Gerhardt v Queensland Building & Construction Commission (No 2) - [2014] QCAT 686

CITATION:

Gerhardt v Queensland Building & Construction Commission (No 2) [2014] QCAT 686

PARTIES:	Trevor Gerhardt (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR297-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

17 February 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

24 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the respondent made on 2 August 2013 is set aside.

CATCHWORDS:

BUILDING CERTIFICATION – UNSATISFACTORY CONDUCT – whether applicant’s certification of plans in breach of the Building Act – where plans certified when home owner had obtained prior approvals – whether applicant aware of prior approvals – whether obligation on the applicant to undertake searches and inquiries to ascertain if prior approvals granted – whether the applicant’s approvals “related” to earlier approvals – where applicant was assessment manager and approvals were subject to Demolition Code

Queensland Civil and Administrative TribunalAct 2009 s 20
Building Act 1975 ss 83, 84

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Paul Smith of counsel for the applicant.

RESPONDENT:

Mr Walsh of counsel for the respondent.

REASONS FOR DECISION

Mr Gerhardt is a private building certifier (class A). On 20 August 2012 he provided a Development Application Decision Notice in respect of building work to be carried out at 25 Tamworth Street, Annerley. The subject property was owned by Leon Gibb.
The Notice was provided at the request of Marty Langton, an architect from Martcon Projects Pty Ltd who prepared the plans for the renovation work at Tamworth Street. The Notice included Development Permit No 0002012193 (Building) – Conditions. Also on 20 August 2012 Mr Gerhardt lodged various documents with the Brisbane City Council, including the application (IDAS form 1), the plans and specifications, the decision notice and the appropriate fee.[1]
[1]Statement of Reasons page 186.
On 5 April 2012 the Queensland Building and Construction Commission received a complaint from the Brisbane City Council about the above certifying work carried out by the applicant in respect of the Tamworth St property. The compliant was investigated by the Commission and, on 2 August 2013 the Commission made a decision that Mr Gerhardt had engaged in an unsatisfactory conduct as a registered building certifier because he issued a Development permit without having obtained the required additional approvals, new Development approval and a concurrent Agency approval (Siting application)[2].
[2]
On 23 August 2013 Mr Gerhardt filed an application to review the Commission’s decision in the Tribunal. The function of the Tribunal on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[3]
[3]QCAT Act s 20.
Prior to Mr Gerhardt’s involvement with the project, on 2 June 2011 the home owner Mr Gibb had been granted and earlier development permit A003030343 by the Council. The aspects of development and type of approval were:
DA – SPA – Carry out Building Work Preliminary Approval under s241 – Single Unit Dwelling, Multi-Unit Dwelling
DA – SPA – Material Change of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCAT 686
Decision Date: 24 April 2014

CaseChat Overview and Summary

The applicant, Gerhardt, appealed against the decision of the Queensland Building and Construction Commission to cancel his building certifier’s licence. The dispute arose from an incident where Gerhardt certified plans for a renovation project despite the home owner having already obtained approvals for the works from another certifier. The issue was whether Gerhardt’s certification of the plans constituted unsatisfactory conduct under the Building Act, and if there was an obligation on the applicant to ascertain whether prior approvals had been granted. Gerhardt contended that he was unaware of the prior approvals and did not have an obligation to conduct searches or inquiries to determine if such approvals had been obtained. The Commission argued that Gerhardt’s conduct was unsatisfactory as it amounted to a breach of the Building Act.

The central legal issue before the court was whether Gerhardt, as the assessment manager, was required to undertake searches and inquiries to ascertain if prior approvals had been granted for the renovation project. Additionally, the court needed to determine if the approvals issued by Gerhardt were related to the earlier approvals obtained by the home owner. The court examined the relevant statutory provisions, including the Building Act and the Demolition Code, to ascertain the obligations and duties of a building certifier in such circumstances. The court also considered the principles of administrative law, particularly the standard of review applicable to the Commission’s decision.

The court found that Gerhardt did not have an obligation to conduct searches and inquiries to determine if prior approvals had been granted. The court held that the Building Act did not impose such a duty on building certifiers. Furthermore, the court determined that the approvals issued by Gerhardt were not related to the earlier approvals, as they were subject to different provisions of the Demolition Code. Consequently, the court concluded that the Commission’s decision to cancel Gerhardt’s licence was not supported by the evidence and was therefore unreasonable. The court set aside the Commission’s decision and quashed the cancellation of Gerhardt’s licence.

The court’s final orders were that the decision of the respondent made on 2 August 2013 is set aside. The cancellation of Gerhardt’s building certifier’s licence is quashed. No order as to costs.

Orders

Orders of the court

The decision of the respondent made on 2 August 2013 is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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