Barnes and Victorian Building Authority
[2019] AATA 4796
•31 October 2019
Barnes and Victorian Building Authority [2019] AATA 4796 (31 October 2019)
Division:GENERAL DIVISION
File Number: 2018/0825
Re:Gabriel Barnes
APPLICANT
AndVictorian Building Authority
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:31 October 2019
Place:Melbourne
The Tribunal affirms the decision dated 18 January 2018.
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Mr A. Maryniak QC, Member
Catchwords
MUTUAL RECOGNITION – application Mutual Recognition Act 1992 – registered building surveyor in Tasmania – refusal of registration as building surveyor in Victoria – application of mutual recognition principles - whether activities substantially the same – decision under review affirmed.
Legislation
Building Act 1993 (Vic)
Building Act 2016 (Tas)
Building Interim Regulations 2017 (Vic)Mutual Recognition Act 1992 (Cth)
Cases
Andriotis v Victorian Building Authority [2018] FCAFC 24
Medical Board of Queensland v Renton [2006] FCA 947
Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123Turner and Registrar Supreme Court Queensland [2003] AATA 887
REASONS FOR DECISION
Mr A. Maryniak QC, Member
31 October 2019
The Applicant is a registered building surveyor (unlimited) pursuant to the
Building Act 2016(Tas) (the Tasmanian Building Act).
On 2 October 2017 the Applicant submitted notice pursuant to section 19 of the
Mutual Recognition Act 1992(MR Act) to the Respondent seeking Victorian registration as a building surveyor (unlimited).
On 18 January 2018 the Respondent refused the Applicant’s application for registration as a building surveyor in Victoria on the basis that his occupation as a building surveyor in Tasmania was not equivalent to the Victorian occupation and therefore could not be mutually recognised under the MR Act.
The Applicant has applied to the Tribunal for a review of that refusal decision.
Issue
The agreed issue for determination is:
Are the activities that a registered building surveyor (unlimited) in Tasmania (pursuant to the Tasmanian Building Act) is authorised to carry out substantially the same as, and therefore equivalent to, a building surveyor (unlimited) registered in Victoria, pursuant to the Building Act 1993 (Vic) (the Victorian Building Act)?
Law
The principal purpose of the MR Act is to promote the goal of freedom of movement of goods and service providers in a national market in Australia. Part 3 is concerned with the ability of a person who is registered in connection with an occupation in a state to carry on an equivalent occupation in another state. Pursuant to s 39(1) of the MR Act it is the duty of each state registration authority to facilitate the operation of this part and in particular to make use of the power to impose conditions in such a way as to promote the mutual recognition principle.
Section 29(1) of the MR Act relevantly states:
An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
In applying section 29, the parties agree that the Tribunal’s attention is directed to a comparison of the activities authorised by the respective State statutes, and not the Applicant’s individual qualifications or experience.
The Applicant’s Submissions
The Applicant submits that the Tribunal is required to apply the test in section 29 of the MR Act by evaluating whether the ‘sum total’ of the activities authorised to be carried out are ‘substantially the same’ rather than a determination as to whether each individual activity is ‘substantially the same’ in Tasmania and Victoria, because the plural word ‘activities’ is used as opposed to, for example, ‘each of the activities’.
The Applicant drew the Tribunal’s attention to Andriotis v Victorian Building Authority [2018] FCAFC 24 at [14], Turner and Registrar Supreme Court Queensland [2003] AATA 887 at [24] and [25] and the Second Reading re the MR Act as cited in Medical Board of Queensland v Renton [2006] FCA 947 at [15].
The Applicant submits that section 29 must be read, cognisant of section 39 of the
MR Act, obliging the Respondent to promote mutual recognition. In determining whether there is an ‘equivalent occupation,’ the MR Act must be ‘applied in a practical, common sense manner, regard being had to the substance of the matter and to the substantial equivalence of occupations’: Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 127-8 per Davies J.
The relevant activities are those authorised as at the time of this decision: Andriotis at [31]. This Tribunal is standing in the shoes of the decision maker and is to decide the matter based upon the evidence before it as at the date of this decision and equally by considering and applying the relevant legislation and regulations which are current at the time of this Tribunal review.
The Applicant submits generally that the difference between the activities to be carried out in both States is of a technical, form over substance nature. He submits such activities in each state are ‘substantially the same’. The Applicant also relies upon his Comparative Table of Activities, received as Exhibit A1, to support his equivalency submission. He did not pursue an alternative argument seeking registration with conditions.
The Respondent’s Submissions
In response, the Respondent submits:
(a)Referring to section 76 of the Victorian Building Act, generally building surveyors in Victoria are responsible for issuing building permits, carrying out inspections of building works and buildings, and issuing occupancy permits certifying that buildings are safe for occupation. They provide independent oversight of buildings and building works throughout the construction process and at the completion of construction to ensure that buildings are safe for use, accessible and energy efficient;
(b)Referring to section 30 of the Tasmanian Building Act, building surveyors in Tasmania do not have the function of issuing building permits which differs from Victoria.
