HOPKINS AND CONSTRUCTION OCCUPATIONS REGISTRAR
[2008] ACTAAT 28
•29 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:HOPKINS AND CONSTRUCTION OCCUPATIONS REGISTRAR [2008] ACTAAT 28 (29 OCTOBER 2008)
AT08/58
Catchwords: Construction practitioner’s registration – application to review decision to reprimand building surveyor and to place condition on licence restricting appointment to class 1 and/or class 10 buildings – certification of building works as completed without reasonable grounds to be satisfied that works complied with Building Code of Australia – failure to give directions to carry out building works to achieve compliance with Building Code of Australia – fire protection equipment.
Administrative Appeals Tribunal Act 1989, s 37
Building Act 2004, ss 19, 42, 43, 44, 48, 62, 69
Building Regulation 2004 (repealed), ss 15, 20, 22Construction Occupations (Licensing) Act 2004, ss 16, 25, 54, 60, 61, 62, 124
Construction Occupations (Licensing) Regulation 2004, s 45
Emergencies Act 2004, ss 5.4, 86
Legislation Act 2001, s 84
Tribunal:Mr M H Peedom, President
Date:29 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/58
GENERAL DIVISION )
RE: KENYON HOPKINS
ApplicantAND: CONSTRUCTION
OCCUPATIONS
REGISTRAR
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 29 October 2008
Decision :
The decision under review is set aside and substituted with a decision that:
the applicant is reprimanded for the omissions referred to in these reasons for decision pursuant to section 61(1)(a) of the Construction Occupations (Licensing) Act 2004; and
pursuant to section 61(1)(c) of the Construction Occupations (Licensing) Act 2004 the following condition is imposed on the applicant’s licence:
· Only valid for appointment as certifier in relation to building works involving class 1 and/or class 10 buildings.
………………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/58
GENERAL DIVISION )
RE: KENYON HOPKINS
ApplicantAND: CONSTRUCTION
OCCUPATIONS
REGISTRAR
Respondent
REASONS FOR DECISION
29 October 2008 Mr M H Peedom, President
The decision under review
This is an application for review of a decision of the respondent to take disciplinary action against the applicant by reprimanding him and imposing a condition on his licence as a building surveyor. The decision, dated 16 June 2008, was made pursuant to section 61(1) of the Construction Occupations (Licensing) Act 2004 (“the COL Act”).
2. Provision is made for the review of a decision to take disciplinary action under the COL Act by section 124(1) of that Act and section 45(1)(n) of the Construction Occupations (Licensing) Regulations 2004.
The hearing
3. At the hearing of the application the applicant was represented by Mr J Cameron, a legal practitioner. The respondent was represented by Mr G McCarthy, of counsel. Evidence was given by the applicant on his own behalf. Evidence was given on behalf of the respondent by Mr D Kyburz. A number of documents were tendered in evidence on behalf of the respondent and the Tribunal had before it a statement of the respondent’s reasons for the decision under review and other material required by section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”) to be lodged with the Tribunal, copies of which were provided to the applicant.
Background
4. The applicant was first issued with a licence as a building surveyor on 13 January 1999 and it was apparently subsequently renewed. The licence upon which the decision under review imposed a condition was issued by the respondent under the COL Act. The class of the licence is specified as principal building surveyor and the period of issue of the licence as 31 October 2007 to 31 October 2008. No conditions were endorsed on the licence.
5. On 28 February 2006 the applicant was appointed under section 19 of the Building Act 2004 as it was in force at all times relevant to these proceedings (“the Building Act”) as the certifier of building work proposed to be constructed on Block 30 Section 43 Lyneham. The building work involved the construction of three buildings containing 40 residential units and 40 basement car parking spaces. The notice of the applicant’s appointment included a statement that the appointed certifier was responsible to assess the building owner’s building application and plans for compliance with the Building Act and the Building Code of Australia (“the BCA”); to issue the building approval; and to inspect and certify that the building work carried out by the builder complied with the Building Act and the BCA.
