Construction Occupations Registrar v Bates

The Construction Occupations Registrar appealed to the Supreme Court of the Australian Capital Territory against a decision of the ACT Civil and Administrative Tribunal. The dispute concerned the Registrar's decision to refuse to grant a building approval for completed works where no building certifier had been appointed for those works. The primary issue was whether a building approval could be lawfully granted for works that had already been undertaken without prior certification.

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.