Cullinan v Queensland Building Construction Commission - [2014] QCAT 337

CITATION:

Cullinan v Queensland Building Construction Commission [2014] QCAT 337

PARTIES:	Mark William Cullinan (Applicant)
v
Queensland Building Construction Commission (Respondent)

APPLICATION NUMBER:

GAR254-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

28 March 2014

HEARD AT:

Brisbane

DECISION OF:

Member A Fitzpatrick

DELIVERED ON:

4 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority made on 25 June, 2013, that the Certifier has engaged in unsatisfactory conduct is affirmed.

2. The decision of the Queensland Building Services Authority made on 25 June, 2013 to reprimand the Certifier is affirmed.

CATCHWORDS:

Building Certifier – whether unsatisfactory conduct or professional misconduct – encroachment of swimming pool on neighbouring property

Building Act 1975 (Qld)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mark William Cullinan, self represented.

RESPONDENT:

Queensland Building Construction Commission represented by Mr Simon Formby, in house lawyer employed by the Queensland Building Construction Commission.

REASONS FOR DECISION

Background

The Applicant, Mr Cullinan has been a private building certifier since 1998.
Mr Cullinan was issued with an Information Notice under section 204 of the Building Act 1975 (the Act) by the then Building Services Authority (which has been succeeded by the Queensland Building and Construction Commission). The Notice set out a decision of the Authority that Mr Cullinan has engaged in unsatisfactory conduct in relation to a Matter of Complaint. Pursuant to section 204(4) of the Act, the Authority reprimanded Mr Cullinan.
The Matter of Complaint referred to was that the owner of a home at 8 Teneriffe Drive, Teneriffe had identified that Mr Cullinan approved a swimming pool built over the rear boundary of the property.
Mr Cullinan disagrees with the decision of the Authority and has applied for a review of that decision pursuant to section 105 of the Act and section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The following are uncontested facts in the matter:
a)    Mr Cullinan was engaged by Evans & Evans Pools on behalf of the homeowners to certify the construction of a pool at the premises.
b)    Mr Cullinan issued a Development Approval for Building Work for swimming pool 12/233 on 19 June, 2012.
c)    On the day the pool was constructed, the homeowner requested that the location of the pool be rotated through 90 degrees such that the long axis of the pool was no longer parallel to the side boundary of the property, but parallel to the rear boundary of the property.
d)    On 11 July, 2012, Mr Cullinan inspected the position of the pool from the boundaries and inspected the reinforcing steel in the excavation. A Form 16 certificate was issued.
e)    On 14 August, 2012 the pool fence was inspected and on 15 August, 2012 a Form 17 final certificate was issued for the pool and fence.
f)     The Pool Builder advised Mr Cullinan on 22 October, 2012 that the chainwire fence on the rear of the property from which the rear boundary had been judged, was not built on the property boundary. The pool as built encroached onto the rear neighbour’s property by 100mm at the northern corner of the pool reducing to 40mm over the boundary on the western corner.
g)    The part of the pool constructed over the boundary was removed by the pool builder and made good to be within the correct rear boundary.
h)    On 31 October, 2012, Mr Cullinan approved an amended site plan to show the pool in the new position 200mm from the rear boundary.
i)     Mr Cullinan re-inspected the pool on 6 November, 2012 and issued a new Form 17 final inspection certificate on 13 November, 2012.