6. On 5 November 2007 the respondent received the following documents from the applicant:
(i)staged inspection reports certified by the applicant;
(ii)a Certificate of Structural Sufficiency Design/Inspections from a certified practising structural engineer;
(iii)an undated letter of certification from Capital Hydraulics and Drains Pty Ltd;
(iv)a plumbing inspection report dated 22 October 2007;
(v)an ACT Fire Brigade Fire Appliances Approval Certificate dated 30 October 2007;
(vi)an ‘alternative solution’ report prepared by Defire (ACT) dated 2 November 2007;
(vii) an “inspection record” dated 5 November 2007;
(viii)a document entitled ‘Certificate of Completion of Building Work (from certifier) Application for Certificate of Occupancy and Use (COU) (by owner)’ signed by the applicant and dated 5 November 2007 (also signed on behalf of the owner and dated 30 October 2007);
7. The certificate issued by Capital Hydraulics & Drains (document (iii) in paragraph 6 above) stated:
Capital Hydraulics & Drains Pty Ltd certifies that the Fire Hydrants comply with part E1.3 of the BCA and that they have been installed in accordance with the AS2419.1
While undated, the certificate appears to have been sent by facsimile dated 11 October 2007.
8. The copy of the plumbing inspection report (document (iv) in paragraph 6 above) that was included in the T documents was partially illegible but appears to certify that a final inspection of plumbing works for the building had been carried out by a plumbing inspector and found to be satisfactory.
9. The Fire Brigade Approval Certificate dated 30 October 2007 (document (v) in paragraph 6 above) was issued in accordance with section 15(1)(g) of the Building Regulations 2004 (repealed). It certified the Fire Brigade’s approval of the active fire safety systems for the scope of the building works but said that the approval was conditional upon a number of matters including the following:
AS1221 Fire hose reels
Installed and located to the requirements of BCA Clause E1.4 & AS2441
Note 1* PRIOR TO OCCUPANCY Basement Hosereel plumbing (plastic pipe) to be replaced to conform to AS2441 part 6.5, which refers to AS2419.1 (section 8.2.1) for acceptable pipe specifications.
………
(viii)The Building Certifier and/or project manager for the building works are to ensure the owner/manager of the building(s) is aware of the directions and recommendations the ACTFB have set for this Fire Appliances Approval Certificate.
The Fire Brigade certificate also contained the following statement:
9. In accordance with Part 5 of the Building Act 2004, final approval of the building works is the responsibility of the Building Certifier.
10. The alternative solution report (document (vi) in paragraph 6 above) noted that the building design involved non-compliance by exits from the building with the BCA and proposed an alternative design solution that would meet its requirements.
11. In the inspection record (document (vii) in paragraph 6 above) signed by the applicant he stated:
Units substantially completed in accordance with approved plan and req’ments
Paperwork provided
C5 to come
Verification of compliance of approval to be obtained from Owen Pankhurst at ACT Planning
Go – FINAL
12.The inspection record also stated:
Following inspection of the stage described above, I certify that the work has been generally constructed in accordance with the approved plans, the referenced documentation, the ACT Building Act including the BCA and relevant Australian Standards.
13.The Certificate of Completion (document (viii) in paragraph 6 above) stated:
The building work referred to herein appears to me to have been completed, and I hereby give to the Registrar advice that:
· the building work has been completed in accordance with the requirements of the Building Act and substantially in accordance with the approved plans; and
· the building or part of the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is intended to be occupied or used.
…………..
If the owner of the land applies for a certificate the Registrar would be justified in issuing a certificate in respect of the work under the subsection below:
[ticked box for 69(2)]
I certify that the building work has been completed in accordance with Building Act 2004 and substantially in accordance with the approved plans.
14. Following receipt of the Certificate of Completion the respondent issued a Certificate of Occupancy and Use for the development in accordance with section 69(2) of the Building Act.
15. On 29 April 2008, following the receipt of a complaint from an owner of one of the units in the building, an inspection of the building was carried out. It was ascertained that pipes affixed to the ceiling of the basement car park that supplied water to fire hose reels were made of plastic.
Fire fighting equipment standards
16. Part E1 of the BCA contains provisions dealing with fire fighting equipment. Clause E1.4(c)(i) of the BCA states:
(c) The fire hose reel system must─
(i) have fire hose reels installed in accordance with AS2441;
17. Clause 6.5 of the Australian Standard for the installation of fire hose reels (AS2441 – 2005) states:
6.5 Pipe and pipe fittings
Pipes and fittings used in hose reel systems shall comply with AS2419.1.
18. Clause 8.2.1(a) of the Australian Standard AS2419.1 – 2005, which relates to fire hydrant installations states:
8.2 PIPE AND PIPE FITTING SPECIFICATIONS
8.2.1 Above-ground pipes
Pipes and pipe fittings used in above-ground fire hydrant installations shall comply with the following:
(a) Plastic pipes and pipe fittings shall not be used.
