Kay v Queensland Building and Construction Commission
[2014] QCAT 421
•18 August 2014
| CITATION: | Kay v Queensland Building and Construction Commission [2014] QCAT 421 |
| PARTIES: | Mr David John Kay (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR131-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 16 June 2014 and 26 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Paratz |
| DELIVERED ON: | 18 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the QBCC made on 14 March 2013 that Mr Kay had engaged in unsatisfactory conduct as a Building Certifier and reprimanding him and imposing conditions, is confirmed. 2. Either party make an Application for Miscellaneous Matters as to costs within 14 days after receipt of this decision. |
| CATCHWORDS: | BUILDING CERTIFIER – DISCIPLINARY - Whether a building certifier had engaged in unsatisfactory conduct – where the requirements as to fire resistance of the supports of a separating wall between sole occupancy units were satisfied – whether proper ventilation had been approved for a sub-floor space - where the objectives, functional statements and performance requirements of the Building Code of Australia must be considered Building Code of Australia 04 Volume One Body Corporate for Ipswich Senior Rental Accommodation v Queensland Building Services Authority [2014] QCAT 081 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Anthony Harding of Counsel instructed by Barry and Nillson, Solicitors |
| RESPONDENT: | Scott Seefeld of Counsel instructed by Queensland Building and Construction Commission |
REASONS FOR DECISION
Mr Kay was a building certifier employed by the Ipswich City Council as the Coordinator of the Building and Plumbing Section from May 1999 to January 2006. He was involved in certifying a Retirement Village which was built in 2005 at 56a Moores Pocket Road, Moores Pocket (which is near Ipswich).
The Queensland Building and Construction Commission (QBCC) made a decision on 14 March 2013 that Mr Kay had engaged in “unsatisfactory conduct” pursuant to s 204(1) of the Building Act 1975 (Qld) (the Act) in respect of the building certifying functions performed by him at the property.
Mr Kay filed an application to review the decision of the QBCC in the Tribunal. The matter proceeded to an oral hearing on 16 June 2014 and 26 June 2014.
The development was quite unusual in relation to the site, and as to the design of it.
The site was an area that was known to be above a former underground mining area with highly reactive soils. There was an awareness that the site may be subject to subsidence. The site was also subject to flooding, the extent of which has been assessed differently at different times, having regard to the construction of the Wivenhoe Dam.
The design of the buildings, and the materials used, all suggest that keeping the cost of the construction low was a priority. The result is buildings that are quite unusual, have displayed significant defects, and raise significant questions generally. I note that the construction has been the subject of other, unrelated, proceedings in the Tribunal, which allude to problems with the construction.[1]
[1]Body Corporate for Ipswich Senior Rental Accommodation v Queensland Building Services Authority [2014] QCAT 081.
The buildings were always intended for use by elderly and infirm people, some of whom may be in wheelchairs. Ease of access on one level without steps was seen as a design requirement.
The design of buildings that was chosen to respond to these requirements and conditions, was to construct the buildings with timber frames, clad externally, and a metal sheet roof on timber frames, with timber floors, which were sitting on supports in the ground. In order to enable ground-level access, the ground was excavated below the buildings, and the supports inserted into the excavation, leaving an air-gap between the subterranean ground level and the floor of the buildings. The structure of each building was essentially one long building subdivided into separate sole occupancy units (SOUs) along its length.
The project comprised 8 residential buildings (blocks 1, 2, 3, 4, 9, 15, 16 and 17) and one recreation building (block 5). Each residential building comprises 8 sole occupancy units, making a total of 64 such units for the site. A second stage, comprising a further 7 blocks was planned but not constructed.
Two significant problems are discerned with the construction, which has given rise to these proceedings. They are (a) Fire Resistance, and (b) Underfloor Ventilation.
Mr Kay certified the building works. The QBCC decision of 14 March 2013 was that:
1.The decision of the BSA under section 204(1) of the Building Act is that the Certifier has engaged in unsatisfactory conduct in relation to the items of the complaint, details of which are set out in this notice.
