Gerhardt v QBCC
[2017] QCAT 303
•12 September 2017
CITATION: | Gerhardt v QBCC [2017] QCAT 303 |
PARTIES: | Trevor Gerhardt |
| v | |
| Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | GAR292-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 12 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission made on 28 July 2016 that Mr Gerhardt had engaged in unsatisfactory conduct as a building certifier and reprimanding him is confirmed. 2. Mr Gerhardt must take all necessary steps to ensure the certification of building work at 52 Brae Street Coorparoo in the State of Queensland complies with the Building Act 1975 (Qld). 3. Mr Gerhardt must provide to the Queensland Building and Construction Commission evidence of the following within 30 business days from the date of this decision: a. That Mr Gerhardt has referred the alternative solution to the QFES; b. That Mr Gerhardt has given a copy of the development approval decision notices, plans and list of fire safety installation to the QFES. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – CERTIFICATION – review of decision that certifier had engaged in unsatisfactory conduct – where there was a failure to submit an alternative solution to the Queensland Fire and Emergency Service – where complaint lodged – where certifier says not his responsibility – whether unsatisfactory conduct Building Act 1975 (Qld), s 20, s 21, s 30, s 33, s62, s 74, s 84, 101, 102, s 107, s 132, s 136, s 190, s 194, s 204, s 205, Schedule 2 |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Trevor Gerhardt is a certifier. He issued a Building Development Certificate for a property in Coorparoo. On 28 July 2016, the Queensland Building and Construction Commission (Commission) determined that Mr Gerhardt engaged in unsatisfactory conduct in relation to the development permit. Mr Gerhardt has applied for a review of this decision.
The purpose of the review is to produce the correct and preferable decision. The review is determined by way of a fresh hearing on the merits.[1]
[1] QCAT Act, s 20.
Mr Gerhardt says the matter the subject of the dispute concerns fire screens installed in openings on the external wall of a residential building.
The parties have provided the Tribunal with a Statement of Agreed Facts and Issues for Determination. In full, the Joint Statement is as follows:
THE PARTIES AGREE THAT:
1. The facts are correctly set out in paragraphs 21 to 54 of the Statement of Reasons for the Decision dated 12 January 2017. The parties do not seek to file any further material with the Tribunal about the facts of the application.
2. The issue for the Tribunals’ determination is whether to find Trevor Gerhardt has engaged in ‘unsatisfactory conduct’. In making its determination, the Tribunal will need to consider these issues:
(a)Did section 62(2) of the Building Act 1975 (Qld) require the certifier to ensure that a copy of the decision notice regarding the change to the existing approval was provided to Queensland Fire and Emergency Services (QFES)?
(b)Was the certifier required to ensure the Alternative Solution was submitted to the QFES for assessment?
(c)Did the certifier’s failure to fulfil the requirement at (b) mean that QFES has not inspected the building prior to the issues of the certificate of classification?
(d)Does the Scope Reduction Initiative (SRI) apply to the Alternative Solution for the protection of openings in the external walls?
(e)Did the certifier fail to provide documents to QFES as required by section 107 of the Building Act 1975 (Qld)?
The agreed facts set out by the parties are as follows:
21.On 2 March 2016, the Commission received a Building Certifier Complaint Form dated 1 March 2016 and attached documents from the Queensland Fire and Emergency Services (“the Complainant”) against the Applicant in relation to the site.
22. The attached documents included copies of—
(a)An undated letter from Bryan Taylor, Manager, Building Fire Safety Unit for the Complainant;
(b)A letter dated 17 March 2015 from Justin Childes, Acting Building Approval Officer for the Complainant to Brett Butler of BCB Solutions No 4 Pty Ltd;
(c)Email correspondence between the Complainant and the Applicant;
(d)Photographs of the site; and
(e)Scope Reduction Guidelines, “QFES Scope Reduction Initiative (Effective: 10/2015)”.
