Construction Occupations Registrar v Bates
[2015] ACAT 48
•22 July 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CONSTRUCTION OCCUPATIONS REGISTRAR v BATES
(Appeal) [2015] ACAT 48
Case Number: AA 58 of 2014 (OR 25 of 2013)
Catchwords: APPEAL – OCCUPATIONAL DISCIPLINE – building certifier – Building Act 2004 (ACT) – requirements of certifier in providing a building approval when work performed before building approval was granted – whether unapproved work needs to be erected in accordance with the plans – adequacy of original Tribunal’s findings of fact
List of
Legislation cited: Building Act 2004 ss 19A, 25A, 25B, 26, 29, 30, 30A, 42, 50, 51
Construction Occupations (Licensing) Act 2004 ss 55, 56
Tribunal: Mr W.G Stefaniak AM – Appeal President
Ms M. Brennan – Senior Member
Date of Orders: 22 July 2015
Date of Reasons for Decision: 22 July 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AA 14/58
(OR 13/25)
BETWEEN:
CONSTRUCTION OCCUPATIONS REGISTRAR
Appellant
AND:
JOHN BATES
Respondent
TRIBUNAL: Mr W.G Stefaniak AM – Appeal President
Ms M. Brennan – Senior Member
DATE: 22 July 2015
ORDER
The Tribunal Orders that:
1.The appeal is dismissed.
………………………………..
Mr W.G Stefaniak AM – Appeal President
For and on behalf of the Tribunal
REASONS FOR DECISION
Notice of appeal
On 19 December 2014 the appellant lodged an application for appeal from the decision of the original Tribunal dated 24 November 2014. The original Tribunal had dismissed the appellant’s application for occupational disciplinary orders sought under section 56 of the Construction Occupations (Licensing) Act 2004 (the COL Act).
The original Tribunal considered numerous grounds of occupational discipline against the respondent pursuant to the COL Act. It dismissed them all. This appeal is limited to ground 14 of the application which is: “On or about 16 April 2011, pursuant to section 55(1)(a) of COLA the respondent contravened section 28(2) of the Building Act 2004 in relation to Block 9 Section 16 Forde.”
The grounds of appeal are:
(a)Some building work (for which building approval was required) had been undertaken on Block 9 Section 16 Forde without building approval. When considering whether to give building approval in these circumstances, is a building surveyor required to be satisfied on reasonable grounds that the building (including the work constructed before building approval was granted) if erected in accordance with the plans, complied with the Building Act 2004?
(b)Did the Tribunal hearing the matter make adequate findings of fact for the proper disposition of the application?
The Original Tribunal’s decision
On 24 November 2014 the original Tribunal decided in respect of ground 14 of the appellant’s application, that the respondent did not contravene section 28(2) of the Building Act 2004 (the Act) in relation to his role with Block 9 Section 16 Forde.
It described the work on this block as an “ill-starred development” in which the respondent was appointed as certifier after the building had progressed through building stages to frame work stage without approval for the building plans. The respondent was appointed as certifier on 16 April 2011 and he approved the plans and issued building approval on the same date.
The original Tribunal reasoned that pursuant to section 26 of the Act, an owner may request a certifier provide a building approval for building work to be done on the land. The certifier must then decide under section 28 if the plans for the project meet the Act’s requirements and if they do, issue the building approval. The original Tribunal further found that section 29 of the Act deals with the approval requirement for plans, which has the effect of requiring plans for the erection of a building to comply with the Act. It noted that there was no evidence that the plans did not comply with the Act or that the building, if built in accordance with the plans, would not comply with the Act. The original Tribunal further found that the building approval issued by the respondent was in accordance with what he was required to do under the Act, having made an assessment of the integrity of the building work if executed in accordance with the plans.
The hearing
The appeal was heard on 1 June 2015.