19. Clause 8.2.2 specifies the standards which apply to pipes and pipe fittings (including plastic pipes and pipe fittings) that are used below-ground.
The disciplinary notice
20. On 8 May 2008 the respondent issued a disciplinary notice to the applicant pursuant to section 55 of the COL Act. The notice alleged that the applicant contravened section 44(2)(a) and (b) of the Building Act by certifying the building work as complete when he was aware that the plastic pipes used to supply water to the fire hose reels in the basement car park areas did not comply with the requirements of the BCA and relevant standards and by failing to give the builder reasonable and appropriate directions to achieve compliance with the BCA and the standards.
21. The disciplinary notice also alleged that, contrary to section 48(2)(e) of the Building Act, the applicant gave the respondent a certificate that the building work had been completed in accordance with the Building Act in circumstances where it had not been so completed.
The applicant’s response
22. In a written response to the disciplinary notice dated 27 May 2008 the applicant stated that he had obtained a certificate from the Fire Brigade which stated that it had given approval for the scope of the works and that it had also obtained an undertaking from the owner and builder that the works would be upgraded whilst the process of strata approval was underway and that the Fire Brigade had given assurance that they had this undertaking in accordance with section 5.4 of the Emergencies Act 2004. He said that Capital Hydraulics & Drains had verified that the fire hose reels were in accordance with clause E1.4 and AS2441; a plumbing inspector had approved the plumbing works; and the alternative solution report had also stated that the fire safety measures complied with the BCA. He said that the BCA had been complied with because the pipes were not above-ground and clause 8.2.2(b)(iv) of AS2419.1 expressly permitted the use of plastic pipes and pipe fittings below-ground. He further stated that the Fire Brigade had advised him that the fire hose reels did comply with the BCA. He said that his intent was to comply with the BCA and at the same time allow the process to strata units to continue after all the pressures from the builder, owner and project manager to allow them to continue. He said, however, that he would not now choose the same course of action but “stand firmly on strict compliance with AS2441 – 2005 clause 6.5 and its referral to AS2419.1 clause 8.2.2(a)”.
The applicant’s evidence
23. At the hearing of the appeal the applicant submitted in evidence two written statements made by him. In a written statement dated 4 September 2008 the applicant said that he was aware of the problem with the fire hydrant pipe work and believed that it needed to be rectified prior to occupation of the premises. He had taken the view, however, that although the building as completed was not strictly in accordance with the prescribed requirements for building work, it was substantially in accordance with those requirements. In issuing the certificate of completion he had accepted the certificate from the plumbing inspector. He said that he had given notification to the Fire Brigade to rectify the hydrant pipe work prior to occupation pursuant to the Emergencies Act 2004 and they had provided him with an undertaking that this rectification would occur. He referred to section 86(2)(a) of the Emergencies Act 2004 which authorises the Chief Officer of the Fire Brigade to issue an improvement notice stating the action that the occupier of premises must take to reduce the risk from fire to public safety and the period during which the action must be taken. He thought it would be reasonable to expect that no-one would occupy the premises without complying with an improvement notice. He said that he notified the Construction Occupations Registrar of the problems with the hydrant pipe work by forwarding the Fire Brigade report which identified non-compliance and advised the Registrar that if the owner of the land applied for a certificate the Registrar would be justified in issuing an occupancy certificate under section 69(2) of the Building Act. He expected that the Registrar would note his recommendation that the work was not completed strictly in accordance with the prescribed requirements but was substantially in accordance with them.
24. In a further statement dated 30 September 2008 the applicant stated that he wished to qualify the statement made by him in his statement dated 4 September 2008 in relation to his reliance upon the plumbing inspector’s certificate. He said that his view was that the plastic pipes were not satisfactory and he did not argue with the condition imposed by the Fire Brigade. He said, however, that the reference in AS2419.1 – 2005, clause 8.2.1(a) to pipe fittings used “in above-ground” fire hydrant installations was ambiguous. It could mean either that they were below ground level or that they were buried underneath ground. The pipes in question were below ground level. Nevertheless, he did not argue with the Fire Brigade certificate and he said that he required the builder to replace the plastic pipes with copper pipes.
