Queensland Building Services Authority v Chandra
[2013] QCATA 189
•15 May 2013
| CITATION: | Queensland Building Services Authority v Chandra & Anor [2013] QCATA 189 |
| PARTIES: | Queensland Building Services Authority (Applicant/appellant) |
| v | |
| Mr Suresh Chandra Building Approval & Inspection Consultants Pty Ltd (Respondents) |
| APPLICATION NUMBER: | APL025 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 22 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Peta Stilgoe, Senior Member |
| DELIVERED ON: | 15 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is allowed. 2. The decision of 16 November 2012 is set aside. 3. The scope of works to be performed by Mr Chandra was not limited to certification of the internal work but included an obligation to take all reasonable and necessary steps to ensure that the conversion of a Class 10 space to a Class 1a space complied with all relevant building laws, regulations and codes. |
| CATCHWORDS: | APPEAL – OCCUPATIONAL REGULATION MATTER – DISCIPLINARY PROCEEDINGS – BUILDING PERSONNEL – where respondents engaged to perform approval and certification functions relating to works involving conversion of garage to bedrooms – where the respondents approved and certified the internal works – where there was water damage due to the failure to waterproof the walls of the building – where the Queensland Building Services Authority commenced disciplinary proceedings against the respondents for failure to ensure conversion complied with requirements of class 1a structure – where QBSA contend respondents did not take into account the change of classification from a class 10 (garage) to class 1a (habitable area) – where the Member found the respondents only owed a duty to assess the internal renovations – where the applicants seek to appeal that decision – whether the Member erred in finding the respondents certification of the works was confined to the internal works ADMINISTRATIVE LAW – PROCEDURE AND EVIDENCE – PROCEDURAL FAIRNESS AND NATURAL JUSTICE – where the Member determined the matter on a basis that neither party notified to the other or contended for – where the Member did not allow the parties a reasonable opportunity to provide submissions on the point upon which the Member based the decision – whether there was a denial of natural justice Building Act 1975, s 32 Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd [2011] QSC 293, applied |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr S Formby, in house Counsel for the Queensland Building Services Authority |
| RESPONDENT: | Mr J Gregg, Gregg Lawyers |
REASONS FOR DECISION
This appeal arises out of an allegation by the QBSA, in disciplinary proceedings against Mr Chandra, that he was guilty of professional misconduct in the course of his work as a building certifier under the Building Act 1975 (Qld).
The second respondent, Building Approvals and Inspection Consultants Pty Ltd, is a company which employed Mr Chandra to perform building certification work.
In July 2005, Mr Chandra was asked to provide certification services for the owners of a property at Gaythorne. The owners were converting a garage into two bedrooms. Some of the work had already been completed but the internal work was still to be done.
The plans submitted to Mr Chandra showed both the completed work and the proposed, internal work. Mr Chandra also received a copy of a building contract that referred to the internal work. He provided the services in June 2006 by approving and certifying only the internal work the subject of the building contract.
The house was sold in May 2008. In November 2008, after heavy rain, the new owners noticed water seeping into the ground floor of the house. They engaged an engineer who reported that the water penetration was due to: a failure to waterproof the perimeter walls of the building adequately; the likely absence of a membrane under the slab; and the slab being below the surrounding ground level. The new owners suffered a further water problem after heavy rain in October 2010. They took their problem to the Queensland Building Services Authority (‘QBSA’), which investigated and determined that Mr Chandra failed in his duty as a certifier because he did not ensure that the conversion complied with the requirements of a Class 1a habitable structure. QBSA commenced disciplinary action in QCAT against Mr Chandra.
With the apparent concurrence of the parties, the Tribunal directed in QBSA’s disciplinary proceedings that a preliminary question would be determined on the papers.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 (‘QCAT Act’).
The orders[2] had the effect that the ‘scope of the works’ – i.e., whether Mr Chandra was required only to certify the structures shown in the plans provided to him or whether, as QBSA contends, he was required to certify the renovations to the property taking into account the proper ‘classification’ of the works there in light of the building legislation applying at the time – would be determined as a discrete preliminary question.
