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Hart v Queensland Building and Construction Commission[2022] QCAT 238

Hart v Queensland Building and Construction Commission[2022] QCAT 238

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hart v Queensland Building and Construction Commission [2022] QCAT 238

PARTIES:

DEBORAH ELIZABETH HART

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR219-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 January 2022

HEARING DATE:

On-papers Hearing

HEARD AT:

Brisbane

DECISION OF:

A/Member Lember

ORDERS:

  1. The application for review of a decision filed on 24 June 2020 is dismissed.
  2. Each party is to bear its own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – administrative review – Queensland Building and Construction Commission – complaint against certifier by owner of adjoining property – whether applicant has standing – whether application lacks substance

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether owner of adjoining property where building work was certified is a person affected by a decision made about a misconduct decision under section 204 of the Building Act 1975 (Qld) – whether Tribunal has jurisdiction to hear the matter – whether the application for review should be struck out

Acts Interpretation Act 1954 (Qld), s 14

Building Act 1975 (Qld), s 10, s 47, s 48, s 136, s 190, s 204

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9(1), s 17(1), s 47

Sustainable Planning Act 2009 (Qld), s 10

Sustainable Planning Regulation 2009 (Qld), sch 14

Allan v Transurban City Link Ltd (2001) 183 ALR 380

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown v Queensland Building and Construction Commission (No 2) [2016] QCAT 7

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Drew v Queensland Building and Construction Commission [2015] QCAT 11

Fisher v Queensland Building and Construction Commission [2019] QCAT 323

Maltby v Queensland Building and Construction Commission [2019] QCAT 66

McCrystal v Queensland Building and Construction Commission [2018] QCAT 207

Medical Board of Queensland v Whittaker [2010] QCAT 312

Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191

Ogle v Moreton Bay Regional Council, QBSA [2009] QCCTB 71

Psychology Board of Australia v McEvoy [2017] QCAT 473

Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154

Schwede v QBSA, Kennedy [2009] QCCTB 157

West v Queensland Building and Construction Commission [2019] QCAT 237

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

APPEARANCES &

REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    Ms Hart co-owns (with three others, including Mr Richard Koerner) properties described as Lots 93 and 94 on an identified registered plan (“the Hart/Koerner properties”).  
  2. [2]
    The Hart/Koerner properties adjoin Lot 92 (“the relevant property”) which is encumbered by statutory vegetation protections.
  3. [3]
    On 10 July 2012 Mr Neller, a private certifier engaged by the owners of the relevant property on 15 June 2012, approved the construction of a new dwelling at the relevant property. Issuing the development approval is a building and private certifying function pursuant to the Building Act 1975 (Qld) (“the Building Act”).[1]
  4. [4]
    On 27 February 2020 Mr Koerner (on behalf of the Hart/Koerner property owners) complained to the Queensland Building and Construction Commission (“QBCC”) about the conduct of Mr Neller in relation to the performing building and private certifying functions for assessable building work on the relevant property. 
  5. [5]
    On 27 April 2020 the QBCC made a decision pursuant to section 204 of the Building Act that Mr Neller had not engaged in “unsatisfactory conduct” or “professional misconduct” as defined within schedule 2 of the Building Act, and confirmed this by an internal review decision made 29 May 2020 (“the decision”).
  6. [6]
    On 24 June 2020 Ms Hart (on behalf of the Hart/Koerner property owners) filed an application for the Tribunal to review the decision pursuant to sections 86(2)(a) and 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”).
  7. [7]
    On 23 November 2020 the QBCC filed an application seeking to join Mr Neller to the proceedings. 
  8. [8]
    On 12 February 2021 the QBCC filed an application for miscellaneous matters seeking that the application for review be struck out on the grounds that it is an abuse of process as Ms Hart does not have standing to bring the application, and, in any event, because her application is lacking in substance.
  9. [9]
    I have decided to strike out the application for review for the following reasons.  Consequently, it is not necessary to decide the application for joinder.[2] 

The legislative framework

  1. [10]
    The Tribunal has jurisdiction to deal with matters if empowered to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) or by an enabling Act.[3]
  2. [11]
    The Tribunal’s review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[4] 
  3. [12]
    Complaints made against certifiers are received by the QBCC under section 190 and are decided under section 204 of the Building Act:

190 Making a complaint against a building certifier

(1) A person may make a complaint to QBCC about a building certifier if the person believes the building certifier has engaged in unsatisfactory conduct or professional misconduct.

