Construction Occupations Registrar v Bates
[2016] ACTSC 154
•7 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Construction Occupations Registrar v Bates |
Citation: | [2016] ACTSC 154 |
Hearing Dates: | 20 October 2015, 13 May 2016 |
DecisionDate: | 7 July 2016 |
Before: | Burns J |
Decision: | See [65] |
Catchwords: | OCCUPATIONAL DISCIPLINE – Building Certifiers – appeal from the ACT Civil and Administrative Appeals Tribunal – where certifier appointed after building works commenced – building approval – where no inspection of works undertaken – question of what certifier needs to be satisfied of – issues of statutory construction – proper construction of the Building Act 2004 (ACT) – leave to appeal granted – appeal dismissed. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86 Building Act 2004 (ACT) ss 6, 7, 19, 19A, 19D, 19E, 20, 25A, 25B, 25C, 26, 27, 28, 28A, 29, 30, 30A, 37, 42, 43, 44, 47, 48, 50, 50A, 51, 53, 61, 62, 151 Planning and Development Act 2007 (ACT) |
Cases Cited: | Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 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 Solicitors (Respondent) | |
File Number: | SCA 66 of 2015 |
Decision under appeal: | Tribunal: ACT Civil and Administrative Appeal Tribunal Before: Mr W G Stefaniak AM and Ms M Brennan Date of Decision: 22 July 2015 Case Title: Construction Occupations Registrar v John Bates Court File Number: AA 14/58 |
BURNS J:
The appellant brought an application for disciplinary action against the respondent pursuant to Division 5.2 of the Construction Occupations (Licensing) Act 2004 (ACT) (the COLA) in the ACT Civil and Administrative Tribunal (the ACAT). The respondent is licensed as a Class A Builder and a Building Surveyor.
As the facts in this matter are not in dispute between the parties, I will only briefly set them out. Core Developments (Aust) Pty Ltd was the builder for Mr and Mrs Owens, and Brendan Eames was the nominee of that company. Mr and Mrs Owens had contracted Mr Eames to build them a house on what is referred to as “Block 9 Section 16 Forde”. Mr Eames then began to build the house without a certifier having granted building approval. The building progressed through to the frame work stage without a certifier having been appointed, and without approval for the building plans. The respondent was appointed to be the certifier for the work on 16 April 2011, as evidenced from the completed Form C3 pursuant to s 151 of the Building Act 2004 (ACT) (the BA). The respondent issued building approval and a commencement notice for the remaining work on the same day, being 16 April 2011. It is not contested that the respondent did not undertake an inspection of the site before he issued this approval.
The appellant alleged a number of grounds for occupational discipline in the proceedings before the ACAT. A number of these were abandoned and the reasons of the ACAT dated 24 November 2014 refer to 11 grounds. The ACAT dismissed all of these grounds.
The appellant then appealed to the ACT Civil and Administrative Appeals Tribunal (the Appeal Tribunal). The proceedings before the Appeal Tribunal were limited to one ground, being ground 14 of the amended application. The Appeal Tribunal (Mr W G Stefaniak AM and Ms M Brennan) dismissed the appeal.
The appellant has now appealed from the Appeal Tribunal’s decision, as set out in the appellant’s draft Notice of Appeal those grounds are:
1.The Appeal Tribunal erred by not concluding that the Respondent was required to be satisfied that the whole of the building on Block 9 Section 16 Forde (including the existing unapproved building work and the building work to be undertaken in accordance with the building plans[)] had to comply with the Building Act 2004 before he could grant building approval in this case.
2.The Appeal Tribunal erred in not concluding that the original ACT Civil and Administrative Tribunal erred by making insufficient findings of fact to properly discharge its statutory obligations under the Construction Occupations (Licensing) Act 2004 in this case.
The nature of the present appeal
The appeal is brought under s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). Section 86(3) states that the appeal may only be brought with the leave of this Court. When the application for the granting of leave came before me on 22 September 2015, I directed that the application would be heard together with the substantive appeal, as whether I granted leave would depend on the prospects of success of the present appeal. On 20 October 2015, I heard both the substantive appeal and submissions on the granting of leave and I reserved my decision.