23. A letter attached to Complaint Form advised that it had lodged the Complaint Form against the Applicant for—
“Failure to submit to the QFES, the Decision Notice for 52 Brae Street Coorparoo Queensland, 4151 within 5 business days.
Failure to refer to the QFES, an alternative solution for the protection of openings within 3 metres of the boundary.
Failure to take reasonable action as the assessment manager to ensure QFES was provided an opportunity to inspect prior to the issue of the Certificate of Classification.
Failure to provide documents to QFES as required by the Building Act 1975 s.107”.
24. On 3 March 2016, the Commission notified the Applicant and the Complainant by letter that the complaint would be investigated.
25. On 31 March 2016, the Commission received an email from the Complainant attaching email correspondence between the Complainant and the Applicant.
26. On 31 March 2016, the Commission received an email from the Applicant attaching a submission in response to the complaint.
27. On 4 April 2016, the Commission received an email from the Applicant objecting to the decision-maker and responded to that email confirming that the Applicant’s objections had been noted.
28. On 5 April 2016, the Commission received an email from the Applicant attaching an amended submission in response to the complaint.
29. On 7 April 2016, the Commission received an email from the Applicant requesting mediation.
30. On 3 May 2016, the Commission received an email from the Applicant amending his submission.
31. On 22 June 2016, the Commission sent an email to the Brisbane City Council (“BCC”) requesting documents regarding the site.
32. On 23 June 2016, the Commission received an email from the BCC attaching the requested documents.
33. On 19 July 2016, a Senior Audit and Investigation Officer, Certification, employed by the Commission, received a telephone call from Mr Chris White of the Complainant. Mr Cooper made a file note of the telephone call.
34. On 28 July 2016, the Commission made a decision (“the Original Decision”) that the Applicant had engaged in unsatisfactory conduct pursuant to section 204(1) of the Building Act. The Applicant and the Complainant were notified of the Original Decision by letter.
35. On 31 August and 2 September 2016, the Commission and the Applicant corresponded by email regarding the Original Decision.
36. On 31 August 2016, the Commission received an application for internal review from the Applicant dated 28 August 2016.
37. On 4 October 2016, the Commission made a decision (“the Internal Review Decision”) that the Applicant had engaged in unsatisfactory conduct pursuant section 204(1) of the Building Act and
(i) The Applicant was to be reprimanded; and
(ii) The Commission required the Applicant to take all necessary steps to ensure the certification of building work for the site complies with the Building Act.
(iii) The Applicant was to provide evidence to the Commission within thirty (30) business days from the date of the Internal Review Decision notice that—
a) a referral of the alternative solution has been made to the Complainant as per Schedule 7 of the SPR; and
b) a copy of the Decision Notice, plans and a list of fire safety installations has been provided to the Complainant.
38. The Applicant and the Complainant were notified of the Internal Review Decision by email.
39. On 2 November 2016, the Commission received an email from the Applicant requesting a copy of advice. The Commission responded by email that the advice received was verbal.
40. On or about 21 November 2016, the Applicant filed the review application in the Tribunal.
FINDINGS OF FACT
41. The Internal Review Decision at page 2 of 5 refers to the background of the matter being set out at paragraph 7 of the Original Decision. This is a typographical error as the background was set out at paragraph 5 of the Original Decision.
42. On or around 7 February 2015, the Applicant issued a development application decision notice for building works at 52 Brae Street, Coorparoo (Coorparoo Approval) concerning demolition, earthworks, stormwater, foundations and slab works for a class 2 and class 7a residential unit development at that site.
43. On 4 March 2015, the Complainant received an application to assess Special Fire Services of units at the Site.
44. On 17 March 2015, the Complainant provided advice to the Applicant with reference number 15-01306.
45. On 17 March 2015, the Applicant advised the Complainant of the applicant’s advice to assess in accordance with the Complainant’s Scope Reduction Initiative (“SRI”) and, further, that the Applicant disregard the Complainant’s referral agency advice of 17 March 2015.
