TAY and BUILDING SERVICES BOARD
[2019] WASAT 68
•10 SEPTEMBER 2019
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 of building construction;
2)The Building Services (Registration) Regulations 2011 (WA) (Regulations) require fulltime supervision; and
3)The Board's policy is that supervision of building construction is to generally be at a professional rate of intensity, that is, as a professional supervisor with responsibilities to multiple residential dwellings at the same time, for a total of five years fulltime.
The Board formed the view that the applicant's experience equates to 12 months of full-time supervision of building construction.
The applicant, being a person aggrieved by a reviewable decision of the Board, applied to the Tribunal on 27 May 2019 for a review of the Board's decision under s 64(2) of the Act.
The review of the Board's decision by the Tribunal is by way of a hearing de novo and is not confined to matters that were before the Board but may involve the consideration of new material whether or not it existed at the time the decision was made: s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the Tribunal's review is to produce the correct and preferable decision: s 27(2) of the SAT Act.
Issues to be determined
The issues for determination by the Tribunal are as follows:
1)Does preparatory work involved in the prefabrication of building material constitute supervision of building construction?;
2)Does the Board's policy apply where an applicant's only experience in supervising building construction is in relation to the installation of prefabricated buildings?; and
3)Has the applicant demonstrated experience in supervising building construction for periods totalling at least the equivalent of five years' fulltime as prescribed by the Regulations?
The statutory framework
Section 17 of the Act provides:
(1)The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant
(a)has complied with sections 13 and 14; and
(b)has the qualifications and experience prescribed by the regulations for that class of building service practitioner; and
(c)is a fit and proper person to be registered; and
(d)has complied with any other requirements prescribed by the regulations for registration as a building service practitioner in that class.
(2)The Board must not register, or renew the registration of, an applicant if
(a)the requirements of subsection (1) are not met; or
(b)the applicant is an ineligible person.
The prescribed qualifications and experience for a building services practitioner are set out in reg 16(1) of the Regulations. Regulation 16(1) of the Regulations relevantly provides in relation to the Set 2 pathway:
For the purposes of section 17(1)(b) a qualification (if any) listed in a set in the Table, together with the experience listed in the same set, are prescribed as qualifications and experience for building practitioners.
Table
Qualifications
Experience
…
…
…
Set 2
qualifications acceptable for
…
(c) membership as Professional Engineer (MIEAust or FIEAust) of the Institution of Engineers, Australia[.]
…
evidenced by such membership or registration[.]
Supervising building construction for periods totalling at least the equivalent of 5 years fulltime
The term 'building construction' is not defined in the Act or Regulations. However, reg 12 of the Regulations provides that 'building work' has the meaning given in s 3 of the Building Act 2011 (WA) which is defined as follows:
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
The Board is satisfied that the applicant has met the qualifications requirement of reg 16(1) of the Regulations because he holds registration as an engineer.
There was no issue raised by the Board that it was not satisfied that the applicant is a fit and proper person to be registered.
The Board's policy
The Department of Mines, Industry Regulation and Safety (DMIRS) has published a policy entitled, 'Building Practitioner Experience Assessments Professional Rate of Intensity Crediting Supervision Experience' dated 13 November 2018 (Board's policy), which applies to all applications made for registration as a building practitioner under s 17(1) of the Act.
In relation to assessing experience for a single project, the Board's policy provides as follows:
A 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's policy came into effect after the applicant made his application to the Board and, hence, the applicant contends that the policy does not apply to the assessment of his application. In any event, the applicant contends that the Board has not correctly assessed his registration application in accordance with the principles and intent of the Board's policy.
The applicant's submissions
In addition to the submissions made by the applicant at the hearing, the applicant relies on his response dated 30 July 2019 to the respondent's bundle of documents and a further response dated 9 August 2019 to the respondent's statement of issues facts and contentions.