2.The decision of the BSA under section 201(4)(a) of the Building Act is that in respect of the Certifier’s unsatisfactory conduct, the BSA reprimands the certifier; and
3.The decision of the BSA under section 204(4)(b) of the Building Act is that in respect of the Certifier’s unsatisfactory conduct, the BSA imposes the following conditions which it considers appropriate on the certifier’s licence:
(a)For twelve months after the date of issue of this Information Notice, the Certifier is directed to obtain a written peer review for Section B1.4(i), Section C and Section F1.12 of the Building Code of Australia Volume One from another licensed Building Certifier Level 1 in respect to any Class 2-9 buildings which the Certifier is engaged or contracted to carry out assessment against building assessment provisions under section 30 of the Building Act.
(b)This direction will be the subject of any future audits by the BSA of the Certifiers practise.
Unsatisfactory conduct
“Unsatisfactory conduct” is defined in Schedule 2 of the Building Act:
Unsatisfactory conduct for a building certifier or former building certifier, includes 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 be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
I have discussed the expression “unsatisfactory conduct” used in the Act in a previous decision.[2] I held there that, in consideration of the Act where there is a definition of an expression, regard has to be had firstly to the legislative definition. It is therefore not necessary to go beyond the plain meaning of Schedule 2.
[2]Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 138 at [32] – [36].
I also found in that previous case that the expression of conduct in (a) contains options, and that every element is not required:
[46]I consider that the internal provisions of (a) in the definition of “unsatisfactory conduct” are options, as demonstrated by the use of the word “or” before “a lack of”. The word “or” is implied into each of the words which are separated by commas, so that is to be read in each application as “or a lack of adequate..”.
[47]It is therefore not necessary to show that all the words expressed in (a) are demonstrated. Specifically, I do not consider that the words “incompetence”, “knowledge”, “skill” and “integrity” are necessary elements.
Counsel for Mr Kay submits that:
6.30The tribunal ought not determine the interpretation of the specifications and then find that if the applicant did not apply that interpretation he must have engaged in “unsatisfactory conduct”. The task before the Tribunal is to make a finding as to whether the applicant’s conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier.
I accept that cases may arise where well meaning and genuine experts may have a difference of opinion on a technical issue, and that just because a person makes a decision that may not be the correct decision as interpreted by others, that this does not necessarily result in a disciplinary ground being made out. I discussed such a situation in relation to a pool fence inspector in a previous case.[3]
[3]Oliver v Pool Safety Council [2014] QCAT 276.
However, the question is one of behaviour – the issue is how the Building Certifier has applied himself (or herself) to the task of conducting building certifying functions. Whether the standard of behaviour breaches the standards set out in Schedule 2 will be a question of assessment. An examination of the Certification made is relevant in giving an insight into the behaviour of the Certifier, and to illustrate whether that behaviour was as required by the Act.
Mr Kay issued two Decision Notices and two Certificates of Classification. The first Decision Notice was issued on 4 March 2005 for buildings 1, 2, 3, 15, 16 and 17 and the second on 7 June 2005 for buildings 4, 9 and the community recreation building. The first Certificate of Classification was issued on 28 September 2005 for buildings 1, 2, 3, 15, 16, 17 and the recreation building, and the second on 27 October 2005 for buildings 1, 2, 3, 4, 9, 15, 16, 17 and the recreation building.
The QBCC summarises it’s Decision on a conclusion that Mr Kay has:[4]
[4]Outline of Submissions of QBCC at [18].
(a)issued the Decision Notices and the Certificates of Classification in circumstances where the requirements in the Building Code of Australia in relation to;
(i)fire resistance of internal walls between sole-occupancy units; and
(ii)sub-floor ventilation had not been complied with.
(b)decided the building development application against the objectives or functional statements of Building Code of Australia contrary to section 12(2) of the SBR;
(c)engaged in unsatisfactory conduct, including by contravening the Code of conduct, by:
(i)failing to perform building certifying functions in the public interest
(ii)failing to comply with legislative requirements.