204 Decision after investigation or audit completed

(1) After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.

(2) QBCC must give the building certifier and the complainant (if any) an information notice about the decision taken under subsection (1).

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.

  1. [13]
    A decision made under section 204 of the Building Act is a reviewable decision.[5]
  2. [14]
    Whilst the Building Act does not confine the persons who may complain to those who are directly the clients of the relevant certifier, only “a person affected by a reviewable decision” may apply under the QCAT for review:

87 Application for review

A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

  1. [15]
    In all proceedings, the Tribunal is mandated[6] to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the Tribunal, among other things, to encourage the early and economical resolution of disputes before the Tribunal.[7]
  2. [16]
    The High Court has observed in relation to court resources generally that they serve “… the public as a whole, nor merely the parties to the proceedings”.[8]
  3. [17]
    Section 47(2) of the QCAT Act allows the Tribunal to strike out or dismiss a proceeding that is:
    1. (a)
      frivolous, vexatious or misconceived; or
    2. (b)
      lacking in substance; or
    3. (c)
      otherwise an abuse of process,

however, the power should only be exercised “sparingly” and “to prevent an abuse of process when a claim is groundless or futile”.[9]

  1. [18]
    The first question for the Tribunal on this application is therefore whether Ms Hart is a person affected by the section 204 decision who has standing to bring the application.
  2. [19]
    If she does, the next question is whether the proceedings should be dismissed for futility/lack of substance.

Does Ms Hart have standing to bring an application for review?

  1. [20]
    The Tribunal has previously held that the approach for determining standing under section 87 of the QBCC Act should be to “construe the words of the standing provision under consideration”[10] and to: 
    1. (a)
      identify the legal effect and operation of the reviewable decision; and
    2. (b)
      determine whether the applicant is affected by that decision.[11]
  2. [21]
    In McCrystal v Queensland Building and Construction Commission[12]the QBCC made a decision to take no disciplinary action against a certifier who had performed certain certification functions in respect of a property, which was reviewed by the owner of a neighbouring property.
  3. [22]
    The Tribunal relevantly considered:
    1. (a)
      the word “affected” describes a “zone of connection”;[13]
    2. (b)
      whether a person is affected by a reviewable decision will vary in respect of the nature of the decision;[14]
    3. (c)
      “if the nature of the decision is such that it could not have affected the applicant directly, it will be necessary for the applicant to establish by evidence that his or her interests are in truth affected”;[15]
    4. (d)
      “the issue is whether the applicant was affected by the decision itself, not potentially by the outcome of any review”;[16]
    5. (e)
      section 87 of the QBCC Act does not require an applicant to be affected in a specific way (for example, it’s not necessary that the decision affect a legal interest);[17] and
    6. (f)
      an applicant must “demonstrate that he is affected by the decision beyond that of a member of the public at large”.[18]
  4. [23]
    In Fisher v Queensland Building and Construction Commission[19] the Tribunal dismissed review applications due to the applicant’s lack of standing, consistent with McCrystal.  Fisher was also an application for review of a decision that a certifier had not engaged in unsatisfactory conduct or professional misconduct in connection with the certifier’s conduct in respect of two properties – neither of which the applicant had any “financial or other interest in” and one of which he lived adjacent to.
  5. [24]
    In West v Queensland Building and Construction Commission[20] the Tribunal parted from McCrystal, finding that Ms West, as initial complainant under the provisions of the Building Act pursuant to the review regime intended by that Act, was a “person affected” by the decision of QBCC within the meaning of s 87 of the QBCC Act and entitled to bring the within application in the Tribunal.[21]
  6. [25]
    Like McCrystal, West related to an application commenced by the owner of a neighbouring property, for review of a decision that a certifier had not engaged in unsatisfactory conduct or professional misconduct in connection with the performance of building or private certifying functions undertaken in respect of a property not owned by the applicant.
  7. [26]
    Member Howe noted that certifiers are specifically required under section 136(1) of the Building Act to act in the public interest, and, therefore, making both avenues of review available to a complainant dissatisfied with an initial determination of the complaint seems a logical machinery to enhance the requirement that private certifiers act in the public interest by allowing vigilance of such by concerned members of the public.[22]
  8. [27]
    The learned Member observed the inclusion in s 204(2) of the Building Act of a note stating ‘For reviews of the decision, see the QBCC Act, part 7, division 3’ which forms part of the legislation and must be given meaning and effect.[23]  He said (my emphasis added):

[32] Part 7 division 3 of the QBCC Act covers both internal and external review procedures. Subdivision 1 of division 3 concerns internal review by QBCC and subdivision 2 external review in the Tribunal.