The applicant's submissions may be summarised as follows:
1)The applicant owns a business in Malaga which relies on innovative steel prefabrication methods used in the construction of semiprefabricated houses. The houses are constructed with light gauge steel structural framing. They are seismic resistant, cyclone rated and have superior thermal properties. The bulk of the fabricating and building work are performed by hired workers on a daily wage basis and supervised by the applicant to use his machines and tools.
2)The applicant claims 100% supervision with Outreach Development Pty Ltd (Outreach) from 1 July 2013 to 10 September 2018, being some 62 months. The applicant is the sole owner and director of Outreach. Seven residential dwellings including four single storey and two double storey dwellings were built during this period using prefabricated material from the applicant's Malaga workshop.
3)The following projects support the applicant's position that he meets the requirements of the Regulations in relation to the supervision of building construction:
a)11A Riley Road, Riverton;
b)5 Sassoon Place, North Lake;
c)34A Bertram Street, Maddington;
d)21 Hazelwood Road, Maddington;
e)36A Bertram Street, Maddington;
f)6A Harold Street, Gosnells; and
g)485 Beenyup Road, Banjup.
4)The seven homes the applicant has built are 'complex builds' and equivalent to fifteen average residential builds for the purposes of the Board's policy. The average new home size in Australia is 189.8m². The homes built by the applicant are significantly larger than this, with areas of up to 768m². They involve the construction of different house types and different structures and configurations. The decision of the Tribunal in Thorp and Builders' Registration Board of Western Australia [2007] WASAT 157 (Thorp) provides that: 'It may only be in large complex developments that there may be sufficient supervision required to justify a supervisor being on a single site for the duration of the job'.
5)The applicant had not built a house before he purchased 11A Riley Road, Riverton, so he engaged a registered builder, Design Struct Pty Ltd (Design Struct), toundertake the daytoday project management. Theapplicant agreed to contribute the technology knowhow, including training on the use of specialised fabrication machines. The applicant contends that he had the role of supervisor and was on site every day for many hours.
6)The applicant engaged Mr Todd Hawkes as the registered builder for the second project at 5 Sassoon Place, North Lake. Mr Hawkes was employed by Outreach and served as a parttime nominated supervisor for Outreach from 18 November 2014 to 12 April 2019. The applicant was at the North Lake site every day and instructed and supervised all aspects of the build from site works to final handover.
7)The applicant rejects the Board's contention that the time involved in the construction of the first two projects should be discounted because they were his first professional experience in building construction. Theapplicant contends that he should not be discredited or penalised for this supervision work.
8)The building practitioner registration form lodged by the applicant with DMIRS on 10 September 2018 (Registration Form) provides a definition of 'building construction' on page 4 which includes 'preparatory actions that are part of or incidental to the process of construction'. The applicant contends that the Board has omitted time required for the supervision of preparatory action necessary for the building construction process. If these are included, compliance with the five year fulltime supervision requirement is achieved. Theapplicant contends that the following preparatory work is part of the supervision process:
a)engineering design and the preparation of layout diagrams;
b)working with the designer to ensure his design is easily buildable;
c)working with the energy rating assessor to ensure a high National House Energy Rating Scheme (NatHERS) rating is achieved;
d)ensuring material meets specifications and standards; and
e)supervising the fixing of key fabrication machines.
9)Observation is a critical part of supervision, including the interim or final inspection of work, as well as ensuring the health and safety of workers. The decision in Thorp is silent on these matters.
10)The applicant contends that the respondent has not allowed time for observation or the direction of tasks. In his role as a supervisor of the construction of prefabricated homes, the applicant is required to, amongst other things:
a)direct and control site work to engineering specifications;
b)direct and control the provision of structural framework to engineering specifications;
c)direct and control the provision of wall/cladding to engineering specifications; and
d)direct and control roof panel fabrication and installation.
11)The total number of hours for supervision of key construction processes, including steel frame and roof panel fabrication and on-site steel frame and roof panel erection, totals 10,087 hours. This is the equivalent of 5.54 years which exceeds the legislative requirement.
