Trevor Gerhardt v Queensland Building and Construction Commission (No. 2) - [2014] QCAT 257

CITATION:

Trevor Gerhardt v Queensland Building and Construction Commission (No. 2) [2014] QCAT 257

PARTIES:	Trevor Gerhardt (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR230-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

10 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr Gerhardt take the following steps to ensure the certification of building work complies with all other necessary development approvals that apply to the work:

a. Requiring the applicant to provide a copy of any email from the Brisbane City Council or other local authority evidencing prior development approvals.

b. Requiring the applicant to provide copies of building plans that are consistent with Council development approval plans.

c. Reviewing proposed building plans against any Council development approval and planning instrument.

d. Contacting the Council via email to resolve any doubts or inconsistencies.

CATCHWORDS:

ADMINISTRATIVE REVIEW – OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – PRIVATE CERTIFIER – SANCTION – where certifier issued building approval – where plans annexed to building approval different from plans annexed to development approval – where certifier issued final certificate for building different from development plans and building plans – where certifier engaged in unsatisfactory conduct – sanction

Building Act 1975 (Qld) ss 204, 211, Schedule 2

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 (QCAT Act).

REASONS FOR DECISION

In a decision dated 10 April 2014[1], I found that Mr Gerhardt engaged in unsatisfactory conduct in his work as a certifier. Mr Gerhardt issued a building approval inconsistent with the development approval. He then certified the finished building that was different from both the development approval and the building approval.
[1]Gerhardt v Queensland Building and Construction Commission [2014] QCAT 139.
The Commission submits that I should impose a condition on Mr Gerhardt’s licence to the following effect:
1.Prior to the licensee issuing any building development approval, the licensee shall engage a suitably qualified Town Planner as listed on the Brisbane City Council’s website … to:
a.assess each new development application received by the licensee; and
b.provide written confirmation that the development is not inconsistent with the Planning Instrument.
2.The licensee shall supply to the Commission a list of all building works approvals he has issued for the six months periods ending on 30 June and 31 December of each year, within 30 days of the end of the relevant period.
The Commission submits that the condition is necessary because Mr Gerhardt has a poor record of compliance, with eight previous reprimands for unsatisfactory conduct, six of which were in the past twelve months. The Commission also submits that Mr Gerhardt had no appreciation of his duties, as was evident in my decision.[2]
[2]Ibid at [19] and [23].
Mr Gerhardt submits that the proposed condition is too onerous. He says that the proposed condition will result in significant costs to him. He says that most of the approvals he issues do not have the complicated interrelationship between building and planning requirements. He says the reference to the Brisbane City Council website is a reference to consultants who are accredited RiskSMART consultants. Those consultants do not necessarily work in other Queensland local authority areas, as Mr Gerhardt does.
He says that the Commission has the ability to audit his work, so the requirement to send in lists of all approvals in unnecessary.
Mr Gerhardt says that six of the eight prior findings of unsatisfactory conduct involved technical or procedural conflicts with the Queensland Development Code and the Building Code of Australia, and the opinion of a town planner would not have assisted him in avoiding the problem.
I agree with Mr Gerhardt that the proposed condition is unduly onerous. It will apply to many approvals which do not involve any planning issues. It will impose a cost on Mr Gerhardt that he cannot pass on to clients. It will, effectively, mean that Mr Gerhardt will not survive as a certifier. I also agree that requiring a Brisbane City Council RiskSMART accredited planner will not necessarily assist in resolving planning conflicts outside Brisbane.
I also agree with Mr Gerhardt that sending a list of planning approvals to the Commission every six months will not have any beneficial effect. The Commission can audit Mr Gerhardt’s work. It can investigate complaints against him. Unless the Commission intends to have an officer interrogate Mr Gerhardt’s list every six months, the condition imposes an obligation on Mr Gerhardt with no corresponding obligation on the Commission to use that information and no obvious benefit to home owners. I also note that the condition is open-ended. To impose that condition for the balance of Mr Gerhardt’s career is unsupportable.
I accept that Mr Gerhardt has a poor record. But I cannot draw any other conclusion. Neither the Commission nor Mr Gerhardt has provided copies of the documents that gave rise to the sanctions. I do not know whether they were caused by technical non-compliance or something more serious.
Ideally, Mr Gerhardt should undertake further education[3] but the Commission has not suggested any training and I can find no course that meets Mr Gerhardt’s particular needs. It may be that, through this experience, Mr Gerhardt is now more familiar with the issues of certifying planning matters than many of his peers. In that case, I urge him to consider seriously giving the industry the benefit of his experience by speaking at seminars and conferences.
[3]Building Act 1975 (Qld) s 204(4)(c).
The Brisbane City Council has proceedings against Mr Gerhardt in the Magistrates Court for an offence against s 84 of the Building Act. If those proceedings are successful, Mr Gerhardt will be sanctioned, probably by the imposition of a fine. I do not propose to punish Mr Gerhardt twice for the same act by imposing conditions that will have a significant financial consequence to Mr Gerhardt and no real benefit to home owners.
Mr Gerhardt submits that he has implemented procedures that will avoid this kind of problem occurring in the future. He requests a copy of the development approval. He requests copies of building plans that are consistent with the development approval plans. If he is in doubt, he contacts the relevant council or requests advice from a town planner.
If I order that Mr Gerhardt implement, and comply with, those procedures[4] his failure to do so amounts to professional misconduct[5]. The sanctions available for a finding of professional misconduct are more serious. They can include suspension[6] or cancelling a licence[7]. That is a powerful disincentive to non-compliance. I therefore order that Mr Gerhardt take the following steps to ensure the certification of building work complies with all other necessary development approvals that apply to the work:
[4]Ibid s 204(4)(e).
[5]Ibid Schedule 2.
[6]Ibid s 211(2)(e).
[7]Ibid s 211(2)(f).
a)    Requiring the applicant to provide a copy of any email from the Brisbane City Council or other local authority evidencing prior development approvals.
b)    Requiring the applicant to provide copies of building plans that are consistent with Council development approval plans.
c)    Reviewing proposed building plans against any Council development approval and planning instrument.
d)    Contacting the Council via email to resolve any doubts or inconsistencies.