Queensland Building and Construction Commission v Meads
[2023] QCATA 122
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- Queensland Building and Construction Commission v Meads[2023] QCATA 122
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Queensland Building and Construction Commission v Meads[2023] QCATA 122
Queensland Building and Construction Commission v Meads[2023] QCATA 122
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Building and Construction Commission v Meads [2023] QCATA 122 |
PARTIES: | queensland building and construction commission (applicant/appellant) v phillip daniel meads (respondent) |
APPLICATION NO/S: | APL069-21 |
ORIGINATING APPLICATION NO/S: | OCR047-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 3 October 2023 |
HEARING DATE: | 8 August 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES RIGHT OF APPEAL WHEN APPEAL LIES – ERROR OF LAW – appeal and application for leave to appeal from decision of Tribunal – review of decision of Commission – respondent building certifier – whether allowable encroachments properly approved – errors of law in interpretation of the Building Code of Australia – whether respondent engaged in unsatisfactory conduct – penalty Building Act 1975 (Qld) s 14, s 26, s 30, s 36, s 68, s 136. Kay v Queensland Building and Construction Commission [2014] QCAT 421 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | S Nean, lawyer with the appellant. |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]This is an appeal and application for leave to appeal from a decision of a Member of the Tribunal who on 18 December 2020 set aside on review a decision of the appellant that the respondent, a building certifier, was guilty of unsatisfactory conduct for the purposes of the Building Act 1975 (Qld) (“the Act”), and ordered the appellant to pay the costs of the respondent.[1]
- [2]Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142 the appellant has a right to appeal from the decision of the Member on a question of law, but requires the leave of the Tribunal to appeal on a question of fact, or of mixed fact and law. So far as the appeal is on a question of law, it is to be decided as an appeal in the strict sense, and the powers of the Appeal Tribunal are limited.[2] If leave is granted to appeal, the appeal is to be decided by way of rehearing: the QCAT Act s 147. In that event, the Appeal Tribunal has to make up its own mind as to the matters in dispute, having due regard to the advantages of the Member in having presided at the hearing, particularly in relation to issues of credibility.[3] It is appropriate in the present case to deal first with the matters relied on as questions of law.
Background
- [3]The respondent is a building certifier licenced under the Act. On 28 June 2017 he issued a Development Application Decision Notice in relation to, relevantly, an alteration to a dwelling in the Gold Coast local government area, involving a proposed roof over a patio to the side of the property. On 15 August 2018 he issued a Final Inspection Certificate for the patio roof. The edge of the roof, as approved by him and as constructed, came to 450 mm from the boundary between that property and the neighbouring property.[4] The process of assessment involved the application of the Building Code of Australia, 2016 Edition (“the Code”).
- [4]The proposed roof was a product comprising an upper surface of corrugated steel, a lower surface of thin sheet steel, and between them an expanded polystyrene core, the three bonded together with a nominal thickness of 100 mm. The core was said to have been treated with a fire retardant. This was supported on one side by the house, and on the other by a steel beam, which was in turn supported by four aluminium columns which were 900 mm or more from the boundary. The edge was covered by steel flashing, on which was mounted the guttering.
- [5]This prompted a complaint from the owner of the neighbouring property to the appellant about the approval granted by the respondent. As houses have in recent years tended to become larger and larger, and as building blocks have if anything become smaller, usually through the policy of the local authority, there has been a growing tendency for people to want to build as close as possible to boundaries. This often has the effect of annoying the neighbours, who see it as diminishing their own amenity, and perhaps also the value of their land. The neighbours look to the building certifiers (among others) to enforce the rules as to set-backs from the common boundaries, and may well complain about what they see as any failure to enforce the rules.[5] Under the Act s 190(1) anyone can complain to the appellant about the conduct of a building certifier; this fits the obligation on the certifier, under the Act s 136(1), to act in the public interest.
- [6]In the present case, the appellant investigated the complaint, and concluded that there had been unsatisfactory conduct by the respondent. He sought internal review of that decision, as a result of which the decision was confirmed, although the reasons for arriving at it changed to some extent. The respondent then applied to the Tribunal to review that decision, which led to the decision the subject of the appeal and application for leave to appeal.
Decision of the Member
- [7]The Member approved the summary of the statutory framework provided in submissions by the appellant: [3]. The Member set out some background facts, and noted that assessing building work against performance requirements could be done by a Performance solution or by a Deemed to Satisfy solution.[6] There was a finding that the respondent had assessed the proposed patio roof to be Deemed to Satisfy, by the comparison method, on the basis that it was an encroachment within 900 mm of the boundary by eaves with non-combustible roof cladding and non-combustible lining: [15]. He referred to the evidence of the respondent, and of another building certifier who was also a fire engineer, and the evidence of the appellant’s witness, and summarised the arguments.
- [8]The Member at [37] treated the question of whether a Performance solution or a Deemed to Satisfy solution was appropriate as a matter of opinion, without an empirical test, and accepted evidence from the respondent’s witness that the design was much safer than a Deemed to Satisfy example in the Code, so that fire safety was not in fact compromised: [38]. At [39] he said:
I find as a matter of fact that the interpretation made by the [respondent] and [his witness] of an appropriate [Deemed to Satisfy] 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.