46. On 19 March 2015, the Complainant emailed the Applicant further advice that the SRI did not apply and that the Applicant was required to refer the matter of the protection of openings within 3 metres of the boundary to the Complainant for assessment advice.
47. On 17 April 2015, the Applicant issued a Change to Existing Approval for Seven (7) Residential Multi Unit Dwellings and Carpark Garage Building (Class 2 & 7a) located at the Site (“Changed Coorparoo Approval”).
48. On 20 October 2015, the Complainant requested a copy of the Decision Notice from the Applicant.
49. On 20 October 2015, the Applicant responded to the Complainant but did not supply a copy of the Decision Notice.
50. On 17 November 2015, the Complainant advised the Applicant their reasons for not accepting that the SRI applied, noting the fire detection and alarm system (“FDAS”) shown in the drawings to be provided in common areas.
51. On 17 November 2015, the Applicant responded that the inclusion of the FDAS on the submitted drawings was an error that had been corrected and advised that the openings within 3 metres were not the Complainant’s concern.
52. On 23 November 2015, the Complainant inspected the subject building and noted that the FDAS was installed in the common area of the building and screens are fixed to the openings within 3 metres of the boundary.
53. On 4 December 2015, the Complainant received a copy of the Certificate of Classification.
54. On 2 March 2016, the Commission received the Complaint Form from the Complainant.
In deciding whether to find Trevor Gerhardt has engaged in unsatisfactory conduct, each of the questions posed by the parties will be addressed.
Did s 62(2) of the Building Act 1975 (Qld) (Building Act) require the certifier to ensure that a copy of the decision notice regarding the change to the existing approval was provided to Queensland Fire and Emergency Services (QFES)?
On this question, the Commission submits:[2]
[2]Submission filed 23 March 2017.
a)Mr Gerhardt did not comply with the obligation imposed on him under s 62(2) of the Building Act as he approved the application for the alternative solution in the absence of considering any response from QFES, the referral agency for the alternative solution.
b)S 62(2) of the Building Act did not require Mr Gerhardt to ensure that a copy of the decision notice regarding the change to the existing approval was provided to QFES. Mr Gerhardt was required to do this by operation of s 376(1)(c) of the Sustainable Planning Act 2009 (Qld) (SPA). Mr Gerhardt did not do this.
c)S 62(2) of the Building Act imposed a mandatory obligation on Mr Gerhardt, as an assessment manager,[3] to not approve a development application unless s 314(3)(c) and s 313(3)(c) of the SPA have been complied with. In turn, s 314(3)(c) and s 313(3)(c) of the SPA required Mr Gerhardt, as an assessment manager, to assess the part of an application that require code assessment having regard to any referral agency’s response for the application.
[3]The SPA, s 1(c).
d)To comply with the obligation imposed by s 313(3)(c) of the SPA and s 62(2) of the Building Act, Mr Gerhardt was required[4] to first ensure compliance with the integrated development assessment system framework (IDAS) for the referral of the application to the QFES.
[4]By operation of s 30(1)(a) of the Building Act, s 230, s 250(a), s 251, s 254(1) of the SPA, and s 13 and Schedule 7, Table 1, of the Sustainable Planning Regulation 2009 (Qld) (SPR).
e)The IDAS is the system detailed in chapter 6 of the SPA for integrating State and local government assessment and approval processes for development.[5]
f)The building the subject of this review proceeding included an alternative solution assessed against the performance requirements of the Building Code of Australia for the fire safety system. As a consequence, QFES was an ‘advice agency’[6] and a ‘referral agency’[7] for the purposes of compliance with an IDAS. Its jurisdiction for referral is prescribed under the SPR.[8]
g)To comply with the obligation imposed by s 313(3)(c) of the SPA and s 62(2) of the Building Act, Mr Gerhardt must have first complied with the obligation imposed on him by s 376(1)(c) of the SPA to give written notice of the decision[9] to QFES, as a referral agency for the original application (the original application being the development approval application dated 7 February 2015). Mr Gerhardt did not give a written notice of the decision to QFES[10] as required by s 376(1)(c) of SPA. As a consequence, the referral agency was not given an opportunity to provide a response to the Applicant for his consideration.