On 13 May 2016, the matter was relisted at my request to hear further submissions concerning the proper interpretation of those parts of the BA concerning appointment of building certifiers and the approval of unapproved works. I am grateful to counsel for the considerable assistance they have provided to me.
The relevant legislation
The BA is defined as an “operational Act” under the COLA. Relevantly, s 55(1)(a) of the COLA provides that a contravention of an “operational Act” constitutes grounds for occupational discipline. The appellant alleged before the ACAT that the respondent breached s 28(2) of the BA, as the respondent could not have been satisfied that the building “if erected or altered in accordance with the plans” would comply with the BA.
The appellant submitted that this appeal raises the correct interpretation of s 29(1)(b) of the BA as applied by s 28(2)(b). Prior to turning to those specific sections, it is important that at this point I, first, set out the relevant legislative provisions.
Section 7 of the BA defines “building” as including:
(a)a structure on or attached to land;
(b)an addition to a building;
(c)a structure attached to a building;
(d)fixtures; and
(e)part of a building, whether the building is completed or not.
Section 6 defines “building work”, for present purposes, as work in relation to the “erection, alteration or demolition of a building”.
Part 3 of the BA is entitled “Building Work” and, as the respondent highlights, the BA is then divided somewhat logically into Divisions that reflect the various steps in regulating the carrying out of building work. Division 3.2 relates to certifiers. The appointment of certifiers is addressed in ss 19 and 19A:
19Appointment of certifiers–work not begun
The owner of the land where it is proposed to carry out building work may appoint an eligible entity as certifier for the work.
NoteAn appointment must be in writing (see Legislation Act, s 206)
19AAppointment of certifiers–work begun
(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.
(2)The owner of the land may appoint an eligible entity as certifier for the building work.
NoteAn appointment must be in writing (see Legislation Act, s 206)
Division 3.3 of the BA then deals with building approvals. Section 25A provides:
25AOverview—div 3.3
(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 then sets out why building approval is necessary:
25BWhy are building approvals necessary?
(1)A building approval is necessary 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.
(2)Section 42 provides that building work must not be carried out except in accordance with the requirements set out in the section.
...
Section 42, which is under Division 3.5 entitled “Carrying out building work”, sets out the requirements for carrying out building work:
(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 the 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.
I note here that the terms of s 25C make it clear that building approval relates only to building work:
25CBuilding approvals apply to building work
To remove any doubt—
(a) a building approval only relates to building work shown on the approved plans under the approval, other than building work—
(i) identified in the plans as not forming part of the approval; and
(ii) on a parcel of land other than a parcel to which the application for approval relates; and
(b) the issue of a building approval does not indicate that carrying out work other than building work identified in the plans is consistent with the law or lease provisions applying to carrying out the work.
...
Section 26 states:
26Building approval applications
(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.
NoteAt 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
...
Section 28 then deals with the issue of building approval:
28Issue of building approvals
(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.
...
Section 28A then applies if a certifier issues building approval under s 28:
28AMarking building approval
(1)If a certifier issues a building approval under section 28—
(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 then refers to the “approval requirements”:
29Approval requirements
(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;
...
(f)the building as proposed to be erected or altered will be structurally sufficient, safe and stable.
The proceedings before the ACAT
The proceedings in the ACAT were based on an Amended Application for Occupational Discipline Order dated 23 September 2013. This application alleged a number of grounds, and sought orders, inter alia, that the respondent’s builder’s licence and building surveyor’s licence be cancelled, or that he be disqualified from applying for such licences for a period of five years. Of particular relevance to the present appeal is the complaint concerning Block 9 Section 16 Forde, referred to as ground 14. The Amended Application set out the complaint against the respondent as follows:
14.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.
