Grehan t/as Pacific BCQ v Queensland Building and Construction Commission

Case •

[2023] QCAT 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Grehan t/as Pacific BCQ v Queensland Building and Construction Commission  [2023] QCAT 52

PARTIES:
Donald Frances Grehan t/as Pacific BCQ

(applicant)

v
Queensland Building and Construction commission

(respondent)

APPLICATION NO/S:

OCR380-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

7 February 2023

HEARING DATE:

23 January 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The decision of the Queensland Building and Construction Commission that grounds for disciplinary actions are established is set aside, and substituted with a decision that no grounds for disciplinary action are established.

CATCHWORDS:

OCCUPATIONAL REGULATION - DISCIPLINARY PROCEEDINGS – ADMINISTRATIVE REVIEW – whether a ground for disciplinary action established – whether pool safety inspector undertook a pool safety inspection function – whether his actions amounted to a pool safety inspection

Building Act 1975 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr Andrews, in house solicitor

REASONS FOR DECISION

  1. Mr Grehan holds a pool safety inspector licence issued under the Building Act 1975 (Qld). On 9 November 2020, the Queensland Building and Construction Commission (QBCC) found that grounds had been established to take disciplinary action against him in relation to a breach of the Building Act,[1] due to a contravention of the Code of Conduct[2] for swimming pool safety inspectors. The QBCC was however satisfied that Mr Grehan is generally competent and diligent, and determined not to take any further action.

    [1]s 246CY(1) and s 246AB(2) of the Building Act 1975 (Qld) (‘Building Act’)

    [2]s 3 Code of Conduct for pool inspectors

  2. On 7 December 2020, Mr Grehan applied to have that decision reviewed.[3] He asks that the Tribunal sets aside the QBCC decision.

    [3]s 86(2)(a) and s 87 Queensland Building and Construction commission Act 1991 (Qld).

  3. The Tribunal may make orders:[4]

    (a)Confirming the decision; or

    (b)Setting the decision aside and substituting its own decision, or

    (c)Setting the decision aside and returning the matter to the QBCC to reconsider the decision with directions the Tribunal considers appropriate.

    [4]s 24(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

  4. This is a fresh hearing on the merits,[5] not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether a ground for disciplinary action has been established.

    [5]s 19 QCAT Act.

LEGISLATIVE SCHEME

  1. The Building Act  provides, relevantly, that swimming pools, including pool fencing, must comply with the pool safety standard and so be “complying pools”.[6] Mr Grehan is a pool safety inspector, as defined.[7] He is licenced to undertake pool safety inspection functions.

    [6]Chapter 8, Building Act.

    [7]Schedule 2 Dictionary, Building Act.

  2. Pool safety inspection functions are any of the following:[8]

    ·inspecting a regulated pool to decide whether to give a certificate (a pool safety certificate) that states the pool is a complying pool;

    ·carrying out minor repairs relating to a regulated pool arising from such an inspection;

    ·the giving of a pool safety certificate for a regulated pool; and

    ·the giving of a nonconformity notice for a regulated pool.

    [8]s 231C Building Act.

  3. “Grounds for disciplinary action” against a pool safety inspector are defined to include (relevantly) conduct that is contrary to a function under this Act, including contravening the code of conduct for pool safety inspectors. [9]

    [9]Schedule 2 Building Act.

  4. The Building Act provides that a code of conduct may be established by the QBCC commissioner, and approved by regulation.[10] A code has been developed and approved.[11] The code provides that an inspector must comply with legislative requirements.

    [10]s 246AZ and s 246BA Building Act.

    [11]s 16C Building Regulation 2006 (Qld).

  5. “Inspection” of a regulated pool is defined as an inspection of the pool carried out under best industry practice.[12]

    [12]Schedule 2 Dictionary Building Act.

  6. Best industry practice is not clearly defined but it is submitted by the parties, and accepted by the Tribunal, that reference should be made to the Australian Industry Standards before a compliance certificate is issued. To assess whether the pool complies with those standards would require amongst other things:  testing the gate, measuring distances (eg the height of the barrier), and considering whether the pool and barrier are sufficiently robust.

  7. If a pool safety inspector inspects a pool, the inspector must give the owner of the pool either a pool safety certificate or a nonconformity notice.[13]

    [13]s 246AA and s 246AB Building Act.

THE DISPUTE

  1. Mr Grehan was engaged to conduct a pool safety inspection at a property. Following his attendance at the property, he did not provide the home owners with a compliance certificate and did not issue a nonconformity notice. The home owners complained to the QBCC, who found that he acted in breach of the legislation by failing to do either. Mr Grehan says he did not inspect the pool, and so was not obligated to do so.

