SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Construction Occupations Registrar v Bates |
Citation: | [2017] ACTCA 15 |
Hearing Date(s): | 14 February 2017 |
DecisionDate: | 1 May 2017 |
Before: | Elkaim, Rangiah, Mossop JJ |
Decision: | See [77] |
Catchwords: | LOCAL GOVERNMENT — BUILDING CONTROL — Building certifiers — occupational discipline — grant of building approval — whether building approval may be granted for works already completed where no certifier appointed for those works — whether plans approved as plans without regard to works completed on site — relationship between ss 19 and 19A of the Building Act 2004 (ACT) |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) Building Act 2004 (ACT) Building Legislation Amendment Act 2007 (ACT) Construction Occupations (Licensing) Act 2004 (ACT) Legislation Act 2001 (ACT) s 126(1), (2)(a) Supreme Court Act 1933 (ACT) |
Cases Cited: | Commissioner of ACT Revenue v Araghi [2013] ACTCA 54; 8 ACTLR 245 Construction Occupations Registrar v Bates [2014] ACAT 73 Construction Occupations Registrar v Bates [2015] ACAT 48 Construction Occupations Registrar v Bates [2016] ACTSC 154 Legal Practitioner v the Council of the Law Society of the ACT [2011] ACTSC 207; 257 FLR 118 Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316 O’Donnell v Environment Protection Authority [2012] ACTSC 140; 268 FLR 48 PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the ACT [2014] ACTSC 161; 290 FLR 1 |
Parties: | Construction Occupations Registrar (Appellant) John Bates (Respondent) |
Representation: | Counsel Mr P A Walker SC (Appellant) Mr C Erskine SC (Respondent) |
| Solicitors ACT Government Solicitor (Appellant) Snedden Hall & Gallop (Respondent) | |
File Number(s): | ACTCA 29 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Burns J Date of Decision: 7 July 2016 Case Title: Construction Occupations Registrar v Bates Citation: [2016] ACTSC 154 |
THE COURT:
Introduction
This is an appeal against a decision of a single judge of this Court who was hearing an application for leave to appeal and an appeal from the Appeal Tribunal of the ACT Civil and Administrative Tribunal (ACAT). The Appeal Tribunal was, in turn, hearing an appeal from a decision of the ACAT.
The appellant is the Construction Occupations Registrar, a statutory officeholder with responsibilities under various building-related legislation. The respondent is a building certifier. On 16 April 2011 the respondent granted a building approval for a building at Block 9 Section 16 Forde. In July 2013 the respondent made an application for occupational discipline orders under the Construction Occupations (Licensing) Act 2004 (COL Act) which related largely to the grant of that building approval. By the conclusion of the hearing at first instance before the ACAT (the original Tribunal) only eight grounds were pressed by the Registrar. On 24 November 2014 the ACAT found that none of the grounds of the application were established and therefore dismissed the application. An appeal was made to the Appeal Tribunal in relation to one of those grounds. That appeal was dismissed on 22 July…
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- Construction Occupations Registrar v Bates [2017] ACTCA 15
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- [2017] ACTCA 15
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CaseChat Overview and Summary
The Court was required to determine the proper interpretation and application of sections 19 and 19A of the *Building Act 2004* (ACT). Specifically, the Court had to consider whether section 19A, which deals with the approval of plans, could be used to retrospectively approve works that had already been completed without a certifier, or if section 19, which mandates the appointment of a certifier before commencing works, was a prerequisite that could not be circumvented.
The Court reasoned that section 19 of the *Building Act 2004* (ACT) establishes a fundamental requirement that a building certifier must be appointed before any building work commences. This requirement is a condition precedent to the lawful undertaking of building work. The Court found that section 19A, which allows for the approval of plans, does not operate independently of section 19. Approving plans under section 19A cannot legitimise or retrospectively validate building work that was carried out in contravention of the mandatory certification requirements of section 19. Therefore, the Tribunal erred in its interpretation by allowing for the retrospective approval of uncertified works.
The Court allowed the appeal and set aside the decision of the ACT Civil and Administrative Tribunal.
Orders
Orders of the court
See [77]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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