25. The applicant said that he went to the building site on 1 November 2007 and told the builder that everything needed to be completed and when this had been done to contact him for a re-inspection. Later that day, the builder called his office and said:
If the building can’t get a certificate of occupancy the process cannot continue and the units can’t be strata body corporate. We will not be able to comply with leasing conditions and this could cost us $2000 per day.
The builder told him that the strata body corporate process would take about 3 months to complete. He said that these comments by the builder did not influence his decision in relation to what work had to be done but he decided to adopt the same procedure as the Fire Brigade, that being, to certify the works conditional upon the replacement of the pipes prior to occupation. He had then told the builder that he would require compliance with the Fire Brigade report and all other relevant certifications before he would consider submitting paperwork and an application for a certificate of occupation. The builder had told him that he had agreed to a request from the Fire Brigade that the pipes would be changed before the tenants occupied the building. He had later on that day received a telephone call from an officer of the ACT Fire Brigade who told him that another officer of the Fire Brigade had got agreement from the builder and the owner to replace the plastic fire hose reels with copper hose reels. He said that he accepted that he should have done more to bring to the attention of the Registrar the fact that the pipes needed to be replaced prior to occupation of the premises and that he should have been more proactive in checking the builder’s compliance with the request of the Fire Brigade.
26. The applicant stated that he had attended an average of 50 units of professional development activities each year. This exceeded the minimum requirement of 30 units per year. He said that there would be difficulty in sustaining his business with the restriction that had been placed by the Registrar on his licence. Although the great volume of certifications undertaken by him related to buildings other than class 1 and class 10 buildings, those classes of buildings were more complex and remunerative. They accounted for approximately 25% of his business. The restriction would also have a flow-on effect to the work undertaken by him in respect of other classes of buildings.
The legislation
27. Section 54(1)(a) of the COL Act provides:
54 Disciplinary grounds
(1)Each of the following is a disciplinary ground in relation to a licensee:
(a)the licensee, or a nominee or employee of the licensee, contravened, or is contravening, this Act or an operational Act (including a direction given to the licensee under an operational Act);
28. The Building Act is an “operational Act” for the purpose of the COL Act (see section 16 COL Act). The liability of the applicant having accrued at the date of the alleged disciplinary offences, the provisions of the Building Act to be applied are those in operation at that time (see section 84(1) Legislation Act (2001)). At the date of the alleged disciplinary conduct section 42 of the Building Act relevantly provided:
42 Requirements for carrying out building work
(1)Building work must not be carried out except in accordance with the following requirements:
(a)the materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;
(b)the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;
(c)the building work must be carried out in a proper and skilful way;
……………..
29. Section 43(3) of the Building Act prevents a building licensee from proceeding beyond a building stage unless the licensee has given notice to the certifier that the stage has been reached and the certifier has inspected the building work and given written permission for the work to proceed.
30.Sections 44 and 48 of the Building Act relevantly provide:
44 Stage inspections
(1)If a certifier receives a notice under section 43 (3) (a) for building work, the certifier must inspect the building work as soon as practicable.
(2)On, or as soon as practicable (but in any case within 2 business days), after inspection, the certifier must—
(a)if satisfied on reasonable grounds that the building work does not comply with section 42 (Requirements for carrying out building work)—give the building licensee in charge of the building work written directions that are reasonable and appropriate for achieving compliance; or
(b)if satisfied on reasonable grounds that building work complies with section 42—certify that the work complies and give the certificate to the building licensee in charge of the building work.
(3)A certifier commits an offence if the certifier contravenes subsection (1) or (2).
Maximum penalty: 10 penalty units.
…………….
48 Completion of building work
(1)This section applies if building work appears to have been completed and the certifier is satisfied on reasonable grounds that—
(a)the work has been completed in accordance with this Act and substantially in accordance with the approved plans; and
(b)the building as erected or altered is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used.
(2)Within 7 days after the day the certifier is satisfied, the certifier must give to the construction occupations registrar the following:
………..
(d if the regulations require that, on completion of the building work, the consent or approval of anyone is to be obtained—
written evidence of the obtaining of the consent or approval;
(e)a certificate by the certifier that the building work has been completed in accordance with this Act and substantially in accordance with the approved plans;
31. The approval of the chief officer (fire brigade) is a prescribed approval on completion of building work for the purpose of section 48(2)(d) (see Building Regulation 2004 (repealed) section 22(b)).
