Troy Richardson's Building Approvals & Inspections v QBSA
[2013] QCAT 113
•7 March 2013
| CITATION: | Troy Richardson’s Building Approvals & Inspections v Queensland Building Services Authority [2013] QCAT 113 |
| PARTIES: | Mr Troy Christopher Richardson t/a Troy Richardson’s Building Approvals & Inspections (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR070-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 26 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 7 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the QBSA that Mr Richardson engaged in professional misconduct within the meaning of s 204 of the Building Act 1975 is set aside. 2. The decision that Mr Richardson engaged in unsatisfactory conduct within the meaning of s 204 of the Building Act 1975 is substituted. |
| CATCHWORDS: | Private certifier – professional misconduct – unsatisfactory conduct – certification of retaining wall after it was constructed – investigations which should have been undertaken by certifier – certifier being careless or reckless Building Act 1975 s 204 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr G Thomson of Counsel instructed by Hemming and Hart, Solicitors |
| RESPONDENT: | Dr R Schulte of Counsel instructed by Queensland Building Services Authority |
REASONS FOR DECISION
Mr Richardson is a private building certifier practising in Cairns.
In 2005 Mr Richardson was engaged by Finn Master Builders (Finn) to certify a house that was being built at 69 Daphne Drive, Redlynch. He issued the final inspection certificate for the dwelling on 24 March 2006.
Finn also built a concrete block retaining wall on the boundary of the property. It was a significant structure approximately 60 metres long, and up to 3.2 metres high. The slope of the land was cut, and then backfill was placed after the wall was built. Finn did not obtain engineering drawings or Council approval for the wall before constructing it.
Finn engaged Mr. Richardson to certify the retaining wall after it was built, and he made his first inspection on 13 October 2008.
The homeowners received a letter from the Council on 20 August 2010, requiring them to have the wall approved or demolished.
Mr. Richardson conducted a final inspection on 04 November 2010, and issued a final inspection certificate on 10 November 2010.
On 29 June 2011, the wall collapsed catastrophically, falling onto the property below, damaging a shed, caravan, and house.
A report of Colefax Rogers Consulting Engineers dated 07 July 2011, which was prepared after the wall collapsed, noted that the wall as constructed could not perform as a cantilever retaining wall, and that the cause of the collapse was faulty design and structural inadequacy. Specifically they noted:-
§The wall was constructed entirely in 190mm masonry, whereas the details on the plans produced by Bruce Associates specified 290mm blockwork off the footing.
§The footing was not wide enough at the base for a wall of the height constructed.
§The starter bars were totally inadequate. The starter bars were closer to the outer face than the fill face of the 190mm masonry. Starter bars should have been located 50mm in from the rear, or fill face, of 290mm masonry.
The homeowners complained to the QBSA about the Certification of the wall.
Section 204 of the Building Act 1975 (‘the Act’) provides that after investigating a complaint or conducting an audit, the BSA must decide whether or not the builder certifier has engaged in unsatisfactory conduct or professional misconduct.
The QBSA gave Mr. Richardson a Notice dated 06 February 2012 that it had decided that Mr. Richardson had engaged in professional misconduct under s 204(1) of the Act. He has applied to the Tribunal to review that decision.
Applicable provisions of the Building Act
The expressions “unsatisfactory conduct” and “professional misconduct” are defined in Schedule 2 of the Act. The elements are very similar, but professional misconduct requires all of the elements and an element of safety, whereas unsatisfactory misconduct only requires some of the elements.
If a finding of professional misconduct is made, then the BSA must apply to the Tribunal to start a disciplinary proceeding against the building certifier under s 204(6).
If a finding of unprofessional conduct is made, then the BSA must decide to do one or more of the actions listed in s 204(4).
On a review hearing I stand in the place of the decision maker[1].
[1] A fresh hearing on the merits (s 20 QCAT Act); and step into the shoes of the decision maker Drake v Minister for Education (1979) 46 FLR 409, 24 ALR 577, Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
If I find that the decision of the QBSA that Mr Richardson engaged in unprofessional conduct is not made out, but that an alternate finding that he engaged in unprofessional conduct is made out, then I can make such finding as the decision maker under s 204(1).