- [9]It followed that the respondent was not required to engage in a more esoteric, holistic investigation of those words, when he found them clear on their face, and that the product was a safer choice: [40]. The member then noted that these were disciplinary proceedings which produced punitive consequences for the respondent – [41] – causing him very substantial detriment: [44]. The earlier decision makers had not compared the conduct of the respondent with the standard necessitating the penalty imposed: [43]. The Member referred to that penalty, and stated that the appellant at the conclusion of the hearing resiled from all penalties save the reprimand: [47]. The decision of the appellant was set aside and an order was made that the appellant pay the respondent’s costs: [53].
Grounds of appeal
- [10]The Grounds of appeal were, in essence, as follows:
1 The Tribunal erred in law by failing to engage with the requirements of the Act and the Code in considering whether the respondent was in breach of those provisions.
2 The Tribunal erred by finding that the respondent’s interpretation of an appropriate Deemed to Satisfy solution was an honest and valid comparison of the building solution, applying the ordinary meaning of the words “non-combustible cladding” and “combustible lining”.
3 The Tribunal erred in treating the roofing material as three components when it was a single, composite component.
4 The Tribunal erred in failing to apply defined terms in the Code in their defined meaning.
5 The Tribunal, when considering whether the respondent had engaged in unsatisfactory conduct, took into account material not used by him in the relevant conduct.
6 The Tribunal erred in failing to find that a written assessment identified at APE1 was not produced by the respondent at the time of the relevant conduct.
7 The Tribunal erred in failing to find that, at the time of the relevant conduct, the respondent had no basis on which he could satisfy himself that the use of the roofing material was safer than the deemed to satisfy solution.
8 The Tribunal erred in taking into account a finding that the roofing material could satisfy a performance solution if properly documented.
9 The Tribunal erred in failing to consider whether the respondent’s conduct met the definition of unsatisfactory conduct in the Act.
10 The Tribunal erred in finding that the appellant resiled from all penalties other than a reprimand when that did not occur.
11 The Tribunal erred in failing to afford the appellant a hearing on the question of costs before making an order for costs against it.
- [11]These Grounds were expanded upon at some length in written submissions, but in the circumstances I do not need to summarise the submissions. It was submitted that grounds 1, 4, 8 and 9 were questions of law. The correct interpretation of the Act is a question of law, and I consider that the correct interpretation of the Code, as a document given the force of law by the Act, is also a question of law. In the context of Ground 2, whether the respondent was acting honestly is a question of fact, but whether his interpretation of the Code was correct, and whether the process he used was within the scope of the Code, are I consider questions of law. Taking into account an irrelevant consideration is also an error of law. I consider part of Ground 2, and Grounds 3, 5 and 11, are also questions of law.
- [12]The first ground relied on was that the Tribunal failed to engage with the provisions of the Act and the Code. This if made out would be an error of law, in failing to conduct the review according to law, although the appellant faces the difficulty that early in the decision the Member accepted the summary of relevant provisions of the Act and the Code in Annexure A to the appellant’s written closing submissions, paragraphs 7 to 29. Paragraphs 1 to 6 dealt with the Tribunal’s review jurisdiction. On the face of it the Member accepted the appellant’s submissions as to these matters, and the appellant’s real complaint is that in some respects the Member then did not give effect to them. That requires the identification of a particular finding, or course of reasoning, which is not in accordance with the requirements of a provision of the Act or the Code.
Consideration
- [13]There were a couple of matters which concerned me about the decision of the Member. The first was that the Member admitted a good deal of evidence about the fire safety effect of what had been certified which was not before the respondent when the relevant conduct occurred,[7] and made a finding about whether in fact, in the light of the evidence now before him, the construction was safe, or at least safer than something constructed in accordance with the Deemed to Satisfy provisions in the Code relied on by the respondent for comparison.[8] This in my opinion was not to the point.
- [14]When considering whether the relevant conduct of the respondent was unsatisfactory, what matters is whether, at the time when he carried out his functions, those functions were carried out in a satisfactory way, in accordance with the requirements of the Act and the Code. It is necessary to assess his actions at the time by reference to what was known to him at the time, not what was discovered by later investigation. If the respondent had certified this arrangement without performing any assessment at all, that would have been unsatisfactory even if it turned out, on investigation, that if there had been a proper assessment undertaken, the arrangement could have been properly certified. This point seems to have escaped the Member.
- [15]The respondent was quite clear in his evidence that he approved the design and construction on the basis that it was a Deemed to Satisfy solution under the Code, by comparison with such a solution in the Code.[9] If that was not a permissible method of assessment of this design under the Code, it follows that the respondent failed to comply with his obligation under the Act to assess in accordance with the Code. Whether additional evidence, that he did not have at the time, shows that, for example, the arrangement would have passed a Performance assessment had he carried it out is really irrelevant to that issue. It follows that, in considering this material and in making the finding that such an assessment would have led to the approval of the proposal, the Member was having regard to irrelevant considerations. That was an error of law.
