Mannix v Queensland Building Services Authority
[2013] QCAT 621
| CITATION: | Mannix & Anor v Queensland Building Services Authority [2013] QCAT 621 |
| PARTIES: | Mr Steven Mannix and Mrs Rebecca Mannix (Applicants) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR012-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 April 2013 |
| HEARD AT: | Mackay |
| DECISION OF: | Member Beckinsale |
| DELIVERED ON: | 5 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent’s decision made on 20 December 2011 is confirmed. 2. The Application GAR012-12 is dismissed. |
| CATCHWORDS: | Disciplinary proceedings – professional misconduct – building certifier-where complaint made by homeowner – whether complaint alleging unsatisfactory conduct or professional misconduct is substantiated Building Act 1975 ss 129, 203, 204, 205, Schedule 2 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Steven Mannix |
| RESPONDENT: | Mr Brendan Cole, Solicitor, Queensland Building Services Authority |
REASONS FOR DECISION
In 2008 Mr and Mrs Mannix contracted a builder to construct their home at 13 Kew Court, Glenalla, Queensland.
The builder engaged Building Approval & Consultancy Pty Ltd (BAC) to carry out building certification of the works.
Darren Clarke, a licensed certifier employed by BAC carried out the final stage inspection and issued a Form 21 certificate of inspection for the final stage.
Dispute arose between Mr and Mrs Mannix and their builder over issues concerning termination of the contract, non payment of monies and defective or incomplete works. The dispute went to hearing before the tribunal in 2010.[1]
[1]Chris Neale Constructions Pty Ltd v Mannix [2011] QCAT 68 and Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222.
In 2010 Mr and Mrs Mannix made complaints to the Queensland Building Services Authority (BSA) about the conduct of Mr Clarke and three other employees of BAC. The BSA investigated the complaints against Mr Clarke and Mr Jamie Hallinan.
The BSA found that Mr Hallinan had not engaged in unsatisfactory conduct or professional misconduct. An application by Mr and Mrs Mannix for a review of that decision was dismissed by the tribunal.[2]
[2]Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105.
The complaint against Mr Clarke contained 29 items. By letter dated 20 December 2011 the BSA advised Mr and Mrs Mannix that the BSA had concluded Mr Clarke had engaged in unsatisfactory conduct. The written decision and reasons of Senior Audit and Investigation Officer Thomas Petzel indicated that finding of unsatisfactory conduct was in regard to item 12 only of the complaint and that as the BSA was satisfied in terms of section 204(4)(g) of the Building Act 1975 that Mr Clarke was generally competent and diligent, it did not intend to take any further action.
Mr and Mrs Mannix made application to the tribunal for a review of the decision as well as the BSA’s decision about the scope of works to be undertaken at 13 Kew Court.
The proceedings concerning the scope of works were pending at the time of hearing of the matter concerning Mr Clarke. [3]
[3]Mannix v Queensland Building Services Authority (QBSA) [2013] QCAT 406.
Mr and Mrs Mannix withdrew their request to review in respect of items 9, 12, 14, part of 26 and 28. This hearing dealt with the remaining items.
The Tribunal’s Power to Review
When reviewing a decision the tribunal exercises the same powers as the BSA under the Building Act 1975[4] with the purpose of the review to produce the correct and preferable decision.[5] The tribunal must hear and decide the review by way of a fresh hearing on the merits[6] which means the tribunal can consider material not before the BSA at the time of the decision. When conducting a review the tribunal has the power to confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the BSA.[7]
[4]Building Act 1975 s 205.
[5]Queensland Civil and Administrative Act 2009 (QCAT Act) s 24.
[6]QCAT Act s 20.
[7]QCAT Act s 24.
The Building Act 1975[8] defines “unsatisfactory conduct” to include ‘conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions’ and ‘conduct that is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work)’ including disregarding relevant and appropriate matters, acting outside the scope of the building certifier’s powers or competence, contravening the code of conduct and ‘conduct that is of a lesser standard than might reasonably be expected of the building certifier by the public or the building certifier’s professional peers’.
[8]Schedule 2.
“Professional misconduct” includes conduct that shows ‘incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and compromises the health or safety of a person or the amenity of a person’s property and…is contrary to a function under this Act’ including disregarding relevant and appropriate matters, acting outside the scope of powers or scope of competence and contravening the code of conduct.[9]
[9]Building Act 1975, Schedule 2.
