Gerhardt v Queensland Building & Construction Commission
[2014] QCAT 139
•10 April 2014
| CITATION: | Gerhardt v Queensland Building & Construction Commission [2014] QCAT 139 |
| PARTIES: | Trevor Gerhardt (Applicant) |
| v | |
| Queensland Building & Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR230 -13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 29 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 10 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Trevor Gerhardt has engaged in unsatisfactory conduct. 2. Queensland Building and Construction Commission may file one (1) copy and serve on Trevor Gerhardt one (1) copy of any submissions as to sanction, by 4:00pm on 24 April 2014 3. Trevor Gerhardt may file one (1) copy and serve on Queensland Building and Construction Commission one (1) copy of any submissions in reply, by 4:00pm on 22 May 2014 4. A decision will be made on the papers as to sanction not before 22 May 2014. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PRIVATE CERTIFIER – where certifier issued building approval – where plans annexed to building approval different from plans annexed to development approval – where certifier issued final certificate for building different from development plans and building plans – whether certifier engaged in unsatisfactory conduct – whether certifier breached Building Act – whether certifier breached code of conduct – whether certifier entitled to rely on defence of honest and reasonable mistake STATUTORY INTERPRETATION – where certifier relied on Regulation and code of conduct – whether Regulation and code of conduct modified statutory obligations Building Act 1975 (Qld) ss 30, 84, 113A, 258, Schedule 2 Webster v McIntosh (1980) 32 ALR 603 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P R Smith |
| RESPONDENT: | Mr E Bird, of the Queensland Building & Construction Commission |
REASONS FOR DECISION
In 2007, Brisbane City Council issued a development approval for a home at Stephens St Yeronga. Mr Ben Biggs was the owner, architect and person who lodged that application.
Mr Gerhardt is a private building certifier (Class A). On 23 June 2008, at Mr Biggs’ request, he issued a building approval for a home at the Stephens St address.
However, the plans attached to the building approval (building plans) were not the same as the plans attached to the development approval (development plans). The house as built was different from both sets of plans in small, but material, ways.
The Queensland Building Services Authority (as it then was) found that Mr Gerhardt’s action in issuing the building approval was a breach of s 84(1) of the Building Act and the code of conduct for building certifiers. It also found that Mr Gerhardt had breached his obligations by certifying the finished building even though it did not comply with the approved plans (or the earlier plans). Therefore, on 18 June 2013, it decided that Mr Gerhardt had engaged in unsatisfactory conduct. The Authority reprimanded Mr Gerhardt and required him to take all reasonable steps to ensure that the building did comply with the development approval.
Mr Gerhardt has applied to review that decision. The purpose of a review is to produce the correct and preferable decision[1]. I must hear and decide Mr Gerhardt’s application by way of a fresh hearing on the merits[2].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
[2]QCAT Act s 20(2).
Was there a breach of s 84(1)?
Section 84(1) states that a certifier must not approve a building application if it is inconsistent with the earlier approval or permit.
The building approval is inconsistent with the development approval. The development approval requires a pitched, gabled roof form. The development conditions specify a minimum pitch of 18˚. Mr Gerhardt’s approval shows a skillion roof with about a 7˚ pitch. The development plans show a timber batten balustrade to a front deck that stretches across most of the house. Mr Gerhardt’s approval shows a smaller deck with a glass balustrade. The development plans show a rendered and painted concrete wall. Mr Gerhardt’s approval shows a cast concrete wall.
Notwithstanding, Mr Gerhardt says that his approval is not inconsistent with the development approval because he included a condition that: “Developer and Builder shall carry out the development in accordance with development consent received from Brisbane City Council Reference…”.
I do not accept that the imposition of this condition rectifies the conflict between the two plans. Mr Gerhardt did approve a building application that was inconsistent with the development approval. He was in breach of s 84(1).
Honest and reasonable mistake
Mr Gerhardt says he has a defence to the commission of the breach (if any) of honest and reasonable mistake. He says that the copy of the development plans he received showed an approved change to allow for a skillion roof. I have a copy of a plan with the roof crossed out. Mr Gerhardt says that Mr Biggs gave him the plan. The clear inference in Mr Gerhardt’s submission was that Mr Biggs altered the approved plan before he gave it to Mr Gerhardt.
I adjourned the hearing to allow the Commission to obtain a statement from Mr Biggs about the changes to the plan. I have no such statement. Therefore, the unchallenged evidence is that Mr Gerhardt received a plan that allowed a skillion roof.
The Authority submits that Mr Gerhardt should have checked the development approval with the Council before issuing his building approval. In other matters, the tribunal has taken the view that a certifier is entitled to rely on material a client gives him and has no independent obligation to verify the truth of those documents. I agree with that proposition, save that a certifier may have an obligation to inquire if the documents, on their face, suggest an irregularity.
Even though the plans were changed, the written development condition requiring a pitched roof remained. Mr Gerhardt says that it is not unusual for the changes to be shown only on the plans and, if there is a conflict between the changes and the conditions, the changes prevail. Mr Gerhardt says that Mr Biggs was a well-respected architect with experience in planning, building and building approvals and he was entitled to rely on the documents Mr Biggs gave him.
Mr Godfrey of the Commission disagrees. He says that Mr Gerhardt should have clarified the inconsistency before issuing an approval.