[2] 10 July 2012 and 29 August 2012.
The learned Member found that Mr Chandra’s duty as a certifier was limited to that provided by the building contract, which was the internal work.
QBSA seeks to appeal that decision. It says that the learned Member made his decision on an argument that was not raised by either party in the proceeding and that this does not comply with the rules of natural justice. It says that the learned Member based his decision on legislation that was not in force at the relevant time. QBSA says that the learned Member did not consider or address its submissions. Finally, QBSA says that the learned Member’s decision was wrong in fact and law.
Because the arguments of QBSA involve questions of law, leave to appeal is not necessary.
The principles of natural justice require that the parties have a reasonable opportunity to know what the case is against them and have an opportunity to argue against that case.[3] The Tribunal has a statutory duty to take all reasonable steps to ensure that the parties understand the nature of the assertions made against them and the implications of the assertions.[4] If the Tribunal makes a decision on a point that as not notified to, or argued by the parties, there is a breach of natural justice.
[3]Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd [2011] QSC 293 at [36].
[4] QCAT Act s 29(1)(a)(ii).
In his decision, the learned Member relied upon s 10 of the Building Act 1975,[5] which sets out the definition of ‘a building certifying function’. QBSA points out that this version of s 10 was not inserted into the legislation until 1 September 2006, after Mr Chandra certified this work.
[5]Queensland Building Services Authority v Chandra (Unreported, Queensland Civil and Administrative Tribunal, Paratz, 16 November 2012) at [48].
It is not surprising, therefore, that QBSA did not refer to s 10 in its submissions. In making a decision based upon s 10 of the Building Act 1975, the learned Member breached the principles of natural justice. Because QBSA did not have an opportunity to address him on this point, the learned Member also fell into error by relying on the incorrect version of the legislation.
Mr Chandra asserts that the learned Member did address the submissions of QBSA. However, the learned Member’s error had a compounding effect. Because he relied upon s 10 as the proper statement of a certifier’s duty, the learned Member did not deal with the submissions of QBSA in detail and he did not consider the specific argument that Mr Chandra’s obligations were set out in the Code of Conduct for Building Certifiers, effective as of 14 November 2003.
The appeal should be allowed and the decision of 16 November 2012 set aside.
In allowing an appeal, the Appeal Tribunal can substitute its own decision.[6] The question for determination is the scope of Mr Chandra’s duty, not whether or not he breached that duty.
[6] QCAT Act s 146(b).
Section 32 of the Building Act 1975 requires the Chief Executive to make a code of conduct for building certifiers. The Code of Conduct must be approved by regulation and it then becomes a statutory instrument. Section 127 of the Standard Building Regulations 1993 approved the Code of Conduct made on 20 October 2003.
The Code of Conduct has a number of relevant provisions. Section 1 states that a building certifier ‘must not take action that would compromise the health and safety of any person, or the amenity of any person’s property‘. It gives an example:
[A] building certifier when exercising any discretion in performing building certifying functions must ensure the health and safety of any person, or the amenity of any person’s property is not compromised.
Section 7 of the Code of Conduct states that a certifier must ‘apply all relevant building laws, regulations, safety standards and guidelines’.
Section 8 states that a certifier must consider ‘all relevant and available information’. It gives an example: ‘a building certifier should undertake a site investigation where possible to make themselves aware of any site conditions that may influence a decision’.
Section 8 of the Standard Building Regulations 1993 states that the Building Code of Australia forms part of and is to be read as one with the Regulation. The Building Code of Australia differentiates between a Class 10a structure – a non-habitable part of an existing building – and a Class 1a structure – a habitable part of an existing dwelling.
The building work Mr Chandra certified included the conversion of the garage area into two bedrooms. The garage was a Class 10a structure. The bedrooms were to be a Class 1a structure.
Mr Chandra was obliged to ensure that the converted space complied with the requirements for a Class 1a structure. He was obliged to ensure the health and safety of any person, or the amenity of any person’s property was not compromised. He was obliged to apply all relevant building laws and regulations. He was obliged to conduct such tests as were necessary to make himself aware of any conditions that might have influenced his decision.
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