QBCC’s submissions and evidence

The QBCC contends that in allowing a pool and pool fence to be constructed partly on a neighbouring lot, albeit inadvertently, and certifying the construction of that pool and pool fence, Mr Cullinan has breached his obligations under the Act.
The QBCC submits that, pursuant to section 133A of the Act, Certifiers must have regard to the “Guidelines for inspection of class 1 and 10 buildings and structures (Version 1 December, 2011)”, which were made pursuant to section 258 of the Act. The relevant section of the Guidelines in relation to “swimming pool and barriers”, provides:
The items in this column are some of the elements of each aspect that should be checked to ensure compliance with the building development approval. These are not exhaustive lists and may not be relevant to each aspect. Some building development approvals may have conditions containing additional stages and aspect.
…
·Setbacks to all relevant allotment boundaries and other buildings and structures
…
It further submits that in carrying out a building assessment a certifier must by section 25 of the Act, comply with the Building Assessment provisions of the Act. Section 30 of the Act lists the Building Assessment provisions, which include the Queensland Development Code, in particular, MP1.1 Design and Siting Standard for single detached housing on lots under 450m which sets out nominated boundary clearances for a structure such as a swimming pool. The evidence at the hearing was that a swimming pool may abut the boundary, provided fencing of a certain height is in place.
The QBCC relied upon a report of an expert, Mr Mark Catchpole of Catchpole Building Services, dated 13 December, 2013. Mr Catchpole gave evidence at the hearing. I accept the expertise of Mr Catchpole.
Mr Catchpole set out in his report that Mr Cullinan was provided with a basic and inaccurate site plan as part of the building application. Mr Catchpole said that it was part of Mr Cullinan’s role to determine the accuracy of the site plan while assessing the building application for compliance with the Building Assessment provisions of the Act. He considered Mr Cullinan was in breach of section 83 of the Act by granting the building Development Approval before the building assessment work for the application has been carried out under the building assessment provisions.
Mr Catchpole expressed the opinion that a reasonable certifier would have carried out several simple checks of the records that related to the site while assessing the application, including:
a) obtaining a copy of the registered plan of the allotment, which would have revealed the dimensions of the allotment and the misalignment of the rear boundary with the adjacent lot at the North West corner;
b) requesting at the time of assessment or as a condition in the development decision notice that the rear survey pegs of the subject allotment be visible or reinstated, so as to enable an accurate check of the positioning of the pool at the time of inspection. This would have enabled the pool builder to avoid encroaching onto the adjacent property and the certifier would have been able to carry out an inspection of the excavation and reinforcement of the pool in conjunction with its set out and position in relation to the allotment boundary.
Mr Catchpole expressed the opinion that a reasonable certifier after conducting those checks would have determined the need for accurately identifying the rear boundary of the allotment, given the pool was to abut the property boundary. He said that a certifier was required to ensure the pool and pool safety fencing was located within the confines of the subject site and did not encroach onto the neighbouring property.
In Mr Catchpole’s opinion a reasonable certifier would have alerted the person making the building application to prepare an accurate site plan and would have required a site identification survey to make visible or reinstate the rear property boundary pegs so as to establish accurately the location for both construction and inspection purposes. Mr Catchpole said that Mr Cullinan did not undertake these steps, so that when he inspected the site he would have been unable to accurately and reliably identify that the siting requirements of the Queensland Development Code had been met, as required by the “Inspection Guidelines for Single detached Class 1A and 10 buildings or structures”.
During the hearing Mr Catchpole gave evidence that at the final inspection the building certifier needs to carry out the task of ensuring setbacks. He acknowledged that in the case of a swimming pool already in situ that was late to be assessing set backs, however that was what the Guidelines provided for.
He said that when the Development Approval is under consideration, the building certifier would need to weigh up whether survey pegs are needed if the structure is close to the boundaries. In this case the site plan revealed the pool was to be 800mm from the rear boundary. He thought that should have put Mr Cullinan on notice of the need to ensure the position of the rear boundary.
However, he said that once the certifier goes to site to inspect the steelwork, he should have looked for the boundary. He made the point that at this site the other fences in the neighbourhood were dog legged and that the conditions at the site made it difficult to determine the boundary. He said that with the benefit of hindsight, Mr Cullinan had the Registered Plans and could have done a check measure from the back of the house or the front boundary to determine the rear boundary.
In response to a question as to whose responsibility it is to ensure a swimming pool is within the property’s boundary, Mr Catchpole said it was the responsibility of the designer of the pool, the person doing the work and the regulator.
Mr Catchpole said that if a certifier goes to inspect and finds that the structure has not been built in accordance with the site plan and the Development Approval, then the certifier must obtain an updated site plan and building permit to cover the modifications.
In cross-examination Mr Catchpole said that the trigger point for when a certifier needs to obtain a survey varies from case to case.
In response to a further question from Mr Cullinan as to what distance from a boundary triggers the need for a survey, Mr Catchpole responded that he personally would request a survey if the structure was to be within 300mm of a boundary.
In response to a question as to Mr Catchpole’s response if he saw a fence 1.5 metres away from a structure, Mr Catchpole said that he would not be worried, but with the benefit of hindsight he should have been. He made the point that in his experience 20% of sites in older suburbs need a survey because of the tightness of the site.
Evidence was also given for the QBCC by Mr Michael Pehrson, Senior Audit and Investigation officer with the QBCC. Mr Pehrson received the complaint from the homeowner and conducted the investigation which resulted in the decision to reprimand Mr Cullinan. His reasoning is set out in the Statement of Reasons filed in the proceedings.
The Statement of Reasons refers to section 78(1) of the Act, which provides that:
a building development approval may include a condition that the building certifier must be given a cadastral survey, including a survey commonly called in the surveying profession an identification survey showing:
(a)boundaries of the allotment…
The Statement of Reasons expresses the view that Mr Cullinan had the power to order an identification survey but chose not to do so. It says that there was ample evidence which should have put him on notice that the chain wire fence, relied on by Mr Cullinan as evidence of the rear boundary line, was not on the surveyed boundary between the homeowner’s land and the rear neighbour.
Subsequent to the filing of the Statement of Reasons, Mr Pehrson attended at the property and obtained photographs of the construction of the pool. He downloaded Real Property Surveys for the Property and surrounding properties which are exhibited to his affidavit, sworn 4 December, 2013, filed in the proceedings. Mr Pehrson suggests that these surveys demonstrate the rear boundary of the property depicted in the surveys is different to the position of the chain wire fence referred to by Mr Cullinan as the boundary. He thought a diligent certifier would have obtained a copy of the image survey plan or a copy of the Brisbane City Planning Scheme for the relevant lot.
Mr Pehrson’s evidence is that having inspected the property on three occasions he has noted that the chain wire fence that was mistaken by Mr Cullinan for the rear boundary does not align with boundary fences of the neighbouring properties. He expressed the opinion that a careful and diligent certifier, on inspecting the property, should have been alerted to the fact that the chain wire fence might not accurately reflect the boundary between the properties.
The QBCC alleges that Mr Cullinan’s conduct is unsatisfactory conduct, involving incompetence, lack of judgment, diligence and care in performing a private certifying function.