Fire resistance
The QBCC complaint is that “The building certifier issued a Certificate of Classification when the fire separation requirements for the building have not been complied with”.
The relevant provisions are sourced from several legislative and industry regulations, and are highly technical. The basic intent is to stop the spread of fire from one unit to another. This is clearly to contain any fire outbreak, to give adjoining residents time to evacuate the premises, and to minimise the overall extent of damage.
The Building Code of Australia (BCA) comprises objectives, functional statements, performance requirements (with which all building solutions must comply) and building solutions.[5] The Objectives and Functional Statements may be used as an aid to interpretation.
[5]Figure A0.3 BCA (SOR 397)
Objective C01 of section C of the BCA states that:
The objective of this section is to:
(a)Safeguard people from illness or injury due to a fire in a building; and
(b)Safeguard occupants from illness or injury while evacuating a building during a fire; and
(c)Facilitate the activities of emergency services personnel; and
(d)Avoid the spread of fire between buildings; and
(e)Protect other property from physical damage caused by structural failure of a building as a result of fire
The functional statements for fire resistance provide as follows:
CF1 A building is to be constructed to maintain structural stability during fire to –
(a)allow occupants time to evacuate safely; and
(b)allow for fire brigade intervention; and
(c)avoid damage to other property
CF2 A building is to be provided with safeguards to prevent fire spread –
(a)so that the occupants have time to evacuate safely without being overcome by the effects of fire; and
(b)to allow for fire brigade intervention; and
(c)to sole occupancy units providing sleeping accommodation; and
(d)to adjoining fire compartments; and
(e)between buildings
The principle is that each unit should be isolated from the other. Where units are adjoining, as in this construction, then the relevant areas are:
a) the separating walls.
b) the space above the separating walls, extending up through the ceiling space to the roof.
c) the space below the separating walls, extending down from the floor to the ground level.
The hearing concerned the design performance of the sub-floor space.
Expert evidence was called by Mr Kay from Mr Stacey Kennedy, and for the QBCC from Mr Milenko Ruzic, who are both Accredited Building Surveyors. They participated in an Experts Conclave on 14 April 2014, and submitted a version of a Joint Report filed on 16 May 2014 which was drawn up by Mr Kennedy, and supplemented by a Report of Mr Ruzic dated 30 May 2014 as to issues where he disagreed. I heard the evidence of the experts by concurrent evidence, known as “hot-tubbing”.
The experts agreed that:[6]
[6]Report Kennedy filed 16 May 2014 para 4.1, 4.8; Ruzic report filed 13 May 2014 para 4.
a) The bounding wall separating any two (or more) sole-occupancy units must provide a Fire-Resistant Level (FRL) of 60/60/60 in a Class 3, type C Construction situation, as prescribed under table 5 of Specification C1.1 of the Building Code of Australia 04 Volume 1 (BCA)
b) Clause 2(c) of Specification A2.3 of the BCA requires a registered testing Authority’s report confirming FRL’s being maintained within a tested system if an installation has been installed in minor variance to the tested prototype. In the event of a major change, re-testing may be required.
c) The building classification of the subject buildings is Class 3 as classified under Part A3 of the BCA.
d) The use of the buildings is for aged care.
e) Each Class 3 building comprises of numerous Sole Occupancy units (SOU) as defined in Part A1 of the BCA.
f) The type of construction required is type C as required under table C1.1 of the BCA.
g) The minimum fire-resisting construction of a building is to be in accordance with Specification C1.1, Clause 5 and Table 5 of the BCA.
h) Specification C1.1 – Table 5 of the BCA specifies the required fire resistance levels (FRL) of the building elements.
i) The SOUs are not separate fire compartments.
j) The approved building element being the internal wall between SOUs was a CCR lightweight tested prototype system.
The FRL requirements for the flooring elements supporting the fire-resistant bounding wall are set out in Clause 2.2(a)(i) of Specification C1.1. The experts have differing interpretations of the extent of it.
The issues related to the support of the system of dividing walls that was used. The walls were supported by bearers which in turn were supported by piers imbedded in the ground, and by external walls of concrete and masonry construction. The piers were blockwork in some cases, and concrete filled plastic piping in others. A concrete slab was laid at ground level around the piers.