h)As a consequence, Mr Gerhardt failed to obtain a response from the QFES for the alternative solution conditioned within the Change to an Existing Approval at the time he issued the notice.
i)As a consequence of the above contraventions, Mr Gerhardt failed to comply with the obligations imposed by s 62(2) of the Building Act and s 376(1)(c) of SPA.
j)
Further, Mr Gerhardt did not give the original development application to QFES until after he approved that application on 22 February 2015 by issuing a Development Application Decision Notice. This act in itself was in contravention of the obligation imposed on him by
s 314(3)(c) of the SPA and 62(2) of the Building Act.
[5]The SPA, s 230.
[6]The SPA, s 250.
[7]The SPA, s 252.
[8]The SPA, s 254; the SPR, Schedule 7 Table 1, items (a) and (b).
[9]Section 230 of the SPA decision on request for change dated 17 April 2015 made by the Applicant. S 376(1)(c) of the SPA falls under Chapter 6, Division 2, Subdivision 2 which is entitled, ‘Procedure for changing approvals’.
[10]Statement of reasons, page 17.
Mr Gerhardt submits:[11]
a)S 62(2) of the Building Act did not require a private certifier to ensure that a copy of the decision notice regarding the change to the existing approval was provided to QFES.
b)When the QFES is the referral agency it is the applicant not the private certifier, as the assessment manager, who is required under s 272 of the SPA to make the referral.
c)Mr Gerhardt says he, as the assessment manager, must decide the application on the basis of the information provided to him. In this case, whether the referral was required to be made or not, it was not made and no response by the referral agency was given.
d)Mr Gerhardt says therefore, he was not in breach of s 62(2). He says there is a clear division between the responsibilities of an applicant and that of the assessment manager and for an assessment manager to be in breach of s 62 and s 313(3(c) because no referral agency response has been received would require the private certifier, as the assessment manager, to refer the application to the referral agency, which he says an assessment manager has no power to do unless asked by the applicant.
e)Mr Gerhardt says he was not asked.
[11]Submission filed 27 April 2017.
Discussion
Mr Gerhardt’s argument revolves around whether he was obliged when acting as an assessment manager to not approve a development application unless s 314(3)(c) and s 313(3)(c) of the SPA have been complied with.
Both s 313(3)(c) and s 314(3)(c) of the then SPA had mandatory provisions requiring Mr Gerhardt to assess, having regard to here, to any response from the QFES.
Mr Gerhardt’s argument simply put is that if the ‘applicant’ did not provide the required information from the QFES, he wasn’t obliged to ask for it or facilitate its acquisition or take it into account.
The objects of the then SPA were to manage the process by which development takes place, including ensuring the process is accountable, effective and efficient and delivers sustainable outcomes; manage the effects of development on the environment, including managing the use of premises; and continue the coordination and integration of planning at the local, regional and State levels.[12]
[12]The SPA, s 3.
An assessment manager must perform the function or exercise the power in a way that advances the then SPA’s purpose.[13]
[13]Ibid, s4.
In my view, that responsibility extends to ensuring, when he was acting as the assessment manager, that he had all the necessary information before him. If a piece of required information was missing, the mandatory provisions of s 313(3)(c) and s 314(3)(c) did not allow Mr Gerhardt to ignore the gaps.
I agree that s 13 of the SPA defines the applicant as a reference to the person who made the application as distinct from the assessment manager.
Was the certifier required to ensure the Alternative Solution was submitted to the QFES for assessment?
