Queensland Building and Construction Commission v Weber
[2014] QCAT 448
•9 September 2014
| CITATION: | Queensland Building and Construction Commission v Weber [2014] QCAT 448 |
| PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v | |
| Harald Weber (Respondent) |
| APPLICATION NUMBER: | OCR263-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 9 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Proper grounds exist for the taking of disciplinary action under s 208 of the Building Act 1975 (Qld) against Mr Harald Weber as he has behaved in a way that constitutes professional misconduct by: (i) Engaging in the following conduct: (a) formulating and assessing an alterative solution that did not comply with s 26 of the Building Act 1975 (Qld) and Parts 1.0.9 and 1.0.10 of the Building Code of Australia; (b) issuing a development approval for building works when Mr Weber had formulated and assessed the alternative solution in breach of s 137 of the Building Act 1975 (Qld); (c) failing to inspect work performed in respect of flashings over the windows and doors of the property as required by the ‘guidelines for inspection of Class 1(a) and 10 buildings and structures’ and s 24 of the Building Regulation 2006 (Qld); (d) accepting an incorrectly and/or inadequately completed form 16 certificate from the builder in relation to waterproofing of the wet areas of the bathroom in breach of item 8 of the Code of Conduct for building certifiers; (ii) Breaching items 1,3,8,9 and 10 of the Code of Conduct for building certifiers having engaged in certain conduct particularised in paragraph (i) (a), (b), (c) and (d) above. The Tribunal directs that: 2. The Queensland Building and Construction Commission to file in the Tribunal and deliver to Harald Weber any outline of written submissions as to appropriateness of penalty to be imposed by: 4:00 pm on 23 September 2014 |
| 3. Harald Weber to file in the Tribunal and deliver to the Queensland Building and Construction Commission any outline of written submissions in reply by: 4:00 pm on 7 October 2014 4. The application OCR263-13 is listed for a two (2) hour oral hearing at Brisbane on 13 October 2014 at 9:30 am. |
| CATCHWORDS: | OCCUPATIONAL REGULATON – building disciplinary proceedings – professional misconduct – where certification of building work – where complaint made and investigated – where application to start a disciplinary proceeding filed – whether alleged conduct is substantiated Building Act 1975 (Qld), s 208 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Harald Weber is a licensed building certifier with approximately 20 years experience in the industry of development approval endorsement. Mr Weber holds a Bachelor of Building Surveying degree; and has issued several certifications or approvals since establishing his business All Construction Approvals in about November 2000.
All Construction Approvals employs certifiers including Mr Weber and four cadet certifiers; and has issued approximately 25,000 certifications or approvals since commencing operation, for buildings including sheds, units, warehouses, offices and residential dwellings.
On 1 March 2010 All Construction Approvals was engaged by a builder, Haztea Pty Ltd trading as Garage World Cairns (‘the builder’) to perform private building certification work for a private dwelling at Lot 151 Forrest Close, Kuranda (‘the property’).[1]
[1]Now described as 3 Forrest Close, Kuranda, Queensland.
Mr Weber was responsible for assessing drawings for the property to be constructed. Mr Weber determined that the proposed property as it appeared in the drawings complied in all respects with the Building Code of Australia.[2] Mr Weber did not personally attend the property for inspection.[3]
[2]Respondent’s written submissions filed on 26 March 2014.
[3]Statement of Harald Walter Weber dated 17 October 2012 being attachment marked ‘GWS-1’ to the affidavit of Gregory William Stirling sworn 20 March 2014.
In or about April 2010 Mr Weber issued the development approval for the property and on 17 May 2010 he conducted the footings and slab inspection of the property. Mr Weber was also responsible for inspecting the frame at the property on 30 June 2010. A final inspection of the property was conducted on 16 September 2010.
On 12 December 2011, the Queensland Building and Construction Commission (QBCC) received a complaint from the owner of the property about aspects of the building work that had been certified by Mr Weber. In particular, the owner complained about Mr Weber’s conduct as a certifier.
The QBCC has the power under the Building Act 1975 (Qld) (‘the Building Act’) to investigate complaints made to it about alleged unsatisfactory conduct or professional misconduct of building certifiers.[4] The complaint made by the owner of the property detailed several items of concern about the property including water damage to the walls in the bathroom and there are no flashings on the doors and windows in the courtyard.
[4]Building Act, s 194. See QBCC notice and reasons for decision dated 4 July 2012, para 15, affidavit of Michael Roy Pehrson sworn 17 October 2013 and the form 21, Bundle of Documents filed by the QBCC, p 369.
The QBCC, after receiving the complaint and inspecting the works being the subject of the complaint determined that Mr Weber had engaged in professional misconduct in relation to the building certification work performed at the property. The QBCC gave notice to Mr Weber of its determination on 4 July 2012.[5]
[5]Building Act s 204.
The QBCC filed an application or referral for a disciplinary proceeding in the Tribunal on 18 October 2013 proposing grounds exist under s 208[6] to take disciplinary action against Mr Weber, a building certifier, on the basis that he (Mr Weber) behaved in a way that constitutes professional misconduct as defined in Schedule 2.[7]
[6]Building Act.
[7]Schedule 2 of the Building Act defines “professional misconduct’.
The Tribunal has received written submissions and supporting material filed by the parties in relation to the grounds for taking disciplinary action and the proposed orders sought by the QBCC. The application is to be determined on the papers without an oral hearing.[8]
[8]Directions made by the Tribunal dated 30 April 2014 and 12 December 2013.
Are there grounds for taking disciplinary action?
The grounds set out in the application giving rise to the disciplinary proceedings are as follows:
a) Mr Weber formulated and assessed an alternative solution for a bathroom that did not comply with s 26 of the Building Act and Parts 1.0.9 and 1.0.10 of the Building Code of Australia (BCA);
b) Mr Weber issued a development approval for building works when he had formulated and assessed the alternative solution in breach of s 137 of the Building Act 1975;
c) Mr Weber failed to inspect work performed in respect of flashings over the windows and doors of the property as required by the ‘guidelines for inspection of Class 1(a) and 10 buildings and structures’ and s 24 of the Building Regulation 2006 (Qld) (‘the Building Regulation’);
d) Mr Weber accepted an incorrectly and/or inadequately completed form 16 certificate from the builder in relation to water proofing of the wet areas of the bathroom in breach of s 48 of the Building Regulation;
e) Mr Weber accepted a form 16 certificate signed by the builder for the installation of plumbing materials when such work was required to be signed by a licensed plumber pursuant to s 42 and s 43 of the Building Regulation.