32. Section 69 of the Building Act relevantly to these proceedings provides:
69 Certificates of occupancy
(1)If building work involving the erection or alteration of a building has been completed in accordance with the prescribed requirements for the building work, the construction occupations registrar must, on application by the owner of the parcel of land where the building work was carried out, issue a certificate that the building work has been completed in accordance with the requirements and that the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.
(2)If building work involving the erection or alteration of a building as completed is not strictly in accordance with the prescribed requirements for the building work but is substantially in accordance with the requirements, the construction occupations registrar may, on application made by the owner of the parcel of land where the building work has been carried out, issue a certificate that the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.
33. Section 60 of the COL Act authorises the Registrar to take disciplinary action in relation to a licensee if satisfied on reasonable grounds that a disciplinary ground is established in relation to the licensee.
34. Section 61(1) of the COL Act provides for the following disciplinary action:
a) reprimand;
b)a requirement for the licensee to complete a stated course of training to the Registrar’s satisfaction;
c)the imposition of a condition on the licence;
d)a financial penalty not exceeding $1000;
e)suspension of licence;
f)cancellation of licence;
g)cancellation and disqualification from application for a licence for a period or stated action happens;
h)disqualification from application for licence until completion of course.
35. Section 62 specifies the considerations required to be taken account of in deciding what disciplinary action to take as follows:
62 Considerations for deciding what disciplinary action to take
(1)In deciding what disciplinary action to take in relation to the entity under section 61, the registrar must consider the following:
(a)the degree of responsibility of the entity for the act or omission that made up the disciplinary ground;
(b)any injury, loss or damage caused, or that could have been caused, by the act or omission that made up the disciplinary ground;
(c)the number of people detrimentally affected by the doing of something, or not doing something, that made up the disciplinary ground;
(d)how any proposed disciplinary action will affect people detrimentally affected by something that made up the disciplinary ground;
(e)the extent to which it is necessary to discourage the entity and others from doing something, or not doing something, that made up the disciplinary ground;
(f)whether, and the extent to which, it is necessary to protect the public from the entity;
(g)the desirability of making the entity responsible for the consequences of the entity’s actions or omissions;
(h)the desirability of maintaining public confidence in the regulatory system set up by this Act;
(i)the entity’s regard, or disregard, for public safety and protection of the environment when doing something, or not doing something, that made up the disciplinary ground.
(2) The registrar may consider anything else that is relevant.
Reasons for decision
36. Completion of the building work that was approved in a building approval is a prescribed stage of building work for the purpose of section 43 of the Building Act (see section 20 Building Regulation 2004 (repealed)). The obligation imposed on a certifier by section 44(2) of the Building Act, on or as soon as practicable after inspection of the completion stage of building work, is to satisfy him or her self on reasonable grounds that the building work does or does not comply with the requirements of section 42 of the Building Act. If so satisfied the certifier is required to certify compliance. If not so satisfied, the certifier is required to give the building licensee written directions that are reasonable and appropriate for achieving compliance. Failure to discharge that obligation is made an offence by section 44(3).
37. In circumstances where building work has apparently been completed, section 48 of the Building Act also imposed an obligation in this case on the certifier to satisfy him or her self on reasonable grounds that the work has been completed in accordance with the Building Act and substantially in accordance with the approved plans and also that the building is structurally sufficient, sound and stable for the purposes for which it is to be occupied or used. If so satisfied, the certifier is required to give a certificate to the Registrar certifying that the building work has been completed in accordance with the Building Act and substantially in accordance with the approved plans.
38. It is, in that event, a requirement of both section 44 and section 48 that the certifier be satisfied, on reasonable grounds, that the building work complies with the requirements of the Building Act.
39. On no interpretation of the Certificate of Completion issued to the respondent by the applicant is there conveyed advice that the building works failed to comply with the requirements outlined in paragraphs 16 to 19 above. Nor, having regard to the failure of the works to comply with a basic fire safety requirement designed for the protection of the occupiers of the buildings, was there any basis for suggestion that there was substantial compliance with the BCA.
40. The applicant asserted that he relied upon the certificate issued by Capital Hydraulics & Drains, the plumbing inspection report and the alternative solution report as affording reasonable grounds for satisfaction of compliance with the BCA. He also said, at least initially in his response to the Registrar, that he relied upon advice which he said he was given by the Fire Brigade that the works did comply with the BCA.