On this question, the Commission submits:[14]
[14]Submission filed 23 March 2017.
a)S 62(2) of the Building Act did not require Mr Gerhardt to ensure that a copy of the decision notice regarding the change to the existing approval was provided to QFES. Mr Gerhardt was required to do this by operation of s 376(1)(c) of the SPA. The Applicant did not do this.
b)S 62(2) of the Building Act imposed a mandatory obligation on Mr Gerhardt, as an assessment manager,[15] to not approve a development application unless s 314(3)(c) and s 313(3)(c) of the SPA have been complied with. In turn, s 314(3)(c) and s 313(3)(c) of the SPA required Mr Gerhardt, as an assessment manager, to assess the part of an application that require code assessment having regard to any referral agency’s response for the application.
[15]The SPA, s 1(c).
c)To comply with the obligation imposed by s 313(3)(c) of the SPA and s 62(2) of the Building Act, Mr Gerhardt was required[16] to first ensure compliance with the IDAS framework for the referral of the application to the QFES.
d)The building the subject of this review proceeding included an alternative solution assessed against the performance requirements of the Building Code of Australia for the fire safety system. As a consequence, QFES was an ‘advice agency’[17] and a ‘referral agency’[18] for the purposes of compliance with IDAS. Its jurisdiction for referral is prescribed under the SPR.[19]
e)To comply with the obligation imposed by s 313(3)(c) of the SPA and s 62(2) of the Building Act, Mr Gerhardt must have first complied with the obligation imposed on him by s 376(1)(c) of the SPA to give written notice of the decision[20] to QFES, as a referral agency for the original application (the original application being the development approval application dated 7 February 2015). Mr Gerhardt did not give a written notice of the decision to QFES[21] as required by s 376(1)(c) of SPA of the change. As a consequence, the referral agency was not given an opportunity to provide a response to Mr Gerhardt for his consideration.
f)As a consequence, Mr Gerhardt failed to obtain a response from the QFES for the alternative solution conditioned within the Change to an Existing Approval at the time he issued the notice.
g)The Commission submits that as a consequence of the above contraventions, Mr Gerhardt failed to comply with the obligations imposed by s 62(2) of the Building Act and s 376(1)(c) of SPA.
h)
Further, Mr Gerhardt did not give the original development application to QFES until after he approved that application on 22 February 2015 by issuing a Development Application Decision Notice. This act in itself was in contravention of the obligation imposed on him by
s 314(3)(c) and s 62(2) of the Building Act.
[16]By operation of s 30(1)(a) of the Building Act, s 230, s 250(a), s 251 and s 254(1) of the SPA, and s 13 and Schedule 7, Table 1, of the SPR.
[17]The SPA, s 250.
[18]The SPA, s 252.
[19]The SPA, s 254; the SPR, Schedule7 Table 1, items (a) and (b).
[20]Section 230 of the SPA decision on request for change dated 17 April 2015 made by the Applicant. S 376(1)(c) of the SPA falls under Chapter 6, Division 2, Subdivision 2 which is entitled, ‘Procedure for changing approvals’.
[21]Statement of reasons, page 17.
Mr Gerhardt relies on the same submissions as those for the question above.[22] He says this was the responsibility of the applicant not him as assessment manager. He further submits that the Commission is seeking to hold him responsible for what it believes he should have done, namely refer the application to the QFES for it to give a response prior to the decision by him. Mr Gerhardt believes this is not what the legislation says and if the Commission is not happy with this, it should seek to have the law changed.
[22]Submission filed 27 April 2017.
Mr Gerhardt believes he did what the law says he should have done.
Discussion
I am not satisfied the simplistic reading of the SPA as suggested by Mr Gerhardt absolves him from his responsibilities as assessment manager to ensure he make a proper decision based on the requirements and objects of the then SPA.
To simply say he was not asked is not, in my view, sufficient to remove his obligations under s 313(3)(c) and s 314(3)(c) and the objects of the then SPA. It would have been an easy step to remind the applicant of the responsibility to refer to the QFES - or to do it himself - before his decision was made.