The code of conduct ‘sets out standards of conduct and professionalism expected from building certifiers when performing building certifying functions in Queensland’.[10]
[10]Building Act 1975 s 129.
The BSA and on review, the tribunal, can on making a finding of misconduct, reprimand the certifier, impose appropriate conditions on the certifier’s licence, direct the certifier to complete educational courses, direct the certifier to report on the certifier’s practice at times, and require the certifier to take necessary steps to ensure certification of building work.[11]
[11]Building Act 1975 s 204.
The findings made by the tribunal may have serious ramifications for a certifier. The standard of proof to be applied, and adopted by the tribunal in previous decisions, is as set out in Briginshaw v Briginshaw & Anor.[12] The onus of proof is on the party alleging the conduct and the tribunal must be reasonably satisfied that the complaint has been made out.
Item 1
[12] (1938) 60 CLR 336.
The complaint of Mr and Mrs Mannix is that Mr Clarke has signed the Form 21 final inspection certificate on 24 April 2009 but in the name of and using the licence number of Jamie Hallinan. Further, that Mr Clarke makes reference to the building being built in accordance with the approved Development Application Decision Notice (DAN) when Mr and Mrs Mannix allege it was not, ‘as can be further referenced in this complaint’.
At the hearing and in the written submissions tendered at the hearing Mr Mannix dealt with the allegations of the building not being built in accordance with the DAN at item 1 rather than the first aspect of the item under the heading of item 1. I note that as a self represented party Mr Mannix was allowed some latitude in making submissions and tendering new material but I can only have regard to what is relevant to the items of complaint with respect to which Mr and Mrs Mannix seek a review. As mentioned in this item of complaint, the allegations regarding the building not being built in accordance with the DAN are dealt with elsewhere and I will deal with those as they arise.
One issue which did not appear to be raised at item 1 in the complaint under review but to which Mr Mannix has referred in submissions at the hearing, I will deal with now. This issue of the foundation stage certificate relied on by Mr Clarke was also addressed by Russell Perkins, a consulting engineer who gave evidence on behalf of Mr and Mrs Mannix.
Mr Perkins had provided evidence at previous hearings on behalf of Mr and Mrs Mannix. Mr Mannix was allowed to rely on a new statement of Mr Perkins dated 8 April 2013, not previously filed and not previously provided to the BSA, on the basis that the statement contained no new material but summarised Mr Perkins’ views in relation to items 1, 2, 3, 4 and 10 of the complaint against Mr Clarke. Mr Perkins also gave oral evidence.
Mr and Mrs Mannix, supported by Mr Perkins, appear to be saying that Mr Clarke has relied on an inspection certificate for the foundations stage of Shane Spagnol, another employee of BAC who at the time was a cadet building certifier. This is so, according to Mr and Mrs Mannix, because Mr Spagnol was the person who attended at the property and physically inspected the construction at that stage whereas Mr Hallinan, a building certifier, who has signed the foundation stage inspection certificate did not. Mr and Mrs Mannix assert that section 32(3) of the building regulations provides the inspecting person must sign the certificate of inspection.
Mr and Mrs Mannix, in my view, misapprehend the requirements in this regard. The building guidelines permitted Mr Hallinan, as a building certifier, to rely on certificates completed by a person whom he had deemed to be “competent”, in relation to certain aspects of the work. The regulations specifically state the inspecting person may accept an aspect inspection certificate instead of inspecting the work (except for the final stage inspection).[13]
[13]Building Regulations 2006 s 31(3).
I accept Mr Petzel’s evidence that Mr Spagnol was deemed to be competent to give inspection help[14] and that the requirements to keep a “competent persons register” had been met.[15] This issue had been considered by the tribunal in the context of the complaint against Mr Hallinan and I find no reason to disagree with the findings made.[16]
[14]Building Regulations 2006 s 17(1).
[15]Building regulations 2006 s 19.
[16]Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105.