Particulars
a) On 16 April 2011, the respondent was appointed certifier for building work on Block 9 Section 16 Forde ...
b) On or about 16 April 2011, the respondent issued building approval for Block 9 Section 16 Forde pursuant to section 28 of the Building Act 2004.
c) Prior to 16 April 2011, no certifier had been appointed under section 19 or 19A of the Building Act 2004.
d) Prior to 16 April 2011, no building approval had been issued in accordance with section 28 of the Building Act for Block 9 Section 16 Forde.
e) As at 16 April 2011, building work at Block 9 Section 16 Forde had progressed through the following stages or building work:
i) Strip footings;
ii) Storm water;
iii) Damp course/slab; and
iv) Frame work.
f) As at 16 April 2011, in circumstances where building work had progressed through to the frame work stage without permission or certification, the respondent could not have issued building approval for the building work undertaken at Block 9 Section 16 Forde because the requirements under section 19A(1)(b) and section 29 of the Building Act 2004 had not been met.
The ACAT (Mr G J Lunney SC, Senior Member and Mr G Trickett, Senior Member) dealt with that complaint as follows:
Ground 14 is as follows:
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 essence of this allegation is that the respondent in issuing the building approval on 16 April 2011, approved the existing building work that had been previously done on the block without approval.
Under section 26 of the Building Act, an owner may request the certifier for building approval for building work to be done on land. The certifier must then under section 28 decide the application, and if satisfied that the plans for the project meet the ‘applicable approval requirements’ under section 29 and some other requirements, issue building approval.
Section 29 of the Building Act is a long section and deals with approval requirements for plans. Relevantly, these have the effect of requiring plans for erection of a building to comply with the requirements of the Act. There is no evidence that the plans did not comply with the Act, or that the building, if built in accordance with the plans, would comply with the Act. The building approval issued by the respondent was 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. His action in doing so was not a certification of what had already been done on the site.
Ground 14 is not made out.
From this aspect of the ACAT’s decision, the appellant appealed to the Appeal Tribunal.
The proceedings before the Appeal Tribunal
After considering the ACAT’s decision, the Appeal Tribunal set out the relevant legislative provisions in great detail before considering the appellant’s and respondent’s submissions. The Appeal Tribunal then summarised the parties’ submissions. The appellant submitted to the Appeal Tribunal that s 29 of the BA goes beyond requiring that plans meet the BA’s requirements. It submitted that the respondent had to be satisfied under s 28(2)(b) on reasonable grounds that the unapproved work met the requirements of the BA before he could provide approval for further work to occur. The appellant submitted that to be satisfied of this, the appellant needed to have undertaken an inspection of the building work, which he failed to do.
The respondent submitted that it was not relevant to the respondent in approving the plans that some of the work on the block had begun. The Appeal Tribunal noted that it was, also, sequentially taken through Part 3 of the BA and Part 4 of the BA that covers 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 also submitted to the Appeal Tribunal that the approval process in s 26 of the BA is limited to the approval contemplated by subsection two, which lists the plans the certifier must be provided, including plans for the proposed work prescribed by the regulations and a waste management plan. The respondent also noted that the provisions following s 26 of the BA do not provide any criteria for how a certifier could certify existing building work at that stage, even if that was intended.
The Appeal Tribunal then went on to consider the issues before it. The Appeal Tribunal first considered s 19A of the BA and, noted that 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 s 19A requires. They then went on to consider the addition of s 19A to the Act with reference to the Explanatory Statement accompanying the Bill:
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.
The Appeal Tribunal noted in passing that the respondent’s appointment was in contravention of the BA, as the respondent was unable to be appointed as certifier of that parcel of land presumably on the basis that the provisions of s 19A did not permit it. Counsel for the appellant told me at the further hearing of submissions that the issue of the respondent’s appointment under the BA had been agitated before the ACAT, and was not raised again before the Appeal Tribunal. The Appeal Tribunal then considered the essence of the appeal; whether the respondent breached s 28(2)(b) of the BA in failing to be reasonably satisfied that the unapproved work met the BA’s requirements before he provided the building approval. In considering this issue the Appeal Tribunal went through the relevant sections of the BA.
The Appeal Tribunal first noted that the building approval application pursuant to s 26 of the BA is a request for building approval for building work (that is work in relation to the erection of a building) to be carried out on their land. They also noted that in assessing the application, s 28 of the BA requires, that the respondent had to have been satisfied on reasonable grounds that the plans met each requirement under s 29. They further noted that s 25A(2)(b) provided guidance to a certifier in issuing a building approval. They noted that this section was also inserted with the wide ranging amendments in 2007 to the BA. Section 25A(2)(b) requires that an application for building approval must be approved if the plans meet each approval requirement under s 29. The emphasis is that of the Appeal Tribunal. The Appeal Tribunal then noted that when a certifier is restricted from issuing a building approval under ss 30 and 30A.