Mr Cullinan’s submissions and evidence

Mr Cullinan gave evidence at the hearing that:
a)    He did inspect the property in accordance with the Act and the Guidelines.
b)    In established premises the boundaries are established by looking at features such as fences and retaining walls and that it is not normal practice to question if they are in the right place.
c)    Section 58 of the Act gives a discretionary power to decide whether a survey is required. That discretion is used when necessary, if for example there is no defining feature such as a fence.
d)    The fact that the swimming pool was rotated 90 degrees made little difference, because the pool was well away from the fence by about 1 metre.
e)    He was not informed that the pool was to be rotated and sited differently to the development approval, until he attended the site to inspect the steelwork. At that stage Mr Cullinan saw that the pool was about 1.5 metres from the fence and did not think it possible that a boundary line could be that far out by reference to the position of the fence.
f)     He said that it would not be usual practice to hold up the project when it was evident the pool was not constructed in accordance with the development approval. He said the plan could be amended before the final certificate issued.
g)    He was required to check the set back of the pool from the boundary and it was apparent to him, by reference to the rear fence that the set back was more than required.
h)    Certifiers have worked for years off fencelines. He takes reference to “boundary” in the Guidelines to be what accords with evidence of a boundary. It is not the job of the certifier to say if a fence is in the wrong place or to be 100% accurate about the boundary.
i)     He did not look at the fencelines of neighbouring properties, he just looked at the property in question.
In his statement of evidence in reply, Mr Cullinan strongly made the point that section 58 of the Act makes the obtaining of a survey certificate a discretionary matter not a mandatory matter. He says it was made a discretionary matter because:
a)    responsibility for a property being surveyed correctly rests primarily with the owner of the property;
b)    an identification survey is outside the capabilities of a building surveyor. It has to be done by a registered cadastral surveyor and it is an expensive exercise;
c)    to make an identification survey a mandatory requirement would impose an unnecessary cost on the overall building industry when the majority of situations do not warrant the survey.
He also says that the primary function of a building certifier is to check compliance of a building/structure with the building legislation. At the time the building application was assessed the pool was shown on the site plan to be well within the boundaries of the property. The proposed position did not warrant an identification survey because of this.
At the time of inspection it was clear that the owner had relocated the pool to a position further away from the rear chain wire fence than that shown on the approved site plan.
Mr Cullinan denied the allegation of Mr Pehrson that he did not obtain a copy of the registered plan or a copy of the Brisbane City Council planning scheme for the relevant lot. I accept Mr Cullinan’s evidence that he did obtain a copy of the property information, the real property plan and a copy of the sewer plan.
Mr Cullinan also disputed that it was possible on an inspection carried out at ground level to determine that the rear fence did not meet the side fences at right angles. He points out that Mr Pehrson undertook his inspection from an elevated deck after the problem had been revealed.