I am satisfied that by taking a narrow view of the provisions of the SPA, Mr Gerhardt has misjudged the intent of the SPA in relation to his responsibilities as assessment manager.
Mr Gerhardt approved the application for the alternative solution in the absence of considering any response from QFES, the referral agency for the alternative solution and thereby did not comply with his obligation under s 62(2) of the Building Act
Did the Applicant’s failure to fulfil the requirement in the previous question mean that QFES has not inspected the building prior to the issue of the certificate of classification?
The Commission submits:[23]
[23]Submission filed 23 March 2017.
a)The QFES did not inspect the building prior to the issue of the certificate of classification.[24] This is because Mr Gerhardt failed to give QFES the alternative solution for QFES to allow it to respond to it.
[24]Statement of Reasons, ‘SOR-1’, page 17.
b)S 101(f) and s 101(k) of the Building Act provide that the requirements for a building to be substantially completed include:
i) all health and safety matters relating to the building comply with the building assessment provisions; and
ii) conditions required by a referral agency have been complied with.
c)Under s 102 of the Building Act, the requirements for issue of a certificate of classification include:
i) a decision that the building has been substantially completed; and
ii) any requirements under the building assessment provisions, or conditions for a referral agency inspection to have been complied with.
d)Referral to the QFES as an advice agency was required prior to the issue of the Coorparoo Approval and Changed Coorparoo Approval.
e)By failing to refer the fire safety system to the QFES for assessment as an advice agency prior to the issue of the Coorparoo Approval and Changed Coorparoo Approval, Mr Gerhardt failed to obtain the necessary requirements under s 101 and s 102 of the Building Act for the issue of a certificate of classification.
f)Despite the failure to refer the fire safety system to the QFES for assessment as an advice agency, on or around 16 November 2015, Mr Gerhardt issued the certificate of completion for the building works at 52 Brae Street, Coorparoo.
g)Referral agencies such as QFES rely on assessment managers/certifiers such as Mr Gerhardt to comply with legal obligations imposed on them by the various legislation on assessment of building work. If this were not the case, then referral agencies would be tasked with an unachievable task of determining what building work was being carried out in their jurisdiction and which one of those building works required its assessment.
h)As a consequence of Mr Gerhardt’s failure to fulfil the requirement the QFES did not inspect the building prior to the issue of the certificate of classification. The potential public safety ramifications from such a failure are grave.
Mr Gerhardt submits:[25]
a)section 74 of the Building Act requires a person installing special fire services to give the QFES a notice of inspection. Mr Gerhardt says this is not confined to the assessment manager. However, Mr Gerhardt says there are no special fire services in the building.
b)S 102 of the Building Act requires a private certifier to give the certificate of classification once the building is substantially completed and requires an assessment manager to ensure the building application complies with the building assessment.
c)Referring to s 101(f) and s 101(k) of the Building Act, s 101(f) requires an assessment manager to ensure the building application complies with the building assessment provisions. The fire screens fire safety report alternative solutions are building assessment provisions under s 30 of the Building Act. Mr Gerhardt says he was satisfied with compliance.
d)Mr Gerhardt says he was obligated to give a certificate of classification as the building was substantially completed. He says s 102(1)(c) of the Building Act was not relevant as there were no requirement conditions of the building approval.
[25]Submission filed 27 April 2017.
Discussion
Again the tenor of Mr Gerhardt’s argument revolves around a simplistic reading of the section in isolation from the objects of this legislation. Mr Gerhardt failed to obtain the necessary requirements under s 101 and s 102 of the Building Act for the issue of a certificate of classification. A reading of these sections indicates a clear ‘covering of the field’ for many aspects of a building – including health and safety – as the meaning of ‘substantially completed’. S 101(e) and s 102(1)(c) clearly indicate the responsibilities of the certifier for referral agency inspections and require the certifier to ensure the applicant has provided the building certifier with the agency inspection complied with, or that it has ceased to apply.