I am not satisfied that Mr Clarke, in relying on a foundation stage inspection certificate by Mr Hallinan who relied on an aspect certificate of Mr Spagnol, in his final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
The final inspection certificate signed by Mr Clarke, notes at paragraph 6, the dates for both inspection and certificate for the foundation stage as 9 October 2008. It is not in dispute that Mr Spagnol carried out the inspection on 9 October 2008 but Mr Hallinan dated the certificate 10 October 2008. Mr and Mrs Mannix appeared to rely on the misstated date on Mr Clarke’s final certificate as supporting their contention that Mr Spagnol was responsible for the foundation stage certificate and did not assert the error in the certificate date affected the validity of the certificate.
I am not satisfied that Mr Clarke in misstating the date of the foundation stage certificate signed by Mr Hallinan has engaged in unsatisfactory conduct or professional misconduct.
As to Jamie Hallinan being the certifier named on the Form 21 dated 24 April 2009 signed by Mr Clarke, the evidence of Mr Petzel is that was an error corrected by Mr Clarke signing a replacement Form 21 dated 13 October 2009 containing his name and licence details. A copy of this document has been provided.[17]
[17]Annexure TP-2 to statement of Thomas Petzel dated 16 August 2012.
I am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct by correcting the Form 21.
Item 2
Having addressed the matter of the incorrect name being on the first Form 21, the remaining aspect of item 2 to deal with is that the amended Form 21 was never supplied to Mackay Regional Council.
At the hearing Mr Mannix asserted that Mrs Mannix informed him she had telephoned “the council” two days before the hearing and was informed that the document had still not been received. It was not said to whom she spoke, that person’s position nor how it was determined that the form had not been received.
Mr Petzel’s evidence is that Mr Clarke has informed him he has lodged the form with the Mackay Regional Council.[18]
[18] Statement of Thomas Petzel dated 16 August 2012.
I accept the evidence that Mr Clarke has lodged the form with the council. Even if I accept the Mackay Regional Council has not received the form from him, I am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Item 3
The complaint made by Mr and Mrs Mannix is that as the DAN does not call for a cut-to-fill operation which was done by the builder at the time of construction, the construction does not conform to the DAN.
The issue for the tribunal to determine is whether Mr Clarke by issuing the final inspection certificate has engaged in conduct which is unsatisfactory conduct or professional misconduct.
Mr Perkins says that in carrying out the final inspection Mr Clarke should have recognised that the alterations to the approved design potentially compromised the design certification and the development approval.
The evidence of Mr Petzel for the BSA, which the tribunal already considered in the review of the complaint against Mr Hallinan,[19] is that given the nature of the construction, a cut-to-fill operation would have been required and most building sites require some cutting to reduce the risk of subsidence.
[19] Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105.
The BSA has also produced emails to and from Linda Pearson, Principal Planner for Mackay Regional Council confirming that amendment of the development permit in place for the building work was not required.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to item 3.
Item 4
This item of complaint is that the fill beneath the area of construction has not been compacted and there is no verification that the piers have been bored to the correct depth due to the non-compacted fill.
The issue for the tribunal is again, whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr Perkins contends on behalf of Mr and Mrs Mannix that Mr Clarke in carrying out the final inspection and signing the final certificate has taken it upon himself to
make engineering judgements about the non-compliance of the building works with the certified design and the D.A. which he was not qualified to do and in signing off the final certificate he has knowingly accepted an inspection certificate for the foundation stage from a person who was not competent to carry out this inspection or to sign the foundation stage certificate and therefore has accepted responsibility for any shortcomings by accepting this certificate.
Mr Petzel’s evidence on behalf of the BSA is that as the foundation stage inspection was carried out by Shane Spagnol, not Mr Clarke, Mr Clarke had no obligation to verify the piers had been bored to the correct depth, to consider the steps taken to prepare the platform for building or to consider whether fill had been controlled or rolled and he had not departed from the Inspection Guidelines.
Mr Perkins, an engineer, has expressed an opinion that Mr Clarke has failed to adequately discharge his duties in signing the final certificate. Mr Petzel, a qualified building certifier, is engaged by the BSA as Senior Audit and Investigation Officer. His role includes assessment of complaints to determine whether building certifiers have engaged in unsatisfactory conduct or professional misconduct. I prefer Mr Petzel’s evidence and am not satisfied the complaint as it relates to item 4 has been made out.
