Kirby v Queensland Building and Construction Commission
[2014] QCAT 193
| CITATION: | Kirby v Queensland Building and Construction Commission [2014] QCAT 193 |
| PARTIES: | Leslie James Kirby (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR287-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 April 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howe |
| DELIVERED ON: | 12 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the Commission made on 25 July 2013 that the certifier has engaged in unsatisfactory conduct is affirmed. |
| CATCHWORDS: | Certifier – Certifiers Code of Conduct – contravening the Code of Conduct – Small Lot Code - misinterpretation of Small Lot Code - raising an existing house exemption - failure to comply with legislative requirements - unsatisfactory conduct |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Leslie James Kirby represented himself |
| RESPONDENT: | Mr Cole, Solicitor, represented the Queensland Building and Construction Commission |
REASONS FOR DECISION
In August, 2011 Brisbane City Council granted a preliminary approval for alterations and additions to an existing house at 62 Abbott Street, Ascot. Being a preliminary approval, further building development approval for the actual building work was necessary.
The preliminary approval required the building work to be assessed against the Brisbane City Council Residential Design – Small Lot Code. Condition 18 stated that in assessing the work, if the house did not comply with the Code, a further development application might be required.
Mr Kirby is a building certifier. He was asked to assess the building work required and give a building development approval for it.
Part of the work involved a very minor extension of an existing wall along the outside line of an existing verandah. The wall would complement an altered, raised roof line on the northern aspect of the dwelling. Mr Kirby decided building the wall could be categorised as raising an existing wall (to the raised roof), and therefore within the “raising an existing house” exemption to the Small Lot Code.
Without an exemption it had to be assessed under the Code. Under the Code it would be built outside the building envelope and it therefore had to comply with the requisite setback to the side boundary, which it did not, which meant it had to be referred back to Council for impact assessment.
Mr Kirby granted building development approval however without referring the matter to Council on the basis it was covered by the “raising an existing house” exemption. The neighbour on the northern boundary wasn’t pleased. He was a builder. He questioned that decision and complained to the Council.
The Council issued a cease work notice on 7 March 2012. On 8 March 2012 the Council advised the owner and the owner’s town planners (and Mr Kirby) a development application for the wall was required because “the better view is that no part of the existing north wall and roof of the house is being raised and that the work involves a new wall extension which will need a development application.[1]” The Council was prepared to waive the associated application fee for that additional application however.
[1]Ex3 p98.
The further development application was made and a second preliminary approval covering the construction of the wall was given.
Section 83(1)(b) of the Building Act 1975 (Qld) states a certifier must not grant a building development approval until all necessary preliminary approvals under the Planning Act[2] are effective for other assessable parts of the development. There is a statutory penalty attached to breach.
[2]Sustainable Planning Act 2009 (Qld).
The second preliminary approval was a necessary preliminary approval under the Planning Act. By giving the building development approval when he did, Mr Kirby breached s83(1)(b).
The neighbour also complained to the Commission. The Commission determined that in giving the building development approval Mr Kirby had engaged in unsatisfactory conduct under the Building Act.
Mr Kirby has applied to the Tribunal to review the decision of the Commission. He challenges both the Council interpretation of the raising an existing house exemption in the Small Lot Code, and the decision of the Commission in concluding that he had engaged in unsatisfactory conduct.
Raising an Existing House Exemption
The exemption to the Small Lot Code is in the following terms: “Raising an existing house where the side boundary setbacks comply with the setbacks under the Standard Building Regulation 1993 and the maximum height does not exceed 8.5m above ground level….”
It is not clear what the setbacks under the Standard Building Regulation 1993 were. That regulation was repealed in 2006. Setbacks are prescribed by the Queensland Development Code or by a local planning scheme. According to the explanatory diagram (Figure z) at the back of the Small Lot Code, the setback is markedly less than the 1.5 metres otherwise prescribed (by the Small Lot Code) and I assume the house at Ascot complied.
There is no definition of "raising an existing house" in the Small Lot Code. There is only the diagram described as Figure z at the back of the Code that I have referred to, showing hatching and line markings around the line drawing of a house and above the house.
The basis of Mr Kirby's view that building the small wall came within the raising an existing house exemption is purportedly explained in representations made to the Council by town planners in submissions made on 26 April 2012[3]. The town planner states: “The wall in question has been extended to the west by 530 mm and raised to meet the raised roofline (which has been assessed and approved against the Residential Design – Character) by approximately 3200mm; and As part of the raising of the roofline/house, the extension to the living area wall was required to meet the new roofline and to marry up with the existing lower ground wall. Please refer to approved DWG no. 003 Issue A which illustrates the existing lower ground wall which the new section of wall now forms part of.”