[33] Had it been intended to restrict the right of a complainant to internal review only, the legislation could very simply have said as much. It does not. Instead by addition of the note the legislation specifically directs one to both rights of internal and external review of decisions by QBCC which involve investigations and decisions about the conduct of private certifiers following complaints by members of the public.

  1. [28]
    In contrast, section 204(5) of the Building Act – where the decision is a finding against the certifier - only contains the note about review rights with respect to the certifier, not the complainant:

(5) QBCC must—

(a) give an information notice about its decision under subsection (4) to the building certifier; and

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.

(b) if the decision is made after investigating a complaint—give the complainant a copy of the notice.

  1. [29]
    In my view, the language of Part 7 Division 3 of the QBCC Act is also informative. For example, (my emphasis added):

86D Notice of internal review decision

  1. (1)
    As soon as practicable after an internal review decision is made, or is taken to have been made, under section 86C, the internal reviewer must give the applicant and any other person affected by the decision written notice (the review notice) of the decision.
  2. (2)
    The review notice must state—

(a) the decision; and

(b) the reasons for the decision; and

(c) that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2; and

(d) how to apply for review of the decision.

  1. [30]
    The use of the words “any other person affected” strongly infers that the applicant for internal review is a person affected by the decision under review.  If the word “other” had been omitted, it would be a different matter and would suggest that the applicant may not necessarily also be a person affected by a decision.  Additionally, the review notice must inform “the person” (being the recipient of a review notice) that they can apply to the Tribunal for external review.  
  2. [31]
    In my view, it makes no sense for section 87 to exclude certain recipients of the review notice under section 86D from then applying because they are not “affected by” the decision.  On that basis, I prefer the approach taken in West and I find that – beyond her capacity as a member of the public[24] - Ms Hart as one of the original complainants is a person affected by the decision of the QBCC with standing to review the decision to the Tribunal.

Does the application for review lack substance/utility?

  1. [32]
    The role of the Tribunal in review proceedings is to review the circumstances afresh and to produce the correct and preferable decision.[25]
  2. [33]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale whereby the more serious the consequences, to Mr Neller in this case, the higher the standard of “reasonable satisfaction” is needed for an application to succeed.  This principle was espoused by Justice Dixon in Briginshaw v Briginshaw:[26]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.

  1. [34]
    The grounds of Ms Hart’s complaint are that in issuing the approval and certifying the works, Mr Neller, breached required standards of conduct and professionalism because Mr Neller:
    1. (a)
      failed to lodge a form 21;
    2. (b)
      failed to account for operational works requirements;
    3. (c)
      failed to comply with the Vegetation Management Plan; 
    4. (d)
      failed to perform building certifying functions in the public interest in breach of section 136 of the Building Act because he failed to advance the purposes of the Sustainable Planning Act 2009 (Qld) (“SPA”) and the Maroochy Town Plan (2000);
    5. (e)
      failed to correct an error in the IDAS Form 1 development application which stated that the relevant property did not “involve a state resource”, and, therefore, the Department of Environment and Science was not included as a concurrence agency on the application when it should have been;   
    6. (f)
      “construction drawings lodged on 10 July 2012 are not those approved by Council on 6 July 2012”;
    7. (g)
      “improper decision notice dated 24/11/2004 is purported to fulfil final inspection required”;
    8. (h)
      certified building work at the relevant property inconsistent with an appropriate pre-cleared natural vegetation footprint permit requirements for self-assessable development under the SPA and the Maroochy Town Plan (2000); and
    9. (i)
      breaching the terms of the building development approval.
  2. [35]
    Schedule 2 of the Building Act defines what is “professional misconduct” and what is “unsatisfactory conduct”:

professional misconduct, for a building certifier or former building certifier, includes the following—

  1. (a)
    conduct that—
    1. shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
    2. compromises the health or safety of a person or the amenity of a person’s property or significantly conflicts with a local planning scheme; and