Tribunal’s powers

In conducting this review the Queensland Civil and Administrative Tribunal (QCAT) has power to confirm or amend the BSA’s decision, set it aside or substitute its own decision; or set aside the decision and return the matter for reconsideration to the QBCC.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 24. QCAT draws its jurisdiction from the Building Act 1975 s 205.
The purpose of the review is to produce the correct and preferable decision. QCAT must hear and decide the review by way of a fresh hearing on the merits.[2]
[2]QCAT Act s 20.
In making its final submissions the QBCC referred me to the definition of unsatisfactory conduct which had been its finding and the subject of this review. It also referred me to the definition of professional misconduct, which it suggested may be found . However, it submitted that if I were to find professional misconduct then it wished to make further submissions in relation to penalty.

Unsatisfactory Conduct and Professional Misconduct

Unsatisfactory conduct for a building certifier is defined in Schedule 2 to the Act and includes:
(a)conduct that shows incompetence, or lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
(b)conduct that is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including, for example –
(i)disregarding relevant and appropriate matters; and
(ii)acting outside the scope of the building certifier’s powers; and
(iii)acting beyond the scope of the building certifier’s competence; and
(iv)conduct that is of a lesser standard than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
Professional misconduct, for a building certifier includes, relevantly:
(a)conduct that –
(i)shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
(ii)compromises …the amenity of a person’s property..; and
(iii)is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), for example –
(A)disregarding relevant and appropriate matters; and
(B)acting outside the scope of the building certifier’s powers; and
(C)acting beyond the scope of the building certifier’s competence; and
(D)contravening the code of conduct; …
The Code of Conduct for building certifiers was not referred to by the BSA in its decision under review. It was not referred to in the submissions of the QBCC, however, it was attached to the affidavit of Mr Catchpole and formed a basis for his opinion that Mr Cullinan did not comply with section 83 of the Act.
The Code of Conduct is subordinate legislation referred to in s 129 of the Act. The Code provides that its purpose includes setting standards of conduct and professionalism expected from a building certifier and to provide consumer, regulatory, employing and professional bodies, with a basis for making decisions regarding standards of conduct and professionalism expected from building certifiers.

The standards of conduct and professionalism set out in the Code include relevantly:
3. Comply with legislative requirements.
…
8. Take all reasonable steps to obtain all relevant facts when performing building certifying functions.
…
10. Ensure inspections are carried out to ensure building work complies with the Building Act 1975 and the development permit.
The explanatory statements set out in the Code are intended to be used to clarify the meaning and scope of the code, but do not in any way limit the extent of the standards.
In relation to standard number 8, it is said that a building certifier must:
·keep themselves informed and consider all relevant and available information when performing building certifying functions
·demonstrate that all reasonable steps have been taken to obtain and document all available facts relevant to performing building certifying functions:
For example, a building certifier should undertake a site investigation where possible to make themselves aware of any site conditions that may influence a decision on the development application (ie the contours of a site which may influence site drainage).
The Code indicates that there is a distinction between offences of a basic administrative nature defined as “unsatisfactory conduct” and more serious offences such as significant technical breaches that may compromise the safety of people in buildings, defined as “professional misconduct”.

Criticisms of Mr Cullinan’s conduct

The evidence of Mr Catchpole and Mr Pehrson contain the following criticisms of Mr Cullinan’s conduct:
a)    At the time of issue of the Development Approval, no survey of the rear boundary was required by Mr Cullinan, when it reasonably ought to have been. In particular, the lot is a small block in a very old survey area and tolerances are tight suggesting the need to ascertain the exact location of the boundaries.
b)    At the time of inspection on 11 July, 2012, no survey of the rear boundary was required by Mr Cullinan. No other steps were taken to check the location of the rear boundary such as referring to the metes and bounds set out in the Registered Plan to measure the distance from the front boundary to the rear boundary or measuring from the back of the house to the rear boundary by reference to the site plan. At the time of inspection no note was taken of the misalignment of the rear chain wire fence with other neighbouring fences.
c)    Mr Cullinan acted in breach of section 25, 30 and 83 of the Act in that he did not ensure the appropriate boundary clearance was achieved in accordance with Queensland Development Code MP1.1. Further Mr Cullinan acted in breach of sections 133A and 258 of the Act by not having regard to the Guidelines and ensuring setbacks to all relevant allotment boundaries and structures are maintained. The result of these breaches is that the swimming pool encroached on the rear neighbour’s property.
d)    The Form 16 issued on 11 July, 2012 and the Form 17 issued on 15 August, 2012 both certify that the position of the swimming pool on the site complies with the approved plans and the building work complies with the building approval. Given the different location of the swimming pool on the site compared to that originally proposed in the development application and approved in the building permit, the certificates are inaccurate.
e)    No amended plan was sought from the builder and no further building permit was approved to reflect the new location of the swimming pool, until after the encroachment had been determined.