After considering ss 42, 50 and 51 of the BA, the Appeal Tribunal said “[i]t could find nothing in the [BA] requiring the respondent to ensure the unapproved work met the requirements of the [BA] before he could provide the approval under section 29”. They went on to say:
This is because division 3.3 deals with approval of plans for the erection of a building. The [BA] requires the certifier to consider that if a building is constructed in accordance with the provided plans would it meet the [BA]’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 Appeal Tribunal then said that Part 3 of the BA details what should occur after a building approval is given. Of significance, it noted that pursuant to s 47, the certifier may request 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. In the present case, the respondent wrote on the Building Commencement Notice: “Engineer to provide certification for already constructed footings and ground stab.”
The Appeal Tribunal considered that the appellant put a “strong argument” that the respondent had an obligation under s 26 to do more than certify the suite of plans provided by the owner and that is was the Appeal Tribunal’s view that it is “basic common sense”. It went on to say:
[U]nfortunately, 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.
The Appeal Tribunal went on to say:
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’s submissions
The appellant submitted that the real question is: “where there are existing building works on the site, what is the certifier to be satisfied of before he can properly give building [approval] to the works that are going to be built on top of whatever is on the site?” He then went on to say that, although, in this instance the circumstances have arisen because there were unapproved building works, it would equally apply to a situation where a second storey is being built on a house. The appellant then took me through the sections of the BA, which he said were relevant. He first highlighted that s 25A(1) makes it clear that a certifier is giving “building approval for building work.” He then noted that s 25A, which is the overview section, refers to s 27, particularly 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”. He then noted that s 25A(2) refers to s 28, and that, an application for building approval must be approved if the plans meet each approval requirement under s 29, and deals with how the approval is given. The appellant then referred me to ss 25B, 25C, 26 and 27, which I have outlined above, to reiterate that building approval is for building work and, that work is identified in the plans, which should not be approved unless the plans comply with the prescribed requirements. I note here that approved plans are defined in the Dictionary to the BA to mean “plans that relate to building work for which a building approval is in effect; and includes amended plans”.
The appellant then submitted that in relation to the approval requirements he relied upon s 29(1)(b) in this case, being that, “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.” He then submitted that in this context the word “building” means “the whole of the building if erected or altered.” He also drew my attention to s 29(1)(f), “the building as proposed to be erected or altered will be structurally sufficient, safe and stable.”
The appellant also took me to s 42, which I have detailed above. He submitted this section is backed up by s 51, which makes it an offence to carry out building work otherwise than in accordance with the requirements in s 42. He also referred me specifically to s 43(2), which provides that a building licensee in charge of building work must not do building work above dampcourse level unless the certifier, among other things, has received a survey plan. Section 44 also refers to “stage inspections”, i.e. that at each stipulated stage the building licensee is to stop, give the certifier a notice that stage has been reached, and the certifier is then to inspect the building work as soon as practicable to ensure compliance with s 42. I also note the requirements of s 47. The appellant submitted that these sections are the kinds of things which a certifier would have to direct attention to in order to reach a conclusion under s 29 that building work as erected or altered will comply with the BA.
The appellant expressed his dissatisfaction with the ACAT and the Appeal Tribunal’s decisions and noted in particular this excerpt from the ACAT’s judgment at [34]:
The building approval issued by the respondent was 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. His action in doing so was not a certification of what had already been done on the site.
The appellant submitted that he agreed with that last line in the above quote, however, it was not germane to the point. He submitted that, “it’s a certification that the certifier can reasonably believe the plans meet the approval requirements and that ... is a consideration of whether the building is altered.” I note that the appellant does not submit that the certifier has to “approve” the unapproved works.
The appellant was unable to say whether the building that was constructed on the block was non-compliant with the BA, however, I do not consider that to be relevant for present purposes.