…

  1. (iii)
    is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including, for example—
    1. disregarding relevant and appropriate matters; and
    2. acting outside the scope of the building certifier’s powers; and
    3. acting beyond the scope of the building certifier’s competence; and
    4. contravening the code of conduct; and
    5. falsely claiming the building certifier has the qualifications, necessary experience or licence to be engaged as a building certifier;
  1. (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—
    1. this Act; or
    2. another Act regulating building certifiers, including private certifiers for building work;
  2. (c)
    failing to comply with an order of the QBCC or the tribunal;
  3. (d)
    fraudulent or dishonest behaviour in performing building certifying functions;
  4. (e)
    other improper or unethical conduct;
  5. (f)
    repeated unsatisfactory conduct.

unsatisfactory conduct, for a building certifier or former building certifier, includes the following—

  1. (a)
    conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
  2. (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—
    1. disregarding relevant and appropriate matters; and
    2. acting outside the scope of the building certifier’s powers; and
    3. acting beyond the scope of the building certifier’s competence; and
    4. contravening the code of conduct;
  3. (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.
  1. [36]
    Sections 7 and 10 of the Building Act define “building or private certifying functions” as, relevant to this application:
    1. (a)
      carrying out building assessment work, being assessing a building development application for compliance with the “building assessment provisions”;
    2. (b)
      giving a certificate that states building work complies with the “building assessment provisions”;
    3. (c)
      inspecting work in respect of a building development approval;
    4. (d)
      in respect of a single detached class 1a building or a class 10 building or structure, giving a certificate in respect of a stage of building work (after excavation and before footings) or a final inspection certificate; and
    5. (e)
      giving a certificate of classification.
  2. [37]
    Sections 47 and 48 also include as a building or private certifying function “receiving, assessing and deciding a building development application and deciding whether enforcement action under the Building Act or the Planning Act 2016 ought to be taken in respect of a building development approval”.
  3. [38]
    The “building assessment provisions” are set out in section 30 of the Building Act:

30 Meaning of building assessment provisions

The following laws and other documents are the building assessment provisions—

  1. (a)
    chapter 3 and this chapter;
  2. (b)
    he fire safety standard;
  3. (c)
    the fire safety standard (RCB);
  4. (d)
    any provisions of a regulation made under this Act relating to building assessment work or accepted building work;
  5. (e)
    any relevant local law, local planning instrument or resolution made under section 32 or any relevant provision under section 33;
  6. (f)
    the BCA;
  7. (g)
    subject to section 33, the QDC.
  1. [39]
    To make a finding of unsatisfactory conduct, the Building Act requires that it be established that a certifier engaged in conduct that falls within one of the following categories:
    1. (a)
      conduct, in performing building or private certifying functions, showing incompetence or similar;
    2. (b)
      conduct contrary to a function under the Building Act or another Act regulating certifiers;
    3. (c)
      conduct of a lesser standard that might reasonably be expected by the public or the building certifier’s peers, in respect of which the Tribunal and its predecessors have held:
      1. the question is not whether a building certifier has “made poor or wrong decisions” as to the interpretation of legislation;[27]
      2. “the standard expected of a building surveyor is one expected of a reasonable competent building surveyor”;[28]
      3. the conduct in question “must be assessed against the reasonable expectations of the public and his professional peers”;[29]
      4. expert evidence is not required to establish the standard which might reasonably be expected;[30] and
      5. however, whether the conduct complained of is of lesser standard than that reasonably expected is a question of fact.[31]
  2. [40]
    The conduct in question should also satisfy the common law definition of professional misconduct.[32] In the context of private certifiers, this has been expressed to be “misconduct of a nature and seriousness that a private certifier in good standing would regard [it] as disgraceful or dishonourable and which warrants severe disciplinary action”.[33]
  3. [41]
    The QBCC argue that Ms Hart’s prospects of success in the review application are futile, submitting, summarily, that: 
    1. (a)
      Ms Hart complains of conduct that Mr Neller had no role in, for example, clearing of vegetation on the relevant property, and
    2. (b)
      Ms Hart complains of failures and omissions that Mr Neller had no professional obligation to undertake and in respect of which no evidence has been led. 
  4. [42]
    On the issue of Mr Neller’s role in the clearing of vegetation on the relevant property the QBCC say that:
    1. (a)
      It can be inferred from Ms Hart’s material[34] that her grievance relates to the clearing of certain vegetation at the relevant property.
    2. (b)
      Included with the Development Approval[35] was:
      1. a geotechnical report in respect of the relevant property prepared by North Coast Geomechanical Consultants dated September 2005 (“2005 Report”); and
      2. a geotechnical review in respect of the relevant property prepared be Barry D. Hoskin & Associates dated 18 December 2008 (“2008 Report”).
    3. (c)
      The 2005 Report refers to the relevant property containing “very thick vegetation consisting of small to large trees and large quantities of vines. Very little ground grass cover was evident” and annexes photographs.
    4. (d)
      The 2008 Report refers to the relevant property, in respect of vegetation as “sparsely grassed and covered with large cobbles and boulders over most of the assumed building envelope”.
    5. (e)
      Accordingly, the 2005 Report and 2008 Report evidence that the vegetation at the relevant property was cleared at some point after September 2005 and before 18 December 2008, well prior to Mr Neller’s engagement.
  5. [43]
    Namely, Mr Neller did not make the decision to, or direct, or approve or certify the clearing of the vegetation, which took place on the relevant property well prior to Mr Neller’s involvement with it.  If the complaint is grounded upon the clearing, Mr Neller had no part in it.
  6. [44]
    Further, the provisions set out above of the Building Act which prescribe the “building and private certifying functions” to be undertaken by a building or private certifier make no reference to either the Nature Conservation Act 1992 (“NCA”) or the Vegetation Management Act 1999. Those Acts and their provisions are not matters regulated by the Building Act and are therefore not matters with which private certifiers or the Commission are empowered to investigate or otherwise deal with.
  7. [45]
    On this issue – that clearing on the property pre-dated Mr Neller’s involvement with the relevant property – Ms Hart says does not appear to comment in her submissions.
  8. [46]
    In relation to each particular complaint raised against Mr Neller, specifically the submissions are as follows:

