitive consequences which followed and of which the Applicant now seeks review.
  12. [42]
    The conduct of the Applicant in characterising his solution as DTS and the finding of Mr Blackman and the decision maker Ms Alexander that such characterisation was incorrect is the conduct which is said to be unsatisfactory and deserving of the penalties imposed.
  13. [43]
    None of the three decision makers – Mr Cooper, Mr Blackman or Ms Alexander (albeit Ms Alexander did not bring any novelty to the decision) – compared the conduct of the applicant with a standard necessitating the penalty imposed.
  14. [44]
    This is a matter of very substantial detriment to the Applicant. It is ordinarily understood as a professional misconduct matter where the result will bring public shame upon the certifier, it will feature upon his public record and may count toward a future decision upon retaining his licence.  It also seeks to impose substantial and onerous penalties. These penalties included at the date of hearing:

In light of the above, it is appropriate under section 204(4)(a) of the Building Act to impose a penalty of a reprimand on the applicant. It is also appropriate to require the applicant to take all necessary steps within 60 days of the date of this decision to ensure the certification of building work complies with the Building Act pursuant to Section 204(4)(e)(i) of the Building Act which includes, but is not limited to:

  1. a new Development Application for building works relating to patio 2 to address the fire separation requirements under the BCA;
  2. the applicant is to be mindful of fire separation requirements under the BCA for roofed patios and need[s] to obtain written advice from the Gold Coast City Council to confirm if a new Generally In Accordance determination application will be required for any changes to the subject structures; and
  3. the new building permit is required to be submitted to the local authority.[28]
  1. [45]
    That was the decision for which review was sought. 
  2. [46]
    The Applicant contends that such matters are entirely beyond his possible achievement as he has no control of the local authority and no ability to enter a stranger’s property to make revisions to his home.
  3. [47]
    The respondent at the conclusion of the hearing, accepting the above, unilaterally resiled from all penalties save the reprimand.
  4. [48]
    With respect to Unsatisfactory Conduct, Mr Blackman says:[29]

the applicant had breached the standards of conduct...which require a building certifier to perform building certifying functions, in the public interest, comply with legislative requirements, abide by moral and ethical standards expected by the community…

  1. [49]
    A slur on one's public reputation is always a serious matter and when combined with the penalties above (now removed) even more so, and there is a need to be very comfortably satisfied that the conduct is of a nature as categorised above.[30] 
  2. [50]
    The Applicant's conduct is not so categorised; he presents as an honest and reasonable person who would not willingly put the public safety at risk. The conduct complained of is at its highest a failure to complete administrative tasks.
  3. [51]
    The review Decision is wrong and is set aside.

Costs

  1. [52]
    This matter has been voluminous in the paper produced, protracted and difficult for the Applicant and the Respondents evidence anecdotal at best.  In circumstances where the Respondent retracted most of the penalties imposed at the end of the hearing after the Applicant explained the impossibility of their fulfilment. This is a particularly relevant consideration, had the Commission turned its mind meaningfully to the Applicants position, just on penalty at the opportunity afforded Compulsory Conference procedure an inordinate amount of wasted costs may have been preserved.
  2. [53]
    This is an appropriate case for the Respondent to pay the Applicant’s costs.

Footnotes

[1]  Section 86(2)(a) and section 87, Queensland Building and Construction Commission Act 1991 (Qld).

[2]  Section 204 and Schedule 2 Building Act 1975 (QLD).

[3]  Section 20, Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[4]  The applicant would have had to detail the reasons why his solution was acceptable and lodge that paper work with the local authority.

[5]  See page 123 respondents bundle for detail.

[6]  At paragraph 32 of the statement of Mr Thomas.

[7]  Ibid at paragraph 36.

[8]  Ibid at paragraph 37.

[9]  Ibid at paragraph 40.

[10]  Ibid at paragraphs 47 to 49, summarised.

[11]  Paragraph 24 of Respondent’s closing submissions.

[12]  Audio transcript 12 October 2020 at approx. 3:05pm.

[13]  My emphasis.

[14]  Audio transcript 12 October 2020 at approx. 3:25pm.

[15]  My emphasis.

[16]  at paragraph 62(b).

[17]  My interpretation of the audio transcript 12 October 2020 at approx. 3:07pm.

[18]  My interpretation of the audio transcript 12 October 2020 at approx. 3:13pm.

[19]  My interpretation of the audio transcript 12 October 2020 at approx. 3:09pm.

[20]  My interpretation of the audio transcript 12 October 2020 at approx. 3:20pm.

[21]  My interpretation of the audio transcript 12 October 2020 at approx. 3:23pm.

[22]  My interpretation of the audio transcript 12 October 2020 at approx. 3:25pm.

[23]  My interpretation of the audio transcript 12 October 2020 at approx. 3:10pm.

[24]  This short contention summary is set out in the Respondent’s submissions, paragraph 26 to 87.

[25]  Ibid at paragraph 87.

[26]  Paragraph 32 of these reasons, above.

[27]  Paragraph 39 of these reasons, above.

[28]  Decision notice page 5.

[29]  Paragraph 65.

[30] Briginshaw v Briginshaw (1938) 60 CLR 336.

Close

Editorial Notes

  • Published Case Name:

    Meads v Queensland Building and Construction Commission

  • Shortened Case Name:

    Meads v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 520

  • Court:

    QCAT

  • Judge(s):

    Member LeMass

  • Date:

    18 Dec 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 CLR 366
1 citation
Jump To
Cite 1 - (1938) 60 CLR 366
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336

Cases Citing

Case NameFull CitationFrequency
Queensland Building and Construction Commission v Meads [2023] QCATA 1221 citation
1

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