Item 5
This complaint of Mr and Mrs Mannix is that termite treatment was completed before modifications to the slab and this was evident at the time of the final inspection.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in conduct which is unsatisfactory conduct or professional misconduct.
It is not in dispute that termite management was inspected by John Lowe who gave a certificate stating that aspect of the work complied with the building development approval and that the installation of the system was completed on 5 November 2008.
Mr and Mrs Mannix contend that when Mr Clarke carried out the final inspection on 24 April 2009, the slab modifications which were not completed until April 2009, would have been apparent to him and that should have raised concerns which he failed to investigate. Mr Mannix cited the report of Paul Ingledew who inspected the property on 15 May 2009 and noted a “patch to the northern entry of the garage slab”.
Mr Clarke has stated that no slab modifications were apparent at the time of final inspection nor was he advised of any slab modifications. Mr Ingledew’s report does not contradict that.
Mr Petzel’s evidence is that “termite risk management” is an aspect of the final stage inspection and Mr Clarke was entitled to accept and rely on Mr Lowe’s certificate.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to item 5.
Item 6
This complaint is that the installed insulation is not in accordance with the DAN as insulation batts were not installed above the garage as for the main ceiling.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that it is apparent from the inspection certificate for the insulation to the roof and/or wall space dated 17 April 2009 that the ceiling insulation does not comply with the DAN. They further contend that the BSA in the statement of reasons has relied on an out of date Building Code (BCA) subordinate to the Building Regulations.
The evidence of Mr Petzel for the BSA is that the inspection certificate, which Mr Clarke is entitled to rely on, “energy efficiency requirements” being an aspect of the final stage inspection, does not indicate non-compliance with the DAN. Mr Petzel’s evidence is that the applicable BCA requires a minimum energy efficiency rating of 3.5 stars. An energy efficiency report by an accredited BERS Pro energy assessor demonstrates the efficiency requirements of the BCA have been achieved for the building.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to item 6.
Item 7
This item of complaint is that as there are no floor wastes located in the laundry, bathroom and ensuite and there is no graded floor intended to drain the floor surface into a grated outlet in these locations there is non-compliance with the DAN.
The issue for the tribunal is whether Mr Clarke has engaged in conduct which is unsatisfactory or professional misconduct in issuing the final inspection certificate.
Mr and Mrs Mannix contend Mr Clarke should have noticed the absence of floor wastes in these locations during a final inspection and ‘note it for rectification’ .
Mr Petzel’s evidence is that there is no requirement in the BCA for floor wastes to be installed or for floors to have been graded to floor wastes that were installed and to which waste pipes are connected.
Further Mr Petzel states that ‘sanitary drainage (completed, tested and passed)’ is an aspect of the slab stage inspection. “Plumbing and drainage” was inspected by Stephen Wales who gave a certificate stating that aspect of the work complied with the building development approval which certificate Mr Clarke was entitled to rely on.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 8
The issue of complaint is that the water tank was subsiding in the fill area.
The issue for the tribunal is whether Mr Clarke has engaged in conduct which is unsatisfactory or professional misconduct in issuing the final inspection certificate.
Mr and Mrs Mannix contend that whilst Mr Clarke required the overflow piping to be made compliant, he did not identify subsidence of the water tank which they allege was evident at the time of inspection. They say the fill in which the water tank had been placed did not meet performance criteria which they cite ‘where a rainwater tank is supported on a stand or other structure, the supporting structure must be capable of withstanding any loads likely to be imposed on it’.
The BSA contends that landfill is not a “stand or other structure”. Mr Petzel’s evidence is that criteria are not specified for the foundations of water tanks against which performance is to be assessed and “landfill on which a rainwater tank is located” is not an aspect of assessable building work. Mr Clarke does not agree subsidence of the tank was evident to him at the time of his inspection but the BSA contends even if it was, there is no basis for a finding that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
I accept Mr Petzel’s evidence and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item of complaint.
Item 10
This complaint is that the slab to ground level does not comply with the DAN which requires that the slab be a minimum of 300mm above ground at the highest point.
The issue for the tribunal is whether by issuing the final inspection certificate Mr Clarke has engaged in conduct which is unsatisfactory or professional misconduct.
Mr and Mrs Mannix contend slab height to ground level is part of the final stage inspection, that at the time of inspection the construction was on levelled cut and filled ground and the slab was not a minimum height of 300mm above ground at the highest point.