In relation to Mr Bates actions, the appellant submitted in his written outline of argument that Mr Bates knew or did the following things in connection with the building approval he issued on 16 April 2011:
(a)he knew that there had been no certifier appointed and that there could be no approvals in place;
(b)he did not conduct an inspection of the block;
(c)he advanced to the tribunal a justification that he was familiar with the footings, which justified him authorising the project to proceed without physically attending the block;
(d)he did not get an engineer to attend, although the appellant submitted it was evident that the respondent thought one should attend from his notation on the Building Commencement Notice;
(e)he did not have a survey certificate and did not know the plans upon which the surveyor gave him oral evidence;
(f)he did not check whether the building was an exempt building under the Planning and Development Act 2007 (ACT);
(g)he gave “urgent approval”: the respondent concedes that this does not exist; and
(h)he preferred the interests of the builder to the home owner.
The respondent’s submissions
The respondent, in relation to the issue of leave to appeal, noted some factual matters that were not included by the appellant. I note them here for convenience:
a. the appellant issued a Stop Work Notice on the site which was later lifted when the appellant received the approved plans from the respondent;
b. the respondent advised ACT Planning and Land Authority between 17 and 20 April 2011, when he lodged ... the approved plans with the required forms; C1, C2 and C3 along with the Certificate of insurance. The respondent recorded at the foot of Form C2 Engineer to provide certification for already constructed footings and slab. Further, in the description on Form C3 the respondent wrote Engineer to provide certification for already constructed footings & Slab. The respondent did this because of the peculiar situation of the building work having gone beyond footings without approval. He specifically advised the appellant how he proposed to deal with the problem, by having a structural engineer review the building work before the certificate of occupation was sought to ensure that it was structurally sound. The appellant raised no objection to this course at the time; and
c. the respondent was replaced as certifier part way through the carrying out of the building work. The new certifier, Mr Collins, consulted extensively with the appellant as to what to do in the situation of building work having progressed beyond a stage without the necessary stage inspection. He proposed doing exactly what Mr Bates had proposed – involve a structural engineer before applying for a certificate of occupation. The appellant agreed with that course of action. Before the primary tribunal, the appellant conceded that no disciplinary action was being taken against Mr Collins, for doing effectively the same actions as Mr Bates.
The respondent first referred to the principles of statutory interpretation and I note here the key principles of statutory interpretation: ss 138, 139 and 140 of the Legislation Act 2001 (ACT). The respondent then took me through the structure of the BA. Prior to doing so, the respondent emphasised that he approved the whole of the building plans, rather than approving plans to build building work on top of an existing building.
The respondent first took me to the table prefacing the BA to draw my attention to the distinction between building work in Part 3, stop and demolition notices in Part 4 and building occupancy in Part 5. The respondent submitted that the structure of the BA reveals a careful distinction, and that Division 3.3 deals with plans as plans; the corollary of that is that s 29 poses a “hypothetical building”. The respondent submitted that the question of whether what has been constructed matches the “approved plans” is dealt with later on in the BA. The respondent also placed emphasis on the use of the future tense in s 26(1), “the owner of a parcel of land may ... apply to the certifier for a building approval for building work to be carried out on the land”. The respondent also noted that s 28A requires approval to be marked on every page of the plans, which he submitted reinforces the fact that plans are the focus of Division 3.3. The respondent then drew my attention to Division 3.4, which begins with s 37. This deals with the commencement of building work. The respondent submitted that this division illustrates his point that the BA draws a careful distinction between “plans as plans” and the carrying out of building work. The respondent then meticulously took me through the rest of the divisions in Part 3. I note that Division 3.5 relates to the carrying out of building work, and particularly s 43 within that division refers to the stages of building work and, that inspections are required at various stages as prescribed by the regulations. I also note that s 42(1)(d) states that “building work must be carried out in accordance with approved plans.” The appellant also drew my attention to Division 3.7, which is part of the regulatory mechanism that exists within the act, as it relates to offences.
The respondent submitted that Part 4 further reinforces Part 3. Part 4 deals with Stop Notices. Within that Part, s 53 lists the various matters that would justify a Stop Notice, which include contraventions of Part 3. The respondent submitted that the Registrar is “clothed with quite substantial powers not just at the end of the process ... but at every step along the way.” Section 61 within that Part also sets out preconditions for the issuing of a notice under s 62, which can require building work (including demolition work) to be carried out.
