Richard Douglas Drew t/as Burnett Country Certifiers v Rainvale Pty Ltd
[2013] QCATA 178
•3 June 2013
| CITATION: | Richard Douglas Drew t/as Burnett Country Certifiers v Rainvale Pty Ltd [2013] QCATA 178 |
| PARTIES: | Richard Douglas Drew t/as Burnett Country Certifiers (Appellant) |
| v | |
| Rainvale Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL290-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers on 3 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Peta Stilgoe, Senior Member Ms Christine Jones, Member |
| DELIVERED ON: | 3 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | BUILDING - Private building certifier obligations under the Building Act 1975 in assessing building approval applications - effect of the requirements of section 25 (1) of the Building Act 1975 for supporting documents on the obligations of the private building certifier Building Act 1975 (Qld), s 25, s 30, s 32, s 54, s 83, s 139, s 136 Cachia v Grech [2009] NSWCA 232 |
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
Introduction
Mr Drew is an experienced private building certifier, licensed to perform certifier and assessment functions under the Building Act 1975 (Qld). He has appealed a decision concerning his obligations under that Act.
Mr Drew approved a building development application lodged by Steeline Roofin Spot (Steeline) on behalf of a home owner for a shed to be erected on his property. The property is on a corner block. The site plan prepared by Steeline, which accompanied the application, showed only one road boundary. This is significant because of the particular siting requirements for set back from each boundary road, which apply to corner blocks under relevant building assessment provisions.
The building development approval given by Mr Drew did not comply with the siting requirements for a corner block, and was therefore issued in error.
Ultimately the shed had to be relocated. Mr Drew paid for the relocation. He claimed re-imbursement of these costs of $5,247.70 from Steeline. Mr Drew argued that these costs were incurred solely because of the failure of Steeline to designate the property in the site plan as a corner property.
The Tribunal Member who heard the case dismissed the claim. He decided that it was Mr Drew who was responsible for the error in approval. The Member decided that Mr Drew was obliged to satisfy himself about the position of the property. He said it was incumbent upon Mr Drew to make either further inquiry or to reject the application and request further information, before he provided his certificate of approval. The Member’s reasons for decision were delivered ex-temporé at the conclusion of the hearing.
Should leave to appeal be granted?
This matter was heard as a minor civil dispute. Appeals against decisions in minor civil disputes can only go ahead if the Tribunal gives leave to appeal.
The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Grounds of appeal
The facts are not in dispute.
Mr Drew’s appeal is based on an assertion that the Member who made the original decision made an error in deciding that it was Mr Drew’s obligation to make further enquiry and not to simply rely on the site map which was provided by Steeline.
Mr Drew argues that s 25(1) entitled him to rely on that site map. Section 25(1) of the Building Act 1975 (Qld) requires that each supporting document to an application for building approval must on its face demonstrate that the carrying out of the building work will comply with the relevant building assessment provisions.
Was there an error in the decision?
We do not agree with Mr Drew. Private certifiers must assess applications for building approval under the building assessment provisions;[5] must not grant approval until the building assessment work has been carried out under the building assessment provisions;[6] and must perform certification functions in the public interest.[7]
[5] Building Act 1975 (Qld), s 30(1).
[6] Ibid, s 83(1)(c).
[7] Ibid, s 136(1).
Private certifiers are also under an obligation to meet the conduct and professionalism standards of their Code of Conduct.[8] Standard 8 of the Code includes an obligation to:
… obtain and document all available facts relevant to performing the building certifying function.
[8]Ibid, s 32, s 129 and Code of Conduct for Private Certifiers, effective 14 November 2003.
Expert evidence of these obligations under the Building Act 1975 (Qld) was given at the hearing by Mr Mark J Catchpole of Catchpole Building Services.
It was clearly open to the Member to find that Mr Drew was obliged to satisfy himself by checking the position of the block before giving approval for the building works. Such checks were reasonably available to Mr Drew, for example by checking a mapping database, by visual inspection or by further inquiry of the applicant or Steeline.
It was also clearly open to the Member to find that s 25(1) does not operate to relieve Mr Drew of this obligation to satisfy himself that the building works would comply with the relevant building assessment provisions. This is so even in circumstances where previous dealings with the applicant or agent may indicate some experience in the approvals process and requirements. A simple inquiry would have revealed the omission in the site plan.
We consider that the interpretation of s 25(1) of the Building Act 1975 (Qld) put forward by Mr Drew is flawed. It does not make sense that all the supporting documents at the time of lodgement must demonstrate that the building works will comply with the building assessment provisions. In most cases they will only do this after the process of assessment, including inquiry, is complete. The supporting documents will then demonstrate the basis on which the private certifier has assessed compliance and approved the application.
We also contrast the language of s 25 with other sections of the Building Act 1975 (Qld) where reliance on documents without further inquiry is intended. For example, s 54 says:
… the local government may accept, and without further checking, rely and act on the document for the purpose [of making it available for inspection or purchase].
Decision
There is no evidence that the Tribunal Member made an error in his decision. Nor is there evidence of a reasonable prospect that the applicant for leave will obtain substantive relief; that leave is necessary to correct a substantial injustice caused by some error; or that there is a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage.
Leave to appeal is refused.
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