- [16]The other matter that concerned me was that the comparison the respondent made with the Deemed to Satisfy solution seemed to have been conducted at a high level of abstraction. My immediate reaction on looking at Figure 3.7.1.9 in the Code was that what was approved was nothing like what was shown there, and nothing the respondent or his witness said in evidence led me to modify that view. The description of both that solution and the roofing product, as metal or other non-combustible material on the top and bottom and combustible material in between,[10] worried me because one could say the same about the aluminium cladding which has caused so many problems.[11]
- [17]There were other, less significant concerns. There was a point in the evidence, not addressed by the Member, which touched on the credibility of the respondent. He said that when assessing a patio he looked at the Class 1a building requirements in the Code,[12] but when taken to the form in which he recorded his assessment for the relevant patio, it was recorded as assessed as a Class 10a structure.[13] Under the Code a roofed patio would fall within Class 10a, but the respondent relied on a “news flash” which said that, relevantly, where a roofed patio was an extension of a house, as was Patio 2 here, it should be assessed as a Class 1a building.[14]
- [18]As well, the respondent’s witness, when speaking of the process of assessing an alteration to a building, said that the provisions of the Act s 68 over-rode the other provisions in the Act, and gave the certifier a general discretion.[15] I regard that as clearly incorrect. The Act s 36 requires building assessment work to comply with the building assessment provisions, which by s 30(f) include the Code, except for work carried out under s 46, and subject to s 37 and s 61. It is not made subject to s 68, and is a mandatory provision, so alterations must comply with the Code. It is clear enough from the terms of s 68 that it operates as an additional limitation to be applied when assessing alterations. That the respondent’s witness did not understand this casts doubt on his expertise.
- [19]There is, I consider, some force in the appellant’s submission that the Member did not engage with the terms of the Act and the terms of the Code. The respondent’s case was that he considered that what was proposed met the Deemed to Satisfy provisions of the Code, and he regarded it as safer than the solution illustrated in Figure 3.7.1.9 because the fascia was steel rather than wood, and so was less combustible that the solution illustrated in the figure. The Member regarded this approach as “honest and valid”. Whether the respondent honestly believed that this was a correct way to apply the requirements of the Code would have been relevant if the essence of the finding sought against him was that he knowingly certified falsely, but I do not consider that that was an element of the unsatisfactory conduct alleged against him. The matters relied on by the appellant could just as easily have been based on incompetence.
Obligations on a certifier under the Act and the Code
- [20]Under the Act s 8 a building certifier is someone who holds a licence as a building certifier. The certifier can be a private certifier, if the licence is so endorsed: s 9. The functions of a certifier include carrying out building assessment work, certifying that building work complies with the building assessment provisions and certifying the final stage of the building work: s 10. Building assessment work involves the assessment, under the building assessment provisions, of a building development application for compliance with those provisions. This assessment work must comply with those provisions - s 36(2) – which are defined in s 30 as including the Code. Accordingly it was a mandatory requirement under the Act for the respondent, when assessing the building development application for these works, to comply with the Code.
- [21]The Act s 14 enlarges on what is required for compliance with the Code. The work must comply with all relevant performance requirements under the Code, which requires it to achieve a building solution under the Code for the requirement. That is achieved only by complying with the relevant Deemed to Satisfy provisions under the Code for the performance requirement, or by formulating an alternative solution that complies with the performance requirement, or is shown to be at least equivalent to the relevant requirement, or by a combination of the two. Since the respondent relied on an assessment as a Deemed to Satisfy solution, the question is whether the solution complied with the Deemed to Satisfy provisions under the Code for the performance requirement.
- [22]This is significant because, if an alternative solution is used, there are requirements for documentation of the assessment process – the Act s 26 – and for a statement of reasons for approving the alternative solution: s 68A. No such documentation was assembled by the respondent, and it is not clear that a statement of reasons was produced; one was not lodged with the local authority.[16] It should also be noted that, in performing a private certifying function, a private certifier must always act in the public interest: s 136.
- [23]The Code provides relevantly that compliance with the Code is achieved by satisfying the performance requirements: s 1.0.1. This can be done only by a Performance solution, a Deemed to Satisfy solution or a combination of both: s 1.0.2. If a Performance solution is adopted it is necessary to demonstrate compliance with the performance requirements: s 1.0.3. On the other hand, a Deemed to Satisfy solution which complies with the Deemed to Satisfy provisions is deemed to comply with the performance requirement: s 1.0.4, which goes on to provide that the solution may be assessed according to one or more of the assessment methods, as appropriate.
- [24]It follows that, if a particular solution complies with the Deemed to Satisfy provisions, it is a Deemed to Satisfy solution, and the performance requirement is satisfied without further assessment. On the other hand, if a performance solution is involved, in whole or in part, there are additional steps which must be taken to demonstrate that the solution adopted satisfies the relevant performance requirement or performance requirements: s 1.0.7. Again, in view of the respondent’s approach, I do not need to go into this. One can say, however, that the practical effect of this is to provide an advantage for the use of a Deemed to Satisfy solution if possible, to keep costs down.[17]
- [25]The Code provides for relevant definitions which are to be applied to its provisions. In particular, “Deemed to Satisfy provisions” are provisions which are deemed to satisfy the performance requirements, and a “Deemed to Satisfy solution” means a method of satisfying the Deemed to Satisfy provisions. That is consistent with the wording of s 1.0.3 referred to earlier, and confirms that what matters is whether the Deemed to Satisfy provisions are satisfied. The significance of these provisions is also shown by s 3 of the Code, which states that Parts 3.1 to 3.12 are Deemed to Satisfy provisions that are considered to be acceptable forms of construction that comply with the performance requirements. There is said to be no obligation to adopt any particular option, but if one of them is not complied with, the appropriate authority (ie the certifier) must be satisfied that the performance requirements have been met. That is obviously a reference to the additional steps required to be taken to assess a Performance solution.
- [26]Section 2 of the Code contains the performance requirements, including in Part 2.3 for fire safety. One of the objectives is to avoid the spread of fire: O2.3(b). One of the requirements is that a Class 1 building must be protected from the spread of fire: P2.3.1, from the adjacent property or the existing or a possible future building on it.[18] Part 3.7 of the Code is concerned with fire safety, and Fire Separation is dealt with in s 3.7.1. One way in which this is done is to require a set-back of 900 mm from the common boundary – s 3.7.1.3 - although there are provisions which allow for works to be closer to the common boundary in certain circumstances.