The QBCC also allege breaches of the Code of Conduct for Building Certifiers by Mr Weber; in particular items numbered 1 to 10 (inclusive).
Mr Weber accepts the allegations in relation to paragraphs (a), (c) and (e) outlined in paragraph [11] above.[9] Mr Weber also accepts that he failed to comply with items 3 and 8 of the Code of Conduct; and acknowledges that there are grounds for taking disciplinary action against him as a building certifier.[10]
[9]With the exception of the finding in ground (a) in that Mr Weber formulated the alternative solution, Respondent’s written submission filed on 26 March 2014.
[10]Ibid.
Grounds (a) and (b) – formulating and assessing an alternative solution
Grounds (a) and (b) relate to building works completed to the bathroom that consisted of an unenclosed or freestanding ‘roman style’ bath; and the bathroom floor that had been constructed using polished concrete or a sealing system identified as a ‘Husqvarna Hyper floor product’ that had been applied to the bathroom floor.[11]
[11]Ibid.
Mr Weber did not personally inspect the bathroom. Mr Nesbit, Mr Weber’s cadet from All Construction Approvals, attended the property on 16 September 2010 to inspect the bathroom.
It is non-contentious that the building work in relation to the bathroom did not comply with the development approval. Mr Weber concedes in written submissions filed that the correct process when presented with building work that did not comply with the development approval was to require the builder to provide an alternative solution for assessment.
It is submitted by the QBCC and accepted by Mr Weber that the following steps should have been taken by him after inspection of the bathroom:
a) issue a non-compliance notice (with the development approval) to the builder;
b) require the builder to provide an alternative solution for the bathroom assessment;
c) receive an alternative solution document for the bathroom;
d) assess whether that document complied with s 26 of the Building Act;
e) assess whether the alternative solution outlined in the document complied with the performance requirements of the BCA equivalent to the deemed to satisfy provisions in the Code or a combination of both;
f) issue an amended development approval once Mr Weber was satisfied the alternative solution complied with the BCA.
Mr Weber took steps himself including requesting information from the builder and conducting research to determine the suitability of the waterproofing product (used in the bathroom) that purports to satisfy the performance requirements of the BCA. Mr Weber, after taking certain steps, prepared a document titled ‘assessment of a performance design’ (the performance assessment document) that effectively detailed an alternative solution for the bathroom.
Mr Weber contends that Mr Nesbit having inspected the completed bathroom and upon receipt of a form 16 inspection or aspect certificate (for waterproofing material) completed by the builder, queried with the builder details of the floor product used on the bathroom floor. Mr Weber relied on information allegedly given to Mr Nesbit who identified the floor sealant used as ‘Husqvarna Hyper Floor’.[12]
[12]Email from the builder (Garage World) dated 14 September 2010 being attachment marked ‘HWW-5’ to the statement of Harald Weber dated 17 October 2012 identified as exhibit marked ‘GWS-1’ to the affidavit of Gregory William Sterling sworn 20 March 2014.
Mr Weber refers to research conducted by him and Mr Nesbit in relation to the ‘Husqvarna Hyper Floor’ system before preparing the performance assessment document.[13] Mr Weber in his statement dated 17 October 2012 states:
Before I issued my performance assessment Brian Nesbit [and] I researched the Husqvarna Hyper floor product together online, and we determined that the product met the performance requirements for wet areas (P2.4.1) and the [sic] deemed-to-satisfy solutions (Part 3.8.1) parts of the BCA and AS3740.[14]
[13]Mr Weber relied on an email sent by the builder (Garage World) dated 14 September 2010, see attachment marked ‘HWW-6’, statement of Harald Walter Weber dated 17 October 2012, ibid.
[14]Statement of Harald Walter Weber dated 17 October 2012, para 63 ibid.
Mr Weber, as the certifier, issued the final inspection certificate (form 21) for the property that noted the performance requirements.[15] The form 21 with respect to ‘performance requirements’ states:
Performance requirements
This building has been subjected to an alternative solution analysis with regards to P2.4.1 – Wet areas. The sealer coat that has been applied to the concrete floor must be re-applied every 12 months for the waterproof barrier to work effectively. As such no alterations shall occur in these areas without the approval of a competent building certifier.
[15]As required by s 26 of the Building Act. See form 21, Bundle of Documents filed by the QBCC, p 369.
Mr Weber concedes in written submissions filed that the assessment process for the alterative solution was not in accordance with Parts 1.0.9 and 1.0.10 of the Building Code of Australia. Mr Weber also concedes that the performance assessment document did not comply with s 26(b) of the Building Act. Mr Weber in his statement dated 17 October 2012 states:
I accept that my performance assessment did not comply with section 26(b) of the Building Act as far as I was not presented with a correctly formulated alternative solution for waterproofing of the bathroom floor from [sic] independent expert.[16]
[16]Statement of Harald Walter Weber dated 17 October 2012, para 91, identified as exhibit marked ‘GWS-1’ to the affidavit of Gregory William Sterling sworn 20 March 2014.
Mr Weber contends that he did not formulate an alternative solution for the bathroom. Mr Weber also contends that the QBCC have not provided sufficient facts upon which the allegation (as it relates to ground (a)) is based.
What is an alternative solution?
An alternative solution is defined under Schedule 2 of the Building Act as:
alternative solution means a material, system, method of building or other thing, other than the following, intended to be used by a person to comply with relevant performance requirements—
(a)if the relevant performance requirements are under the BCA—a building solution under the BCA that complies with the deemed-to-satisfy provisions under the BCA for the performance requirements;
(b)if the relevant performance requirements are under the QDC—an acceptable solution under the QDC for the performance requirements.
Section 26 of the Building Act identifies ‘requirements’ in relation to stating the performance requirements including details with which the building work purports to comply if an alternative solution is used, in supporting documents.
The performance assessment document prepared by Mr Weber did not comply with s 26 of the Building Act. The performance assessment document provides ‘background’ information as follows:
Background
A polished concrete floor has been proposed to the WC, Bath and the laundry areas in the dwelling…. Originally the floor has been assessed to be an acceptable solution when compared against the deemed to satisfy provisions and the performance requirements listed in the [Building Code of Australia], Volume 2.
…
In relation to the application of a sealer to be applied to the floor the performance assessment document states:
If the sealer were to be re-applied every 12 months this [sic] avoid deterioration of the effectiveness of the coating through the use of cleaning products and would be considered an acceptable method for waterproofing.[17]
[17]Assessment of a performance design for Lot 151 Forest Close, Kuranda attachment marked ‘HWW-6’, statement of Harald Walter Weber dated 17 October 2012, attachment marked ‘GWS-1’ to the affidavit of Gregory William Stirling sworn 20 March 2014.