Form 21

  1. (a)
    Section 149(2) of the Building Act provides that the obligation for a private certifier to give inspection documentation to the local government arises only when certificates to be relied upon by the certifier are accepted.
  2. (b)
    Mr Neller informed the QBCC that there were outstanding certificates in respect of the relevant property, and he had not received any response from the owners in respect to his correspondence regarding same.[36]
  3. (c)
    QBCC submit that there is no evidence that the conduct complained of constitutes unsatisfactory conduct or professional misconduct because Mr Neller’s obligation under section 149(2) had yet to arise.
  4. (d)
    Ms Hart says:
    1. Private certifiers give staged certifications prior to a Form 21 issuing;
    2. Until a Form 21 is given Mr Neller is the enforcement agent for the project, after which Council become the enforcement agency;
    3. As a Form 21 has not issued for the relevant property, Mr Neller is obliged to perform a “holistic role of assessment management upon engagement”.[37]
  5. (e)
    Mr Neller clearly indicated to the owners of the relevant property the outstanding certificates that were required in relation the property by a letter dated 14 July 2014.[38]  The owners, not Mr Neller, were responsible for obtaining those certificates.   If indeed he was standing in the shoes of Council at that time, then he could not have been expected to project manage the build or force the production of outstanding documents that were the owners’ responsibility any more than Council could have.  
  6. (f)
    There is no merit in this complaint.

Operational works requirements

  1. (g)
    Section 10 of the SPA exempts work that is “building work” from the definition of “operational work”.
  2. (h)
    The building and private certifying functions undertaken by Mr Neller were in respect of the construction of a class 1a dwelling, being of building work for the purposes of section 10 of the SPA.
  3. (i)
    Accordingly, the QBCC say that the allegation that Mr Neller failed to account for operational works requirements does not constitute unsatisfactory conduct or professional misconduct.  
  4. (j)
    Ms Hart makes no submissions on this particular point and her allegations are not well particularised. She was not able to explain to the QBCC why operational works conditions were required on the building permit.
  5. (k)
    There is no merit in this complaint.

Vegetation Management Plan

  1. (l)
    The QBCC say that there is no evidence before the Tribunal that Mr Neller was required to comply with the Vegetation Management Plan and, accordingly, this allegation does not constitute unsatisfactory conduct or professional misconduct.
  2. (m)
    Ms Hart makes no submissions on this point and did not respond to the QBCC’s request for information on how the Plan she submitted with her complaint related to the building development approval issued by Mr Neller.
  3. (n)
    There is no merit in this complaint.