The relevant legislative provisions
This appeal centres on the obligations of a certifier, retained by the owner of a block of land, in circumstances where building work (being the erection of a building in this case) has been commenced prior to plans being approved, as required by section 42(1)(d) of the Act. Specifically, does a certifier in this scenario need to ensure that the work constructed before building approval was given, if erected in accordance with the plans, will comply with the Act?
Section 19A(1) of the Act deals with the appointment of certifiers once work has begun. It provides:
(1)This section applies if—
(a)building work has begun on a parcel of land; and
(b)the building work has been carried out in accordance with this part.
Division 3.3 of the Act deals with building approvals. Section 25A provides:
(1)This division deals with building approvals for building work carried out on land and how the owner of the land may apply for building approval.
(2)Section 27 to section 30A affect the issue of building approvals as follows:
(a)section 27 provides that a certifier must not consider an application for building approval unless, among other things, the accompanying plans comply with the requirements prescribed by regulation;
(b)section 28 provides that an application for building approval must be approved if the plans meet each approval requirement under section 29, and deals with how the approval is given;
(c)section 28A sets out how a building approval is marked on plans;
(d)section 29 sets out the approval requirements for the plans;
(e)section 30 and section 30A set out when an application for building approval must be refused.
Section 25B(1) then sets out why a building approval is necessary, it is because:
(a) section 42 (1) (d) requires building work to be carried out in accordance with approved plans (which may have to comply with this Act in relation to asbestos); and
(b) approved plans are plans that relate to building work for which a building approval is in effect.
Sub-section (2) provides:
Section 42 provides that building work must not be carried out except in accordance with the requirements set out in the section.
Section 42(1) details the requirements for carrying out building work. It provides:
(1)Building work must not be carried out except in accordance with the following requirements:
(a)the materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;
(b)the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;
(c)the building work must be carried out in a proper and skilful way;
NoteThe considerations to be taken into account to decide when work is carried out in a proper and skilful way may be prescribed under the regulations (see s (2)).
(d)building work must be carried out—
(i)in accordance with approved plans; or
(ii)if the building work involves handling asbestos or disturbing friable asbestos—in accordance with approved plans that comply with this Act in relation to the asbestos;
(e)for building work required to be done only by a licensed builder—
(i)the building work must be carried out by or under the supervision of the builder mentioned in the building commencement notice; and
(ii)the builder’s licence must authorise the doing of the building work;
(f)the building licensee in charge of the building work must take—
(i)all the safety precautions stated in or with the application for the building approval; and
(ii)any other safety precaution that a certifier or building inspector may require the building licensee to take under section 46.
Relevantly, paragraph (d)(i) states the building work must be carried out in accordance with the approved plans.
Section 26 of the Act then covers building approval applications. It provides:
(1)The owner of a parcel of land may, in writing, apply to the certifier for a building approval for building work to be carried out on the land.
Note At common law, an agent may make an application on the owner’s behalf.
(2)The application must—
(a)be accompanied by the number of copies of the plans relating to the proposed work prescribed under the regulations; and
(b)be accompanied by a waste management plan if the building work involves—
(i)the demolition of a building; or
(ii)the alteration of a building other than a class 1, class 2 or class 10a building; and …
Building work is defined in section 6(1). It means:
(a)work in relation to the erection, alteration or demolition of a building, and includes disposal of waste materials generated—
(i)by the alteration of a building other than a building excluded under the regulations; or
(ii)by the demolition of a building (but not part of the building); or
(b)work in relation to repairs of a structural nature to a building.
Section 28 then deals with the issue of a building approval. It provides:
(1)This section applies if—
(a)an application for a building approval is made to the certifier under section 26; and
(b)the certifier may consider the application; and
(c)section 30 (When building approvals not to be issued—general) and section 30A (When building approvals not to be issued—advice on referral) do not prevent the issue of the approval; and
(d)if there is a written agreement between the certifier and applicant for the payment of an amount for deciding the application and the agreement states that the amount is to be paid before the application is decided—the amount has been paid.