Mr Gerhardt states in his submissions that s 102(1)(c) of the Building Act was not relevant as there were no requirement conditions of the building approval. He gives no reason for this.
Under the question above, I am satisfied Mr Gerhardt did not comply with his obligation under s 62(2) of the Building Act as he approved the application for the alternative solution in the absence of considering any response from QFES, the referral agency for the alternative solution.
I accept the submissions of the Commission under this question. Having found that Mr Gerhardt was required to ensure the Alternative Solution was submitted to the QFES for assessment, I am also satisfied Mr Gerhardt’s failure to fulfil that requirement meant that QFES had not inspected the building prior to the issue of the certificate of classification.
Does the Scope Reduction Initiative (SRI) apply to the Alternative Solution for the protection of openings in the external walls?
On this question, the Commission submits:[26]
[26]Submission filed 23 March 2017.
a)S 3 of the Scope Reduction Guidelines contains a Scope Reduction Initiative (SRI)[27] for building work involving particular alternative solutions. Mr Gerhardt approved an alternative solution for the protection of openings in the external walls. This alternative solution is outside the scope of the SRI.
b)The SRI is within the jurisdiction of the QFES. QEFS have also determined that the alternative solution is outside the scope of the SRI.[28]
c)The SRI did not apply to the alternative solution utilised by Mr Gerhardt. This in turn necessitated Mr Gerhardt refer the alternative solution to QFES under the IDAS and not make any decisions on the development applications until he had:
i) received a response from the QFES; and
ii)
had regard to it as required by s 62(2) of the Building Act and
s 314(3)(c) and s 313(3)(c) of the SPA.
[27]Statement of Reasons at page 37.
[28]Statement of reasons, ‘SOR-1’, page 17.
Mr Gerhardt submits:
a)There were no special fire services in the building and the SRI is not relevant.
b)The building was protected by an existing fire hydrant, assessed by the QFES as compliant on 17 March 2105.
c)
Reference to a fire detection and alarm system was in error by the applicant and subsequent QFES response dated
17 March 2015.
d)The answer to this question must be ‘no’.
Discussion
I have found above that Mr Gerhardt did not comply with his obligation under s 62(2) of the Building Act as he approved the application for the alternative solution in the absence of considering any response from QFES, the referral agency for the alternative solution.
As a consequence of this, I was also satisfied Mr Gerhardt’s failure to fulfil that requirement meant that QFES had not inspected the building prior to the issue of the certificate of classification.
Had Mr Gerhardt referred to the QFES as required, the QFES could have made the determination concerning the scope of the SRI.
The answer to this question must be in the ‘yes’. Mr Gerhardt adopted an alternate solution. Such a solution needs to be assessed against the SRI. The SRI therefore must apply to the alternate solution . Whether the alternate solution comes within the scope of the SRI is a different question.
Did the certifier fail to provide documents to QFES as required by s 107 of the Building Act?
Mr Gerhardt concedes that a copy of the development application was not provided to the QFES by him. He says it was provided by the applicant.
Based on the findings I have made above, I find it unnecessary to answer this question. Any requirements under legislation for material to be provided to the QFES and not currently complied with by Mr Gerhardt must now be undertaken.
Overall
The Commissioner submits Mr Gerhardt has:
a)not complied with his obligation to always act in the public interest, in contravention of s 136(1) of the Building Act;
b)
engaged in conduct contrary to the functions under s 62(2) and
s 107(2) of the Building Act and s 376, s 314(3)(c) and s 313(3)(c) of the SPA by:
i) disregarding relevant and appropriate matters;
ii) acting outside the scope of his powers as a building certifier;
iii) acting beyond the scope of his competence; and
iv) contravening the Code of Conduct by:
A)not performing building certifying functions in the public interest;
B)not complying with legislative requirements; and
C)not taking all reasonable steps to obtain all relevant facts when performing building certifying functions; and
v) engaged in conduct that shows lack of diligence or care in performing private building certifying functions; and
vi) engaged in 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.