- [27]Such provisions impose certain restrictions, designed to minimize the diminution of fire spread protection as a result of the diminished gap. It is these provisions which are in issue here, because the design being assessed provided for a roof to project to a point such that the guttering on the outside of the roof was only 450 mm from the common boundary.[19] If the patio roof was to be assessed as a Class 10a building, s 3.7.1.6 applied where a Class 10a building is located between a Class 1 building and the allotment boundary, and this required protection (“must be protected”) by one of the methods shown in Figure 3.7.1.4. This could not be relied on by the respondent, since it is obvious to me that none of the listed methods applied here, because there was a separation of less than 900 mm, and no wall involved with a Fire Rating Level of 60/60/60.
- [28]The external wall as defined of the dwelling, which determined the notional external wall location of the patio roof, was at least 900 mm from the common boundary, so it was not necessary for it to comply with s 3.7.1.5: s 3.7.1.3. Encroachments, that is any construction between the external wall and the allotment boundary, were regulated by s 3.7.1.7 if they came within 900 mm of that boundary. Paragraphs (b) and (c) of that section provided as follows:
- The encroachments allowed within 900 mm of an allotment boundary … are:
- fascias, gutters and downpipes; and
- eaves with non-combustible roof cladding and non-combustible lining; and
- flues, chimneys, pipes, domestic fuel tanks, cooling or heating appliances or other services; and
- light fittings, electricity or gas meters, aerials or antennas; and
- pergolas, sun blinds or water tanks; and
- unroofed terraces, landings, steps and ramps, not more than 1 m in height.
- Encroachments listed in (b)(i), if combustible, (b)(ii) and (b)(iii) must not be built within 450 mm of an allotment boundary … (see Figure 3.7.1.9).[20]
- [29]These are the Deemed to Satisfy provisions concerning encroachments, and the ones relied on by the respondent. If a particular building solution, which comes closer than 900 mm to the common boundary, satisfies these provisions, it qualifies as a Deemed to Satisfy solution. There is in my opinion no element of discretion or judgment involved here; either the provisions are satisfied or they are not.[21] It is also clear that the function of Figure 3.7.1.9 is not to illustrate some feature listed in paragraph (b), but to illustrate the operation of the limitation in paragraph (c).[22] It follows that my initial, superficial impression, that the difference between what was shown in that diagram and what was constructed here was significant, was wrong.
- [30]Figure 3.7.1.9 shows the eave end of a conventional wooden truss frame roof where the end of the frame overhangs the wall to give the eaves, which are inside the 900 mm set-back from the boundary. The eaves lining and the roof cladding are shown as non-combustible, the gutter as metal and inside the 450 mm set-back, and the fascia, shown as combustible and presumably wood, outside the 450 mm set-back. In that diagram the eaves lining and the roof cladding are clearly separate things, and each is non-combustible.
- [31]In the present case, the respondent’s analysis was that the top layer of this roof product, the corrugated steel, was the non-combustible roof cladding, and the bottom layer, the steel sheet, was the non-combustible eaves lining. Accordingly it fell within paragraph (b)(ii), and was an authorised encroachment. Indeed, because the fascia and guttering were also non-combustible, they could have been built within the 450 mm set back, but were not. Paragraphs (b) and (c) were satisfied for everything inside the 900 mm set-back, so s 3.7.1.7 was satisfied, what was proposed satisfied the Deemed to Satisfy requirements, and was a Deemed to Satisfy solution.
- [32]The problem with that analysis is that the term “non-combustible” is defined by the Code, and is used here in its defined meaning. It is not a matter of applying that term in its ordinary meaning, as the Member said in the passage from [39] cited earlier, and it was an error of law not to apply the defined meaning. The Code s 1.1.1 defines “non-combustible” thus:
- applied to a material – means not deemed combustible under AS1530.1 – Combustibility Tests for Materials; and
- applied to construction or part of a building – means constructed wholly of materials that are not deemed combustible.
- [33]The Code in the same section balances this with a definition of “combustible”:
- applied to a material – means combustible under AS1530.1; or
- applied to construction or part of a building, means constructed wholly or in part of combustible materials.
- [34]There is a complication in the application of this definition to this roofing product, however, because AS1530.1 does not apply to laminated material.[23] On the face of it, since such material will necessarily not be deemed combustible under that standard, it satisfies the definition of non-combustible no matter how readily it would catch fire in the real world. That cannot be the correct construction of the Code, first, because it would produce an absurd result given the purpose of the fire safety provisions of the Code, and second, because laminated material is dealt with in Part 3.7.1 by s 3.7.1.2. That provides, relevantly:
The following materials, though combustible or containing combustible fibres, may be used wherever a non-combustible material is required in the Housing Provisions –
…..
- bonded laminated materials where –
- each laminate is non-combustible; and
- each adhesive layer is not more than 1 mm thick; and
- the total thickness of adhesive layers is not more than 2 mm; and
- the Spread-of-Flame index and the Smoke-Developed Index of the laminated material as a whole does not exceed 0 and 3 respectively.
- [35]It follows that, for the purposes of the Code, whether a laminated material is “combustible” or “non-combustible” depends on what each laminate is, and for the purposes of Part 3.7.1, whether it satisfies the requirements of s 3.7.1.2(f). So each laminate is to be tested separately under AS1530.1, and each must be not deemed combustible by that standard; and the other requirements of that paragraph must be satisfied. For this roofing product to be characterised as “non-combustible” each layer must be non-combustible. It does matter that the polystyrene core is combustible. It is clear from the respondent’s evidence that he proceeded at the time on the basis that the core was combustible. The presence of that core means that the product does not satisfy the test for being non-combustible for the purposes of Part 3.7.1.