(2)As soon as practicable after receiving the application for building approval, the certifier must—
(a)take all reasonable steps to get the information the certifier reasonably needs to decide the application; and
(b)if satisfied on reasonable grounds that the plans meet each applicable approval requirement under section 29 and is not prevented from being issued under section 30 or section 30A—
(i)prepare a notice (the building approval certificate) certifying what approval requirements apply to the application and why the building approval is not prevented from being issued; and
(ii)issue the building approval and give the building approval certificate to the applicant.
If a certifier issues a building approval under section 28, section 28A(1) requires:
(a)the approval must be marked on, attached to or partly marked on and partly attached to, each page of the plans it relates to; and
(b)the certifier must—
(i)initial, date and mark the certifier’s licence number on each page of the plans; and
(ii)attach each accompanying document to the plans; and
(iii)if the accompanying documents do not include an asbestos assessment report—attach an asbestos advice to the plans.
Section 29 headed ‘Approval requirements’ provides:
(1)Each of the following is an approval requirement for plans:
(a)if the plans are for the substantial alteration of a building—the building as altered will comply with this Act and the building code;
Note 1Substantial alteration—see s (2).
Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and the building code (see Legislation Act, s 104).
(b)if the plans are for the erection or alteration of a building—the building, if erected or altered in accordance with the plans, will comply with this Act;
(c)if the plans are for the demolition of a building—demolition in accordance with the plans will comply with this Act;…
Finally, Division 3.6 deals with the completion of building work. Section 47 provides:
47Structural engineer’s certificate
(1)The owner of a parcel of land where building work is being, or has been, carried out must, if requested by the certifier, give the certifier a certificate by a professional engineer about the structural sufficiency, soundness and stability of the building as erected or altered for the purposes for which the building is to be occupied or used.
(2)The certifier may request a certificate only if satisfied on reasonable grounds that it is desirable to do so in the interests of people who occupy or use, or are likely to occupy or use, the building or part of the building that is being, or has been, erected or altered.
(3)The certifier may request a certificate at any time before or after the completion of building work.
The appellant’s submissions
The appellant submits the original Tribunal was in error in finding that section 29 of the Act deals with approval requirements for plans. The Construction Occupations Registrar (the Registrar) maintains that section 29 goes beyond requiring that plans meet the Act’s requirements. He submits that the respondent had to have been satisfied under section 28(2)(b) on reasonable grounds that the unapproved work met the requirements of the Act before he could provide approval for further work to occur. To be satisfied of this, the appellant needed to have undertaken an inspection of the building work undertaken, which he failed to do.
The appellant also submits that the shortcomings of the respondent’s inspection meant that there was a risk that the construction occurring after he approved the plans may have been on a partially completed building which had defects. The certifier’s duty was to the owner and he breached this to ensure the builder could continue with the construction.
The respondent’s submissions
The respondent submits that on 16 April 2011 he approved a series of plans (AB pages 306-314). It was not relevant to this function that some of the work on the block had begun. The Appeal Tribunal was taken sequentially through Part 3 of the Act, covering Building Work from the appointment of a certifier such as the respondent in section 19, to the completion of building work in section 48. The respondent’s counsel also referred the Appeal Tribunal to Part 4 of the Act covering Stop and Demolition Notices, noting the sections empower the registrar to deal with risks raised by unsafe work or work not in accordance with the approved plans.
The respondent argued that the approval process in section 26 of the Act is limited to the approval contemplated by subsection (2) which lists the plans the certifier must be provided, including plans for the proposed work prescribed by the regulations and a waste management plan. That is to say, the certifier is providing a building approval so that building work may be started. He also noted that the provisions following section 26 do not provide any criteria for how a certifier could certify existing building work at that stage even if that was intended.
Consideration of the issues
Section 19A of the Act deals with the appointment of certifiers when work has begun. This is the case here. However, as the building work on the block commenced prior to the plans being approved, the work was not carried out in accordance with Part 3 as section 19A requires.