Determination

No cadastral survey required before the Development Approval issued

In relation to the criticism that no cadastral survey of the rear boundary was undertaken before issue of the Development Approval or as a condition of the Approval, I do not consider there has been any unsatisfactory conduct, professional misconduct or breach of the Code of Conduct.
I find that Mr Cullinan obtained copies of the relevant Registered Plan for the property and the sewerage plan. Nothing in those documents appears to conflict with the site plan submitted for approval. In particular the rear boundary of the property does not appear to be depicted differently to the depiction in the site plan.
I draw from the evidence of Mr Catchpole that it is not usual practice for a site inspection to be undertaken at the Development Approval stage of engagement of a private certifier, in relation to the construction of a swimming pool.
In circumstances where the swimming pool was able to lawfully abut the rear boundary, the fact that the site plan revealed an 800mm set back from the rear boundary was a comfort to Mr Cullinan in terms of the true location of the rear boundary. I accept Mr Cullinan’s submission that the proposed position of the swimming pool did not warrant an identification survey, provided it was constructed in accordance with the site plan.
I note the evidence of Mr Catchpole at the hearing, that in his practice, he would not consider a survey was required until a structure was within 300mm of the boundary.
I reject the opinion of Mr Catchpole that the registered plan of the allotment would have revealed the misalignment of the rear boundary with the adjacent lot at the at the North West corner, on the basis that a site inspection directed to the issue would have been required to reveal that misalignment.
I accept that conducting a cadastral survey or requiring the rear survey pegs be visible or reinstated would have avoided the subsequent encroachment, however, there was not sufficient evidence before Mr Cullinan at the time of the Development Approval to justify that request.
I accept Mr Catchpole’s evidence that at the time of the Development Approval it is a matter of judgment as to whether survey pegs are needed if the structure is close to the boundaries. I do not think on the facts before Mr Cullinan at the time that there was an error of judgment in not requiring a cadastral survey.
I do not think that any of the elements of unsatisfactory conduct or professional misconduct as defined in the Act are engaged at the Development Approval stage of the process. Nor do I consider there has been any breach of the Code of Conduct.

No steps taken to establish the rear boundary on the first inspection

In relation to the criticism that at the time of the inspection on 11 July, 2012, no survey of the rear boundary was required and no other steps were taken to check the location of the rear boundary, there may be a greater basis to suggest that Mr Cullinan did not act with diligence or care in performing his certifying functions.
At this stage of the process, the position of the swimming pool did not conform with the Development Approval. I accept the evidence of Mr Cullinan that (apart from the encroachment issue) there was no impediment to a modification to the Approval, and that there was no need to hold up the project.
At this stage of the process, Mr Cullinan was confronted with a statutory requirement to ensure the swimming pool was positioned within the rear boundary in order to meet the requirements of Queensland Development Code MP1.1 and the Guidelines.
I accept Mr Cullinan’s evidence that it was not possible on an inspection carried out at ground level to determine that the rear fence did not meet the side fences at right angles. I accept his criticism of Mr Pehrson’s evidence that he noted the misalignment of the rear fence with the neighbouring fences by standing on a deck and looking downwards and that he had the benefit of hindsight. I note Mr Catchpole’s evidence that other fences in the neighbourhood were dog legged and the conditions at the site made it difficult to determine the boundary.
However, Mr Cullinan was armed with the Registered Plan which gave the dimensions of the property and which also revealed the alignment of the rear fence with the neighbouring fences. I accept Mr Catchpole’s evidence that it would have been prudent at that inspection to carry out a simple check of the location of the boundary by measuring from the front of the property or the back of the house to the rear boundary.
This conclusion is tempered somewhat by Mr Catchpole’s agreement in cross examination that if confronted with a structure which appeared to be some 1 to 1.5 metres from a rear fence he would not have required a survey, other than with the benefit of hindsight.
Despite this, I find that a failure to conduct a check measure of the site to establish the rear boundary for the purpose of ensuring the required set back, demonstrates a lack of diligence or care in performing building certifying functions and is unsatisfactory conduct as defined in the Act. Although not having the certainty of a cadastral survey, a check measure of the site may have raised the possibility that the rear fence was not situated on the boundary and that it was unsafe to proceed without a survey.
I do not consider that the definition of professional misconduct is engaged, nor that the Code of Conduct has been breached.