The BSA does not refute that “slab-on-ground-finished slab heights” is an aspect of the final stage inspection. Mr Petzel refers to the approved Phoenix Building Design Drawing containing the notation “SLAB TO BE A MINIMUM 300mm ABOVE GOUND (sic) AT HIGHEST POINT”. He says that Mr and Mrs Mannix misapprehend that this architectural drawing details the slab construction, including its height. He says it does not. He refers to a further notation on the drawing which is “CONCRETE FLOOR SLAB & FOOTINGS TO BE TO ENGINEER’S DETAILS”.
Mr Petzel refers to “DETAILS SKETCH” prepared by Roadtest, the engineer for the building. He says this drawing is the “engineer’s details” for the concrete floor slab and footings and details the finished height of slab as 225mm above finished ground level. His evidence is that the finished height of the slab complied with the BCA and the fact that a design drawing stated the slab was to be a minimum of 300mm above ground at the highest point is no basis for a finding Mr Clarke engaged in unsatisfactory conduct or professional misconduct.
Mr Petzel also refers to the approved drawing titled “CONTOUR & SITE DETAIL PLAN” which shows the proposed building platform sloping from west to east by approximately 500mm. He states that some cutting and/or filling of the site were therefore necessary to achieve the level building platform called for by the building design. As noted at paragraph 31 in these reasons, the tribunal has accepted that evidence.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 11
This item of complaint is that Mackay Regional Council has never given or been required to provide approval for a cut of 300mm or more to the construction site.
The issue for the tribunal is whether in issuing the final inspection certificate Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix reiterate their position that the DAN did not provide for a cut-to-fill operation and that the Council’s email response referred to confirmed no approval for a cut of 300mm was obtained. As regards the email from Principal Planner Linda Pearson, they say that in this case approval was required because the cut-and-fill was not part of the DAN. They reiterate that the cut-and-fill operation was not part of their contract with the builder which was a previous finding of the tribunal.[20]
[20] Chris Neale Constructions v Mannix [2011] QCAT 68.
Mr Petzel states that Mr and Mrs Mannix misapprehend that Council approval was required before the builder cut the site to achieve a level building platform. His evidence was that a development permit for the carrying out of “building work” was in place and “building work” is defined to include excavating or filling for, or incidental to building a building.
I accept the evidence of Mr Petzel, including as noted in paragraph 32 of these reasons, that the email from Linda Pearson confirms the amendment of the development permit was not required. I am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item of complaint.
Item 13
This item of complaint is that the control joints in the brickwork are not in accordance with the DAN.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that it is only at final stage inspection that control joints can be inspected and dispute it is not an aspect of final stage inspection when the joints are clearly visible.
Mr Petzel’s evidence is that the inspection guidelines do not mandate the inspection of control joints at the final stage inspection.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 15
This complaint item is that the internal ceiling has no back blocking of the plaster ceiling joints in breach of the Australian Standards and the BCA, that back blocking is used to minimise deformation and cracking to sheet joints and that has started to occur.
The issue for the tribunal is whether Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in issuing a final inspection certificate.
Mr and Mrs Mannix contend this is an item that can only be inspected at final stage inspection.
The evidence of Mr Petzel is that “back blockings” is not an aspect of assessable building work.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 16
This item of complaint is that the builder has installed internal ceiling plaster boards which is not in compliance with the DAN or the BCA.
The issue for the tribunal is whether Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in issuing a final inspection certificate.
Mr and Mrs Mannix contend that the DAN requires the use of F.C. sheets which could only be fitted at the final stage. They say at the time of Mr Clarke’s inspection it was clear that F.C. sheets were not fitted as joining strips are required between F.C. sheets and no joining strips were used on the sheets.
Mr Petzel’s evidence is that inspection guidelines do not mandate the inspection of ceiling linings in the final stage of inspection nor does the BCA specify materials with which external ceilings are to be lined.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 17
This item of complaint is that the television antenna has been fixed to the roof fascia with undersized screw fixings which do not adequately cover both sides of the predrilled holes in the fixing plate. The complaint refers to “antennae” but it is apparent that a single antenna is being referred to.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that the screw on the left hand side of the fixing plate does not cover the upper side of the hole weakening the capacity of the connection to resist wind forces.