Section 19A was added to the Act with wide ranging amendments in 2007. The detailed Explanatory Statement accompanying the 2007 Bill includes the following:
It is intended that if building work has been carried out in contravention of part 3, then section 19A does not permit a certifier to be appointed in respect of that work. That is to deter carrying out work in contravention of part 3, which regulates how building work must be carried out.
The Statement also detailed:
A central focus of the Bill is to make the amendments necessary to facilitate making private sector building certifiers a one-stop-shop for all of the plan approvals and associated certifications necessary to erect buildings that are exempted from requiring development approval.
In this case, despite the construction on the block in contravention of Part 3, the block’s owners applied to the respondent for a building approval for building work to be carried out on the land pursuant to section 26 of the Act. In such circumstances it appears to the Appeal Tribunal that the respondent’s appointment was in contravention of the Act and strictly speaking, he was unable to be appointed as certifier of that parcel of land. However, this was not an issue raised by the Registrar in the three grounds (grounds 14,18A and 20) in the application before the original Tribunal in respect to this parcel of land.
The focus of the appeal is whether the respondent breached subsection 28(2)(b) of the Act in failing to be reasonably satisfied that the unapproved work met the Act’s requirements before he provided the approval which would allow further work to occur. Prior to giving his approval, the respondent needed to have undertaken an inspection of the building work undertaken, which he failed to do.
The application the respondent received from the block’s owners, pursuant to section 26 of the Act requested a building approval for building work (that is work in relation to the erection of a building) to be carried out (emphasis added) on their land. As per the requirements in subsection 26(2)(a), the application was accompanied by plans for the proposed work. In assessing the application, section 28 of the Act required that the respondent had to have been satisfied on reasonable grounds that the plans (emphasis added) met each requirement under section 29 and approval was not prevented from being issued under sections 30 or 30A.
In further considering what a certifier is required to do under section 28 of the Act in issuing a building approval, some guidance is provided in section 25A(2)(b). This section was inserted with the 2007 amendments to the Act. It requires that an application for building approval must be approved if the plans (emphasis added) meet each approval requirement under section 29.
It is worth considering when a certifier is restricted from issuing a building approval. The prohibitions in section 30 to this approval include: the design or siting of a proposed building; the material used; or the proposed use of the building would contravene the Act or another law of the ACT. Section 30A deals with applications for a building approval where a regulation requires advice be sought from an entity. Subsection 29(1)(b) makes it clear that if the plans (emphasis added) are for the erection of a building, the approval requirement is that the building, if erected in accordance with the plans, will comply with the Act.
The Appeal Tribunal fully understands the appellant’s concerns raised by the fact that work had commenced on this block prior to the respondent’s appointment. Clearly, there had been a serious contravention of the Act by the builder. Section 51 of the Act makes it an offense for the owner of land or the builder to perform building work in contravention of section 42. Subsection 42(1)(d)(1) makes it clear that building work must not be carried out except in accordance with the approved plans.
Significantly also, section 50(1) states that a certifier commits an offence if building work in contravention of a building approval or development approval comes to the certifier’s attention and the certifier is the certifier for the building work and he does not advise the Registrar about the contravention. Section 50(1) provides:
50Notification by certifier of contraventions of building and development approvals—building work
(1)A certifier commits an offence if—
(a)a contravention of part 3 (Building work) or part 4 (Stop and demolition notices) or conduct that the certifier reasonably believes may be an offence under section 76 (Occupation and use of buildings), section 77 (Use of buildings restricted) or section 78 (Occupation and use of ex-government buildings), comes to the notice of the certifier; and
(b)the certifier does not tell the construction occupations registrar about the contravention or conduct—
(i)for a contravention in relation to building work that is fundamentally noncompliant—not later than the next working day after the day the contravention comes to the certifier’s attention; or
(ii)in any other case—within 21 days after the day the contravention or conduct comes to the certifier’s attention.
Maximum penalty: 5 penalty units.
NoteNotice of a contravention given under this section is taken to be a complaint made under the Construction Occupations (Licensing) Act 2004, s 117.