- [36]I should add for completeness that the “Housing Provisions” applied in this case, whether what was being assessed was a Class 1 or a Class 10 building, and s 3.7.1.7 sets out requirements, so that, to the extent that it specifies that something be “non-combustible”, that is “required” as that term is defined in s 1.1.1. The term “bonded laminated materials” is not defined, but it is obvious that what was used here was a bonded laminated material, in ordinary terms.[24] In order to show that the roof cladding and eave lining are “non-combustible” for the purposes of s 3.7.1.7, it is necessary to satisfy this test, since each is a bonded laminated material; indeed, the same material. To treat the top and bottom layers as if they were separate things was an error in the application of the Code.
- [37]Properly understood, the Code s 3.7.1.7 did not permit this roofing product to be an allowable encroachment, and did not permit it within 900 mm of the common boundary. The respondent’s assessment was in error, because he erred in his interpretation of the Code, an error the Member perpetuated. This led the respondent to approve a solution which did not comply with the Deemed to Satisfy provisions, where he had not undertaken and documented a proper Performance assessment to show satisfaction of the performance requirements.[25]
Respondent’s submissions
- [38]The respondent in submissions on appeal referred to examples of situations where he said the appellant’s witness had said in evidence things different from what he had said earlier, including that the roof as constructed met the performance requirements.[26] The respondent said that the document APE1 referred to in Ground 6 was the version of the assessment which was current when it was provided to the appellant, being an assessment which has been used on many projects. The version he had in 2017 was similar, except for the reference to the 2019 Edition of the Code. It was not provided to the appellant until the question of the encroachment was raised in the internal review decision.[27]
- [39]He submitted that the Code s 1.0.5, by the use of the words “as appropriate”, gave the person a discretion as to the assessment method or methods chosen, as a matter of judgment. At the hearing the assessment methods were explained, the key being at p 93 line 10.[28] The respondent submitted that the appellant’s approach was that there was no flexibility in the application of the Deemed to Satisfy solutions in the Code, whereas the Explanatory Information in the Code contemplated that other forms of construction may be acceptable if they achieve the stated intent. As to the use of figures in the Code, the respondent relied on s 1.1.8 which stated that the figures do not show all construction requirements, but are there to help interpretation.
- [40]He referred to figure 3.7.1.6 which does not show eaves, and the dimensions are the same as those required for walls in other parts of the Code, and to Class 10a buildings which were less than 1.8 m apart.[29] He also referred to the requirements for fire walls between otherwise attached dwellings, the relevance of which was said to throw light on the overall approach of the Code, so that its provisions could be applied correctly.[30] Certainly the overall approach of these provisions is to reduce the risk of the spread of fire, and the Code should be interpreted with that in mind.
- [41]He submitted that the certifier, when assessing an application, is making a decision as to whether the proposal is appropriate. That depends on whether it produces an equivalent or better standard of construction, which are matters for the judgment of the certifier making the decision. He also submitted that the preparation of a properly documented performance assessment would be cost prohibitive for such a piece of work, which makes the process more restrictive than necessary in the public interest. In conclusion, he submitted that comparison was a valid assessment method under the Code, and the argument of the appellant was seeking to deny that approach.
- [42]In short, the respondent’s submissions were directed to defending his assessment. He did not address grounds 3, 4, 5, 7, 10 or 11. The same approach was adopted in oral submissions. He submitted that this product came within the Code s 3.7.1.7(b)(ii). In his assessment he concluded that the proposed roof was just as safe as the Deemed to Satisfy solution, which is the method of assessment approved by the Code. He relied on the Code s 1.0.5(c) and (d). In essence, his argument treated the steel top and steel bottom of this product as if they were separate things, and it did not matter if they had something combustible between them; but they were bonded laminated material, which was combustible, and which was not an allowable encroachment under the Code.
Consideration
- [43]The respondent, and his witness, in submissions and evidence, stressed the existence in the certifier of a degree of discretion or judgment as to the application of the Deemed to Satisfy provisions, so as to allow for a measure of flexibility, and relied in particular on the terms of the Code s 1.0.5, which spoke of the assessment methods which could be used “to determine that a Performance solution or a Deemed to Satisfy solution complies with the performance requirements, as appropriate”. The difficulty with this is that s 1.0.4 provides in (a) that “A Deemed to Satisfy Solution which complies with the Deemed to Satisfy Provisions is deemed to comply with the Performance Requirements.” That is consistent with the definitions of those terms. On the face of it therefore, once a solution complies with the Deemed to Satisfy provisions, it necessarily complies with the performance requirements, and no further process of assessment is necessary.
- [44]Yet paragraph (b) goes on to provide that “A Deemed to Satisfy Solution may be assessed according to one of more of the Assessment Methods, as appropriate.” Then s 1.0.5 lists the “Assessment Methods [which] … can be used to determine that a Performance Solution or a Deemed to Satisfy Solution complies with the Performance Requirements, as appropriate”. Four are listed; the respondent relied on “(c) Expert judgment and (d) Comparison with the Deemed to Satisfy Provisions.” Yet a “Deemed to Satisfy solution” must be one which complies with the Deemed to Satisfy provisions, by definition, so what is the point in then comparing it with those provisions again? Expert judgment is also a defined term, “the judgment of an expert who has the qualifications and experience to determine whether a Performance Solution or Deemed to Satisfy Solution complies with the Performance Requirements.” Some degree of expert judgment may be required in the case of a Performance solution, but in the case of a Deemed to Satisfy solution the only expertise required is to know what “deemed” means.