I prefer Mr Godfrey’s submission. This house was built in a demolition control precinct. The development approval made that clear. The Council had already rejected a set of plans because, in part: The roof form presents a large flat line to the street that is uncharacteristic of nearby houses…Amend the proposal to include…one or more of a combination of pyramids, hips or gables of a similar pitch or proportions to those of pre-1946 houses nearby in the street. Condition 13 of the development approval is specific and reflects the Council’s concerns: This condition is intended to ensure that the materials and finishes used are appropriate for the intended character and image for the area. If there was an approved change to the roof line, one would expect it to be reflected in the conditions, not just in the approved plans.
In this case, Mr Gerhardt had notice of an inconsistency. The hand-drawn changes were in direct conflict with a specific and detailed condition. Mr Gerhardt should have investigated further.
While there may be an explanation for the change in the roof, Mr Gerhardt does not explain the change to the balustrade or the concrete finish. The open balustrade was an equally important consideration to the Council. Condition 12, which deals with it, was inserted to ensure casual surveillance of the street and to provide visual interest. It is debatable whether the building plan addresses adequately either casual surveillance or visual interest.
For that reason, Mr Gerhardt’s defence of honest and reasonable mistake must fail. I accept that the Commission bears the onus of proof[3] once the defence is raised. I find that the Commission has satisfied that onus through Mr Godfrey. Mr Gerhardt’s belief may have been honest, but it was not reasonable.
[3]R V Sheehan [1999] QCA 461 at [44].
A certifier’s duties in approving the “as built” structure
Mr Gerhardt argues that he is only required to check the fire safety, structural safety and matters set out in the Building Regulation Inspection Guidelines. He says he is not required to certify roof materials, roof pitch or design. He says he is not required to certify external wall finishes or balustrade finishes.
It does seem a stretch of a certifier’s duties that one should be required to certify that exterior walls were rendered and painted. It might also seem a stretch to require a private building certifier (my emphasis) to certify a building complied with development approval conditions if the variations did not compromise the structural integrity of the building. But that is what is required.
Section 30(1)(a) of the Building Act 1975 (Qld) states that building assessment work must be carried out under IDAS. IDAS means[4] the system detailed in the Planning Act, chapter 6, for integrating State and local government assessment and approval processes for development. Therefore, s 30 requires a certifier to assess work against the relevant town planning requirements.
[4]Building Act Schedule 2.
Section 84 of the Building Act states that a building approval must not be inconsistent with earlier development approvals. Section 99 states that a certifier can only give a final inspection certificate if the work complies with the building development approval. Therefore, there is a clear legislative basis for requiring a building certifier to ensure that the building complies with the development approval conditions whether or not the non-compliance affects the structural integrity of the building.
Mr Gerhardt approaches the problem from a different perspective. He says that he has complied with his obligations as certifier if he has completed the inspection under the Guidelines for inspection of class 1 and 10 buildings and structures issued by the Department of Housing and Public Works.
The Guidelines state that a building certifier’s obligations will be satisfied under the BA (Building Act) and BR (Building Regulation) …if [the certifier] inspects the building work in accordance with the Guidelines. Mr Gerhardt says there is nothing in the Guidelines about compliance with any planning matters; the focus of the Guidelines is on the structural integrity of the building.
The Guidelines are delegated legislation. That is, the power to issue Guidelines comes from the Building Act[5]. The general rule is that delegated legislation made under an Act cannot be taken into account when interpreting the Act itself[6]. To put it another way, the tail can’t wag the dog. If the Building Act requires a certifier to make sure that a building complies with an earlier development approval, that obligation cannot be modified by delegated legislation.
[5]Section 258.
[6]Webster v McIntosh (1980) 32 ALR 603 at 606.
Section 258 of the Building Act allows the Chief Executive to make guidelines to help in compliance (my emphasis) with the Act. Section 113A states that a building certifier must have regard to the guidelines that are relevant to the performance of the certifier’s particular function. It is clear that the Guidelines are intended to assist certifiers, not form a regulatory framework that is inconsistent with the Act. The Guidelines cannot modify obligations that exist in the superior legislation.
The same comment must be made of the Building Regulation 2006. Regulation 26 states that the guidelines are evidence of what aspects or items make up the completion of assessable building work or particular stages of assessable building work and that a person inspecting and certifying aspects of assessable building work is taken to have complied with this part if the person inspects and certifies the work as required under the inspection guidelines. The Regulation cannot modify explicit obligations set out in the Building Act.
I am satisfied that Mr Gerhardt’s obligation to certify the building included an obligation to certify that it complied with the development approval. Mr Gerhardt did not so certify, or, if he did, his certification was erroneous. I am satisfied that Mr Gerhardt was in breach of his obligations as a certifier.
Did Mr Gerhardt engage in unsatisfactory conduct?
“Unsatisfactory conduct” includes[7] conduct that is contrary to a function under the Building Act including, for example, disregarding relevant and appropriate matters. It also includes a breach of the code of conduct. Standard 10 of the code of conduct requires a building certifier to ensure inspections are carried out to ensure building work complies with the development permit.
[7]Building Act Schedule 2.
Mr Gerhardt did not ensure that the building work complied with the development permit. He disregarded a relevant and appropriate matter; that is, he disregarded the clear and unequivocal development approval conditions. I am satisfied that he engaged in unsatisfactory conduct. The Authority’s decision should be confirmed.
Sanction
I am satisfied that Mr Gerhardt should be reprimanded. I am not yet satisfied that I should impose any other sanction. I will take submissions from the parties as to that issue.
Orders and Directions
Mr Trevor Gerhardt has engaged in unsatisfactory conduct.
By 24 April 2014 the Queensland Building and Construction Commission may file and serve any submissions as to sanction.
By 22 May 2014 Mr Trevor Gerhardt may file and serve any submissions in reply.
Decision on the papers as to sanction not before 22 May 2014.
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