However, this section was not included in the application considered by the original Tribunal, perhaps because at or around the time the respondent was retained under section 26 of the Act the Registrar was aware of the unauthorised building work as seen by a stop work order issued under Part 4. This may well be something the appellant may now wish to pursue separately.
The Appeal Tribunal could find nothing in the Act requiring the respondent to ensure the unapproved work met the requirements of the Act before he could provide the approval under section 29. This is because division 3.3 deals with approval of plans for the erection of a building. The Act requires the certifier to consider that if a building is constructed in accordance with the provided plans would it meet the Act’s requirements. An assessment of the plans is preliminary to the construction then to be undertaken. Section 26 covers an application for building work to be carried out.
The further divisions of Part 3 detail what should occur after a building approval is given. Significantly, pursuant to section 47, the certifier may require the owner, where building work is being carried out, to give the certifier certificates by professional engineers covering the structural sufficiency, soundness and stability of the building. The certifier may only do so if on reasonable grounds it is considered desirable to do so in the interests of people who occupy or use or are likely to occupy or use the building. In this case the respondent wrote on the Building Commencement Notice: “Engineer to provide certification for already constructed footings and ground slab.” (AB373)
The appellant put a strong argument that the respondent had an obligation under section 26 to do more than certify the suite of plans provided by the owner. Whilst in the Appeal Tribunal’s view that is basic common sense, unfortunately, it does not find the original Tribunal erred in rejecting this argument, as the Act clearly envisages that at the stage a certifier is appointed pursuant to section 26, he or she will be reviewing plans provided by the owner in giving that approval under section 28. If a certifier is in doubt about this, subsection 25A(2)(b) was inserted after the Act’s commencement, to provide a summary of section 28’s ambit. It details approval must be issued if the plans (emphasis added) satisfy section 29.
Whilst the original Tribunal’s interpretation of the Act is a black letter one, due to the lack of any material that would indicate that the clear intent of the legislature was the sensible and in our view, desirable interpretation of the Act as pleaded by the appellant, the ordinary English meaning of the relevant sections support the interpretation adapted by the original Tribunal with which the Appeal Tribunal reluctantly, in the absence of any other clear intent otherwise, agrees.
The appellant may wish to take up the issue of amending the Act to cover situations like the present case with the ACT government. It is the view of this Appeal Tribunal that there should be a provision to make it clear that a certifier, certifying plans for a partially built building, must also fully inspect and certify that what had been done to date was structurally sound.
Provisions like section 50 protect the owner from breaches of the Act through the requirement that a certifier in the respondent’s position should have notified the Registrar of a contravention like that occurring in the present case. This however, was not raised by the appellant’s application.
The appellant also contends that the original Tribunal failed to make adequate findings of fact for the proper disposition of the matter. There were numerous grounds before the original Tribunal in relation to several different blocks in the ACT. Each was addressed in turn. It reasoned in paragraph 34 of its decision that there was a requirement under the Act for a certifier to be satisfied that plans for the erection of a building comply with the Act. It refers to section 29 for this reasoning. It found the respondent certified the plans.
Given its interpretation of the Act, with which the Appeal Tribunal reluctantly agrees, it is not considered that the original Tribunal’s findings of fact were inadequate as clearly it had evidence after the lengthy hearing it conducted that the respondent was given a series of plans, which he approved.
For the reasons set out above the appeal will be dismissed.
………………………………..
Mr W. G Stefaniak AM – Appeal President
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AA 14/58 |
PARTIES, APPELLANT: | Construction Occupations Registrar |
PARTIES, RESPONDENT: | John Bates |
COUNSEL APPEARING, APPELLANT | Mr Walker SC |
COUNSEL APPEARING, RESPONDENT | Mr Erskine SC |
SOLICITORS FOR APPELLANT | ACT Government Solicitor |
SOLICITORS FOR RESPONDENT | Snedden Hall & Gallop |
APPEAL TRIBUNAL MEMBERS: | Mr W.G.Stefaniak AM– Appeal President |
DATES OF HEARING: | 1 June 2015 |
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