The performance assessment document also requires the display of a ‘notification’ in the meter box and kitchen cupboard stating as follows:
This building has been subject to an alternative solution analysis with regards to P2.4.1 Wet areas. The sealer coat that has been applied to the concrete floor must be reapplied every 12 months for the waterproof barrier to work effectively. As such, no alterations shall occur in these areas without his approval of a competent building certifier.[18]
[18]Ibid.
Mr Weber submits that he did take ‘numerous’ steps to satisfy himself as to the alternative solution’s efficacy. Furthermore, by requiring the builder or owner to take ‘steps’ outlined in the performance assessment document - in particular applying a sealant to the bathroom floor every 12 months - and by displaying a notice in relation to maintaining a water resistant barrier, Mr Weber submits he has provided conditions of approval and not a formulation of an alternative solution.[19]
[19]Respondent’s written submissions filed on 26 March 2014, para 39.
Did Mr Weber formulate an alternative solution for the purposes of grounds (a) and (b)?
I do not accept Mr Weber’s submission that the QBCC has failed to provide any facts upon which the allegation is based with respect to formulating the alternative solution for the purposes of ground (a). The QBCC has made findings in the notice of decision dated 4 July 2012 and has prepared written submission in relation to the application that addresses the alleged conduct.
Section 14 of the Building Act is the relevant provision that applies for the purposes of determining whether building work (under the Act) complies with the BCA or the Queensland Development Code (QDC); and whether a relevant building solution is achieved for the purposes of s 14(3).
Section 14(4) refers to ‘formulating an alternative solution’ that for the purposes of s 14(4)(c) is a combination of s 14(4)(a) and s 14(4)(b) - a relevant building solution is achieved for a performance requirement only by complying with the relevant deemed-to-satisfy provisions under the BCA for the performance requirement; (or) formulating an alterative solution that complies with the performance requirement; or is shown to be at least equivalent to the relevant requirement.
The Building Act does not define the meaning of ‘formulating’ for the purposes of s 14(4)(b). The word ‘formulate’ has the everyday meaning of ‘to create’ and the dictionary meaning of ‘express in a formula; express clearly and precisely’.[20]
[20]The Australian Concise Oxford Dictionary, 3rd Ed, Reprint 1999.
The QBCC submit that Mr Weber by issuing and signing the performance assessment document that includes offering advice as to whether the bathroom met or was equivalent to the deemed-to-satisfy performance requirement provisions of the BCA, resulted in him making recommendations as to the future maintenance of the floor as stated in the performance assessment document.[21]
[21]Ibid, para 19.
I accept the submissions made by the QBCC that Mr Weber has by his conduct both assessed and formulated the alternative solution. [22]
[22]Ibid, para 20.
The performance assessment document prepared by Mr Weber included requirements clearly stated in the document such as the application of a sealer and the display of a notice that was clearly essential to the effectiveness of the waterproof barrier. The waterproof barrier was part of the building works completed by the builder in the bathroom that was being inspected by Mr Nesbit.
The performance assessment document clearly specifies that the sealer applied to the floor (in the bathroom) is an ‘acceptable solution’ when compared against the ‘deemed to satisfy provision and the performance requirements in the Building Code of Australia’. The ‘alternative solution’ analysis committed to writing by Mr Weber was referenced in the final inspection certificate (form 21) certified by him in that the building complies with the building approval or certificates of inspection.
The Tribunal is satisfied for the purposes of ground (a) that Mr Weber has by his conduct in making enquiries, conducting research and committing certain requirements to writing in the performance assessment document as to the application of a sealer and the display of a notice, formulated an alternative solution in relation to the building work (bathroom).
Ground (b) – Did Mr Weber issue a development approval for building works where he had formulated and assessed the alternative solution in breach of s 137 of the Building Act 1975 (Qld)?
Section 137(2) of the Building Act provides that a building certifier will have a ‘conflict of interest’ in performing a private certifying function when the certifier ‘is to carry out the building work the subject of the building certifying function; or is engaged by the owner of the building or the builder to perform a function’ as provided under the Act.[23]
[23]Building Act s 137(2).
The Building Act defines ‘building work’ to include “the preparation of the design of all or part of the building; or carrying out all or part of building work’.[24] Building work for the purposes of s 137 would include the completed work to the bathroom that was inspected by Mr Nesbit.
[24]Building Act s 137(3).
The QBCC submits that Mr Weber by his conduct in creating the performance assessment document that details the alterative solution by reference to the applicable deemed-to-satisfy provisions; and having then assessed it (the alternative solution) as a certifier constitutes a conflict of interest for the purposes of s 137(2) of the Building Act.
Mr Weber denies that he undertook any design work for the bathroom for the purposes of s 137 of the Building Act. Mr Weber submits that the bathroom had been completed at the time of inspection and prior to preparation of the performance assessment. Mr Weber submits that it is not possible to retrospectively design a completed structure and therefore it is not possible that he (Mr Weber) undertook building work as defined under s 137(3)(a) of the Building Act.
Section 137 must be read in the context of the other relevant sections contained in the Building Act. The Building Act regulates private certifiers and other building certifier’s functions. A certifier’s function as provided under s 10 includes amongst others, carrying out building assessment work and, for a development approval, inspecting the building work to decide whether to certify the work. The certifier must not as provided under s 137 perform a private certifying function that would be ‘building work’ because to do so would result in a conflict of interest.
I accept Mr Weber’s submission that the word ‘design’ is not defined in the Building Act and that the word ‘design’ can have the meaning in the context of s 137 to ‘prepare a plan or blue print for work’. The word design can also have the ordinary meaning of to ‘prepare a system or method’ in the context of building work performed such as the installation of a waterproofing system.
The Tribunal has determined for the purposes of ground (a) that Mr Weber has in committing certain requirements to writing formulated a solution in relation to the building work (bathroom), in particular the waterproofing, that subject to those requirements, satisfies the performance requirements under the Building Code of Australia. The bathroom including the installation of the ‘Husqvarna Hyper Floor’ system was building work that was completed by the builder.
Mr Weber has by his conduct in preparing the performance assessment document that effectively designed a solution for the waterproofing has formulated an alternative solution that is not a building certifier’s function for the purposes of the Building Act. Mr Weber in certifying the work and issuing the form 21 in his role as the certifier has breached s 137 of the Building Act.