The definition of ‘professional misconduct’ is:-
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
(iii)is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including. For example –
(A)disregarding relevant and appropriate matters; and
(B)acting outside the scope of the building certifier’s powers; and
(C)acting beyond the scope of the building certifier’s competence; and
(D)contravening the code of conduct; and
(E)falsely claiming the builder certifier has the qualifications, necessary experience or licence to be engaged as a building certifier
The definition of ‘unsatisfactory conduct’ is:-
Unsatisfactory conduct for a building certifier or former building certifier, includes the following –
(a) conduct that shows incompetence, or a lack of adequate knowledge, skill, judgment, integrity, diligence or care in performing building or private certifying functions;
(b) conduct that is contrary to a function under this Act or another Act regulating building certifiers (including private certifiers for building work), including for example –
(i)disregarding relevant and appropriate matters; and
(ii)acting outside the scope of the building certifier’s powers; and
(iii)acting beyond the scope of the building certifier’s competence; and
(iv)contravening the code of conduct;
(c) conduct that is of a lesser standard than the standard that might be reasonably be expected of the building certifier by the public or the building certifier’s professional peers.
The nature of professional misconduct by a private certifier was discussed in Schwede v QBSA, Kennedy [2009] QCCTB 157. The member commented at paragraph 65 that:-
Plainly, professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care; it is conduct that compromises the safety of persons using buildings, the amenity of a property or significantly conflicts with local planning laws; it is unlawful conduct – in the sense of conduct contrary to the Acts regulating the functions of private certifiers; it is corruption in the sense of seeking or taking benefits in return for breaching the regulating Act or seeking to corrupt other private certifiers in the same way; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct.
He concluded at paragraph 69 that:
In the context of the Building Act, I am satisfied that professional misconduct is misconduct of a nature and seriousness that a private certifier in good standing would regard as disgraceful or dishonourable and which warrants severe disciplinary action.
The conduct of Mr. Richardson
After Mr. Richardson conducted his first inspection of the retaining wall, he sent a letter dated 21 October 2008 to Finn requesting listed paperwork and information. This included:-
1.Drawings and specifications from a qualified structural engineer including their design certificate.
2. An inspection certificate from a qualified structural engineer to certify the structural integrity of the retaining wall and/or recommend remedial works if required (as the retaining wall was existing, and there appeared to be a slight lean and outwards bow in parts of the Eastern side retaining wall).
Those initial requests by Mr. Richardson appear to be prudent and appropriate, as Mr Richardson was being asked to certify a wall that had already been constructed. The certification of a completed structure, where the components are not readily visible, is obviously a matter that is problematic.
A letter was then sent to Finn Builders by Kel Bruce, a structural engineer, dated 20 January 2009, in response to the request by Mr. Richardson. Mr. Bruce said that the bow, in his opinion, was not detrimental to the structural adequacy of the wall. He issued a Compliance Certificate in Form 15 dated that day, which stated at section 3 that the retaining wall was ‘Certified as structurally adequate in accordance with relevant Australian codes and standards and otherwise in accordance with good engineering practice.”
As time passed, the owners of the adjoining land at 67 Daphne Drive, became increasingly concerned about the wall and commissioned GHD to report on it. In their letter dated 25 August 2010, GHD said that the wall had significant cracks up to 2 mm wide as well as horizontal displacement of the surfaces of some of the cracks, and there was significant tension and shear cracking of the blockwork due to the wall deformation.
GHD summarised their report by saying the durability of the wall was in question and accelerated deterioration of the wall was considered to be likely, and that if the wall continued to rotate and lean over that the extra overturning moments on the wall would continue to increase until the wall became unstable.
GHD recommended that no imposed loads be placed at the top of the wall as those would accelerate the nett destabilising effects on the wall and may lead to further damage or collapse; and that future monitoring should be carried out to ensure the wall remained stable.
Mr. Richardson was provided with a copy of the GHD report before he conducted his final inspection of the wall. Significantly, Mr. Richardson says that he can’t remember looking at the GHD report as he did his inspection.