There was no continuous division across the sub-floor space below each diving wall. Essentially the underfloor of each building of 8 units was one large open space. The use of this design is seemingly related to the need to ventilate the sub-floor space, as that is subterranean, and the use of one big open space was seen as the means to achieve the ventilation. However, that design concept raises the issues both as to sub-floor fire-separation and sub-floor ventilation.
Mr Kennedy was of the opinion that the “fire compartment” is the whole of the building containing the series of sub-occupancy units. He contended that the flooring element supporting the bounding wall needs to provide a FRL of 60/-/-only, where Structural Adequacy is at 60 minutes and the Integrity and Insulation components are at nil minutes.[7]
[7]Kennedy report filed 16 May 2014 para 4.3.3.
Mr Ruzic was of the view that 2.2(a)(i) BCA requires that the supporting part must have an FRL no less than the part it supports. He argues that if the internal wall between the sole-occupancy units requires 60/60/60 (as agreed) that the supporting of the wall must also have a 60/60/60 rating.
There was extensive discussion as to the dividing wall system used, and the testing that was approved for it. A difficulty arises because the plans refer to the system by one name, whereas the installed wall was a system (which may be the same system) by another name; and because the manufacturers information refers to differing products.
The approved plans for the internal separating walls specifies that the wall is a “CSR party wall as per attached note”. The note to the plan specifies wall system CSR555. Attached to the approved plans is a document which specifies wall types JH-224 and JH-225 - it was accepted that the page is taken from page 19 of the May 2000 version of the James Hardie Technical Manual. The system that was used was a “Lefarge MRT 130 system”.
The QBCC submits that the James Hardy Technical Manual requires a specific support:[8]
43.Section 2.3.3 of the James Hardie Technical manual requires that the wall system frame must be supported by a concrete slab or a masonry or concrete footing, and supporting on a non-fire rated floor is not permitted. The QBCC submits that the described means of support is an essential part of the tested prototype.
[8]QBCC submissions para 43.
Mr Kay submits that no specific support is required:[9]
6.18The Lafarge Fire and Acoustic System Guide was the applicable document in place at the relevant time to the MRT 130 system installed. It did not provide a construction method.
…
6.25Whilst the respondent (QBCC) contends that the wall frame must be supported on a concrete slab because that is how it would have been tested, Mr Ruzic conceded in evidence that he has no knowledge of whether the prototype wall frame was tested being supported on a concrete slab or whether this was a requirement of the testing (so that it could be said that the test results are only valid if the wall is supported on a concrete slab). There is no evidentiary basis, therefore for his contention that the timber floor installed is a departure from the tested prototype for the purposes of Specification A2.3, clause 2(b).
[9]Kay submissions para 6.18, 6,25.
There has been substantial discussion as to the wording of the Lefarge Guide. The Guide is not at all clear, and is not worded with the particularity of a legislative statement. Critically, the column for “test numbers” says “James Hardie”, which appears to adopt the James Hardie Fire and Acoustically Rated Walls Application Guide.
It was submitted on behalf of Mr Kay that clause 2.3.2 (Extent of wall) of the Guide states that “In that case of Class 2 or 3 buildings, designers should refer to the BCA… for guidance”; and that the clear tenor of the publication is that it is not to be read in a prescriptive fashion.[10]
[10]Kay submissions para 6.23 and 6.24.
The issue was whether the testing disclosed any specific means of support of the wall or not. If the manufacturer did not require a specific means of support, then the onus falls on the designer and certifier to satisfy themselves that the proposed support meets the appropriate fire resistance requirements of the BCA.
Mr Kay argues that the wall manufacturer did not require any specific supporting system, and that the design meets the appropriate fire resistance requirements.
The argument put forward by Mr Kay was effectively that the design provided for a width of the bearers below the dividing walls such that the fire resistance of the bearers was 60 minutes. The proposition was that fire could not pass through the dividing wall, or the bearers, in 60 minutes, so the regulations were fulfilled.