I am satisfied that there has been a breach of s 137 of the Building Act and that ground (b) has been substantiated.
Ground (d) – Did Mr Weber accept an incorrectly and/or inadequately completed Form 16 certificate from the builder in relation to waterproofing of the wet areas of the bathroom in breach of s 48 of the Building Regulation?
Mr Weber contends that the Tribunal should not make a finding in relation to a breach of s 48 of the Building Regulation, as the section did not apply to the form 16.
The QBCC concedes that Mr Weber is not required to comply with s 48 of the Building Regulation and has made an application pursuant to s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to amend the substantive application filed in relation to the reference to s 48 of the Building Regulation to be removed and the following inserted:
In breach of item 8 of the Code of Conduct for building certifiers.[25]
[25]QBCC’s written submissions filed on 23 May 2014, at [26].
The relevant Code of Conduct for building certifiers sets out standards of conduct and professionalism expected of certifiers when conducting certification work in Queensland. The relevant Code of Conduct[26] provides that a building certifier must, amongst others, perform building certification functions in the public interests, maintain satisfactory levels of competence and comply with legislative requirements.[27]
[26]Schedule 2 of the Building Act.
[27]Code of conduct for building certifiers, effective 14 November 2003.
Relevantly, item 8 of the Code provides that a building certifier must ‘take all reasonable steps to obtain all relevant facts when performing building certifying functions’. A building certifier must:
· keep themselves informed and to consider all relevant and available information when performing building certifying functions
· demonstrate that all reasonable steps have been taken to obtain and document all available facts relevant to performing building certifying functions.
The Tribunal is satisfied that there is no prejudice that may be attributed to Mr Weber in relation to the QBCC’s application to amend the wording of Ground (d) to refer to a breach of item 8 of the Code of Conduct. It is non-contentious that s 48 of the Building Regulation does not apply to Mr Weber and the Tribunal is satisfied that Mr Weber has had an opportunity to make submissions and present relevant material in relation to the application before the Tribunal. The application filed by the QBCC at first instance also included reference to a breach of the Code of Conduct (including item 8). The Tribunal will therefore allow the amendment under s 64 of the QCAT Act to ground (d).
Grounds (d) and (e) concern conduct related to Mr Weber having relied on the form 16 provided by the builder in relation to the waterproofing in the bathroom.
There is provision under the Building Regulation for a building certifier to rely on a certificate given by a QBCC licensee such as the builder.
Section 49(2) of the Building Regulation provides that a building certifier ‘may’ in performing functions under the Act for ‘assessable building work, accept and, without further checking, rely on a QBCC licensee certificate given under section 43, if the certificate relates to the work’. Relevantly, s 43 of the Building Regulation provides that where building work is subject to a building development approval, ‘the QBCC licensee may give the building certifier a certificate in the approved form that the aspect work complies with the approval’.
The QBCC contends that the form 16 was not in the approved form for the purposes of s 254 of the Building Act because it was deficient; and Mr Weber was therefore not entitled to rely upon the certificate pursuant to s 49(2) of the Building Regulation because it was not a certificate issued under s 43.[28]
[28]QBCC written submission dated 23 May 2014, para 40. See Cross & Ors v Peebles [2013] QCA 26 at [32] to [37].
The QBCC submits that the form 16 is insufficient because it fails to particularise which part of the house the waterproofing material has been applied to, surfaces it has been applied to and how the material was applied. Furthermore, the QBCC submits that there is no reference in the form 16 to the waterproofing material being part of ‘an alternative solution’ for the bathroom and has failed to indicate that he (the builder) certifies the aspect of building work stated in the certificate as being compliant with the building development approval.
The QBCC refers to the lack of particularisation in relation to requirements such as tests, specifications, rules, standards, codes of practice and other publications having been considered as required by the form under ‘part 5’. The information that appears at ‘part 5’ in the form 16 is as follows:
As per AS3740, Building Code of Australia Vol 2 and product installation guidelines.
The QBCC also refers the Tribunal to the relevant Code that requires Mr Weber as the certifier to ‘take all reasonable steps to obtain all relevant facts when performing building certifying functions’. The QBCC submits that Mr Weber failed to comply with this ‘obligation’ on the basis that there were deficiencies in the form 16 and he should therefore have made further enquiries.
I accept the submissions made by the QBCC that s 49(2) of the Building Regulation requires an exercise of discretion by the building certifier in deciding whether to rely upon a form given under s 43. I accept that Mr Weber as a building certifier in performing his functions under the Building Act has an obligation to ensure that the building work he is certifying is compliant with all relevant rules and regulations to ensure, as submitted by the QBCC, that the work ‘will not adversely affect the health and safety and amenity of the occupants’.[29]
[29]QBCC written submissions filed on 23 May 2014, para 44.
There are consequences that flow from the certification of the building work in relation to the bathroom. In exercising discretion as to whether a form should be relied upon under s 49 of the Building Regulation, a building certifier should, as submitted by the QBCC, ‘apply his or her judgment to each case and determine whether it is reasonable to accept the certificate without further checking’.[30]
[30]Ibid, para 45.
Mr Weber acknowledges that on the form 16 the builder has ‘ticked the wrong box on the front page’ and that the box stating ‘QBSA licensee aspect certificate’ should have been ticked.[31] The box that has been ticked on the form 16 indicates that the form is an inspection certificate.
[31]Respondent’s written submissions filed on 26 March 2014.
Mr Weber accepts that the builder’s form 16 certificate relating to the bathroom floor ‘could have contained more detail’ about the specific location of the waterproof membrane.[32] Mr Weber contends however that, notwithstanding, the ‘falsehood’ about the builder having applied a waterproofing product in accordance with appropriate guidelines would have remained.[33]
[32]Affidavit of Harald Walter Weber dated 17 October 2012, p 5, identified as exhibit marked ‘GWS-1’ to the affidavit of Gregory William Sterling sworn 20 March 2014.
[33]Ibid.
Mr Weber in written submissions filed refers to representations made by the builder in relation to the waterproofing work performed. Mr Weber contends that he subsequently made enquires with the builder regarding the type of product that was applied to the floor.[34]
[34]Ibid, at [41]-[42].