In conducting his final inspection, Mr. Richardson viewed the wall from one end only, and looked along it. He did not make any attempt to view the wall “face-on”, or inspect the cracking referred to in the GHD report. He explained this by saying that a house had been built below the wall in the interim since his initial inspection.
He did not attempt to gain access through the neighbour’s property to view the wall, or ask to see any photos of it that might be available. It transpired that the neighbour had numerous photos showing the cracking and staining of the wall from water leakage, which would have been of great assistance and information.
The QBSA submit that Mr. Richardson should have been ‘put on notice’ by the GHD Report, and that he should have taken steps to investigate its comments and make relevant inquiries.
A period of 25 months had elapsed since Mr. Richardson had last inspected the wall, and 22 months since Mr Bruce had issued his engineer’s certificate. That passage of time in itself should have given Mr. Richardson reason to look at the wall with fresh and independent eyes.
The authority drew attention to the contents of a ‘Building Newsflash’ Number 380 which was issued on 03 August 2009 as to “Approval of existing building work” and which was readily available to the industry on a Queensland government website.
The Newsflash advised at p 4 that ‘Certifiers should be satisfied of compliance before approving the relevant work and they may satisfy themselves of compliance using any type of evidence that is suitable to the matter to be decided”. It then goes on to discuss the use of investigation methods such as cameras, ground penetrating radars, pulse induction cover-meters, wall x-rays and concrete test hammers. It later discusses other tests such as bores and foundation reports, and requiring excavation adjacent to footings at sample locations to inspect the foundation material and footing depth.
It is puzzling as to why Mr. Richardson did not pay greater attention to the state of the wall after he read the GHD report, and make much greater investigation of the wall.
Mr Richardson had been awaiting payment for his services from Finn between December 2008 and November 2010 for some time, and as at November 2010 was still owed in excess of $8,000 for certification services undertaken on his behalf, which may have disgruntled him. He also devoted a lot of his time in the period from June 2009 to July 2010 to the wellbeing of his infant son who had serious medical conditions, which may have distracted him. He also says that the years 2008 and 2009 were the busiest years that his business had experienced.
Those personal and business issues may have led to Mr Richardson dealing with the matter in a cursory way, and signing the final inspection certificate as a matter of procedure, but he did so without giving it due attention and thought.
A wall falls within the definition of a Class 10 building or structure under the Building Regulation 2006. The Inspection Guideline under section 26 provides that if the work is construction of a class 10 structure, that regard is to be had to ‘structural elements’, and describes that as ‘location and adequacy of structural elements’.
In his evidence, Mr. Richardson said that if these had been the footings of a house, and he had concerns as to the compliance or adequacy of the work that was hidden, that he would have required invasive methods be employed such as uncovering the footings, so that he could measure and inspect them. He said that he did not do that in the case of this wall, because he was not required by the letter of the law as he saw it, to do so, and it was not industry practice to do so.
He said that it was not industry practice to investigate walls, as it was not a regulation or a mandatory requirement, and that builders would not pay for such investigations.
In conducting his work as a private certifier, Mr. Richardson has to have regard to broader policy considerations than just what he sees as the black letter requirement of the applicable law, or as to what the usual practice was for certifiers in the area.
There was a duty on Mr. Richardson to consider the structural integrity of the wall, and to make further investigations if his suspicions were, or should have been aroused, and he had concerns as to its structural integrity or safety.
The Code of Conduct for Building Certifiers issued under s 32 of the Building Act 1975 provides that a building certifier must ‘1. Perform building certifying functions in the public interest’. This is explained as including ‘and must not take any action that would compromise the health and safety of any person, or the amenity of any person’s property’.
The Code further provides that a building certifier must ‘8. Take all reasonable steps to obtain all relevant facts when performing building certifying functions’. This is explained as:
For example, a building certifier should undertake a site investigation where possible to make themselves aware of any site conditions that may influence a decision on the development application (ie. The contours of a site which may influence site drainage).
When asked about the nature of this wall in his evidence, Mr. Richardson was dismissive of the significance of it, saying that there are many walls like that in Cairns, and that he did not see it as unusual or requiring special attention.