12)The Registration Form on page 5 refers to the meaning of 'five years' fulltime experience' and provides:
If you were not working fulltime on a project calculate the portion of your time actually spent in supervising building construction. If you worked overtime, you cannot allow more than one day for each day worked.
The applicant contends that he worked overtime (because he worked 10 hours a day, six days a week) to achieve the 100% supervision claimed in his Registration Form.
13)Applying the decision of Thorp, the applicant (as an owner/builder) is not required to be in the employment of a registered builder.
14)The applicant is competent in building construction and has satisfied the five years of supervision experience stipulated in the legislation. Therefore, the Board should register the applicant as a building services practitioner.
The Board's submissions
In addition to the submissions made by the Board at the hearing, the Board relied on its statement of issues facts and contentions dated 16July2019 and its bundle of documents filed with the Tribunal on 17July2019.
The Board's submissions may be summarised as follows:
1)Supervision of building work does not include carrying out of building or construction work or carrying out the preparation for such work. In the case of an owner/builder, supervision does not include supervision of oneself but it can include supervising the work ofothers.
2)For the purposes of registration, 'supervising' refers to supervising the work for the builder or others engaged in the construction of a building. The supervision should be in the nature of supervising the whole works or a large part of the works and not in the nature of supervising a single trade or group of trades.
3)A supervisor must be in a position to direct, control, accept or reject construction work, and not just be responsible for the coordination or management of trades in the sense of timetabling or scheduling work.
4)It is the Board's expectation that the applicant will have experience supervising or managing building work or building construction of multiple projects concurrently. The Board's policy is that a professional rate of intensity should be a minimum of five average projects at one time.
5)The applicant's experience indicates that he was only supervising the construction of one or two properties at any given time. The applicant has provided details of seven projects which have been completed (or remained under construction at the time of his application) over the course of five years.
6)The first two projects claimed as part of the applicant's experience were undertaken whilst Outreach was not registered as a building contractor. Outreach became registered as a building contractor on 18 November 2014. There is no evidence of an arrangement where the applicant was engaged as a building supervisor by either Design Struct or Todd Hawkes for the construction of the two homes.
7)The experience claimed by the applicant is unclear as the initial arrangement with Design Struct was that it would contribute to the daytoday management while the applicant would contribute to the technical knowhow of the fabrication machinery. Also, as the applicant admits that he had never built a house before, the Tribunal should not credit any time to the construction of the first two projects.
8)The applicant advised the Board that in relation to all projects he was only on site if there was someone working on site. The applicant was only responsible for the supervision of one project (at one time) and, therefore, there was no need for him to attend the site on a fulltime basis.
9)The Board rejects the applicant's proposition that his projects are considered above average building projects, and should therefore be credited more time.
10)Five years of supervising building construction over multiple sites at any given time will allow a supervisor to accumulate a vast knowledge of building practices, and give them exposure to different situations which will ultimately lead to their competency for registration as a building practitioner.
11)The evidence presented by the applicant is insufficient to satisfy a reasonable decisionmaker that he has at least the equivalent of five years' fulltime experience in supervising building construction.
12)The correct and preferable decision is that the Tribunal should affirm the Board's decision to refuse the application for registration as a building servicespractitioner.
The Tribunal's consideration
The applicant contends that he undertook the equivalent of five years' fulltime supervision of building construction in relation to seven projects. In the Registration Form, the applicant claims 100%supervision with Outreach from 1 July 2013 to 29 August 2018. Theapplicant did not allocate any time during this period to 'managing' or 'carrying out' building construction.
At the hearing, the applicant advised that his final building project at 485 Beenyup Road, Banjup, was completed on 10 September 2018. Accordingly, the Tribunal finds that the period of supervision of construction that the applicant claims is five years and two months.
The applicant provided evidence to the Tribunal that he was the owner of all properties on which he built prefabricated homes except 5Sassoon Place, North Lake and 34A Bertram Street, and 21 Hazelwood Road, Maddington. Accordingly, the Tribunal finds that four of the seven projects which the applicant claims he supervised were owner/builder projects.
