Queensland Building and Construction Commission v Weber - [2014] QCAT 448

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
Building Regulation 2006 (Qld), s 49
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 64

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCAT 448
Decision Date: 9 September 2014

CaseChat Overview and Summary

In the matter of Queensland Building and Construction Commission v Weber, the dispute arose from the actions of Harald Weber, a building certifier, who was accused of professional misconduct in relation to his certification of building work. The Queensland Building and Construction Commission (QBCC) investigated a complaint and subsequently filed an application to commence disciplinary proceedings against Mr Weber. The primary issue before the court was whether the alleged conduct of Mr Weber, as outlined in the application, was substantiated.

The court considered the specific allegations against Mr Weber, including the non-compliance of his performance assessment document with the Building Act and the Building Code of Australia. The performance assessment document in question pertained to the waterproofing of a concrete floor in a residential property and included instructions for the periodic reapplication of a sealer to maintain the waterproofing effectiveness. Mr Weber argued that his actions did not constitute the formulation of an alternative solution but rather conditions of approval. However, the court found that Mr Weber's actions did indeed amount to formulating an alternative solution as defined under the relevant legislation. Furthermore, the court addressed Mr Weber's failure to inspect certain work and his acceptance of an inadequately completed certificate from the builder, which also contributed to the substantiated findings of professional misconduct.

The court concluded that there were proper grounds for the disciplinary action against Mr Weber under the Building Act. It held that Mr Weber's conduct constituted professional misconduct by formulating and assessing an alternative solution that did not comply with statutory requirements, issuing development approval in breach of the Act, failing to inspect work as required, and accepting an incorrectly completed certificate. The court also found that Mr Weber breached multiple items of the Code of Conduct for building certifiers. The court directed the QBCC to file and deliver written submissions regarding the appropriateness of the penalty to be imposed by a specified date.

Orders

Orders of the court

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);

(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

Background

Background to the litigation

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:BackgroundA 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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