Mr Petzel’s evidence is that as the antenna is not more than 3.5m above the building it is not assessable building work under the building regulations.
I accept Mr Petzel’s evidence and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item of complaint.
Item 18
This item of complaint is that tiling throughout the house is of a very poor standard and in some locations has not been completed.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
The complaint of Mr and Mrs Mannix regarding the absence of floor wastes and the tiles not sloping towards floor wastes has been dealt with at item 7.
Mr and Mrs Mannix contend that the tiling does not meet the standards of the Australian Tiling Council or the BCA with a shelf in a bathroom being out of level and lipping evident throughout the house.
Mr Petzel’s evidence is that tiling is not an aspect of the final stage inspection under the guidelines and there are no referenced standards for tiling (other than roofing) in the BCA. There is authority that it is not the role of the certifier to assure aesthetics, quality and reliability of workmanship on behalf of the owner or builder.[21]
[21] Lewis v Threadwell [2004] VCAT 547(2 April 2004)at [139].
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 19
This item of complaint is that the gable roof over the garage has not been constructed in accordance with the DAN.
The issue for the tribunal is whether Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in issuing the final inspection certificate.
Mr and Mrs Mannix contend that the saddle trusses of the roof gable have not been installed in the correct location and the northern side trimmer batten at the valley does not peak over a truss top chord.
Mr Petzel’s evidence is that these are not aspects of the final stage inspection under the guidelines nor is it the role of the certifier to assure aesthetics, quality and reliability of workmanship on behalf of the owner or builder.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 20
This item of complaint is that the bulkhead heights of 3 nook windows do not comply with the DAN.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend the bulkheads are part of the frame structure and should be identical in height and the drawings forming part of the DAN do not show the windows not centred within the nooks or the bulkheads with different heights. In their original complaint they contend the result is aesthetically unpleasing. Subsequently Mr and Mrs Mannix contend it is not a matter of aesthetics but that a timber framed construction in a cyclonic area requires continuity of the ceiling diaphragm which is only possible if the bulkheads are the same height.
Mr Petzel’s evidence is that this is not an aspect of final stage inspection under the guidelines nor, again, is it the role of a certifier to assure aesthetics, quality and reliability of workmanship on behalf of the owner or builder. He has not directly addressed the matter of the ceiling diaphragm but I do not find the argument of Mr and Mrs Mannix in that regard to be compelling.
I accept the evidence of Mr Petzel and am not satisfied that Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 21
This item of complaint is that the brickwork ties have not been installed in accordance with C2 rating requirements.
The issue for the tribunal is whether Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in issuing the final inspection certificate.
Mr and Mrs Mannix contend the brick ties are not adequate for a C2 wind rating and the entire brick veneer will need replacing.
Mr Petzel’s evidence is that this is not an aspect of the final stage inspection under the guidelines.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Item 22
This item of complaint is that installation of the guttering drainage to the rainwater tank has not been completed.
The issue for the tribunal is whether in issuing the final inspection certificate Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that the roof drainage plan in the DAN shows guttering drainage for the rainwater tank and as the item could only be inspected at the final stage of construction, that it was a final stage inspection item.
Mr Petzel’s evidence is that this is not an aspect of final stage inspection.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 23
This item of complaint is that external airconditioning units were not installed and that piping and power cables remained exposed and not terminated.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that the requirements for airconditioning units are part of the DAN. The units could only be fitted at final stage but were not fitted at the time of Mr Clarke’s inspection and therefore the construction did not conform to the DAN.
Mr Petzel’s evidence is that electrical installations, other than stand-alone hard wired smoke alarms, are not included in the guidelines as an aspect or item of assessable building work nor is airconditioning an aspect of assessable building work.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 24
This item of complaint is that the step into the laundry from the external door entrance did not comply with the BCA.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that the step height into the laundry did not comply with the BCA and was of non-compacted crusher dust.
The evidence of Mr Petzel is that the BCA is satisfied if steps are not incorporated where a threshold is less than 190mm above the adjoining surface. The BSA have submitted that the photograph included as attachment H to the document titled “Applicant’s Response to Respondent’s Submission” dated 7 September 2012 illustrates that the threshold is less than 190mm above the adjoining surface which is crusher dust.
