TAY and BUILDING SERVICES BOARD - [2019] WASAT 68

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011 (WA)
CITATION:   TAY and BUILDING SERVICES BOARD [2019] WASAT 68
MEMBER:   MS C BARTON, MEMBER
MR D MOROLLA, SESSIONAL MEMBER
MR S WALLACE, SESSIONAL MEMBER

HEARD:   12 AUGUST 2019
DELIVERED          :   10 SEPTEMBER 2019
FILE NO/S:   VR 79 of 2019
BETWEEN:   TENG TIOW TAY
Applicant
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Building Services Board - Refusal of registration - Supervising building construction - Set 2 pathway for registration - Engineer - Prefabricated building experience - Whether preparatory work in prefabrication of buildings is supervision - Application of policy

Legislation:

Builders' Registration Act 1939 (WA), s 10(1)(b)(iv)(V)
Building Act 2011 (WA), s 3
Building Services (Registration) Act 2011 (WA), s 17, s 17(1), s 17(1)(b), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 12, reg 13, reg 16(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2)

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms A Sukoski

Solicitors:

Applicant	:	N/A
Respondent	:	Department of Mines, Industry Regulation and Safety

Case(s) referred to in decision(s):

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marsh and Commissioner of Police [2018] WASAT 138
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157
Zubac and Building Services Board [2018] WASAT 110

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is a qualified engineer. On 10 September 2018, the applicant applied to the Building Services Board (Board) for registration as a building practitioner. In addition to his experience installing prefabricated buildings at seven residential construction sites, the applicant claims that time spent undertaking preparatory work to manufacture prefabricated materials for use at those sites is supervisory in nature.
On 9 April 2019, the Board refused the application on the basis that the applicant had not completed the equivalent of five years' fulltime supervision of building construction for the purposes of the Set 2 pathway for registration.
The Board is established under Pt 7 of the Building Services (Registration) Act 2011 (WA) (Act). The Act governs the registration and regulation of building service providers in Western Australia. A primary function of the Board is to make decisions on applications for registration of building service providers.

Review of the Board's decision

The Board resolved on 9 April 2019 to refuse the applicant's application for registration as a building practitioner for the following reasons:
1)The experience demonstrated in the application is insufficient and does not equate to five years' fulltime supervision…

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.

Continue reading TAY and BUILDING SERVICES BOARD

Details

AGLC: TAY and BUILDING SERVICES BOARD [2019] WASAT 68
Case: [2019] WASAT 68
Decision Date: 10 SEPTEMBER 2019

CaseChat Overview and Summary

In the case of Tay and Building Services Board, the applicant, Tay, sought a review of the Building Services Board's decision to refuse his registration as a supervising building construction practitioner. The refusal was based on the Board's policy that a professional site supervisor or manager should have experience in supervising a minimum of five average residential building projects at one time. The applicant argued that his experience in large, complex builds should be considered equivalent to multiple average single residential builds, and criticised the Board's policy for its lack of clarity on key terms.

The court was required to determine whether the Board's policy was correctly applied in refusing the applicant's registration. It also needed to consider the extent to which the policy should guide the Board's discretion and whether the policy was properly developed and applied. The court examined the nature and development of the Board's policy, including whether it had been subject to public consultation or industry input, and whether it was applied flexibly in light of the applicant's particular circumstances.

The court held that while policy guides the exercise of statutory discretion and aids consistency in decision-making, it cannot replace the discretion of the decision-maker. The court found that the Board's policy was an internal document that had not been subject to public consultation or industry input. The court also noted that the policy did not define key terms such as 'average single residential build', 'large' and 'complex'. However, the court found that the Board was entitled to refuse the applicant's registration on the basis that he had not demonstrated responsibilities in the supervision of multiple residential dwellings at the same time. The court dismissed the application for review and affirmed the Board's decision.

The court's decision highlights the importance of policies in guiding decision-making but also the need for decision-makers to exercise their discretion and consider the particular circumstances of each case. The court also emphasises the importance of clear and consistent policy development, including the need for public consultation and industry input where appropriate.

Orders

Orders of the court

Application for review dismissed

Decision of respondent affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The development of policy guides the exercise of statutory discretion and has the benefit of aiding consistency in decisionmaking: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Re Drake) at 644 (Brennan J). The existence of a policy is a factor to be taken into consideration but it cannot replace the discretion of the decisionmaker. A policy cannot be inflexibly applied regardless of the merits of the particular case: Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] citing Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] - [26] (Barker J). A decisionmaker may for cogent reasons decide not to apply a policy in a particular case: Re Drake at 645. In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100, the Tribunal adopted the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at [51] for determining the weight to be given to a policy. The criteria include whether the policy is public (as opposed to secret) and conceived after considerable public discussion. The length of time that the policy has been in operation and whether it has been continuously applied are also relevant criteria. In the decision of Marsh and Commissioner of Police [2018] WASAT 138 at [27] and [39], the Tribunal found that the weight attached to a policy may be influenced by the extent of public consultation that preceded it and whether it originated from a political or departmental process. The Board's policy is an internal DMIRS document that has been developed to assist the Board in the exercise of its discretion under s 17(1) of the Act. There was no evidence before the Tribunal that the Board's policy was the subject of any public consultation or industry input before the Board resolved to adopt it at its meeting on 13 November 2018. The Board's policy provides as follows:POLICY PRINCIPLESGenerallyThe following policy does not constrain the Board's capacity to depart from this policy as appropriate to the circumstances of any particular building practitioner application.Assessing experience for a single projectA professional site supervisor or site manager, engaged on a full time basis for or on behalf of a registered building contractor is generally expected to be responsible for a minimum of five average building projects (average residential build) at one time.Experience in supervising or managing building work or building construction for less than the minimum will be discounted. Experience on large, complex builds (e.g. shopping centres or hospitals) will be equated to multiple average single residential builds. The Board contends that the applicant has not demonstrated responsibilities in the supervision of multiple residential dwellings at the same time. The applicant contends that he has been involved in large, complex builds and, therefore, this experience should be equated to multiple average single residential builds. The applicant is highly critical of the Board's policy for failing to define terms used in the policy such as 'average single residential build', 'large' and 'complex'. In light of the applicant's concerns, the Board may seek to provide greater clarity to industry members applying to be credited for supervision experience as part of the registration process.