41. No person was identified as having given advice on behalf of the Fire Brigade that the building works complied with the BCA, nor was evidence given of the terms of any such advice. Such advice would have conflicted with the terms of the conditional approval given in writing by the Fire Brigade. I do not accept that such advice was given to the applicant.
42. The alternative solution report is expressed to be limited to alternative solutions to the requirements of the BCA in relation to exits from the buildings. It is also expressed to be made upon the assumption that the building design complied with the BCA except for the provisions relating to exits. It provides no basis for satisfaction that other provisions of the BCA were met.
43. Whatever reliance the applicant was entitled to place upon the Capital Hydraulics & Drains certificate and the plumbing inspection report was displaced by the later provision to him of approval given by the Fire Brigade which was made conditional upon replacement of the plastic pipes so as to conform to clause 8.2.1 of AS2419.1. The applicant’s assertion that, in issuing a certificate of completion, he was adopting a similar approach to that taken by the Fire Brigade in issuing a qualified approval is untenable. It ignores the statutory obligations to which he was made subject by sections 44 and 48 of the Building Act and which have no application to the Fire Brigade. It also ignored the advice given to him in the Fire Brigade approval that final approval of the building works was the responsibility of the building certifier.
44. Clause 8.2.1 applies to pipes that are “above-ground”. Exposed pipes suspended from a basement ceiling are plainly not below-ground irrespective as to whether the basement is constructed below ground level. No submission was made to the contrary on behalf of the applicant. It was asserted, however, that there was some possible ambiguity in the meaning of the expression “above-ground”. I do not accept that such ambiguity exists. There is a clear difference between “above-ground” and “above-ground level”. The risk of damage to plastic pipes which are unprotected by ground coverage from fire or impact and the potential for fire fighting equipment to be rendered ineffective as a consequence is obvious. Furthermore, the applicant’s acknowledgement that he was aware of the problem with the fire hydrant work and believed that it needed to be rectified prior to occupation of the premises is inconsistent with any understanding that the applicable standards did not require that plastic pipes not be used.
45. The reliance which the applicant stated that he placed upon the building works being substantially in accordance with prescribed requirements for building works is misplaced. Section 48(1)(a) of the Building Act admits the possible sufficiency of substantial compliance with the approved plans. It does not qualify the requirement for building work to be completed in accordance with the Building Act. The certification by the applicant that the building works had “been completed in accordance with the requirements of the Building Act” was plainly incorrect and provided a misleading basis for the further advice given by him to the Registrar that the Registrar would be justified in issuing a certificate under section 69(2) of the Building Act.
46. When questioned as to the nature of the undertaking which he said he had been given by the Fire Brigade that the plastic pipes would be replaced, he said that he had had a telephone conversation with a Fire Brigade officer and pointed out to him that the exits and the plastic pipes did not comply with the BCA. The officer replied by informing him that another Fire Brigade officer had an agreement for the pipes to be changed and that it was a matter for the applicant to determine what action should be taken in relation to the exits. The telephone conversation does not afford a reasonable ground for the applicant to have been satisfied that the work was completed in accordance with the Building Act. Sections 44 and 48 of the Building Act require certification of what has been done. It does not admit the possibility that that work necessary to meet the requirements of section 42 of the Building Act will be carried out after the issue of a certificate of completion.
47. I therefore find that the applicant did not have reasonable grounds to be satisfied that the building work complied with section 42 of the Building Act and that he contravened section 44(2) and section 48(1)(h)(i) of the Building Act by certifying the building works as completed in the absence of such grounds in circumstances where he was obliged to give the builder in charge of the work written directions that were reasonable and appropriate for achieving compliance. Disciplinary grounds are, in that event, to be found by the Tribunal to exist.
48. In relation to the matters which section 62 of the COL Act requires to be taken account of, I make the following observations:
The applicant asserted reliance upon others for his failure to discharge the statutory obligations imposed on him. The deficiency in the building work which he certified as complete was pointed out to him by the Fire Brigade and was obvious. His contravention of the BCA is a matter for which he, as the building certifier, was solely responsible.
There is no evidence of loss or damage caused by the applicant’s omission. The potential for loss or damage of a serious nature existed because of the inadequate protection to the water supply of fire fighting equipment.
There is no evidence of any person being detrimentally affected by the applicant’s omission.
It is a matter of high importance that those persons who accept the responsibilities imposed on them as construction practitioner licensees be discouraged from the kind of omission found in this case to exist.
