Queensland Building Services Authority v Smart Sewage Solutions Pty Ltd
[2011] QCAT 425
•13 September 2011
| CITATION: | Queensland Building Services Authority v Smart Sewage Solutions Pty Ltd [2011] QCAT 425 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Smart Sewage Solutions Pty Ltd |
| APPLICATION NUMBER: | OCR324-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 29 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Peta Stilgoe, Member |
| DELIVERED ON: | 13 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Authority’s application is dismissed. |
| CATCHWORDS: | BUILDING – DISCIPLINARY MATTERS – where contractor installed a water tank – where contractor not licensed – whether contractor required licence to install water tank – whether installation of a tank is tribunal work Queensland Building Services Authority Act 1991, s 75(1), Schedule 2 Mario Menso v Queensland Building Services Authority [2010] QCD Appeal 98 of 2010 Queensland Building Services Authority v Tankworld QBT L202-01 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms N Drake, in-house legal officer of the Queensland Building Services Authority |
| RESPONDENT: | Mr D Archer, director of Smart Sewage Solutions Pty Ltd |
REASONS FOR DECISION
Smart Sewage supplies and installs water and sewerage tanks. Regardless of a tank’s purpose, the procedure for installation is:
a)Excavation of a suitably sized hole.
b)Placement of bedding sand.
c)Placing the tank in the hole.
d)Backfilling the hole; and
e)Connection of the tank.
In 2010, Smart Sewage supplied and installed a water tank at a site in Chandler. The owner later experienced problems with the tank. Investigations in relation to that problem led to the Authority forming the view that Smart Sewage was conducting building work without a licence. Mr Murphy, Regulatory Services Manager of the Authority, told the tribunal that he considered the Smart Sewage required a licence to backfill the hole into which the tank was installed.
The Authority wants the tribunal to find that proper grounds exist for taking disciplinary action against Smart Sewage for carrying out work without the appropriate licence and to impose a penalty in the range of $4,000 to $5,000.
The Authority says there are 17 different licences that would permit Smart Sewage to backfill the hole. Mr Archer, principal of Smart Sewage, holds a Restricted Drainers TP licence. The Authority says that this is not one of the 17 licences that would enable him to carry out the work.
If Smart Sewage is required to hold a licence, then I agree that the Restricted Drainers TP licence is not appropriate. That licence allows the holder to:
“…undertake maintenance work to keep the on-site sewerage facility working efficiently and effectively. Testing of water quality would form part of the routine maintenance of a plant. The holder may not undertake any other drainage work.”[1]
[1] Exhibit 2.
The licence is restricted to maintenance of a facility. It specifically excludes the holder from undertaking any other drainage work. It cannot, therefore, licence Smart Sewage for installation work.
Section 75(1) of the Queensland Building Services Authority Act 1991 defines “tribunal work”, for which a licence is required. The Authority relies on ss 75(1)(a) and (e), or alternatively, ss 75(1)(c) and (e) of the QBSA Act.
Section 75(1)(a) says that the “erection or construction of a building” is tribunal work. “Building” is defined in Schedule 2 to “include any fixed structure”. The Schedule goes on to provide examples of a fixed structure, including “a water tank connected to the stormwater system for a building”.
Mr Archer relies on the decision of Ms McVeigh in Queensland Building Services Authority v Tankworld[2] to support his argument that, until the tank is connected, it is not a building. Ms McVeigh was careful to restrict her findings in Tankworld to the particular facts of the case. Because there was no building, there could be no connection. The facts supporting the Authority’s argument here are different: the house at Chandler had been built.
[2] QBT L202-01.
The Authority relies on Mario Menso v Queensland Building Services Authority[3] in support of its argument that a tank need not be connected before it becomes a fixture. I do not find Menso helpful. The argument in that case centred on whether a pool shell, not yet backfilled and connected, could be a fixture. The Schedule 2 example of a pool requires it to be “fixed to the ground” but is silent about the extent of affixation required. A critical question for determination was whether the pool was fixed to the ground. One of a number of factors Judge Durwood took into account was whether or not the pool was connected.
[3] [2010] QCD Appeal 98 of 2010.
In contrast, Schedule 2 includes, as an example of a fixed structure “a water tank connected to the stormwater system for a building“ (my emphasis). Because of the specific and deliberate use of the word “connected” in Schedule 2, I interpret that example to mean that, until the tank is connected to a system, it is not a fixed structure. If it is not a fixed structure, it is not a building. If it is not a building, then its installation cannot be building work within the meaning of s 75(1)(a).
Pursuant to section 75(1)(c) the provision of a water supply to a building is tribunal work. Relying on Menso, the Authority argues that the provision of a tank which will supply water for a house falls within this definition. The Authority conceded that reliance on s 75(1(c) means that, contrary to its written submissions and the opinion of Mr Murphy, the whole process of installing the tank requires a licence.
If the installation of a tank, without connection does not constitute “building work” under s75(1)(a), I fail to see how, unless it is connected, the installation of a tank can constitute the provision of a water supply, especially given that the Authority has published licensing information that specifically states:
“A licence is not required however to connect the rainwater tank to a tap used exclusively for the purposes of irrigating gardens and the like.”[4]
[4] CM4 to the affidavit of Cameron Murphy sworn 17 December 2010.