The design of the wall supports, and the reasoning behind it is disclosed in a file note made by Mr Kay and labelled Appendix 3.6:[11]
(i)The bottom plate framing the staggered stud internal bounding wall measures 120mm in width.
(ii)The bottom plate and therefore the internal bounding wall, rest solely upon two 170mm x 63mm LVL continuous bearers. The width of the bottom plate is less than the two bearers which are placed side by side one another, whereby it rests completely upon the two bearers.
(iii)Another two 170 x 45mm LVL bearers abut the middle two, and are intended to provide protection against fire for the two middle ones that support the internal wall. These two outer elements do not support the bounding wall.
(iv)It is intended that the joists are attached to the outer two bearers which will fall away under fire, bringing the joists with them.
(v)It is intended that the two middle bearers supporting the wall remain intact and continue to support the internal bounding wall during a fire.
[11]Letter Mr Kennedy to Mr Ruzic 12 March 2013 (SOR 349).
The QBCC submit that the issues must be seen in context:[12]
67.In the present case, when regard is given to the objectives, functional statements and performance requirements in section C (Fire Resistance) of the BCA, the approved support to the wall system is rendered a nonsense.
68.The applicant’s position is that, it is acceptable that a fire in one SOU will cause the floor of that SOU to fall away into the sub-floor area, provided that the wall remains in position. This was confirmed by Mr Kennedy in cross-examination who stated to the effect that such a situation was permissible because the fire will always burn upwards.
69.To suggest that the floor of that SOU can fall away into the sub-floor area whilst maintaining fire separation from the adjacent SOU is an absurdity. Indeed, not only will the floor and floor joists fall into the sub-floor area under the approved design, it must be the case that the household items sitting on the floor will also fall into the sub-floor area. In this situation, there is nothing to prevent fire in the sub-floor area moving to the adjacent SOU.
70.The interpretation urged upon the Tribunal stands in utter contradiction to the objectives, functional statements and performance requirements for fire resistance in the BCA.
[12]QBCC submissions para 67 – 70.
Sub-floor ventilation
The QBCC complaint is that “The building certifier has issued a Certificate of Classification when the sub floor ventilation of the residential property and community hall does not meet the DTS provisions of Building Code of Australia.”
It was agreed that the sub-floor space between a suspended floor of a building and the ground must be ventilated in accordance with clause F1.12 of the BCA.
These buildings now have major mould and fungus issues. The photographs graphically show the mould and fungus on the underside of the floor. It was argued that there is not evidence that the mould results from the lack of ventilation, and that there may be other causes of it. I am not in a position to determine the cause of the mould, but it is easily anticipated that if the sub-floor ventilation is unsatisfactory, that this would at least not help the mould situation.
Clause F1.12(a)(i) –(v) of the BCA requires the sub-floor to:[13]
(i)be clear of debris and vegetation
(ii)have cross ventilation by means of openings
(iii)contain no dead air space
(iv)be graded to prevent ponding under the building
(v)have evenly spaced ventilation openings
[13]SOR p 366.
The architect’s drawings provide in the floor plan for a series of 100mm dia. sub-floor vent pipes at 3.70 metre centres along the front and back perimeters of the residential buildings, providing cross ventilation and an access shaft capable of providing an opening for ventilation along one side of the buildings. The access cover is shown on the plans[14] as “Drain & access cover to architect detail”.
[14]Knight Consulting Sheet 2 4 January 2005.
No ventilation is shown on the plans for the recreation block. That building was built with only 5 x 100mm vent pipes installed at the rear of the building.
Blocks 1, 4 and 17 were built with 16 x 100mm vent pipes, and the remaining blocks had 14 pipes each. The vent pipes facing the side of the bedrooms were situated in the external wall instead of the external paving as indicated on the plans and connected to the sub-floor via an enclosed duct located in each of the cupboards within the bedrooms. This is noted on a sketch faxed to Mr Kay from the Engineer, dated 16 December 2004.[15]
[15]Appendix E to letter Kennedy to Ruzic 12 March 2013 (SOR 379).