The Commission submits Mr Gerhardt’s conduct amounts to ‘unsatisfactory conduct’ within the meaning of the term in Schedule 2 of the Building Act.
For a building certifier, ‘unsatisfactory conduct’ is defined in Schedule 2 of the Building Act, to include the following:
(a) conduct that shows incompetence, or a 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)contravening the code of conduct;
(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.
Mr Gerhardt submits:[29]
a)The issue here is the process that he followed.
b)He had no power to refer the building application to the QFES.
c)The Commission’s interpretation of the law is misconceived.
d)The Commission is seeking to hold him responsible for what it believed the applicant should have done.
e)This is not what the legislation provides and if the Commission believes this is unsatisfactory, it should seek to change the law.
f)All other certifiers simply do what the Commission and the QFES says they should do but Mr Gerhardt takes a different approach. This does not make him guilty of a conduct of a lesser standard and unsatisfactory conduct.
g)He has always acted in the public interest.
[29]Submission filed 27 April 2017.
Conclusion
The issue of fire safety is of vital importance to the public interest. The outcome of non-adherence could be disastrous. Any consideration of this issue by a certifier must be conservative and in line with the objects of the relevant legislation.
Mr Gerhardt’s obligations must be fulfilled in line with the objects of the SPA itself. Mr Gerhardt has opted to read the applicable legislative sections in a simplistic way without regard to the guidance found in the objects of the legislation. In so doing in my view, Mr Gerhardt has formed an interpretation that does not accord with the intent of the legislation and is at odds with the objects as set out.
I am satisfied Mr Gerhardt has made an error of interpretation and judgment. I do not accept this is in the public interest in such an important matter as fire safety.
The Code of Conduct for building certifiers[30] provides under ‘Standards of Conduct and professionalism’ that a building certifier must perform building certifying functions in the public interest.
[30]Statement of reasons, ‘SOR-16’, page 216.
The Explanatory Statement of the Code of Conduct provides examples of when a building certifier must perform building certifying functions in the public interest, including exercising any discretion in performing building certifying functions to ensure the health and safety of any person or the amenity of any person’s property is not compromised.
I do not consider that a reasonable person would consider Mr Gerhardt’s narrow interpretation to be in the public interest in such an important matter as fire safety. I consider Mr Gerhardt to be following his own agenda in this matter and not considering the wider issues of public safety by following the processes that accord with the objects of the legislation.
It is pertinent that one of Mr Gerhardt’s own submissions points to all other certifiers taking a different view – surely a matter of reflection for Mr Gerhardt in the circumstances.
I consider the complaint of ‘unsatisfactory conduct’ within the meaning of the term in Schedule 2 of the Building Act to be made out.
A reprimand is the least severe of the sanctions available to the regulator.
I have found that Mr Gerhardt has fallen below the standard expected of a certifier. His conduct, whilst being unsatisfactory does not show elements of wilful disregard of his obligations as a certifier. Rather, he has consistently turned his mind to the Fire Safety issues but has applied his own idiosyncratic and simplistic interpretation of the requirements. I have found these interpretations were not properly founded.
It is appropriate that a sanction apply to record disapproval of Mr Gerhardt’s approach, but I am not satisfied a more severe sanction is not called for.
I consider a reprimand to be appropriate and confirm the decision of the Commission made on 28 July 2016.
The Commission seeks consequential orders in accordance with s 204(4) of the Building Act, requiring Mr Gerhardt to :
a)Take all necessary steps to ensure the certification of building work at 52 Brae Street Coorparoo in the State of Queensland complies with the Building Act.
b)Provide to the Commission, evidence of the following, within 30 business days from the date of this decision:
i) That Mr Gerhardt has referred the alternative solution to the QFES; and
ii) That Mr Gerhardt has given a copy of the development approval decision notices, plans and list of fire safety installation to the QFES.
I make orders in those terms.
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