That distinction is not supported by an examination of the Act. I read the Schedule 2 example as requiring the tank to receive the stormwater and the use of it as irrelevant. Further, a decision about the purpose of the tank water lies with the owner. The purpose of the tank is irrelevant to the supplier and installer or to the method of installation.
The Authority argued before me that Mr Murphy thought backfilling should be performed by licensees because of the potential consequences if it is not done properly. Nowhere in the Act is there a provision that makes the consequences of badly performed work a test for whether it is “tribunal work”. There are many matters listed in s 76 of the Act and s 5 of the Queensland Building Services Authority Regulations 1991 which, if done badly, may have serious consequences for health and safety and yet, for other reasons, they are not classified as “building work”.
Nevertheless it is useful to examine the Authority’s logic:
a)It makes sense to require a licensed plumber to connect a tank intended to be the water supply for a house and to exempt that requirement for a tank used solely for irrigation. The health and safety consequences of a faulty connection of the water supply for a house are potentially very serious whereas the health and safety consequences of a faulty connection for irrigation are not of the same degree.
b)If the risks addressed by the requirement for a licence are structural (for example, whether or not the tank will pop) it makes no sense for the tank installer to be licensed for a domestic water supply tank but not for an irrigation tank. The risk of structural failure does not change with the purpose.
The test of whether the installation of a tank is building work must be that set out in Schedule 2: the construction or erection of a water tank connected to the stormwater system for a building. It follows, therefore, that the exception in the Authority’s publication is wrong.
Section 75(1)(e) provides that tribunal work is also defined as:
“any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool) related to tribunal work of a kind mentioned in paragraphs (a) to (d).”
The Authority argues that backfilling the hole is site work within the definition of s75(1)(e). Interestingly, the Authority says that excavation of the hole is not building work because it comes within s 5(zb) of the Regulations which provides that “work consisting of earthmoving and excavating” is not building work.
I am not persuaded that s 75(1)(e) supports the argument that Smart Sewage requires a licence:
a)The examples of site work given in s 75(1)(e) all involve more than just shifting earth. It is implicit, therefore, that site work involves the addition of some new element to the works that did not already exist on site. It is a more compelling argument that the preparation of the bedding for the tank, involving the introduction of sand, is site work but that is not the Authority’s contention.
b)Simple backfilling is really no more than earthworks. The installation of anchors – to prevent the tank from popping – may constitute site work but the Authority does not suggest that anchors should have been installed in this case.
c)The site work must be “related to tribunal work”. I have already determined that the installation of the tank is not “tribunal work” under either s 75(1)(a) or s 75(1)(c). It is drawing too long a bow to interpret “tribunal work” as the construction of the house (which is under the control of the builder) or the provision of the water supply (which is under the control of either the builder or a licensed plumber) and, therefore, the installation of the tank is related to that tribunal work.
I find that Smart Sewage has not carried out building work without a licence and the Authority’s application should be dismissed.
It is important to both parties that I make some further comments. In mitigation of a possible penalty, Mr Archer provided the tribunal with documents dating back to 2000 to demonstrate that the issue of whether or not a licence is required is a long running one for which there has been no satisfactory answer.
Mr Archer’s point is that:
a)Initially, Mr Archer was under the impression that the Authority only required the Restricted Drainers TP licence.
b)The Authority appears to have changed its requirements.
c)The Authority says he is only required to be licensed for the limited purpose of backfilling the hole.
d)The licences that enable that work to be carried out cover a much wider field. For example, a plumber’s licence allows the holder to install and maintain plumbing, roofing, heating and ventilating systems, fire hose reels and hydrants. As one might expect, a builder’s licence allows the holder to carry out a range of building work that goes far beyond backfilling a hole.
e)It is unreasonable to expect a tank installer to go to the expense of obtaining the qualifications required for such a licence for the sole purpose of backfilling a hole.
f)Even if Mr Archer did acquire the technical qualifications, the relevant Boards will not acknowledge the qualification because he does not work in the industry and does not have experience in the range of work covered by the licence.
The Authority says that the situation is not as dire as Mr Archer portrays. He can carry out his business without risk of infringement in one of two ways: Mr Archer can excavate the hole, install bedding sand and install a tank without back filling; or he can employ a person with the necessary licence.
Mr Archer says that the second option is economically prohibitive. That is a business decision only he can make.
The Authority’s first proposition makes me nervous. It is apparent from the material, including CM4, that there is a lack of clarity around this industry. The Authority has no interest in creating a licence specifically for this industry, probably because of Mr Archer’s frank admission that there are only 4 people in Queensland that face the same licensing problem. On the other hand, builders and plumber have an interest in protecting their industries by preventing dilution of their acknowledged skill bases or infiltration by those who do not strictly meet their criteria. As always, the protection of the public must be balanced against over-regulation and the instinctive protectionism created by bodies of like minded people.
The distinction between excavation, applying the bedding sand and backfilling the hole is artificial; either the whole process of installing a tank needs a licence or it does not. I have found that it does not. If, for safety reasons, the Authority has a different view, and it considers the time and cost of imposing additional regulation worthwhile, then it should clarify its position through legislative change.
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