Mr Kay had requested further information on the sub-floor ventilation of the residential buildings from the consulting engineer. The sketch shows a hatched square shape at the end of the building with the words “Drainage & access pit grate above to allow more ventilation”. The sketch also shows the 100mm vent pipes coming horizontally from the sub-floor space, then doing a 90 degree turn to end in horizontal grates at the outside perimeter of the building.
There was no certainty as to whether this fax formed part of the plans for the building. Mr Kennedy argued that it was not unusual in any event, for detail such as how the access cover would be made, to be left to the builder.
Ventilation pipes were installed along both sides of the building. The photographs show that these pipes are not straight, and have one or more bends in them before coming up through the concrete slab which runs around the perimeter of the building, on one side, and through the vertical wall on the other. Mr Kennedy did describe this as unusual.
Mr Ruzic argued that the BCA requires cross-ventilation, and that the building should allow airflow to travel freely from one side to another. He said that the ventilation was clearly not adequate, and that air would not travel across and through in this way without mechanical assistance.
Calculations were presented, and which were not in dispute, that about 50% of the total ventilation area required was being attributed to the access shaft.
Mr Kennedy described this particular construction as unique, and said that the same standards as usual cannot be applied as to access at ground level and due to ground movements. He said that this building was different, and not “your usual run of the mill”.
Mr Ruzic agreed that this building is unique with the sub-floor being buried, and that it is necessary to look to the performance requirements.
Because the access shaft to the residential blocks, as it was built, was blocked by a solid cover, it was not providing any ventilation when closed at all.
As to the recreation block, Mr Kennedy argued that whilst no detail was shown on the plans as to ventilation, that in the certifier’s mind the fact that a system had been shown on the residential buildings is sufficient to carry the implication that a similar system would apply.
Discussion
I accept that Mr Kennedy and Mr Ruzic both gave genuine evidence and have differing opinions.
I prefer the evidence of Mr Ruzic as to the fire separation and ventilation issues.
The interpretation adopted by Mr Kay, and supported by Mr Kennedy, that the timber bearers comply with the words of the fire resistance requirements is contrived and artificial. It relies on a narrow interpretation of the words without having regard to the proper intent.
The proposition that fire could be allowed to extend unhindered below the floor space is startling. Mr Kennedy says that fire burns upwards – but what if for some reason part of the floor of one unit, and everything that is on it, does not fall straight down, but falls slightly to the side and is then directly underneath the timber floor of the next unit, or sets alight some debris or waste that has accumulated in the sub-floor space and is spread below two units? In that case there would be no effective resistance to the spread of fire.
The reliance on the two outer bearers burning in isolation is highly questionable. It anticipates a still and calm environment with the fire neatly burning onto the outer bearer only. How does this make allowance for the airflow under the building? If Mr Kay is correct in asserting that there is existing cross-ventilation under the building, what is the effect of that in a fire? It is easily speculated that the flow of air would affect the passage of fire, and cause it to not necessarily stay neatly burning onto the outer bearer without any embers moving about or flames spreading. No evidence was adduced as to the anticipated performance and passage of fire, so these questions are unanswered, and worryingly so.
A fire regulation is a basic matter of safety, and interpretation of it should be cautious and directed to the intent. In some circumstances the result of varying interpretations of a building code may be of little practical result, but in the case of fire regulations the result could be catastrophic.
A particular concern in this matter is the intended use of the building. This was to be a retirement home which would have a significant population of aged and infirm people. These people would be particularly vulnerable to the effects of a fire in the building, and have reduced mobility to escape.
I accept the submissions of the QBCC that the design as to fire resistance fails to uphold the objectives, functional statements and performance requirements for fire resistance in the BCA.
Mr Kay has certified the building as appropriate. He may have convinced himself that the words of the manufacturer’s materials, and the relevant requirements were made out, but lost sight of the broader policy issues and the intent of the fire-resistance provisions, and failed to properly apply them.