    AGREED FACTS

  2. The parties agree that:

    (a)The homeowners engaged Mr Grehan to inspect the pool at their property, and paid a fee of $295;

    (b)He attended at the property on 13 August 2019;

    (c)He did not provide either a pool safety certificate or a nonconformity notice. Instead, he issued a pool safety inspection Information Notice;

    (d)On 13 August 2019 he wrote to the homeowners stating “it was evident at the time of inspection that the existing swimming pool barrier had been recently and completely removed to enable the part replacement and extension of the existing deck and later reinstated.” He stated that, as relevant legislative requirements had not been complied with, “the compliance aspects of the pool barrier, inclusive of a form 23 pool safety certificate, are no longer within the jurisdiction of a pool safety inspector.”

    (e)Mr Grehan emailed the local shire council on 14 August 2019 advising of his concerns re possible unapproved works, and attaching a copy of the Information Notice;

    (f)The homeowners lodged a complaint which was investigated by the QBCC. The homeowners state in their application “He wouldn’t inspect pool as requested because we extended our deck by 1.5 metres”. They sought reimbursement of the $295 they had paid, saying that they had engaged Mr Grehan to inspect the pool fence and issue a compliance certificate or to advise the steps required to obtain one, and that he had failed to do either;

    (g)The QBCC found that:

    (i)       Mr Grehan had carried out an inspection of a regulated pool and was not satisfied that the pool was a complying pool but had failed to give a nonconformity notice within the required time, and

    (ii) Failure to give a nonconformity notice was contrary to Mr Grehan’s functions under the Building Act, and so was a breach of the code of conduct, raising a ground for disciplinary action.

  3. It is agreed that if Mr Grehan had carried out an inspection, he was obliged to issue a nonconformity notice if he was not satisfied that the pool was a “complying pool”.

  4. It is agreed that the inspection was not carried out under best industry practice, as it was a visual examination only.

MR GREHAN’S APPLICATON

  1. Mr Grehan says that when he arrived at the property, he formed the view that the structure supporting the pool barrier was not approved building work and therefore a pool safety inspection function could not be lawfully performed as defined in s 231C(a) of the Building Act, and so he did not proceed with the inspection of the pool barrier.

  2. I accept that the Information Notice explains why he formed the view that the compliance aspects of the pool barrier were “no longer within the jurisdiction of a pool safety inspector” and advises the homeowners that they will need to engage a building certifier for the retrospective approval of the building work.  

  3. While he accepted payment of the $295 prior to attendance on the property, he says:

    ·he refunded the portion of that payment that related to the government charges imposed for the issuing of a certificate;

    ·he provided the homeowners with information about how to obtain the necessary approvals; and

    ·if the homeowners obtained approvals as described in his information notice, it would obviate the need for a pool safety inspector to be involved, as all necessary approvals would be provided by a building inspector.

    RESPONSE BY QBCC

  4. The QBCC points to the wording of the Information Notice dated 13 August 2019 wherein the applicant states “I wish to advise that an inspection of the subject premises was undertaken on the 13th of August 2019 in my capacity as a pool safety inspector as per your request for a pool safety certificate…”.

  5. The QBCC submits that:

    (a)Mr Grehan carried out an inspection of the pool as he visually examined the pool and surround;

    (b)The definition of “inspection” (an inspection of the pool carried out under best industry practice) does not mean that an inspection carried out other than under best industry practice ceases to be an “inspection”;

    (c)As Mr Grehan did not find the pool was a complying pool, he was required to issue a nonconformity notice;[14]

    (d)It is accepted that Mr Grehan believed he was acting in compliance with the Act;

    (e)The Commission does not have a discretion not to take discretionary action if a ground for disciplinary action is established;[15] and

    (f)The QBCC has imposed the least severe disciplinary action possible.

    [14]s 246AB Building Act.

    [15]s 246CY(4) Building Act.

FINDINGS OF THE TRIBUNAL

  1. I must determine whether Mr Grehan carried out an inspection. If he did, he should have either issued a pool safety certificate or a non-conformity notice. If he did not inspect the pool, he was not required to do so.

  2. Mr Grehan was engaged and paid to conduct a pool inspection. He did attend the property and see the pool. I am satisfied, on his evidence, that he advised the homeowner that he was not going to proceed any further.

  3. I accept Mr Grehan’s evidence that the fee charged was not unreasonable given his attendance at the property and the advice he provided.

  4. I am not satisfied that Mr Grehan inspected the pool. None of the hallmarks of an inspection were present. He did not conduct any measuring or testing. He advised the homeowner that he would not be completing an inspection.  The legislation is silent as to what a pool safety inspector should do in these circumstances.

  5. As there was no inspection, there was no requirement to issue a pool safety certificate or a non-conformity notice. Mr Grehan has not failed to comply with legislative requirements. There is, therefore, no breach of the code of conduct, and no ground for disciplinary action is established.

The decision of the QBCC is set aside and substituted with the decision that no grounds for disciplinary action are established.


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