- [45]The only way out of this that I can detect is to treat these terms as speaking, at least at times, about a “proposed Deemed to Satisfy solution”, or a “proposed Performance solution”, rather than one where the requirements to meet those definitions have been satisfied.[31] On this basis, the relevant process of assessment spoken of in s 1.0.4 and s 1.0.5 is that to determine if the proposed solution does comply with the Deemed to Satisfy Provisions. That certainly requires comparison with those provisions, but, at least so far as s 3.7.1.7 is concerned, there is not much room for expert judgment. The requirements of that section look to be all quite specific; either they are met, or they are not, and if not, it is a matter of doing an assessment for a Performance Solution, or changing the proposal.[32]
- [46]There may be other parts of the Code where the process of assessment to determine if a particular solution meets the Deemed to Satisfy provisions may well involve some degree of expert judgment, and that would allow some degree of flexibility, but this provision is not one of them. There is no room, under this Deemed to Satisfy provision, to approve something which does not comply with it, on the basis of an expert judgment that the proposed solution is at least as safe as a Deemed to Satisfy solution. This reasoning, which appears to have been based on s 1.0.3(a)(ii), does not apply unless one is assessing a proposal as a Performance solution. So far as the respondent was relying on this, it was also an error of law, in the interpretation of the Code.
- [47]The reference in his submissions to the Explanatory Information, that other forms of construction may be acceptable, is obviously a reference to the ability to satisfy the performance requirements other than by a Deemed to Satisfy solution, if the proposal is assessed as a Performance solution. The argument of the respondent was to the effect that a certifier could approve, as a Deemed to Satisfy solution, something which, as a matter of judgment, was regarded as at least as safe as a Deemed to Satisfy solution, without having to go through a performance assessment. That in my opinion is quite wrong, and suggests that he has no insight into the unsatisfactory nature of his conduct.
- [48]That in substance covers Grounds of Appeal 1, 3, 4, 5 and 8, and that part of Ground 2 dealing with the finding that the comparison was valid. In relation to Ground 9, there is the consideration that the Member in effect accepted the approach of the respondent to the assessment that he had made, and on that basis there was nothing unsatisfactory in his conduct. The appellant did not argue before the Member that unsatisfactory conduct could be found on some other ground, or that, even if the respondent’s approach were correct, there had still been some unsatisfactory conduct, so it was not necessary for the Member to go on and consider if the conduct met the definition of unsatisfactory conduct. Viewed as a separate ground of appeal, Ground 9 is not made out.
- [49]Ground 11 can also be dealt with briefly. No submissions were addressed to the Member about costs. In view of the terms of the QCAT Act s 100, if a Member is contemplating making a costs order against a party, natural justice requires that the party be given the opportunity to make submissions about that. If nothing is said, a party is entitled to assume that the default position, of no order as to costs, will not be departed from. The question of costs is dealt with in s 102, and is of some complexity, particularly in a review matter and one involving a disciplinary proceeding, and none of those complexities were discussed by the Member in his reasons. This Ground is also made out.
Leave to Appeal
- [50]That covers the questions of law. It follows from the analysis above that I am in substantial disagreement with the Member as to the correct approach to the review, and that, to a large extent, on my approach as a matter of law the respondent had failed to apply the relevant provisions of the Code correctly, and had therefore not conducted the assessment in accordance with the requirements of the Act. That was the substantial matter in issue in the review. Having gone so far, there would be little point in my now sending the matter back to be considered again by the Tribunal, and it is more convenient to grant leave to appeal, and to deal with the remaining issues myself.
- [51]That leaves part of Ground 2, and Grounds 6, 7 and 10 to be considered. As I have said, whether the respondent was acting honestly was not in issue on the review, as the appellant did not advance an argument that the respondent had acted dishonestly. That part of Ground 2 need not be dealt with. Ground 6 raised the issue as to the provenance of the document APE1. In circumstances where the respondent relied on an approval on a Deemed to Satisfy basis, which did not require this sort of documentation, and where the document was not sufficient to satisfy the requirements of an assessment on a Performance basis, the document is of little if any relevance. It does not appear that the respondent was frank about the provenance of the document in evidence, but he was not cross-examined about the point, and in the circumstances I do not consider that there is any real purpose in deciding, as now appears to be the case, that the document put in evidence was not the actual document produced in 2017, but a similar version, produced more recently.
- [52]Ground 7 sought a finding against the respondent that at the relevant time he had no basis to satisfy himself that the use of this produce was safer than a deemed to satisfy solution, presumably on the basis of what was illustrated in Figure 3.7.1.9. This ground really followed from the error in admitting and treating as relevant additional evidence not relied on by the respondent at the time, as though all that mattered was that he happened on the right answer. I have already held that that approach involved an error of law. Certainly at the time he did not have that material, and for that reason it was irrelevant to the question of unsatisfactory conduct; it may have been relevant to the question of penalty.