Fire resistance is a matter affecting safety which is a paramount consideration for a certifier to bear in mind. The “Code of Conduct for building certifiers”[16] provides under “Standards of Conduct and professionalism” that a building certifier must – 1. Perform building certifying functions in the public interest”.
[16]Department of Local Government and Planning 14 November 2003.
The Explanatory Statement of the Code of Conduct provides that:
Examples of when a building certifier must perform building certifying functions in the public interest include –
·Discretion – a building certifier when exercising any discretion in performing building certifying functions must 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 reasonably prudent Certifier, having regard to the intent of the BCA, would certify this design as appropriate as to fire resistance, notwithstanding any argument as to its arguable compliance with the stated wording of the manufacturers material’s or to specific fire-resistance requirements.
As to sub-floor ventilation, it is quite obvious what the BCA intends. The ventilation is to be even, adequate and effective. The approved ventilation system fulfils none of these basic requirements.
I do not consider that any reasonable person would consider that having outlets only along the sides for 50% of the ventilation area, and having an access shaft at one end of the building for the balance 50%, could be described as evenly spaced ventilation. Evenly spaced suggests a regular spacing of equal ventilation.
The outlets are not direct, and air flowing though a series of angles could not be said to be flowing freely.
The situation was exacerbated by the access shaft actually being closed off with a solid cover. This was such a significant part of the design that specific attention should have been paid to documenting it, and that the issues as to unimpeded airflow through the cover, whilst still avoiding rainwater intrusion, should have been specifically addressed. I do not consider it was sufficient to leave it to the builder to work something out.
The plans were certified for the recreation building with no ventilation shown at all. I do not consider that this shows a sufficient application of diligence. It is a glaring oversight.
Again, the intended use of the building is relevant. The occupants were expected to be aged and infirm. They could also be expected to have reduced resistance to air-borne infections such as may be caused by mould. Anyone designing, building or certifying a building for this group of people would be expected to have their frailties and susceptibilities borne strongly in mind at all times. Ensuring that proper sub-floor ventilation was provided, as a health and safety issue, should have been a significant matter in the mind of the certifier.
This building raised significant questions as to its fire resistance. There were also significant issues as underfloor ventilation of the building. The issues as to fire resistance and ventilation do not just flow from the construction practices of the builder, but arise from the fundamental design, and should have been apprehended and appropriately addressed by the Certifier. I am therefore not satisfied, having particular regard to its purpose, that Mr Kay has displayed sufficient care in properly certifying this building.
In certifying this design as acceptable as to fire resistance , I consider that Mr Kay has displayed conduct that shows a lack of adequate skill, judgment, diligence or care in performing building or private certifying functions.
I also consider that in certifying the design as acceptable as to sub-floor ventilation that Mr Kay has displayed conduct that shows incompetence, or a lack of adequate skill, judgment, diligence or care in performing building or private certifying functions.
I therefore consider that the complaint of “unsatisfactory conduct” is made out.
No submissions were made to me as to the reprimand or as to the Conditions that were imposed by the QBCC in its decision. I consider that a reprimand is in order, and I have no reason to query the conditions which appear to be reasonable and appropriate.
I confirm the decision of the QBCC made on 14 March 2013 that Mr Kay had engaged in unsatisfactory conduct as a Building Certifier, and reprimanding him and imposing conditions.
I indicated at the conclusion of the hearing that I would give the parties leave to apply as to costs after considering the decision. In light of my findings against Mr Kay, I do not anticipate any costs application by him. The QBCC do not regularly seek costs, except in a matter where the conduct of the case by the Applicant is unmeritorious or unduly prolonged.
Whilst I have found against Mr Kay’s application, he has raised cogent arguments and supporting evidence, and my preliminary view (without submissions on point) would be that this is not a situation where costs would be readily considered against him, and where the usual rule in s.100 QCAT Act, as to each party bearing their own costs, should be departed from.
However, in line with my indications, I will allow either party 14 days after receipt of this decision to make an Application for Miscellaneous Matters as to costs. If such an application is made, I will then give further directions as to submissions. If no such application is made, this matter will be concluded.
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