There are a number of pathways to registration as a builder. Theapplicant seeks registration under the Set 2 pathway of reg 16(1) of the Regulations which requires experience 'supervising building construction for periods totalling at least the equivalent of 5 years fulltime'. The applicant is a registered engineer and the Board accepts that he meets the qualifications requirement for the Set 2 pathway.
Another pathway under Set 3 of reg 16(1) of the Regulations requires experience 'carrying out, supervising or managing building construction for periods totalling at least the equivalent of 5 years fulltime', with qualifications acceptable for membership as Fellow or Member of the Australian Institute of Building evidenced by such membership.
The terms 'supervising' and 'managing' are not defined in the Act or Regulations.
The terms 'supervising' and 'managing' were considered in Zubac and Building Services Board [2018] WASAT 110, a decision in which an architect sought registration under the Set 2 pathway of reg 16(1) of the Regulations. However, the Tribunal did not reach a definitive view on the meaning of the terms.
In Thorp, the Tribunal determined the proper construction of s 10(1)(b)(iv)(V) of the Builders' Registration Act 1939 (WA) (BR Act) which has now been repealed. Item (V) permitted a person to be registered who:
… had 5 years' experience in the work of building construction as a manager or supervisor and satisfies the Board that he is fit and competent to carry out building work[.]
The Tribunal in Thorp at [22] observed that it would be extremely difficult for someone to gain experience under item (V) as an owner/builder.
Although Thorp was decided under a different legislative regime for registration under the repealed BR Act, the interpretation of the terms 'manager' and 'supervisor' in that decision is of assistance to the Tribunal's consideration in this matter. In relation to meaning of 'manager', the Tribunal found in Thorp at [27]:
Thus a manager will be involved in all of the activities of a builder, beyond the actual physical supervision or oversight of the execution or performance of building work. Those activities may extend from liaison with the client, assisting with planning approvals, design, pricing, the development of a program for the works and scheduling of trades, attending to manage receipt of payments and payment for materials and trades throughout the contract period to practical completion and delivery of possession to the client against final payment and making necessary arrangements for performance of the builder's maintenance obligations. It is likely that in the operation of a sophisticated large builder, the functions of management may be spread across a range of divisions and people within the organisation, but ultimately, the registered builder remains responsible for oversight of all such activities. It may also be that in practice, some of the management responsibilities, particularly in relation to the coordination of trades, may be left to the supervisor.
When questioned by the Tribunal at the hearing, the applicant conceded that as a supervisor of the construction of prefabricated homes many of the tasks that he had performed on site were in the nature of management tasks. The tasks include directing tradespersons in the installation of steel frames, roof panels and wall/cladding to engineering specifications. The applicant filed a further submission with the Tribunal on 13 August 2019 (after the hearing) in which he stated that in the Registration Form he had allocated 100% to fulltime supervision because he spends more than 35 hours a week in supervision duties (in addition to management duties).
The Tribunal finds that the applicant's role in directing tradespersons in the installation of prefabricated frames, roof panels and wall/cladding, falls within the meaning of 'managing' building construction. Accordingly, the Tribunal finds that these activities undertaken by the applicant do not constitute 'supervising building construction' for the purposes of reg 16(1) of the Regulations. The applicant referred to a number of other activities that he undertook, including the sourcing and payment of tradespersons that are more properly characterised as falling within the responsibilities of a manager.
The meaning of 'supervising building construction'
The term 'supervisor' is not defined in the Act or the Regulations. In the BR Act, it was defined as follows:
[A] person, not being a builder, who oversees the execution or performance of building work, but does not include a foreman, leading hand or other person employed in a like or less responsible capacity in the building industry.
The Macquarie Dictionary Online (2019) defines the verb 'supervising' as follows:
to oversee (a process, work, workers, etc) during execution or performance; superintend; have the oversight and direction of.