There are four categories of building work in Tasmania:
(a)Low Risk Work not requiring a building permit or the engagement of a building surveyor, being work of a minor nature;
(b)Additional Low Risk Work;
(c)Medium Risk/Notifiable Work which includes construction of a standardised class of residential buildings; and
(d)High Risk/Permit Work which requires a valid building permit from the Council’s Permit Authority.
Generally private building surveyors have the following functions under the Victorian Building Act:
(a)assess building permit applications for compliance with the Victorian Building Act, Victorian Building Regulations 2017 (Victorian Building Regulations) and the National Construction Code (NCC) and issue building permits;
(b)carry out inspections of buildings and building work or cause these inspections to be carried out;
(c)issue certificates of final inspection and occupancy permits;
(d)approve the temporary occupation of buildings;
(e)enforce safety and building standards;
(f)issue and serve direction to fix non-compliant building work; and
(g)issue and serve building notices and orders under the Victorian Building Act.
The Respondent submits that the State by State differences identified by the Respondent rise above mere ‘technical’ differences and involve substantive differences. In Tasmania, High Risk/Permit Work requires building approval and formal assessment process carried out by the Permit Authority. In general, High Risk/Permit Work involves more complex building projects and simpler building projects if those are to be built in hazardous areas, or by an owner-builder.
Schedule 10 of the Victorian Building Regulations provide that a registered building surveyor (unlimited) is authorised to perform the following work.
1 Category of building surveyor, class of building surveyor (unlimited)
Performance of all the functions that a building surveyor is authorised or required to perform under the Act and these Regulations, for all classes of building of unlimited height or floor area including the following—
(a) issuing building permits and temporary approvals as applicable under the Act;
(b) arranging and undertaking inspections of building work to determine compliance with the Act, these Regulations and the building permit;
(c) taking actions authorised under the Act and these Regulations to ensure building work complies with the Act, these Regulations and the building permit, including issuing—
(i)building notices; and
(ii)building orders; and
(iii)directions to fix building work under section 37A of the Act;
(d) approving the use and occupation of buildings in accordance with the Act and these Regulations, including issuing occupancy permits and certificates of final inspection;
(e) carrying out the functions of a municipal building surveyor if the building surveyor—
(i)has been appointed as a municipal building surveyor in accordance with section 213 of the Act; or
(ii)is deemed to be a municipal building surveyor under section 215 of the Act; or
(iii)is acting as a delegate of a municipal building surveyor under section 216B of the Act, but only to the extent of carrying out the functions set out in the instrument of delegation;
(f) issuing certificates of compliance stating that proposed building work in the nature of design work complies with the Act and these Regulations;
(g) in relation to building work that has been inspected personally by that building surveyor, issuing certificates of compliance stating that the building work complies with the Act and these Regulations.
The building permit system ensures that the building work will not only comply with the NCC, but also, with the Victorian Building Act and Victorian Building Regulations. Victorian building surveyors assess such compliance when issuing a relevant building permit.
In Victoria, the standards of safety and amenity are provided in the Victorian Building Act, the Victorian Building Regulations and the NCC.
Section 24 of the Victorian Building Act deals with refusing a building permit by building surveyors in Victoria and states that in issuing a building permit, Victorian building surveyors must be satisfied that the building work and the building permit will comply with the Victorian Building Act and Victorian Building Regulations. Section 24 is similar yet distinct from section 142 of the Tasmanian Building Act in that the Permit Authority (and thus not building surveyors) must refuse an application for a building permit if the Permit Authority is satisfied that the proposed permit building work will not comply with the Tasmanian Building Act.
Section 11(4) of the Tasmanian Building Act states that ‘[a] building surveyor, as far as is reasonably practicable, is to ensure that all building work and demolition work, in respect of which he or she is engaged as a building surveyor, is performed in accordance with this Act’ however Tasmanian building surveyors do not issue building permits. There is a ‘separation of powers’ in Tasmania between the Permit Authority and building surveyors. This is particularly so in respect of High Risk/Permit Work. Hence, some approval functions of Victorian building surveyors would remain with Tasmanian Permit authorities if undertaken in Tasmania. For example, Tasmanian building surveyors approve the commencement of Medium Risk/Notifiable Work, the Respondent noted that building surveyors cannot approve the commencement of High Risk/Permit Work as this activity rests with the relevant Permit Authority, in accordance with sections 141, 142 and 143 of the Tasmanian Building Act. Thus, the approval function remains with the Permit Authority and not Tasmanian building surveyors in respect of any High Risk/Permit Work.
In respect of High Risk/Permit Work, whilst Tasmanian building surveyors have a role to play in the approval process, they cannot deliver an ‘end-to-end’ service or provide complete solutions to approve the commencement of High Risk/Permit Work in Tasmania, and to approve completion of such work. When compared to Victorian building surveyors, Tasmanian building surveyors:
(a)do not issue building permits;
(b)are not involved in the process of applying for a building permit;
(c)do not issue a Certificate of Completion (section 153 of Tasmanian Building Act), in respect of High Risk/Permit Work. This function remains with the Permit Authority.