- [53]Even if he had had that material at the time, it would not have shown that the product complied with the performance requirements of the Code. The Ignis laboratory did not test the product in the way required by the Code s 3.7.1.2(f), so the test it conducted did not show that it was non-combustible. The Ignis Advisory Note on the product, in the summary at Appeal Book p 712, does not say that the product is a permitted encroachment complying with the Code s 3.7.1.7. It follows that the evidence of the respondent’s witness at transcript p 58 was wrong. The criticism of these by the appellant’s witness, in his statement of 8 May 2020, Appeal Book p 723 – 727, appears to me to be valid. The Advisory Note can be contrasted with the data sheet put in evidence by the respondent at Appeal Book p 762, which does state that that product is non-combustible by the relevant test; but that is a different product, so this is otherwise irrelevant.
- [54]Apart from that, although the Code divides materials in a binary fashion, into combustible or non-combustible, there are clearly degrees of combustibility, and it may be that polystyrene foam is a lot more combustible than the timber used in roof frames. I suspect it would require some fairly sophisticated technical analysis, or comprehensive testing, to determine which version better resisted the spread of fire. The notion that it all depends on whether the fascia is wood or steel is obviously simplistic. There is indeed nothing in this material now available which gives me any confidence that this structure would satisfy the performance requirements even if a proper Performance Assessment were now undertaken on it. On the evidence before the Member, Ground 7 is made out.
- [55]Ground 10 was based on the statement in the reasons at [47] that the appellant had resiled from all penalties except for a reprimand. It is clear from the transcript and from the written submissions provided after the hearing that that is just not what happened. Apart from seeking a reprimand, the appellant sought an order that the approval be properly documented as a performance assessment, with the appropriate documents being produced and lodged with the local authority. That was disregarded by the Member, although in the circumstances the issue of penalty did not arise, as the Member made no finding of unsatisfactory conduct. Still, it was an incorrect factual finding by the Member, and Ground 10 is also made out.
Finding of unsatisfactory conduct
- [56]At the relevant time the definition of “unsatisfactory conduct” in the Act was:
unsatisfactory conduct, for a building certifier or former building certifier, includes the following—
- conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
- 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—
- disregarding relevant and appropriate matters; and
- acting outside the scope of the building certifier’s powers; and
- acting beyond the scope of the building certifier’s competence; and
- contravening the code of conduct;
- 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.
- [57]In submissions to the Tribunal, the appellant sought a finding of unsatisfactory conduct on the basis that the respondent had not conducted the assessment of the Patio roof in accordance with the Code, thereby breaching his obligations under the Act, and because of the public significance of the measures to limit the spread of fire, had failed to act in the public interest, in breach of the Act. As well, the respondent’s conduct showed incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in the application of the Act and the Code, and that the respondent’s conduct was of a lesser standard than the standard that might reasonably be expected of a building certifier. As well, it was submitted that a number of provisions of the Code of Conduct were breached.
- [58]I accept and find, in view of the analysis set out earlier, that the respondent did not conduct the assessment in accordance with the requirements of the Code, and thereby breached the Act.[33] As to whether he failed to act in the public interest, I consider that the fire protection provisions of the Code are important and particularly engage the public interest, and that in general, where there is some ambiguity in those provisions, they should be interpreted in the manner which serves to advance fire protection. In practice that would I suspect usually mean that they should be applied strictly. The approach of the respondent, apart from not being in accordance with the Code, appeared to favour flexibility and economy for the owner or builder over considerations of public safety, which is not acting in the public interest. It is doing the opposite.
- [59]One matter that particularly concerns me here is that I am not at all persuaded that fire spread protection has not been compromised by the actions of the respondent in approving this encroachment, but it appears the Tribunal can do nothing about it, as it seems there is no power to order that the encroachment be removed. There has not been a proper assessment of whether this structure is as safe as the Code requires such a structure to be, and I do not accept that there is evidence before the Tribunal that, if a proper performance assessment were carried out on it, it would have passed. In view of the errors in his approach to the requirements of the Act and the Code, I do not accept the opinion of the respondent’s witness on this. I do not accept that the appellant’s witness made such a concession, and all he could do would be to give his best guess. On the other hand, there is also no evidence before the Tribunal that, if a proper assessment had been done, the structure would have failed, and so should not have been approved. Accordingly I cannot find that the respondent acted contrary to the public interest by approving a structure which was in fact unsafe, that is, not in accordance with the performance requirements of the Code. What he did was approve a structure not shown to be in accordance with them.
- [60]I also find that the respondent displayed a lack of knowledge, diligence and care in the application of the Code in this matter, and failed to have regard to relevant matters in his application of the Code. This also follows from the analysis above. It also amounts to conduct of a lesser standard than the standard that might reasonably be expected of a building certifier. I note that in Kay v Queensland Building and Construction Commission [2014] QCAT 421 a certifier who had approved an application for a building which did not comply with the fire safety provisions of the Code was found to have engaged in unsatisfactory conduct. That may have been a worse case, in that the relevant building was a retirement home, and what was in issue was the adequacy of separating walls between separate dwelling units, but the penalty was more severe, including placing a condition on the certifier’s registration. I agree with the statements in the reasons in that matter at [13], [14] and [66].[34]
Penalty
- [61]In relation to penalty, I agree that the respondent should be reprimanded. I regard his approach to these provisions of the Code as quite unsatisfactory. The only other penalty sought by the appellant in the appeal was to require the respondent to take all necessary steps within sixty days to ensure that the certification of this building work complies with the Act and to provide evidence of compliance to the appellant. This was part of the decision of the appellant the subject of the review, and was the penalty sought by the appellant before the Member. The difficulty with this however is that it assumes that if a proper performance based assessment is undertaken, it will show that the structure that has been constructed complies with the performance requirements of the Code. Although there was in effect such a finding by the Member, I do not consider that there was a proper basis in the evidence before the Tribunal for that finding to be made.