The respondent lastly submitted that because the issue raised by the appellant is dealt with elsewhere in the BA in some detail, the appellant’s argument is a species of the Anthony Hordern principle: AnthonyHordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1. The respondent submitted that in this case the specific issue is addressed in Divisions 3.4, 3.5, 3.6 and 3.7, and in Parts 4 and 5. He submitted that there is no basis for implying into s 29 a general unqualified obligation that is addressed with detailed conditions and obligations in other provisions of the BA.
Consideration
The issue raised in this appeal is one of statutory interpretation. In particular, I am asked to determine the proper interpretation of s 29(1)(b) of the BA. The appellant submitted that, in the circumstances that existed in this case, the respondent could not, as a certifier appointed under the BA, issue a building approval for the building works in question unless he was satisfied that the existing building works on the site met the requirements of the BA. This, the appellant said, required at least a personal inspection by the respondent. For the reasons that follow, I am satisfied this is not correct.
The BA contains two provisions permitting the appointment of a building certifier: ss 19 and 19A. A plain reading of the text of s 19 may suggest that it would permit the appointment of a certifier in circumstances where building work had commenced on land, but the appointment of the certifier was not otherwise permitted by s 19A. This would be incorrect. In interpreting s 19, I am entitled to consider the heading of the section: s 126(1) and (2)(a) of the Legislation Act 2001 (ACT). I am also entitled to consider any explanatory statement for the bill which became the Act creating the provision. Section 19A of the BA was inserted into the BA by the Building Legislation Amendment Act 2007. The revised explanatory statement for the bill which became that Act (the Building Legislation Amendment Act 2007) provided, with regard to ss 19 and 19A:
Section 19, (Appointment of certifiers–work not begun) only caters for work that has not begun (proposed work) distinguishes itself by its title from the new section 19A, which only caters for work that has begun. The unamended section 19 also only caters for work that had not begun, and without the Bill’s new section 19A, the Act is silent on what do in the case where work has already begun. (See below about new section 19A (Appointment of certifiers–work begun)).
Section 19A, (Appointment of certifiers–work begun), is also inserted by clause [1.11] and is necessary to cater for circumstances where a certifier might be needed to fulfil the Building Act’s certification requirements in respect of work that has commenced. The provision does not apply to work that has begun and was carried out in contravention of the Building Act, part 3, (Building work). 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 regulated how building work must be carried out.
The above makes it clear that s 19, as suggested by its heading, is only intended to permit the appointment of a certifier where building work on land has not commenced. Where work has commenced, the entitlement to appoint a certifier must be found in s 19A. But s 19A only applies where the work which has begun has been “carried out in accordance with this part”, meaning Part 3 of the BA. This caveat to the appointment of a certifier in s 19A refers, in my opinion, to the requirements of Division 3.5 of the BA, which is headed “Carrying out building work”, and in particular to the requirements of s 42 which requires, inter alia, that:
(a)the materials used in the building work must comply with applicable standards;
(b)the building work must be carried out in a proper and skilful way; and
(c)the building work must be carried out in accordance with approved plans.
It is important to note that a certifier does not appoint him or herself under s 19 or 19A; it is the owner of the land who may appoint a certifier. What does this imply for the obligations of a certifier appointment under s 19A? The BA does not require the certifier, at the time of appointment, to vouch that the work which has already been carried out on the land complies with the requirements of Part 3. In purporting to appoint a certifier pursuant to s 19A, it is the owner of the land who asserts that the building work already begun was carried out in accordance with Part 3 of the BA. If it transpired that the work already begun has not been carried out in accordance with Part 3, then the appointment of the certifier is invalid as not complying with the terms of s 19A.
It follows from the above that I differ from the Appeal Tribunal in my interpretation of s 19A. The requirement found in s 19A that a certifier may be appointed where works already undertaken on site have been carried out in accordance with Part 3 of the BA does not import a requirement that the works were the subject of a building approval by a certifier. The use of the words “carried out” in s 19A(1)(b), in my opinion, was a deliberate reference by the drafter to the requirements for carrying out building work found in s 42. The power to appoint a certifier granted by s 19A is not a power directed towards appointment of a successor to an earlier certifier; that is dealt with elsewhere in the BA: see ss 19D, 19E and 20.
