Queensland Building Services Authority v Wilkins
[2012] QCAT 582
•16 November 2012
| CITATION: | Queensland Building Services Authority v Wilkins [2012] QCAT 582 |
| PARTIES: | Queensland Building Services Authority |
| v | |
| Brien Arthur Wilkins |
| APPLICATION NUMBER: | OCR060-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 30 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 16 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Proper grounds exist under s 208 of the Building Act 1975 for the taking of disciplinary action against Mr Wilkins, as he behaved in a way that constituted professional misconduct under the Building Act 1975, by certifying as compliant a pool fence that was not compliant with Australian Standard 1926.1-1993. 2. Mr Wilkins is reprimanded in relation to this conduct. 3. Mr Wilkins is to pay a penalty of $4,000.00 (40 penalty units) to the QBSA within 14 days of this order. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – Building – disciplinary proceedings – professional misconduct by pool certifier in circumstances where child drowned as a result of non-compliant fence – reprimand and penalty |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland Building Services Authority represented by Mr Simon Formby, in-house legal counsel |
| RESPONDENT: | Mr Brien Arthur Wilkins self-represented |
REASONS FOR DECISION
The tragic, and preventable, loss of a little girl
The events that unfolded in this matter should cause all Queenslanders to think carefully about pool safety. Tragically, a non-compliant pool fence resulted in the death of an 18-month old little girl, Alliyah, who was able to access the pool when a garage roller door was left open, providing access to the pool area.
Alliyah was found by her mother, who had left her unattended for approximately 40 minutes while she was ill in the toilet. Alliyah’s grandmother performed CPR, but it was too late. No doubt her mother has reflected on these 40 minutes and what might have happened if she hadn’t been ill that day on countless occasions since her little girl died, on 24 February 2009.
The Respondent in this matter, Brien Wilkins, is a building certifier who once did work involving pool approvals. Mr Wilkins had never met Alliyah, her parents or grandparents, and was unaware of her tragic drowning until he was informed some 2 months later by Brisbane City Council Officers investigating the circumstances of Alliyah’s death.
Sadly, some 8 years earlier, Mr Wilkins, through a subcontractor (Andrew Everett of Alliance Building Approvals Pty Ltd) allowed the pool to be certified. The final inspection checklist contained the handwritten comment, “Owner confirmed that garage door that opens into pool enclosure has been bolted shut, unable to confirm this on site.” It was through this open garage door that Alliyah gained access to the pool.
There is no legal language capable of expressing the despair that everyone involved in this sad tale must have experienced. The tragedy is compounded by the realisation that had the pool fencing been certified in compliance with the regulations, Alliyah would likely still be with her family, and would by now be a thriving pre-schooler.
It is for these reasons that the Queensland Building Services Authority has now commenced disciplinary proceedings against Mr Wilkins.
Events leading to QBSA disciplinary proceedings
Later the same day as Alliyah drowned, Brisbane City Council arrived at the property and deemed the fence unsafe, after which temporary pool fencing was set up. The temporary fencing remained in place from late February 2009 until late July 2009, at which point a new fence was installed.
The Council’s inspection revealed numerous non-compliant issues with the fencing, as set out below, and in the Council’s Compliance Assessment Report[1]:
Compliance with Australian Standards 1926-1993
The roller door on the South Western perimeter of the pool enclosure allows direct access from the dwelling to the pool. The door has no fixings to render it permanently in a closed position.
Basis for belief BRIEN WILKINS issued the final inspection certificate incorrectly:
[1] Affidavit of Thomas Petzel, sworn to 2 March 2012, pgs 91-92.
a)A stamped certified plan indicates “no openings to pool area” from dwelling (garage);
b)Stamped certified plans dated 21 May 1994 indicated roller door access from the garage to area where pool is located formed part of the original approval of the dwelling;
c)The latching device on the pool gate is less than 1500mm from the ground level. Further to this the hinges are not 900mm apart and the measurement from the bottom hinge to the top of the gate is less than 1100mm;
d)There are gaps greater than 100mm between the uprights of the pool fence in the northern corner of the enclosure.