IDAS Forms 1 & 2

  1. (o)
    Pursuant to the SPA, IDAS is the system for integrating State and local government assessment and approval processes for development. 
  2. (p)
    The IDAS Form 1 (Form 1) states that for all development applications, a Form 1 and any other relevant forms must be completed, with the development applicant being the person responsible for ensuring the information provided is correct.
  3. (q)
    The applicants for the development application were the owners of the relevant property, not Mr Neller.
  4. (r)
    Further, the notes in item 9 of Form 1 refer to section 264 of the SPA and schedule 14 of the Sustainable Planning Regulation 2009 (Qld) (“SPR”) for provisions regarding state resources.
  5. (s)
    Section 264 of the SPA and schedule 14 of the SPR were repealed in 2012 and 2013, respectively. Prior to repeal, the state resources listed in schedule 14 of the SPR did not include the “State Government plants framework” and/or the Vegetation Management Report” referred to by Ms Hart.
  6. (t)
    The QBCC say that this complaint cannot constitute unsatisfactory conduct or professional misconduct as Mr Neller was not responsible for the information included in the Form 1 (or any other) and, in any event, the “State Government plants framework” and/or the “Vegetation Management Report” are not state resources pursuant to the SPA and SPR.
  7. (u)
    Ms Hart says, again, that Mr Neller acted holistically in the shoes of Council as assessment manager until a Form 21 issues, and, therefore, reviewing owner submissions and verifying information contained within IDAS Forms is part of his role.
  8. (v)
    Ms Hart has not tendered any evidence that would suggest that there is merit in this complaint.

Construction drawings

  1. (w)
    This allegation – that drawings lodged are not those approved by Council – is not particularised, supported by any evidence or submissions and is only mentioned in part C of the application for review.
  2. (x)
    There is, on the evidence before the Tribunal, no merit in this complaint.

Improper decision notice in 2004[39]

  1. (y)
    In or around 20 January 2020, the Sunshine Coast Council provided documents to Mr Koerner which included incomplete copies of documents dated 24 November 2005 relating to a Mooloolaba property.   He then provided these documents to the QBCC in making his original complaint.   
  2. (z)
    Mr Luckett, rather than Mr Neller, undertook work in respect of the Mooloolaba property and there is no evidence before the Tribunal that those documents have any relation at all to Mr Neller. 
  3. (aa)
    Accordingly, this allegation does not evidence unsatisfactory conduct or professional misconduct by Mr Neller.

Public interest

  1. (bb)
    Ms Hart alleges that Mr Neller’s conduct “has not advanced purposes” of the SPA or the Maroochy Town Plan. This allegation is not particularised or evidenced – no specific conduct is referred to, although this particular point seems to encapsulate Ms Hart’s concern about the public’s interest in ensuring that protected vegetation is not unlawfully destroyed, cleared or otherwise inappropriately dealt with.
  2. (cc)
    There is no evidence before the Tribunal to support this allegation and accordingly, it does not constitute unsatisfactory conduct or professional misconduct.

2006 DA

  1. (dd)
    The 2006 DA was issued by Steven Tucker of the Maroochy Shire Council and not Mr Neller. Matters in respect of the 2006 DA are irrelevant to Mr Neller.
  2. (ee)
    There is no merit in this complaint.

Footprint permit

  1. (ff)
    The Protected Plants Assessment Guidelines filed with Ms Hart’s submission refers to the NCA
  2. (gg)
    The Building Act does include the NCA within the “building assessment provisions” which a building certifier is required to assess compliance against.
  3. (hh)
    The SPA only references the NCA in specific circumstances, namely when the relevant land has a certain designation under that Act.
  4. (ii)
    Ms Hart has offered no evidence or submissions that the NCA or any requirement in it, applies to the relevant property or, in any event, that Mr Neller was required to have regard to same in carrying out building or private certifying functions.
  5. (jj)
    There is no merit in this complaint.

Development approval conditions

  1. (kk)
    Section 245 provides that a development approval attaches to the land the subject of the development application and “binds the owner, the owner’s successors in title and any occupier of the land”.
  2. (ll)
    Accordingly, Mr Neller is not a party bound by its conditions such that he can be held liable for non-compliance, including for a failure to complete or certify within two years from the date of approval.
  3. (mm)
    Ms Hart “rejects” that Mr Neller is not bound by the terms of the development approval but does not explain the basis for the rejection.
  4. (nn)
    There is no merit in this complaint.