The Tribunal in Thorp described 'supervising' in the context of building construction as follows at [28] [3]:
28The time taken in supervision of the job will usually be shorter than the actual construction period. A foreman, or leading hand, both of whom are excluded from the definition of a supervisor, would be expected to be on site throughout the carrying out of the works. A supervisor would be expected to attend site to meet trades at the commencement of the activity in which they might be involved, to ensure that they properly understand the work to be undertaken but will not remain any longer on site than is necessary. At each site visit, the supervisor should inspect whatever work has been undertaken to ensure that it complies with the contract and to give directions in regard thereto. In the cottage residential building industry, a supervisor will supervise many sites at the same time. It may only be in large complex developments, that there may be sufficient supervision required to justify a supervisor being on a single site for the duration of the job.
29The actual time spent in management and supervision will therefore vary depending upon the nature of the building work, but generally, would be expected to be significantly less than the whole time taken for the job[.]
…
31When the above principles are applied to Sch 2 attached to the application, in which the applicant sets out the experience claimed for management and supervision as an owner/builder of the applicant's own projects, the same process of assessment outlined above must be applied in cases in which the entire job is constructed by tradespersons supervised by the owner/builder. But, where the owner/builder carries out any building activities himself, we do not consider that any supervision experience can be attributed to that activity. A supervisor must oversee work, which involves the control and approval of work of others.
The applicant contends that, in relation to the seven building projects, the time he had spent on site observing and directing the provision of structural framework, roof panel fabrication and wall/cladding to engineering specifications is supervision work for the purposes of the Act.
The Tribunal finds that the meaning of the verb 'supervising' in the phrase 'supervising building construction' does involve an element of 'direction' but not as contended by the applicant. The work that is overseen by a supervisor must be performed by tradespersons who are suitably qualified to perform the relevant task for which they are engaged to undertake. The 'direction' given by the applicant, however, was in the nature of instruction in that he was essentially teaching or guiding tradespersons who were not experienced in the construction of prefabricated buildings.
The Tribunal's finding in relation to the meaning of 'supervising building construction' is supported by the decision of Thorp, in which the Tribunal found at [28] that a supervisor must oversee work, which involves the control and approval of work of others.
Accordingly, the Tribunal finds that the time spent by the applicant on site where he oversaw the work of others installing prefabricated material to engineering specifications (without directing that work by way of instruction) does form part of the applicant's supervisory building experience for the purposes of reg 16(1) of the Regulations and s 17(1)(b) of the Act. However, based on the applicant's own evidence, the applicant spent most of his time on site guiding or teaching tradespersons in the installation of the prefabricated material because they were not experienced in that mode of construction.
In Thorp, the Tribunal concluded that an owner/builder is not entitled to any credit for supervising building activities which he carries out himself, as opposed to activities in which tradespersons are supervised: Thorp at [34]. Because the applicant was an owner/builder in relation to four of the seven sites, the Tribunal finds that any activities that the applicant has carried out on-site to install prefabricated material cannot be relied on by the applicant as time spent accruing supervision experience.
Are preparatory tasks for the construction of prefabricated buildings 'supervision'?
The applicant has identified a number of preparatory tasks that he undertakes in order to construct a prefabricated building and contends that the tasks are supervisory in nature. The preparatory tasks include engineering design, the preparation of layout diagrams (to communicate or direct the installation of the prefabricated material on site), working with NatHERS energy rating assessors, and supervising the servicing of fabrication machines (including the correction of software).
Regulation 13 of the Regulations defines the term 'builder work' for the purposes of Div 2 of Pt 1 of the Regulations. However, certain types of building work are excluded from the definition of 'builder work' including the production of prefabricated or transportable building in a manufacturing yard. Because the definition of 'builder work' in the Regulations excludes the production of prefabricated buildings, the Tribunal finds that the preparatory tasks identified by the applicant do not constitute supervision of building construction for the purposes of reg 16(1) of the Regulations and s 17(1)(b) of the Act. The tasks relate to the engineering and production of prefabricated materials which occurs in a factory. They are not part of the on-site supervision of building work or construction activities.