It is a matter of considerable importance that the public be protected by ensuring that standards designed to protect them and their property from damage are observed.
It is desirable that the applicant be made responsible for his omission.
It is desirable that the confidence of the public in the requirements of the COL Act be maintained by taking action that responds appropriately and proportionally to any conduct that is a disciplinary ground.
The applicant showed a high level of disregard for the need to take action for a most fundamental aspect of his responsibility as a building certifier.
49. In a submission on behalf of the applicant, Mr Cameron said that the applicant had made the correct decision that the plastic pipes should be replaced but that he had followed the wrong procedure in the certification of the completion of the building work provided by him to the Registrar.
50. It does not seem to me that this submission assists in finding that the applicant’s omissions were, in some way, ameliorated. The acknowledgement of understanding that remedial action to the building works was required gives greater emphasis to the need to ensure that required action was to be taken by him in accordance with the requirements of the Building Act. The applicant’s further acknowledgement in his statement dated 30 September 2008 that he was influenced in the course he decided to take by pressure applied to him by the builder raises a serious question as to the applicant’s preparedness to discharge the duties of a building certifier.
51. I have taken account of the applicant’s evidence that although the condition imposed by the decision under review would exclude him from a small number of certification projects, the particular category of work from which he would be excluded is the most remunerative and would likely have an adverse impact on his capacity to maintain the same volume of certification work in those categories that he would be permitted to continue. The evidence presented to the Tribunal was inadequate to quantify the likely financial impact of the decision under review on the applicant, however, I accept that it would have a significant impact on him. Nevertheless, that impact has to be weighed against the other considerations that are required by section 62(1) of the Building Act to be addressed.
52. I also have regard to the fact that the applicant has previously been the subject of disciplinary action. In November 2005 he was found to have failed to notify the respondent of a known contravention of the Building Act. As a result, he was formally reprimanded and directed to complete a course of training conducted by the University of Technology in relation to building regulations.
53. It was submitted on behalf of the applicant that the appropriate decision for the Tribunal to make would be to impose a condition on his licence that would require him to attend a further course of training. The applicant was, however, unable to identify a course that was available and designed to address the kind of shortcoming demonstrated by his conduct in this case. The fact that he has contravened the Building Act on more than one occasion suggests that the training courses which he has attended have been ineffective in ensuring the proper discharge of his responsibilities.
54. The condition imposed by the decision under review would restrict the applicant to the certification of less complex projects that do not require extensive fire safety systems. In all the circumstances, I consider that such a condition is appropriate.
55. I note that the applicant’s licence is renewable (see section 25 COL Act) and that the condition would remain extant indefinitely on any renewal of his licence, although it would be open to him to make a fresh application for an unconditional licence at some later time. Any such application, if made, would doubtless require consideration of the steps which the applicant had taken to ensure that he properly understood his responsibilities as a building certifier and that he was prepared to discharge them.
56. It appeared from the material before the Tribunal that in giving effect to the decision under review the respondent issued a licence to the applicant that had endorsed upon it the condition imposed by the decision under review. That amended licence was expressed to be issued for the period 31 October 2007 to 31 October 2008. That period partly precedes both the conduct that constituted disciplinary grounds as well as the date of the decision under review. The issue of the licence for the period expressed was clearly misconceived and has the potential to create doubt about the status of any certification made by the applicant in relation to buildings other than class 1 or class 10 buildings prior to the decision under review. The decision under review should not, in that event, be permitted to stand.
57. I consider that the correct and preferable decision for the Tribunal to make is to set aside the decision under review and substitute a decision that:
the applicant is reprimanded for the omissions referred to in these reasons for decision pursuant to section 61(1)(a) of the Construction Occupations (Licensing) Act 2004; and
pursuant to section 61(1)(c) of the Construction Occupations (Licensing) Act 2004 the following condition is imposed on the applicant’s licence:
· Only valid for appointment as certifier in relation to building works involving class 1 and/or class 10 buildings.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/58
APPLICANT: KENYON HOPKINS
RESPONDENT: CONSTRUCTION OCCUPATIONS REGISTRAR
PARTY JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR J CAMERON
RESPONDENT: MR G MCCARTHY
PARTY JOINED:
SOLICITORS: APPLICANT: JOHNINFO LAWYERS
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTY JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTY JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 9-10 OCTOBER 2008 PLACE:CANBERRA
DATE OF DECISION: 29 OCTOBER 2008 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0