The Permit Authority in Tasmania, and not the building surveyor, issues or refuses an application for a building permit in respect of High Risk/Permit Work, on an application by the owner (or person authorised to do so on behalf of the owner), in accordance with sections 141, 142 and 143 of the Tasmanian Building Act.
The application for a building permit in Tasmania is instigated on an application of an owner or a person authorised to do so by the owner (section 139(1) of the Tasmanian Building Act), hence there is a further step and disconnect between the assessment and approval of the commencement of High Risk/Permit Works.
In respect of Certificates of Completion, section 313(2) of the Tasmanian Building Act provides that a Certificate of Completion is prima facie evidence of the High Risk/Permit Work complying with the relevant performance requirements of the NCC:
313. Evidence of compliant building work
Unless evidence is provided to the contrary, building work is taken to comply with this Act if it complies with the relevant performance requirements of the National Construction Code.
Unless evidence is provided to the contrary, building work is taken to comply with the relevant performance requirements of the National Construction Code if –
(a) in relation to permit building work –
(i)a building permit is issued in respect of the building work; and
(ii)a certificate of completion is issued in respect of the building work; and
(b) in relation to notifiable building work, a certificate of completion is issued in respect of the building work.
Further, it is unlawful to perform High Risk/Permit Work in Tasmania unless there is a valid building permit in force (as stipulated by section 138(1) of the Tasmanian Building Act) and the failure of the Permit Authority to determine an application for a building permit within a specified period does not authorise an applicant to commence the proposed High Risk/Permit Work (section 141(6) of the Tasmanian Building Act).
Consideration
The Tribunal notes that building surveyors in Tasmania can approve Medium Risk/Notifiable Work. However, Medium Risk/Notifiable Work is different from High Risk/Permit Work. Medium Risk/Notifiable Work, for example, does not involve construction of a substantial range of new buildings including office buildings, apartment buildings, shops, cafes, restaurants, milk bars, barber’s shops, public laundry, carpark buildings, warehouses, hospitals, schools, aged care buildings (Director’s Determination, at 46). This is so by virtue of their exclusion from the definition of Medium Risk/Notifiable Work in Tasmania.
In Victoria, building surveyors can assess and approve all building work as no risk categories exist. This means that they approve projects that would otherwise fall within the High Risk/Permit Work category in Tasmania. The Victorian Building Act and Victorian Building Regulations legislate that all building work is subject to the issuing of a building permit, unless an exemption exits for the proposed work under the Victorian Building Regulations. The Applicant did not suggest any conditions to assist the achievement of equivalence, presumably because he was of the view that the activities in both jurisdictions were, contrary to the findings of this Tribunal, substantially the same and thus conditions were not required to achieve equivalence.
The Tribunal is conscious of the fact that the objectives of the MR Act are to remove artificial barriers to interstate trade and movement of good and labour: Andriotis [2018] FCAFC 24 at [14].
However, whilst noting the evidence of Mr Dale Webster, Executive Director, Consumer Building and Occupational Services that the role of the Tasmanian Permit Authority was largely administrative, on balance, the Tribunal concludes its role is not simply that of a ‘rubber stamp’. The Permit Authority has work to do in the process in Tasmania as outlined in the Respondent’s submissions discussed above, such work not being within the activities carried out by Tasmanian building surveyors.
The Tribunal finds, upon considering all of the submissions of the parties and the relevant statutory provisions, the activities relating to building approvals and the granting of building permits are substantially distinct as between Tasmania and Victoria, and cannot be regarded as substantially the same. The differences are substantive and of such significance that even if the Tribunal were to accept the Applicant’s characterisation of evaluating ‘the sum total of the activities authorised to be carried out are substantially the same’, which it does not, the Tribunal could not be satisfied that the sum total of the activities were substantially the same.
The parties also drew the Tribunal’s attention to differences regarding inspection of buildings – ‘inspect’ versus ‘cause to inspect’, building permit levies and siting. In light of the Tribunal’s findings above it is not necessary for the Tribunal to examine these potential differences further.
In light of the matters set out above, the correct or preferable decision is that the occupation of a building surveyor in Tasmania is not equivalent to the occupation of a building surveyor in Victoria and they cannot be mutually recognised under the MR Act.
The Tribunal affirms the decision dated 18 January 2018.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.
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Associate
Dated: 31 October 2019
Date of hearing:
Date final submission received:
14 January 2019
19 February 2019
Counsel for the Applicant: Mr Ray Ternes Solicitors for the Applicant: Ms Victoria Shute
Kelledy Jones LawyersSolicitors for the Respondent: Ms Miriam Fletcher
Legal Services
Victorian Building Authority
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