The Tribunal observes that the exclusion of preparatory works from the meaning of 'supervision' is referred to at page 5 of the Registration Form as follows: 'Supervision of building construction does not include carrying out of building or construction work or carrying out preparation for such work'.
Should the Board's policy be given any weight?
The applicant contends that the Board's policy does not apply to the assessment of his application because the Board's policy came into effect on 13 November 2018 which was after he lodged the Registration Form on 10 September 2018. He contends that the Board's policy could not be found in any public domain publication prior to lodgement of his application with the Board. The applicant also contends that the specific content of the Board's policy was never mentioned to him or brought to his attention by the Board. The Board's policy is currently available on DMIRS' website.
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 PRINCIPLES
Generally
The 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 project
A 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.
The Board's policy does not contemplate a situation where an applicant's experience relates solely to the construction of prefabricated buildings. Accordingly, the Tribunal finds that the Board's policy is not relevant to the applicant's experience because he has not supervised an 'average residential build', such as the construction of a brick and tile home. In the circumstances of this case, the Tribunal finds that the Board's policy has no application.
If the Tribunal is incorrect in its finding on the applicability of the policy, the Tribunal nevertheless gives the Board's policy limited weight. This is because there was no evidence before the Tribunal that the Board's policy was the subject of any public consultation process. The Tribunal finds that the Board's policy is an internal DMIRS document used to guide the Board and licensing staff to make appropriate and consistent assessments of experience claims submitted by applicants for registration as building practitioners. Because the Board's policy is new (and, therefore, has not yet been continuously applied), and has not been the subject of relevant stakeholder scrutiny, the Tribunal is unable to afford it significant weight.
Has the applicant demonstrated five years' experience in supervising building construction?
The applicant has been involved in a small number of building projects. As stated above, four of the seven projects were owner/builder projects which the Tribunal observed in Thorp at [22] may present significant difficulty in obtaining the necessary supervisory experience.
The evidence before the Tribunal demonstrates that the applicant has substantial experience in the construction of homes from prefabricated building material. Based on oral evidence given by the applicant, however, the Tribunal finds that the applicant's experience as a builder is limited to this mode of construction. The applicant should have a wide range of building experience in order to be registered as a builder: Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 at [33].
There was inconsistent evidence provided to the Tribunal by the applicant concerning the period of construction for each of the seven projects. The Tribunal finds that the first project commenced on or around 1 July 2013 and the final seventh project was completed by 10 September 2018, being a total period of five years and two months.
The applicant claims that he undertook 100% supervision for all seven projects but conceded when questioned by the Tribunal that he had also undertaken management activities which were not accounted for on the Registration Form. The Tribunal finds that the applicant did not undertake 100% supervision in respect of all seven projects because of evidence provided by the applicant that he was responsible for directing tradespersons in the installation of prefabricated material to engineering specifications on the project sites.
In light of the Tribunal's findings that the applicant's preparatory work in fabricating building material and his on-site work managing the installation of the prefabricated material does not constitute supervision, the applicant has not demonstrated to the Tribunal that he has completed the equivalent of five years' fulltime supervision of building construction.
Accordingly, the Tribunal finds that the requirements of reg 16(1) of the Regulations have not been satisfied and, therefore, the applicant is not eligible for registration as a building practitioner under s 17(1) of the Act.
Conclusion
For the reasons set out above, the applicant has not demonstrated that his experience in supervising building construction equates to the equivalent of five years' fulltime supervision. Accordingly, the Tribunal concludes that applicant is ineligible for registration as a building practitioner and his application should be dismissed.
Orders
1.The decision of the respondent made on 9 April 2019 to refuse the applicant's registration as a registered builder under the Building Services (Registration) Act 2011 (WA) is affirmed.
2.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
10 SEPTEMBER 2019
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