Part 3 of the BA sets out a logical and sequential process for the approval and carrying out of building work. Division 3.3 deals with building approvals, and permits an owner of land to apply for building approval. Such an application is made to the certifier: s 26 of the BA. The application must be accompanied by specified information, including the plans relating to the proposed work: s 26(2). A certifier must not consider an application under s 26 unless, inter alia, the plans that accompany the application comply with prescribed requirements: see s 27. Before issuing a building approval, the certifier must be satisfied that the plans meet each applicable approval requirement under s 29 and are not prevented from being issued under s 30 or s 30A: see s 28. Neither provision is presently relevant. The approval requirements for plans are set out in s 29 and, relevantly for present purposes, provide that if the plans are for the errection or alteration of a building it is an approval requirement for the plans that the building, if erected or altered in accordance with the plans, will comply with the BA.
Where a building approval is issued for building work, and under the COLA any of the work must be done by a licensed builder, the licensed builder engaged to do the work may apply to a certifier for a commencement notice: s 37. The certifier must issue a building commencement notice for the building work if satisfied on reasonable grounds that the builder’s license authorises the work in the building approval: s 37(4).
As I have already noted, Division 3.5 of the BA deals with the carrying out of building work. Section 43 provides that regulations may prescribe stages for building work: see reg 33, Building (General) Regulation 2008 (ACT). In addition, a building licencee in charge of building work must not do building work above dampcourse level unless the certifier has received a survey plan and the certifier is satisfied that the position of the building and floor levels are in accordance with the approved plans and any applicable advises or approvals required by the BA: s 43(2). A building licencee in charge of building work that has reached a stage must not do building work beyond the stage unless the licensee has given to the certifier notice that the stage has been reached, and the certifier has inspected the building work and given written permission for the work to proceed: s 43(3).
Stage inspections are addressed in s 44, and provide that a certifier, having received a notice under s 43(3) must inspect the work as soon as practicable: s 44(1). Where the certifier is satisfied on reasonable grounds that the building work does not comply with the requirements for carrying out building work set out in s 42, a notice to that effect must be given to the building licensee together with reasonable and appropriate direction for achieving compliance: s 44(2)(a). Where the certifier is satisfied on reasonable grounds that the building work complies with s 42, he or she must provide a certificate to that effect to the building licensee in charge of the building work: s 44(2)(b). A certifier may, by written notice, require the building licensee in charge of the building work to conduct, on the material used in the work, or on the structure of the building, or in relation to anything else connected with the work, the tests stated in the notice: s 44(6). A record of any such test must be kept by the building licensee in charge of the building work until a certificate of occupancy for the building work is issued, and must be given to the certifier when the certificate of occupancy is issued: s 45.
A certifier may, at any time before or after the completion of building work, require the owner of land where building work is being, or has been, carried out to give the certifier certificates by professional engineers about the structural sufficiency, soundness and stability of the building as erected: s 47.
Where building work is completed, and the certifier is satisfied on reasonable grounds that the work has been completed in accordance with the BA and in accordance with, or substantially in accordance with, the approved plans, and that the building as erected is structurally sufficient, sound and stable, the certifier must give certain documents to the construction occupations registrar, including a copy of any structural engineer’s report obtained under s 48. The certifier may, if satisfied, advise the registrar that the registrar would be justified in issuing a certificate of occupancy for the building: s 48(3)(k).
The structure of Part 3 of the BA, as is apparent from the above, is such that it addresses the process of engaging in building work from the plan approval stage, through the building stage, until the final approval stage. The building stage is also sequential, in that there are prescribed points during the building stage when the works must be inspected by a certifier and permission granted for the works to continue. The relevant provisions in the present appeal, ss 28 and 29, are found within that portion of Part 3 governing the approval of plans, such that the legislative context suggests that the legislative intention is for the certifier, at that point in the process, to concern him or herself only with the plans and the extent to which the proposed construction will comply with the requirements of the BA.