Ultimately, on 15 January 2010, the Council concluded that there was sufficient basis to issue an Enforcement Notice in accordance with s 248 of the Building Act 1975, and to lodge a complaint with the QBSA against Mr Wilkins regarding professional misconduct.
Orders sought by the QBSA
[10]In relation to the disciplinary matter now before the Tribunal in relation to Mr Wilkins, the QBSA seeks the following orders:
1.Proper grounds exist under s.208 of the Building Act 1975 (“the Building Act”) for taking disciplinary action against Mr Brien Arthur Wilkins (“the Respondent”), a Building Certifier, as the Respondent behaved in a way that constitutes professional misconduct under the Building Act, by certifying as compliant a pool fence that was not compliant with Australian Standard 1926.1-1993.
2.Pursuant to s.211 of the Building Act:
a. the Respondent be reprimanded pursuant to s.211(2)(a) of the Building Act;
b. the Respondent be fined pursuant to s.211(5)(a) of the Building Act
c. the Respondent compensate the current owner of the premises for all costs incurred for rectification of the pool fence, pursuant to s.211(7) of the Building Act.
[11]In terms of whether proper grounds for taking disciplinary action exist, I am required to consider whether Mr Wilkins has behaved in a way that constitutes professional misconduct, as defined in Schedule 2 to the Building Act 1975 (relevant portions extracted only):
professional misconduct, for a building certifier or former building certifier, includes the following—
(a) conduct that—
(i) shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building certifying functions; and
(ii) compromises the health or safety of a person or the amenity of a person's property or significantly conflicts with a local planning scheme; and
(f) repeated unsatisfactory conduct.
Disciplinary history of Mr Wilkins
[12]Mr Wilkins has had four prior findings of “unsatisfactory conduct” made against him. It is important to state here that “unsatisfactory conduct” is of a less egregious nature than “professional misconduct”. The four findings made against Mr Wilkins, of the lesser-standard “unsatisfactory conduct” are as follows:
§Case ID: 81401_11 – finalised 5 February 2004. Issued a Decision Notice for building work without ensuring the necessary material change of use had been obtained from Council. Results – finding of unsatisfactory conduct – caution
§Case ID: 81401_19 – finalised 27 July 2006. Results – finding of unsatisfactory conduct. No further action taken
§Case ID: 81401_21 – finalised 31 May 2007. Issued a Decision Notice for building work prior to ensuring that the necessary town planning approval was in place. This in turn constituted a failure to comply with the Code of Conduct for building certifiers. Results – finding of unsatisfactory conduct – reprimanded
§Case ID: 81401_26 – finalised 3 June 2009. Failed to meet his legislative requirements in relation to subject building work and breached section 5.3.5 of the Integrated Planning Act 1997 and the Standard Building Regulation 1993. Results – finding of unsatisfactory conduct – reprimanded
The Tribunal finds there was “professional misconduct”
[13]Mr Wilkins has cooperated with the QBSA during the course of its investigation into this matter. Ironically, it was Mr Wilkins’ willingness and honesty in disclosing his files to the Council and QBSA that led to him, rather than Mr Everett, facing disciplinary proceedings. Mr Wilkins was not required to retain his files beyond 7 years, and yet still made them fully available. During the hearing, I asked him why he did this, and his response was that he was “concerned that if he made this mistake, there could be others.”
[14]Mr Wilkins maintains he never saw a house plan which indicated the existence of a roller door providing access to the pool area. The owner of the premises at the time of approval had drilled a hole through the locking bar on the garage roller door and secured it with a padlock. It is, of course, particularly with the benefit of hindsight, conceivable that an occupant would cut the padlock. For this reason, the fence should never have been certified.
[15]I also note that Mr Wilkins gave evidence that he some time ago stopped performing pool certifications in the Gold Coast region, as he was frustrated with what he believed to be a general decline in standards at that point in time.
[16]Nevertheless, the discrepancy between the information on the building plan sighted by Mr Wilkins (reading “no openings into pool area”) and the information on the returned inspection checklist (indicating that the then-owner had confirmed the garage had been bolted shut) should have placed him on notice that the approved building plan may be inaccurate. At this juncture, Mr Wilkins should have required a further inspection of the property.