Mr Weber submits that he accepted a form 16 completed by the builder and oral advice from Mr Nesbit that had reportedly been given to him by the builder that all aspects of the waterproofing had already been completed (by the builder).[35] In his statement dated 17 October 2012, Mr Weber refers to an email sent by the builder to the owner dated 25 October 2011 that states:
The water proofing was done before the skirting was installed, the wall was sealed between the wall and the floor, the wall had the water proofing taken up about 65 mm and then a sealant was put along the bottom edge of the wall, this sealed between the concrete and the wall. The skirting was installed as a decorative feature and not as part of the water proofing, but we sealed the back of the skirting for good measure and as well as run sealant along the bottom edge.[36]
[35]Exhibit ‘HWW-3’ to the Statement of Harald Walter Weber sworn 17 October 2012, Mr Weber’s written submissions filed on 26 March 2014, at [37].
[36]Statement of Harold Weber dated 17 October 2012, para 33, see attachment marked “HWW-4’.
I accept the QBCC submission that there is no independent evidence to corroborate Mr Weber’s evidence about the representations allegedly made by the builder to Mr Nesbit. The email sent by the builder dated 25 October 2011 is addressed to the owner of the property and is dated approximately 11 months after Mr Nesbit inspected the property.
I am satisfied that for the purposes of ground (d) Mr Weber has not taken all reasonable steps to obtain all relevant facts as required under item 8 of the Code. Mr Weber has exercised poor judgment by accepting an incorrectly and/or inadequately completed form 16 certificate from the builder in relation to the water proofing of the wet areas of the bathroom. Mr Weber accepts that the wrong box was ticked on the form 16 and that the form could have contained ‘more detail’. I am satisfied ground (d) is substantiated.
Ground (e) – Did Mr Weber accept a Form 16 certificate signed by the builder for the installation of plumbing materials when such work is required to be signed by a licenced plumber pursuant to s 42 and s 43 of the Building Regulations 2006 (Qld)?
Mr Weber accepts in written submissions filed that he relied on a further form 16 in relation to the plumbing materials.
The further form 16 was completed by a licensed plumber and signed by the builder. Mr Weber contends that there are no consequences that flow from his conduct on the basis that there is no issue in relation to the plumbing materials and the plumbing work was the subject of inspection by the local council.
I accept ground (e) is substantiated. Any consequences that flow in relation to Mr Weber’s conduct in accepting a further form 16 certificate completed by a licensed plumber will be relevant to determining the appropriateness of any discipline or sanction to be imposed.
Ground (c) – Did Mr Weber fail to inspect work performed in respect of flashings over the windows and doors of the property as required by the ‘guidelines for inspection of Class 1(a) and 10 buildings and structures’ and s 24 of the Building Regulation 2006?
In written submissions filed, Mr Weber accepts the finding made by the QBCC that the property was certified without any flashings having been installed in relation to the doors and windows of the property’s courtyard.
Mr Weber also accepts that flashings should have been installed on the doors and windows of the property’s courtyard.
Mr Weber, in his statement dated 17 October 2012 states that the inspection checklist of All Construction Approvals did not include an item for window and door flashings because ‘weatherboard construction is not a typical method of construction in Far North Queensland’.[37] Mr Weber states that he has amended the All Construction Approvals checklist so that it now requires consideration of whether windows and doors require flashings to meet the requirements of Part 3.5.3.6 of the BCA.
[37]Statement of Harald Weber dated 17 October 2012, para 67.
I am satisfied ground (c) is substantiated.
Alleged consequences of Mr Weber’s conduct
The QBCC has identified the following problems in relation to the bathroom that were not identified or rectified prior to the building work being certified, or at all:
(a)The floor drainage waste was not in the correct position such that it was too far from the bath.
(b)The floor falls to the drainage waste were not sufficient to allow water to adequately drain to the waste.
(c)The unenclosed shower over bath was less than 100 millimetres from the painted plasterboard wall such that it was acting as a wet wall.
(d)The top of the skirting of the wet wall was not sealed to the wall adequately.
(e)The skirting was not painted.
(f)The skirting was not properly waterproofed.
(g)There was no waterproofing material used at the junction of the polished concrete floor and the plasterboard walls.
The QBCC submits that as a consequence of the problems identified in paragraph [75] above, the water within the bathroom failed to drain to the floor waste and pooled at the perimeter walls of the bathroom. The QBCC contends that there is ‘water damage to the unpainted skirting and [water] leaked through the walls into the adjoining linen cupboard in the hallway of the dwelling’.[38]
[38]QBCC written submission dated 23 May 2014, para 57.
The QBCC also contends that the property was certified notwithstanding the fact that there are no flashings installed to the doors and windows of the property and this has contributed to water penetration into the property.
Mr Weber disputes the allegations made by the QBCC in relation to consequences of his conduct.[39] Mr Weber does accept however, consequence (c) in paragraph [75] that the enclosed shower over bath was less than 100 mm from the painted plasterboard wall such that it was acting as a wet wall.[40]
[39]Respondent’s written submission filed on 26 March 2014, para 115.
[40]Ibid.
Consequence (a) – floor drainage waste too far from the bath
Mr Weber contends that there is no mandatory requirement for floor wastes in bathrooms for class 1a buildings under the BCA and building certifiers are not required to check falls in certain circumstances. Mr Weber states:
…building certifiers are not required to check falls in bathroom floors in circumstances where the performance requirements for wet areas (P2.4.1) and the deemed to satisfy solutions (Part 3.8.1) of the BCA and AS3740-2004 do not require floor wastes to be installed.[41]
[41]Statement of Harald Walter Weber dated 17 October 2012, para 26, identified as exhibit marked ‘GWS-1’ to the affidavit of Gregory William Sterling sworn 20 March 2014.
Mr Weber in written submissions filed relies on a ‘Building Newsflash’ that outlines the floor waste requirements within the Australian Standards AS3740-2004 and the BCA. Mr Weber also relies on the Housing Industry Association (HIA) Technical Information document in relation to requirements for waterproofing bathroom floors.
It is accepted by the parties that the shower in the bathroom is an ‘unenclosed’ shower for the purposes of the Australian Standard. Mr Weber contends that the ‘roman bath’ style bathtub in the bathroom had its own floor waste and a floor waste was installed at the junction point for the plumbing fixtures.
Mr Weber states in his statement dated 17 October 2012 that he relied on the information given to him by Mr Nesbit that at the time of the inspection that he (Mr Nesbit) was satisfied that any water that was to escape from the bath would ‘quickly evaporate’. Mr Weber states:
Mr Nesbit informs me and I verily believe that at the final inspection he was satisfied that the bathroom floor met (or appeared to meet) the performance requirements for wet areas (P2.4.1) and the deemed to satisfy solutions (Part 3.8.1) of the BCA and AS3740-2004.[42]
[42]Ibid, para 30.