I accept the evidence of Mr Petzel and the submission of the BSA. I am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 25
This item of complaint is that no handles were installed on the inside of the utility room doors.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that doors must have a suitable method for opening and closing and this is a safety issue.
Mr Petzel’s evidence is that “door handles” is not an aspect of assessable building work.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item.
Item 26
The remaining aspect of this item of complaint is that no lock was installed on the internal door between garage and laundry.
The issue for the tribunal is whether Mr Clarke in issuing the final certificate of inspection has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that the absence of a lock on this door leaves the property insecure.
Mr Petzel’s evidence is that the BCA does not require the installation of a lock and the installation of locks is not an aspect of the final inspection stage.
I accept the evidence of Mr Petzel and am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct in relation to this item.
Item 27
This item of complaint is that the external and internal door installation does not comply with the BCA.
The issue for the tribunal is whether Mr Clarke in issuing the final inspection certificate has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that doors and door frames have been poorly or incorrectly installed and that Mr Clarke would have seen these items as defective or incomplete.
The evidence of Mr Petzel is that under the guidelines these are not aspects of the final stage inspection nor is it the role of the certifier to assure aesthetics, quality and reliability of workmanship on behalf of the owner or builder.
I accept the evidence of Mr Petzel and am not satisfied that in relation to this item Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Item 29
This item of complaint is that Mr Clarke in stating the construction conforms to the BCA is deliberately misleading the BSA when the construction does not conform to the DAN.
The issue for the tribunal is whether Mr Clarke has engaged in unsatisfactory conduct or professional misconduct.
Mr and Mrs Mannix contend that in a letter received by the BSA on 13 November 2009, Mr Clarke has in relation to an investigation or audit, given the BSA a document containing information he knows is false or misleading in a material particular in contravention of the Building Act.[22]
[22] Building Act 1975 s 203.
Mr Petzel contends that the basis of this claim by Mr and Mrs Mannix is premised on their lay interpretation of the drawings and Building Act being correct but even if their interpretations were correct, that would not prove Mr Clarke had knowingly provided false or misleading information to the BSA by communicating interpretations that differed from theirs.
The BSA submitted that while this complaint is premised on Mr Clarke by letter having falsely informed the BSA that the building work does conform to the approved Development Decision Notice (Form 6), nowhere in the letter does Mr Clarke claim that it does. The BSA submits that far from informing the BSA that the building work conforms to the building development approval, Mr Clarke refers to non-conforming work and explains why, notwithstanding, the building work complies with the building assessment provisions.
I accept the evidence of Mr Petzel and the submissions made on behalf of the BSA. I am not satisfied Mr Clarke has engaged in unsatisfactory conduct or professional misconduct as regards this item of complaint.
The “Hierarchy of Power” Argued by Mr and Mrs Mannix
Mr and Mrs Mannix have throughout their evidence and submissions asserted the interpretation which ought to be given to the legislation and documents associated with building certification. Their written submissions have specifically addressed their approach. Mr Petzel has remarked on some claims being premised on the lay interpretation of the drawings and legislation by Mr and Mrs Mannix and elsewhere is of the view they misapprehend the requirements on a certifier.
In submissions at the hearing Mr Mannix was critical of the profession’s reliance on ‘guidelines’ arguing that these should be applied as a very minimum not a maximum and that ‘just because it’s not directly stated in the guidelines doesn’t mean it shouldn’t be done!’. He gave an example of where a practice in another state differed from that in Queensland and submitted that ‘best practice’ should be followed regardless of jurisdiction. He referred to ‘commonsense’ and ‘what the public would expect’. He asserted that Mr Clarke would have clearly seen or known the construction breached the DAN and ignored it.
As submitted by Mr Cole, such assertions about what Mr Clarke saw or knew are speculation. In my view Mr and Mrs Mannix misunderstand the role of a building certifier and in particular expected a final inspection to equate possibly to a prepurchase inspection where every aspect of the property (and I use the word “aspect” in its general sense) is inspected and reported upon.
I have preferred the interpretation of Mr Petzel as a professional qualified to give evidence regarding building certification and have rejected the interpretation of Mr and Mrs Mannix where it conflicts with that of Mr Petzel, which it frequently does.
For these reasons the respondent’s decision is confirmed and the application dismissed.
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