[17]Mr Wilkins indicates that he had no reason, at that point in time, to question Mr Everett’s information. Further, he notes that the pool builder did not, upon receipt of the building approval, inform him there was an opening into the pool enclosure. Neither Mr Everett nor the pool builder advised Mr Wilkins that there was a typical garage roller door, which if unbolted, would provide ready access to the pool area. Unfortunately, Mr Wilkins had never been to the site, nor had he issued the building approval for the original dwelling (and would therefore have realised there was a roller door), nor had he sighted the floor plan and elevations of the original dwelling until receipt of the complaint.
[18]The issuing of a Certificate of Compliance in these circumstances amounts to professional misconduct pursuant to the Building Act 1975, on the basis that the conduct:
§Shows a lack of judgment, diligence and care in performing building certifying functions;
§Compromised the health and safety of Alliyah; and
§Is part of a history that includes four prior findings of unsatisfactory conduct.
[19]I find that proper grounds exist under s 208 of the Building Act 1975 for the taking of disciplinary action against Mr Wilkins, as he behaved in a way that constituted professional misconduct under the Building Act 1975, by certifying as compliant a pool fence that was not compliant with Australian Standard 1926.1-1993.
[20]Having made this finding, I must now consider whether it is appropriate to reprimand and/or penalise[2] Mr Wilkins. In these circumstances, the conduct of Mr Wilkins, through a most unfortunate chain of events, led to the drowning of a young child. In such circumstances, I consider that a reprimand is appropriate, as it may serve to remind other certifiers of the importance of exercising care in performing their jobs.
[2] See s 211(2)(a) and (5)(a) of the Building Act 1975.
[21]As regards a penalty, for a first finding of professional misconduct, the maximum penalty is an amount equivalent to 80 penalty units, the present value of each penalty unit being $100.00. The QBSA submitted at the hearing that a penalty of 40 penalty units, or $4,000.00 would be appropriate here. This places Mr Wilkins’ conduct in the mid-range of the possible penalty here.
[22]The mid-point on the spectrum is, I think, the appropriate position here. Mr Wilkins is remorseful, he has been cooperative, he will, in his own words, have to live the rest of his life reflecting upon this tragedy. Accordingly, I set the penalty at 40 penalty units, or $4,000.00, to be paid to the QBSA.
Compensation for the owner of the property
[23]The QBSA has asked that the Tribunal consider ordering Mr Wilkins to pay compensation to the owner of the property. The owner of the property, following Alliyah’s drowning, was required to take steps to ensure that the fencing was safe. This was at a point in time where 8 years and 4 months had passed since Mr Wilkins issued the final inspection certificate.
[24]I do not, in these circumstances, believe that the owner is entitled to be compensated by Mr Wilkins. The fence had been in situ for a more than 8 years, and nearly at a point where some replacement or rectification was likely to be required in any event. Further, despite Mr Wilkins’ failure to properly certify the fence, the property owner, as a matter of common sense, should also have been in a position to consider that tenants may decide to unbolt the rear garage door, providing access to the pool.
[25]The QBSA points to a Specification Sheet 4537-2 issued by ESP Fencing and Security, the company that ultimately put in the new fence, in support of its argument for compensation. Whilst the invoice indicates that the works completed were not due to ‘wear and tear’, no representative from ESP was available to give evidence at the hearing, and therefore, I decline to rely upon it as a matter of fairness.
[26]For these reasons, I decline to order Mr Wilkins to pay compensation to the owner of the property.
Orders
Proper grounds exist under s 208 of the Building Act 1975 for the taking of disciplinary action against Mr Wilkins, as he behaved in a way that constituted professional misconduct under the Building Act 1975, by certifying as compliant a pool fence that was not compliant with Australian Standard 1926.1-1993.
Mr Wilkins is reprimanded in relation to this conduct.
Mr Wilkins is to pay a penalty of $4,000.00 (40 penalty units) to the QBSA within 14 days of this Order.
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