- [62]If a proper assessment in accordance with the Code would not justify the approval of the structure, it is not appropriate to require the respondent to provide one which shows that, and all it would establish is that the structure should not have been approved at all. Nor would it be appropriate, in that situation, for him to produce one which was contrived or distorted so as to show that the structure apparently complies with the Code. What was required was a proper assessment, in accordance with the Code, before this structure was approved, but it is too late for that. What would be more appropriate, in my opinion, would be a condition like the one imposed in Kay (supra), that for a period of twelve months the respondent be required to obtain, at his expense, from another certifier nominated by the appellant, an independent peer review of any proposed approval of building work involving any encroachments within 900 mm of a common boundary, before he approved any such building work, with such approval to be given only if the review supported approval, or something like that. But such a condition not having been sought before the hearing, it would not be fair to the respondent to impose it now.
- [63]In those circumstances I will impose only a reprimand by way of penalty. I also apologise for the delay in delivering these reasons. That was due to pressure of work, and some personal commitments, and to some extent to the task of working out just what was the real issue in this matter, since the hearings and arguments have thrown up a number of issues which in my opinion are really irrelevant. In general I have said nothing about these, and there were certainly matters raised in submissions which for this reason I have not discussed.
- [64]With regard to costs, the order made by the Member was related to the outcome before him, and should be set aside anyway, for that reason, and for the breach of natural justice. The appellant did not seek costs if the appeal were successful, and there would be no basis to make an order in favour of the respondent, so there will be no order as to costs. Accordingly, the decision of the Appeal Tribunal is as follows:
- Leave to appeal granted.
- Appeal allowed.
- Decision of the Tribunal of 18 December 2020 set aside.
- In lieu thereof, the decision of the appellant on internal review be confirmed, so far as it found the respondent had engaged in unsatisfactory conduct, and reprimanded him.
- Decision on internal review otherwise set aside.
- There be no order as to costs.
Footnotes
[1] [2020] QCAT 520. I will refer to the Commission as the appellant, and Mr Meads as the respondent.
[2] The QCAT Act s 146; Pivovarova v Michelsen (2019) 2 QR 508 at [9].
[3] See also Harrison v Meehan [2017] QCA 315 at [49].
[4] Measured from the outside of the guttering.
[5] The complaint in this case was based on loss of amenity, and related to the extension of the concrete patio as well as the roof: Vol 2 p 3.
[6] This was attributed to the Act, although it is also found in the Code.
[7] The evidence of another certifier and fire engineer, and a certificate and advisory note from a test laboratory, none of which was before the respondent at the time of the relevant conduct.
[8] Reasons [38].
[9] Transcript p 32; p 36-7; p 93-4.
[10] In the transcript p 36 line 46 – p 37 line 30. His assessment was by comparison with a Deemed to Satisfy solution, not a Performance solution: p 32.
[11] The difference is that the aluminium is so thin it does not qualify as non-combustible: transcript p 85.
[12] Transcript p 39 line 33.
[13] Transcript p 40 line 38. This may in this case not be a lower standard than that for Class 1a.
[14] Appeal Book p 210 and p 455. See also p 459.
[15] Transcript p 68; Appeal Book p 718 para 43. This was adopted by the respondent in submissions: transcript p 107 line 15.
[16] Transcript p 103.
[17] This was mentioned by the respondent in submissions, in support of a submission that it was in the public interest to allow for matters of judgment and flexibility in the assessment of Deemed to Satisfy solutions.
[18] It follows that it has nothing to do with questions of amenity to neighbours, which prompted the original complaint, although fire safety can be important to neighbours. The controls apply anyway.
[19] Despite the complaint that the roof came to the boundary, the proceeding seems to have been conducted on the basis that it was constructed in accordance with the design.
[20] Terms identified as defined in italics. Some irrelevant wording omitted.
[21] An element of judgment or discretion arises where there is wording to that effect: the Act s 56.
[22] See also Code s 1.1.8.
[23] Transcript p 72 line 44; p 85 line 36.
[24] The appellant’s witness referred to this provision as applying to it: p 81 line 35; p 105 line 5. This evidence was not contradicted.
[25] The appellant’s witness at transcript p 91-2, which I accept.
[26] What he said was that, in the light of the evidence now available, the roof “could very well comply.” P 102 line 30. That is not saying that it does comply.
[27] The practical effect of this was that this was not the document which was produced in 2017 for this assessment. The impression I received from the transcript was that at the hearing the respondent was saying that it was: p 47 line 43; p 49 line 5 – line 41; p 103 line 25; .
[28] This was a reference to Code s 1.0.4(b).
[29] That part of the figure shows walls on each side of the gap which are fire rated walls complying with s 3.7.1.5.
[30] This is an echo of the principle of statutory construction, that regard should be had to the provisions of the statute as a whole.
[31] If the relevant provisions are still in these terms in the current version of the Code, they should be considered further by those responsible for drafting the Code.
[32] One area of discretion or judgment would have been involved, if the proposal had in fact complied with the Deemed to Satisfy provisions, because of the need then to assess whether it complied with the Act s 68, which involves some question of judgment: p 83 line 82.
[33] And Item 3 of the Code of Conduct: Appeal Book p 703.
[34] I was also referred to similar, earlier decisions in Queensland Building Services Authority v Chandra [2009] QCCTB 203 and Trovato v Queensland Building Services Authority [2009] QCCTB 154.