I do not accept Mr Weber’s evidence that it was not necessary for the bathroom to have a floor waste installed and that notwithstanding it was reasonable for him to rely on Mr Nesbit’s information or advice that the bathroom floor met (or appeared to meet) the performance requirements for wet areas and the deemed to satisfy solutions of the BCA and the Australian Standards.
I prefer the evidence of Mr Pehrson in relation to the requirements for wet areas in bathrooms. Mr Pehrson refers to the BCA that provides ‘objectives’ to ‘avoid injury or danger to occupants of a building from the effects of water in wet areas’. Part 02.4.1 of the BCA Volume 2 under ‘Health and Amenity’ states:
The objective is to safeguard the occupants from illness or injury and protect the building from damage caused by the accumulation of internal moisture from the use of wet areas in buildings.[43]
[43]Affidavit of Michael Roy Pehrson sworn 23 May 2014, para 10 to 11.
I accept the evidence of Mr Pehrson that at the time of inspecting the bathroom (in September 2010) there was in place an Australian Standard that provided requirements for waterproofing of wet areas in residential buildings. The relevant Australian Standard was referenced in the form 16 certificate relied upon by Mr Nesbit and Mr Weber as the certifier at the time of inspection.
The form 16 certificate relied upon by Mr Weber refers to the ‘basis for certification’ and makes specific reference to the relevant Australian Standard. The form 16 states: ‘as per AS3740 Building Code of Australia Vol 2 and product installation guidelines’.
Mr Weber must in performing his role as a certifier ensure there is compliance as required under the Building Act with the BCA and this includes the Australian Standards where applicable.[44]
[44]Building Act s 14.
The AS3740-2004 applies to ‘all residential buildings and is intended for use by building regulators, designers, builders, waterproofing contractors and associated trades’. It also provides that it set out requirements for materials and ‘minimum design and installation criteria for the waterproofing or wet areas within residential buildings’. AS3740-2004 requires a floor waste to be installed ‘to drain the water that falls external to the bath’ as identified in Figure 4.1 of AS3740-2004.[45]
[45]Affidavit of Michael Roy Pehrson sworn 7 November 2012, para 8.
The AS3740-2004 requires a floor waste to be installed within 1500 millimetres from the shower connection at the wall.[46] I am satisfied that ‘figure 4.1’ as depicted in AS3740 is deemed to be a requirement of the standard. The ‘preface’ to AS3740-2004 makes reference to ‘statements’ referred to in ‘tables and figures’ and this would include Figure 4.1. The relevant part of the ‘preface’ states:
Statement expressed in mandatory terms in notes to table and figures are deemed to be requirements of this standard.
[46]AS3740-2004 figure 4.1. See QBCC written submission dated 23 May 2014, para 68 as amended – see application for miscellaneous matters filed 3 July 2014; and the affidavit of Michael Pehrson sworn 23 May 2014 para 33.
It is not disputed by Mr Weber that the bathroom as constructed did not have a floor waste installed within 1500 millimetres from the shower connection at the wall. Mr Weber does not dispute that the water within the bathroom fails to drain to the floor waste. The bathroom has not been constructed with a floor waste to allow for water to effectively drain away as required by the Australian Standard AS3740-2004.
I have also considered the photographs of the bathroom that clearly depict an unenclosed shower over a bathtub.[47] It is open to the Tribunal to draw the reasonable inference that unless there is adequate drainage including a floor waste in the bathroom, any water escaping from an unenclosed shower may be a potential slip hazard and have consequences for the safety of users of the bathroom and the occupants of the property. Mr Nesbit at the time of inspection and Mr Weber as the certifier when presented with the form 16 certificate that was inadequate and having taken steps to formulate and then assess an alternative solution also had a duty to ensure the building work was compliant with the BCA including any relevant Australia Standards.
[47]QBCC bundle of documents p 53.
I accept the evidence of Michael Pehrson on behalf of the QBCC that the Building Newsflash referred to by Mr Weber is an informative document and is not a legislative requirement.[48] The Building Newsflash identifies that Performance Requirement P2.4.1 is satisfied for wet areas in Class 1 and 10 buildings if as provided in the Newsflash, ‘they are waterproofed in accordance with AS 3740 – Waterproofing of wet areas within residential buildings’. The bathroom floor was not waterproofed in accordance with the Australian Standard.
[48]Ibid, para 32.
I also accept the evidence of Mr Pehrson that the HIA Technical Information document referred to by Mr Weber, in his statement dated 19 November 2012, does not ‘over-ride’ the Australian Standard which is a legislative requirement.[49] Notwithstanding I am satisfied the HIA Technical Information document would not be applicable because the bathroom in relation to the property was not constructed with a timber floor. The HIA document clearly provides ‘requirements’ for ‘waterproofing wet areas in residential buildings’ for timber floors in bathrooms.
Consequence (b) – The floor falls to the drainage waste were not sufficient to allow water to adequately drain to the waste.
[49]Ibid, para 8.
Mr Nesbit did not ‘carefully’ check the fall in the bathroom floor at the final inspection.[50]
[50]Statement of Harald Walter Weber dated 17 October 2012, para 25.
Mr Weber states in his statement dated 17 October 2012 that it was the builder’s failure to properly apply the waterproofing membrane at the floor/wall junction that has (as stated) ‘caused water to leak through the bathroom walk, not inadequate fall towards the floor waste’.[51] Mr Weber states:
If the builder had applied the ‘K10 waterproofing material…as per AS3740, BCA and Product Installation Guidelines’ water would not have been able to leak through the bathroom wall into the adjoining linen cupboard.[52]
[51]Ibid, para 37.
[52]Ibid, para 36.
The Tribunal has made findings in relation to Mr Weber’s conduct at the time of inspecting the bathroom and in relation to preparing the performance assessment document. The Tribunal determined that having been presented with a form 16 certificate that was on Mr Weber’s own admission not completed properly, and then requesting information, and conducting research prior to preparing the performance assessment document, Mr Weber had a duty as the certifier to ensure that the bathroom complied with the BCA including requirements under the Australian Standard.
I am satisfied that the Australian Standard requires design requirements for the waterproofing of wet areas. Relevantly section 4 of AS3740-2004 provides that ‘[w]here required, falls in floor finishes shall allow all surface water to drain without ponding’. Furthermore, section 5.9 of AS3740-2004 requires that ‘[t]he floor shall be finished with a water-resistant surface material…. Where there is a waste, the floor finish shall be constructed so that water flows to waste, without ponding’.