Discussion and decision

  1. [47]
    The Tribunal has no power in this application, because the QBCC does not have the power, to address Ms Hart’s environmental protection concerns about vegetation clearing on the relevant property.
  2. [48]
    Those concerns seem, however, to form almost the entire grounds of the complaint. For example, Ms Hart says in her submissions that:

Unlawful destruction of para-aristolochia preavenosa habitat pursuant to the alleged misconduct of Mr Neller impacts Ms Hart’s financial and amenable interests in land owned in the butterfly-regulated zone where the properties are situated;

The street in which the properties are situated will become an “environment-free unregulated zone” if decisions not to consider Mr Neller for sanctions are left unreviewed; and

A densely vine-clad forest escarpment in a threatened species overlay will retain its market capitalisation only if the overlay’s provisions are honoured (the valued of the amenity exampled by the fact that Lot 93 as undeveloped land is valued at $325,000 for rating purposes).

  1. [49]
    Even if there was power to address the issue of clearing vegetation on the relevant property in making the decision under review, on the evidence before the Tribunal, Mr Neller took no part in it as his involvement in the relevant property post-dated the clearing complained of.
  2. [50]
    The complaint against Mr Neller must be grounded upon conduct by Mr Neller that falls foul of his professional obligations as set out in the Building Act. As findings of unsatisfactory conduct or professional misconduct can have serious consequences, the Tribunal must be reasonably satisfied to a higher standard (applying the Briginshaw principle) that Mr Neller breached those obligations.
  3. [51]
    For the reasons set out in paragraph 46 hereof, there are no arguable grounds to make a finding against Mr Neller should the matter proceed to a final hearing: namely, the application is futile.
  4. [52]
    Whilst Ms Hart has standing to bring her application, I am mindful of the Tribunal’s mandate to encourage the early and economical resolution of disputes before the Tribunal[40] and to appropriately engage its resources and, where her application lacks substance, it should be dismissed.
  5. [53]
    The application for strike out does not seek a costs order and, accordingly, I order that each party bear its own costs.

Footnotes

[1] See sections 10, 47 and 48 of the Building Act.

[2] Pursuant to Direction 4 made 9 April 2021 by Member Paratz AM.

[3] QCAT Act, s 9(1).

[4] QCAT Act, s 17(1).

[5] Section 86(2)(a) of the Building Act.

[6] Section 3(b) of the QCAT Act.

[7] Section 4(b), ibid.

[8] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 cited in.Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13].

[9] Yeo v Brisbane Polo Club Inc [2013] QCAT 261 at [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.

[10] McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 at [42]; citing Allan v Transurban City Link Ltd (2001) 183 ALR 380.

[11] Ibid, at [42], citing Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394.

[12] [2018] QCAT 207.

[13] Ibid at [43].

[14] Ibid, citing Allan v Transurban City Link Ltd (2001) 183 ALR 380.

[15] Ibid at [45], citing Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154 at 157.

[16] Ibid at [46], citing Allan v Transurban City Link Ltd (2001) 183 ALR 380.

[17] Ibid at [47].

[18] Ibid at [47], citing Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394.

[19] [2019] QCAT 323.

[20] [2019] QCAT 237.

[21] Ibid at [40].

[22] Ibid, at [34].

[23] Section 14 of the Acts Interpretation Act 1954 (Qld).

[24] McCrystal v Queensland Building and Construction Commission [2018] QCAT 207 at [47], citing Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394.

[25] Section 20 of the QCAT Act.

[26] (1938) 60 CLR 336 at 362.

[27] Drew v Queensland Building and Construction Commission [2015] QCAT 11 at [85].

[28] Ogle v Moreton Bay Regional Council, QBSA [2009] QCCTB 71 at [33].

[29] Medical Board of Queensland v Whittaker [2010] QCAT 312 at [13].

[30] Psychology Board of Australia v McEvoy [2017] QCAT 473 at [246] citing Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191.

[31] Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191 at [16].

[32] Schwede v QBSA, Kennedy [2009] QCCTB 157.

[33] Ibid at [69]; applied in Maltby v Queensland Building and Construction Commission [2019] QCAT 66 and Brown v Queensland Building and Construction Commission (No 2) [2016] QCAT 7.