The text of s 29 supports this approach. The section refers to approval requirements for plans. The relevant provision, s 29(1)(b), provides that the approval requirement for plans to erect a building is that the building, if erected in accordance with the plans, will comply with the BA.
In the present case, the plans which the respondent approved were plans for the erection of a building, which included plans for the construction of the foundations and the works that were undertaken on the land before he was appointed. The plans which he approved were not for alteration of an existing building. The fact is that the work had begun on site without the appointment of a certifier and the approval of plans. The consequence of this, as I have observed, is that the respondent’s appointment as certifier with respect to the works was made pursuant to s 19A of the BA, and not pursuant to s 19. That appointment did not require him to certify that the works already undertaken on the site complied with the BA before he approved the plans for the works and gave building approval.
In construing the relevant provisions of the BA it is, of course, proper to consider to what extent competing interpretations may have consequences for public safety as it is unlikely that the legislature would intend to put in place a system which did not ensure that building works were safe. I am satisfied that the interpretation urged by the respondent achieves that objective. Whilst the BA allows for the appointment of a certifier before and (in some circumstances) after building work has begun, it is a feature of the BA that the obligations of a certifier, consistent with the provisions of Division 3.5 dealing with carrying out building works, to inspect building works at specified stages of the construction. For the works to continue beyond that stage, the certifier must be satisfied on reasonable grounds that the building work complies with the requirements for carrying out building works set out in s 42.
Where building works have already begun on site before the appointment of a certifier, this may present problems for the certifier (and the builder). It may not be possible for the certifier to be satisfied on reasonable grounds that the building work complies with s 42, because of unfamiliarity with the work undertaken before the certifier was appointed. A certifier placed in such a position would be entitled to exercise the power granted in s 44(6) of the BA to require testing of the materials or structure. The certifier may also require a structural engineer’s certificate to be provided pursuant to s 47. It is possible that, in some cases, in order for a certifier to permit works to continue, works undertaken on the site before the certifier was appointed may need to be dismantled. A consequence of a failure by the owner of the land to comply with such a direction would be that the certifier is unable to be satisfied on reasonable grounds that the works comply with the requirements of s 42, meaning that further works could not be authorised. A certifier also has an obligation to tell the planning and land authority if the certifier suspects that site work is non-compliant with approved building plans in certain circumstances: s 50A of the BA. The appellant’s submission that this appeal raised the issue of what the certifier must be satisfied before he gave building approval to the works to be built on top of the works already on site starts from a false premise. The approval given was for the construction of the works set out in the plan, not for alteration of an existing structure.
Both the text of s 29 and the legislative context in which it is found persuades me that the interpretation urged by the respondent is to be preferred. It follows that the respondent could not have been found to have breached his obligations as a certifier by granting building approval based on the builder’s application for building approval. The respondent was not required at the time that he granted building approval to be satisfied that the existing unapproved building works had been constructed in accordance with the requirements of the BA. The time at which he had to be satisfied of that circumstance was, where works had already been commenced on site, at the time when he was called upon by the provisions of the BA to do a stage inspection (s 44) or at the time of the completion of the building work when the certifier is required to provide a certificate under s 48.
It will be apparent from the above that I disagree with the observations of the Appeal Tribunal that the interpretation of the relevant provisions of the BA urged by the appellant accorded with “basic common sense”. Nothing in the interpretation of these provisions which I prefer can be said to be against “common sense”, whatever that may mean in this context.
The appellant did not address the second ground of appeal, alleging insufficiency in findings by the Appeal Tribunal, in either its written submissions or orally. The ground was not formally abandoned, so it is appropriate to briefly note that there is no substance to this ground. The findings of the ACAT were adequate because, to a great extent, the facts were not in contention and the basis of the ACAT’s decision was the interpretation of the provisions of the BA. The Appeal Tribunal did not make the error alleged.
Conclusion
The issues raised by the appellant are significant in clarifying the meaning of important provisions of the BA. For that reason I would grant leave to appeal, but I will dismiss the appeal. Unless a different order is sought within 14 days of publication of these reasons, I order that the appellant pay the respondent’s costs of the appeal.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 19 July 2016 |
**************
Amendments
19 July 2016 Delete paragraph [45]
2
1
7