I accept the submission made by the QBCC that Mr Weber prior to certifying the alternative solution has failed to identify that the fall to floor finishes did not allow all surface water to drain without ponding. Mr Weber as a certifier has a duty to ensure that the bathroom including the waterproofing is compliant with the BCA and all requirements under the Australian Standards. The falls in floor finishes were necessary to ensure surface water drained away without ponding to ensure that as submitted by the QBCC ‘the health and amenity of the occupants was not adversely affected’.[53]
Consequence (c) – The unenclosed shower over bath was less than 100 millimetres from the painted plasterboard wall such that it was acting as a wet wall.
[53]QBCC written submission filed on 23 May 2014, para 73.
Mr Weber acknowledges that for the bathroom to meet the performance requirements for wet areas Part 2.4.1 and the deemed to satisfy solutions Part 3.8.1 of the Building Code and AS3740-2004, the plasterboard walls at the property (including the bathroom) that were within 1500 millimetres of the shower rose should have been tiled.
In written submissions filed, Mr Weber contends that Mr Nesbit failed to notice that the bath was, as submitted, ‘actually a shower over a bath during his final inspection’.[54] Mr Weber states in his statement dated 17 October 2012:
Brian Nesbit failed to pick this up during his final inspection probably because the shower rose was ceiling mounted over the centre of the bathtub rather than wall mounted as is usual.[55]
[54]Respondent’s written submission dated 26 March 2014, para 116.
[55]Statement of Harald Weber dated 17 October 2012, para 52.
Mr Nesbit and Mr Weber as the certifier has failed to properly inspect the bathroom works and clearly missed a relevant failure of the work that the shower was unenclosed. It is open to the Tribunal to draw the reasonable inference that water has escaped from the unenclosed shower and wet all of the surrounding walls. The water on the surrounding walls has more than likely contributed to water damage to the adjoining linen cupboard in the hallway of the property because there was no waterproofing membrane at the ‘wall/floor junctions’.[56]
[56]See QBCC notice and reasons for decision dated 4 July 2012, p 29, affidavit of Michael Roy Pehrson sworn 17 October 2013.
Consequence (d) – The top of the skirting of the wet wall was not sealed to the wall adequately.
The wooden skirting board was not sealed to the wall lining at the top of the skirting. As a result, water has penetrated behind the skirting. The QBCC submits that the reason why the water has penetrated behind the skirting is because the shower over the bath is unenclosed and the shower water (during operation of the shower) ‘simply ran down the wall and entered to the wall space’.[57]
[57]QBCC written submissions dated 23 May 2014, para 75.
I do not accept Mr Weber’s submission that there is no requirement that the top of the skirting of the wet wall should be sealed to the wall. Mr Weber concedes that Mr Nesbit failed to notice at the time of inspection that there was a shower over the bath. The bath was unenclosed and water would therefore be able to escape. Mr Weber as the certifier in circumstances where he has received an incomplete form 16, requested information, made enquiries and prepared a performance assessment document should have taken steps to be satisfied that the bathroom wet areas would not fail. The issue of water penetration including water being able to penetrate behind the skirting and into the wall is important to ensure the integrity of the building and to avoid risk of injury or danger to users of the bathroom.
Consequence (e) – The skirting was not painted.
Mr Weber acknowledges that it would have been ‘prudent’ to have the builder paint the skirting.[58]
Consequence (f) – The skirting was not properly waterproofed.
[58]Respondent’s written submissions, para 123.
The Tribunal has made findings in relation to Mr Weber’s conduct that he relied on information given to Mr Nesbit by the builder that the waterproofing had been done before the skirting was installed. Mr Weber also relied on the form 16 certificate completed by the builder. Mr Weber contends that there was no way for him to determine that the floor to wall junction was not properly waterproofed without conducting an intrusive inspection.[59]
[59]Respondent’s written submissions dated 26 March 2014, para 137.
The Tribunal has made findings in relation to Mr Weber’s conduct in relation to the form 16 and the steps taken by him in relation to formulating and assessing an alternative solution. I do not accept Mr Weber’s submission that the inadequate waterproofing was something that he was not obliged to identify. The form 16 was inadequate and Mr Weber as the certifier should have made further enquiries or requested further information in relation to the waterproofing of the bathroom including the work completed to the skirting to be satisfied that the waterproofing in the bathroom would not fail. The further enquiries that should have been made by Mr Weber were necessary to ensure that water would not be able to escape and penetrate the internal walls causing damage and that water was able to effectively drain away so as to prevent any injury to users of the bathroom.
Consequence (g) – There was no waterproofing material used at the junction of the polished concrete floor and the plasterboard walls.
I do not accept that the waterproofing of the floor to wall junction was not a matter Mr Weber or Mr Nesbit would not have been able to identify at the time of inspection. There is evidence before the Tribunal, in particular the evidence of Mr Pehrson for the QBCC, in relation to the waterproofing material. Mr Pehrson states that the material is a green or grey colour material and at the time of inspection it would have been visible to Mr Nesbit. Mr Pehrson states in his affidavit dated 23 May 2014:
If the K10 was applied to the wall/floor junction in accordance with the Australian Standard [figure 4.1 of AS3740-2004 requires the K10 membrane to be applied onto the concrete floor for a distance of 40mm from the wall] it would have been visible on the polished concrete slab around the perimeter of the bathroom because it is required by AS3740-2004 to be applied 40mm across the floor slab.[60]
[60]Affidavit of Michael Pehrson dated 23 May 2014, para 44.3.
The Tribunal has made findings in relation to the form 16 certificate in that it was not reasonable for Mr Weber to rely on the form 16 waterproofing certificate on the basis that it was incomplete. Mr Nesbit and Mr Weber as the certifier has failed to properly inspect the bathroom including the wet areas. I accept the evidence of Mr Pehrson that had a proper inspection been undertaken by Mr Nesbit it would not have been necessary to carry out an intrusive inspection as contended because it would have been evident, by the colour of the material, that there was no waterproofing material at the junction of the polished concrete floor and the plasterwood walls.
Code of Conduct for Building Certifiers
Mr Weber concedes that he has breached items 3 and 8 of the Code.