Failure to ensure boundary clearance and appropriate set back from the boundary

As a result of my finding that Mr Cullinan did not diligently and carefully seek to establish the location of the rear boundary on the occasion of his first inspection, it follows that he could not ensure boundary clearance and appropriate set back from the boundary as required by the Act, the Queensland Development Code MP1.1 and the Guidelines.
I do not accept Mr Cullinan’s submissions that he sought to ensure boundary clearance and appropriate set back from the boundary by reference to the rear boundary fence and that he was entitled to rely on that fence as evidence of the boundary, without conducting a rudimentary check measurement.
On this basis I find that Mr Cullinan demonstrated a lack of diligence or care in performing his private certifying functions.
I do not think that the definition of professional misconduct is engaged. In this regard, the QBCC suggested at the hearing that it was open on the facts to find that there had been professional misconduct because Mr Cullinan’s lack of diligence or care had compromised the amenity of the homeowner’s property by reason of the encroachment. The definition of professional misconduct is broken up into 6 circumstances of misconduct. Circumstances covered by the first sub-category are relevant to this case. Three elements must be satisfied. There must be conduct that-
a)    shows lack of diligence or care; and
b)    compromises the amenity of a person’s property; and
c)    is contrary to a function under this Act, including for example disregarding relevant and appropriate matters and contravening the code of conduct.
On the basis of my findings, there has been a lack of diligence or care in failing at the site inspection to conduct a check measurement to locate the rear boundary and determine if a survey may be required. I consider this conduct is contrary to the functions required by the Act of determining the boundary clearance and set back from the rear boundary. There has been a failure to have regard to the dimensions of the lot which were available to Mr Cullinan. There has been a failure to ensure, in accordance with the code that the inspection was carried out to ensure the swimming pool complied with the Act, in terms of its position and complied with the development permit.
However, I do not consider that Mr Cullinan’s conduct alone has caused the encroachment. His lack of diligence and care was a contributing factor, along with the lack of diligence and care of the pool builder and the homeowner in the placement of the swimming pool, so that it encroached on the neighbouring property. Further, I consider it a strained construction in these circumstances to say that the amenity of the homeowner’s property has been compromised. Amenity of a property is commonly taken to mean the pleasing aspects of a property. The encroachment was a legal problem for the homeowner, however, it did not affect his use or enjoyment of his land. The encroachment was not permanent. It was able to be remedied quickly and relatively cheaply upon the location of the true boundary being discovered. For these reasons I do not consider Mr Cullinan’s failure to ensure boundary clearance and appropriate set back and the resultant encroachment amount to professional misconduct. The three elements of the sub-category have not been satisfied.
As described earlier in this analysis I consider there has been a breach of the Code of Conduct.

Inaccurate Form 16 and Form 17 and Failure to require an amended site plan and modified Development Approval

Mr Catchpole confirmed at the hearing that the Forms 16 and 17 issued by Mr Cullinan contained inaccurate information as to the siting of the swimming pool with reference to the Development Approval. He confirmed that before they were issued an amended site plan and modified Development Approval should have been prepared, so that Mr Cullinan could have properly issued a Form 16 and 17 certifying that the swimming pool complied with the Development Application.
I consider that completing an inaccurate Form 16 and 17 and failing to require an amended site plan and modified Development Approval is unsatisfactory conduct as defined at sub-paragraph (c): ‘conduct that is of a lesser standard than the standard that might reasonably be expected of the building certifier by the public or the building certifier’s professional peers’.
I accept Mr Cullinan’s evidence that he did not want to hold the project up, that it was a relatively simple matter to correct the required documents and that they were ultimately corrected. On this basis, I do not consider that there has been conduct which is so serious that it amounts to professional misconduct. Nor does the conduct clearly fall outside the standards of conduct and professionalism set out in the Code of Conduct.

Orders

I Order that the decision of the Queensland Building Services Authority made on 25 June, 2013 that the Certifier has engaged in unsatisfactory conduct is affirmed. I Order that the decision of the Queensland Building Services Authority made on 25 June, 2013 to reprimand the Certifier is affirmed.