[3]Ex3 p177.
That is all that is said. It doesn’t say much. It doesn’t examine the wording of the exemption nor invoke any engineering or design argument. It equates “house” with “roofline” without explanation why that can be done.
The exemption covers "raising an existing house". It doesn’t refer to raising the height of an existing wall. The only elaboration given in the Code is by way of Figure z at the end of the Code, and on any reasonable reading or interpretation of that diagram what is depicted is vertical change to an entire house construct. I find it difficult to comprehend how Mr Kirby relied on the exemption to cover the addition of a new wall under a changed roof gable. With respect to the house at Ascot the gabled roof line above the area of the proposed wall was extended, and perhaps that could be described as altering, even raising the roofline above the wall area. Generally however there was no change at all in the elevation of the house structure.
I conclude that the expression “raising an existing house” should be given its natural and plain meaning. The exemption is intended to apply where there is a vertical alteration in the height of the house, as a house, above ground level. Raising (or lowering) a wall without a change in the height of the house structure is insufficient to qualify as such. Any reasonable examination of the diagram attached to the Code in explanation of the concept supports that conclusion. Accordingly I agree with the interpretation of the exemption applied by the Council and the Council’s decision that the small wall addition required impact assessment by Council.
Unsatisfactory Conduct
Unsatisfactory conduct for a building certifier as defined in Schedule 2 of the Building Act includes “conduct that is contrary to a function under this Act or another Act regulating building certifiers … including, for example … contravening the code of conduct….”
The building certifiers Code of Conduct is subordinate legislation[4] and lists standards of conduct and professionalism required to be met by certifiers. Under the heading "Standards of conduct and professionalism" it lists 10 such standards. Standard 3 provides: “A building certifier must: … Comply with legislative requirements…."
[4]Sustainable Planning Act 2009 (Qld) s 129.
As stated above, the second preliminary approval to cover the construction of the wall on the verandah was a necessary preliminary approval under the Planning Act. By giving the building development approval when he did, Mr Kirby breached s 83(1)(b) of the Building Act. This was a failure to comply with legislative requirements and the Commission concluded that that failure contravened the Code of Conduct.
There does not seem to be any discretion granted in coming to that conclusion. Under the heading "Standards of conduct and professionalism" the Code states "a building certifier must…" comply with the 10 performance standards thereafter set out.
In the introduction to the code it does state a breach of the code “may” constitute unsatisfactory conduct or professional misconduct under the Building Act 1975 (Qld). Again under the heading "Breaches of the code of conduct" the first sentence again states a breach of the Code “may” constitute unsatisfactory conduct or professional misconduct under the Building Act 1975 (Qld). The Code goes on however to draw distinction between offences of a basic administrative nature defined as "unsatisfactory conduct" and more serious offences such as significant technical breaches that may compromise safety, which is identified as professional misconduct.
In the circumstances, I conclude that the use of the term "may", taking into account that basic administrative errors are included in the scope of unsatisfactory conduct, simply draws a distinction between breaches constituting either unsatisfactory conduct or professional misconduct, but doesn’t amount to a discretion not to be required to conclude one or the other.
But regardless of the Code of Conduct, by s 132 of the Building Act 1975 (Qld) failure to comply with provisions of the Act where no penalty is specified is deemed to be conduct that is contrary to a function under the Act for the purpose of unsatisfactory conduct. That does not exclude from similar conclusion provisions (such as s 83) where breach additionally attracts a stated penalty, but the latter must surely be viewed as a more serious type of failure.
Accordingly, once it was determined that Mr Kirby breached s83(1)(b) of the Building Act, that constituted unsatisfactory conduct as defined by the Building Act. In consequence the Commission was obliged[5] to record details of that decision and obliged to record any directions made following such[6]. The decision of the Commission was that it found Mr Kirby’s behaviour amounted to unsatisfactory conduct but the Commission also found him to be generally competent and diligent and did not intend to take further action. Whilst Mr Kirby says that the note of that decision on his record affects his reputation, the notation was appropriately made in accordance with statutory requirements. In my opinion it was a benign course to adopt.
[5]Building Act 1975 (Qld) s 179(3)(d).
[6]Ibid s 204(4)(a).
The decision of the Commission should be affirmed.
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