However, Mr. Pehrson, who is a Senior Audit and Investigation Officer with the QBSA, and an experienced building certifier, described the wall as a significant construction which should be assessed carefully, having regard to its height, and mass of concrete filled blocks and reinforcing steel, the earth backfill, and the hydrostatic pressures that would come into play, all of which give rise to obvious safety implications.
The eventual fate of the wall, which collapsed on to the neighbour’s property below, as they feared, is evidence of the validity of Mr. Pehrson’s comments.
The fact that the neighbours were able to discern movement in the wall, and to have such concerns as to its integrity which led them to commission a report by Engineers, is also testimony to the fact that here was a disaster looming that was evident, and waiting to happen. It was a danger that was readily apparent, and one which Mr. Richardson should have apprehended and had regard to, when he made his final inspection.
The final inspection certificate in Form 21, dated 10 November 2010, which was signed by Mr Richardson and addressed to the homeowner, stated at section 6 that:-
I certify that an inspection carried out in accordance with best industry practice for the building work was inspected and complies with the building approval or certificates of inspection were accepted from competent persons at the following stages of the construction. Final Stage. 04 November 2010.
A final inspection certificate is not just a formality. It is a representation to the world, and other persons and authorities, who will in turn rely on it. The accuracy of such a certificate is at the core of the system of Private Certification. It is a holding out that the works have been conducted in accordance with the plans, and with relevant regulations and statutes.
If Mr Richardson had been as careful in going about his final inspection and report as he was when conducting his initial inspection, then he probably would not have found himself involved in this type of proceeding.
There is no indication that Mr. Richardson was colluding with the builder, obtaining any advantage by his actions, or had any improper motive, in conducting his certification.
Mr. Richardson’s actions in conducting the final inspection and signing the final certificate were not dishonourable or fraudulent, but are properly seen as careless or reckless.
The definition of unsatisfactory conduct encompasses conduct that shows a lack of adequate diligence or care in performing building or private certifying functions.
Consequently, I do not consider that Mr. Richardson engaged in professional misconduct, but do consider that he engaged in unsatisfactory conduct.
I therefore make Orders setting aside the decision of the QBSA that Mr. Richardson engaged in professional misconduct, and substitute a finding that he engaged in unsatisfactory conduct.
I have considered whether it was open to me to proceed to decide the actions to follow under s 204(4), in an attempt to avoid the possibility of this matter coming back before the Tribunal, and similar evidence having to be heard on a new application.
Section 204(4) of the Building Act 1975 provides that if the BSA decides the building certifier has engaged in unsatisfactory conduct, BSA must decide to do 1 or more of the following –
(a) reprimand the building certifier;
(b) impose the conditions it considers appropriate on the building certifier’s licence;
(c) direct the building certifier to complete to the satisfaction of the BSA the educational courses stated by the BSA;
(d) direct the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated by BSA;
(e) require the building certifier to take all necessary steps to ensure the certification of building work –
(i)complies with this Act; or
(ii)for other assessable development related to the building work – is not inconsistent with all other necessary development approvals that apply to the work; or
(iii)for self-assessable development that may affect the position, height or form of building work – is not inconsistent with the requirements for the self-assessable development; or
(iv)for development or work requiring compliance assessment under the Planning Act that relates to the building work – is not inconsistent with an SPA compliance permit or SPA compliance certificate for the development or work;
(f) direct the building certifier to take necessary enforcement action under this or another act, including, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building work or owner of the building;
(g) if BSA is satisfied the building certifier is generally competent and diligent – advise the building certifier it does not intend to take nay further action.
The decision as to the further steps to take under s 204(4) is a new decision by the BSA.
The jurisdiction of the tribunal is contained in s 205, which provides that if a building certifier is dissatisfied with BSA’s decision under section 204(1) or 204(4), that the certifier may apply under s 205(2) to the tribunal for a review of the decision.
The matter must therefore go back to the BSA for their decision as to the steps to follow under s 204(4). If Mr Richardson wishes to review that decision, then that would have to be brought back to the tribunal as a separate and new review application.
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