[34] Namely, material provided to the Commission by the Applicant as appears in the Statement of Reasons, the application to review a decision and Ms Hart’s submission material.

[35] SOR-17 of the Statement of Reasons filed by the QBCC pursuant to section 21(2) of the QCAT Act.

[36] Statement of Reasons at pages 234 to 236.

[37] Submissions dated 4 May 2021, at page 3.

[38] Statement of Reasons at page 236.

[39] Enclosure (v) to the application for review.

[40] Section 4(b), ibid..

Close

Editorial Notes

  • Published Case Name:

    Hart v Queensland Building and Construction Commission

  • Shortened Case Name:

    Hart v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 238

  • Court:

    QCAT

  • Judge(s):

    A/Member Lember

  • Date:

    25 Jan 2022

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
Allan v Transurban City Link Ltd (2001) 183 ALR 380
4 citations
Jump To
Cite 1 - (2001) 183 ALR 380
Cite 2 - (2001) 183 ALR 380
Cite 3 - (2001) 183 ALR 380
Cite 4 - (2001) 183 ALR 380
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Argos Pty Ltd v Corbell (2014) 254 CLR 394
4 citations
Jump To
Cite 1 - (2014) 254 CLR 394
Cite 2 - (2014) 254 CLR 394
Cite 3 - (2014) 254 CLR 394
Cite 4 - (2014) 254 CLR 394
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Brown v Queensland Building and Construction Commission (No 2) [2016] QCAT 7
2 citations
Jump To
Cite 1 - [2016] QCAT 7
Cite 2 - [2016] QCAT 7
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Jump To
Cite 1 - [2011] QCATA 226
Cite 2 - [2011] QCATA 226
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Drew v Queensland Building and Construction Commission [2015] QCAT 11
2 citations
Jump To
Cite 1 - [2015] QCAT 11
Cite 2 - [2015] QCAT 11
Fisher v Queensland Building and Construction Commission [2019] QCAT 323
2 citations
Jump To
Cite 1 - [2019] QCAT 323
Cite 2 - [2019] QCAT 323
Maltby v Queensland Building and Construction Commission [2019] QCAT 66
2 citations
Jump To
Cite 1 - [2019] QCAT 66
Cite 2 - [2019] QCAT 66
McCrystal v Queensland Building and Construction Commission [2018] QCAT 207
11 citations
Jump To
Cite 1 - [2018] QCAT 207
Cite 2 - [2018] QCAT 207
Cite 3 - [2018] QCAT 207
Cite 4 - [2018] QCAT 207
Cite 5 - [2018] QCAT 207
Cite 6 - [2018] QCAT 207
Cite 7 - [2018] QCAT 207
Cite 8 - [2018] QCAT 207
Cite 9 - [2018] QCAT 207
Cite 10 - [2018] QCAT 207
Cite 11 - [2018] QCAT 207
Medical Board of Queensland v Whittaker [2010] QCAT 312
2 citations
Jump To
Cite 1 - [2010] QCAT 312
Cite 2 - [2010] QCAT 312
Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191
3 citations
Jump To
Cite 1 - [2013] QCAT 191
Cite 2 - [2013] QCAT 191
Cite 3 - [2013] QCAT 191
Ogle v Moreton Bay Regional Council [2009] QCCTB 71
2 citations
Jump To
Cite 1 - [2009] QCCTB 71
Cite 2 - [2009] QCCTB 71
Psychology Board of Australia v McEvoy [2017] QCAT 473
2 citations
Jump To
Cite 1 - [2017] QCAT 473
Cite 2 - [2017] QCAT 473
Re McHattan and Collector of Customs (1977) 18 ALR 154
2 citations
Jump To
Cite 1 - (1977) 18 ALR 154
Cite 2 - (1977) 18 ALR 154
Schwede v Queensland Building Services Authority [2009] QCCTB 157
3 citations
Jump To
Cite 1 - [2009] QCCTB 157
Cite 2 - [2009] QCCTB 157
Cite 3 - [2009] QCCTB 157
West v Queensland Building and Construction Commission [2019] QCAT 237
3 citations
Jump To
Cite 1 - [2019] QCAT 237
Cite 2 - [2019] QCAT 237
Cite 3 - [2019] QCAT 237
Yeo v Brisbane Polo Club Inc [2013] QCAT 261
2 citations
Jump To
Cite 1 - [2013] QCAT 261
Cite 2 - [2013] QCAT 261

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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