A breach of the Code may constitute professional misconduct for the purposes of Schedule 2 of the Building Act. The Tribunal has considered each of the alleged breaches of the Code as follows:
Item 1 – Perform building certifying functions in the public interest
This is relevant to grounds (a), (b), (c) and (d) that have been found to be substantiated by the Tribunal. Mr Weber has formulated and assessed an alternative solution that did not comply with the Building Act and the BCA. In relation to the flashings over windows and doors, Mr Weber accepts that he failed to inspect work performed. There are consequences in relation to Mr Weber’s conduct in that water has not been able to effectively drain away in the bathroom and this has created a safety risk to the users of the bathroom. There is also water damage to the internal walls of the property as a result of the insufficient waterproofing and water has penetrated the internal walls. Mr Weber has not acted in the public interest in performing his role as a certifier. Mr Weber has failed to take all reasonable steps to ensure the health and safety of the occupants of the property and users of the bathroom.
Item 3 – Comply with legislative requirements
This is relevant to grounds (a), (b), (c) and (3) that have been found to be substantiated by the Tribunal. In written submissions filed Mr Weber accepts that he has breached item 3 of the Code.
Item 4 – Not perform building certifying functions where there is the potential for a conflict of interest.
This is relevant to ground (b) that the Tribunal has found to be substantiated. The Tribunal is therefore satisfied that Mr Weber has breached item 4 of the Code.
Item 8 – Take all reasonable steps to obtain all relevant facts when performing building certifying functions
This is relevant to grounds (a), (d) and (e) that have been found to be substantiated by the Tribunal. In written submissions filed Mr Weber accepts that he has breached item 8 of the Code.
Item 9 – Clearly document reasons for building certifying decisions.
The Tribunal has made findings in relation to ground (a) that Mr Weber has formulated and assessed an alterative solution that did not comply with the Building Act and the BCA. I am satisfied that Mr Weber has failed to properly document the alternative solution and how the bathroom with respect to waterproofing was in all respects compliant prior to certification.
Item 10 – Ensure inspections are carried out to ensure building work complies with the Building Act and the development permit.
This is relevant to ground (c). I am satisfied based on the findings made by the Tribunal that item 10 has been breached. Mr Weber concedes that the flashings were not properly inspected and in relation to the bathroom Mr Nesbit failed to notice that there was a shower over the unenclosed bath. The Tribunal has also made finings in relation to the waterproofing membrane in relation to its colour and that the membrane should have been visible to Mr Nesbit at the time of inspection.
Do grounds exist for taking disciplinary action – is the conduct professional misconduct?
The issue to be determined by the Tribunal is not whether Mr Weber failed to properly interpret relevant legislation and standards that apply to building work but whether in performing his duty as a building certifier he ‘acted below a proper standard of behaviour’.[61]
[61]Oliver v Pool Safety Council [2014] QCAT 276, [26].
The Tribunal has made findings in relation to Mr Weber’s conduct, in particular that grounds (a) to (e) inclusive have been substantiated. I am satisfied that Mr Weber’s conduct in relation to grounds (a) to (d) inclusive is professional misconduct for the purposes of the Building Act. Mr Weber did not personally inspect the bathroom and relied on information given to him by his cadet, Mr Nesbit; and the form 16 certificate completed by the builder that was inadequate. Mr Nesbit when inspecting the bathroom failed to properly inspect the works to ensure that the waterproofing would not fail. Mr Nesbit has also failed to properly inspect the building works in relation to the flashings that should have been installed over the windows and doors of the property.
Mr Weber as the certifier has relied on information given to him by Mr Nesbit that was clearly inadequate. There are consequences that flow from Mr Weber’s conduct including presenting a risk to the health and safety of the occupants of the property in using the bathroom and damage to the internal walls of the property as a result of water penetration. Mr Weber in engaging in certain conduct has also breached relevant items of the Code of Conduct for building certifiers.
I am not satisfied however for the purposes of ground (e) having considered the submissions and material before me that Mr Weber’s conduct is professional misconduct as defined under the Building Act. The acceptance and reliance by Mr Weber on the further form 16 certificate that was signed by a licensed plumber is unsatisfactory but as submitted by Mr Weber was related to work that would have been subject to further inspection by the local council. The Tribunal has made findings in relation to Mr Weber’s conduct in accepting an inadequate form 16 certificate completed by the builder in relation to certification of the building works in the bathroom. The consequences that flow from Mr Weber’s conduct based on the material before me attributable are to the conduct relating to grounds (a) to (d) inclusive.
Mr Weber submits in written submissions filed that there was ‘no improper, dishonest or fraudulent motive behind his conduct’.[62] Mr Weber submits that the ‘reason’ for the conduct was to minimise costs and expense to the builder and owner and an ignorance of the applicable rules; or a failure to adequately supervise Mr Nesbit, a cadet supervisor with 3 years experience.
[62]Respondent’s written submission filed on 26 March 2014, para 164.
It is reasonable to expect that a building certifier with several years of experience would take the appropriate steps when presented with building work that does not comply with the development approval, including requiring the builder to provide an alternative solution for the bathroom for assessment. Mr Weber failed to take the appropriate steps and the steps taken by him including making further enquiries about the waterproofing upon receipt of the form 16 certificate were inadequate.
Mr Weber on his own admission refers to having an ‘ignorance of the applicable rules’ or a failure to adequately supervise his cadet, Mr Nesbit. It is expected that that a person suitably qualified as a building certifier would have knowledge of relevant legislation and standards including the Australian Standard that sets out criteria for wet areas within residential buildings and gives minimum requirements for materials, designs and installation. Mr Weber has failed to keep himself informed of relevant standards and legislative requirements including the appropriate steps that should be taken by a building certifier when presented with building work that does not comply with the development approval.
The Tribunal has also made finings that Mr Weber has placed himself in a position of conflict in that he has acted outside his scope of work as a certifier by formulating and assessing an alternative solution by committing to writing certain requirements in the performance assessment document. Mr Weber has failed to abide by the legislative requirements under the Building Act that requires a building certifier to not perform a function that would be a conflict of interest for the purposes of s 137.
I am satisfied that proper grounds exist for the taking of disciplinary action under s 208 of the Building Act against Mr Weber as he has behaved in a way that constitutes professional misconduct.
Proposed Orders
The QBCC in written submissions filed contends that it is open to the Tribunal to make orders including imposing a monetary penalty, reprimanding Mr Weber, imposing conditions on Mr Weber’s licence and that Mr Weber pay the QBCC an amount sufficient to cover the rectification of the defective work. Mr Weber in written submission filed contends that the costs claimed by the QBCC in relation to compensation are not Mr Weber’s responsibility; and amongst others, that any claim for compensation costs have not been adequately particularised by the QBCC.
The Tribunal directs that the parties file and exchange final outline of written submissions in relation to the appropriateness of any penalty to be imposed by the Tribunal. The application is to be listed for an oral hearing and the parties are invited to make submissions at the hearing.
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