Van Eyk v Queensland Building and Construction Commission

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Van Eyk v Queensland Building and Construction Commission [2020] QCAT 278

PARTIES:

GERARD VAN EYK

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR087-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 July 2020

HEARING DATE:

7 June 2019

HEARD AT:

Southport

DECISION OF:

Member Holzberger

ORDERS:

1. The decision of QBCC made on 8 March 2018, that Mr Van Eyk engaged in six instances of unsatisfactory professional conduct and as a consequence professional misconduct is set aside.

2.   The Tribunal substitutes a decision that Mr Van Eyk engaged in three instances of unsatisfactory professional conduct. 

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – DISCIPLINARY PROCEEDINGS – CERTIFIER – where the QBCC issued a Decision Notice finding that the applicant engaged in professional misconduct – where the applicant sought review of that decision - whether the decision should be upheld

Building Act 1975 (Qld), s 83(1), sch 2

Building Regulation 2006 (Qld), s 27, s 29, s 35B(1)
Queensland Building and Construction Commission Act 1991 (Qld), s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Blundell v QBCC [2018] QSC 58

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	T C Schmitt, Counsel

REASONS FOR DECISION

1. Gerard Van Eyk, a private certifier, has applied to the Tribunal for a review of an internal review decision by the Queensland Building and Construction Commission (‘the Commission’) that he engaged in professional misconduct (‘the IR decision’).[1]

   [1]Application to review a decision filed 6 April 2018.

2. The IR decision relates to three separate building development approvals assessed and approved by Mr Van Eyk relating to a dwelling situated at 8 Pall Mall Avenue, Currumbin (‘the dwelling’) owned by Luke Jordan and Lucy Jordan.[2]

   [2]Application 2482 – swimming pool application; Application 2461 – alteration to dwelling including decks, stairs and ramp; Application 2696 - roof over middle level deck.

Background

1. Russell Clark (‘the complainant’) and Jacquelyn Boucaut are the owners of 10 Pall Mall Avenue, Currumbin, a neighbouring property immediately to the south of the dwelling.

2. In December 2016, they returned from six months overseas to find ‘an excessive and illegal extension’ to the dwelling constructed during their absence.

3. They initially contacted the Gold Coast City Council (‘the Council’), the relevant local authority, and were advised ‘there was no documentation in the GCCC computer for the subject constructions’ and commenced an ‘objection process’ with the Council which is ongoing.[3]

   [3]Respondent’s bundle of documents filed 8 June 2018, BOD-1 – Complaint dated 21 February 2017, 7.

4. They subsequently made a complaint to the Commission against the builder, Richard Johnson, but were advised that the Commission could not do anything as the work had been completed. On the advice of the Commission, they then lodged a complaint against the private certifier, Mr Van Eyk, on 16 February 2017 (‘the complaint’).

5. A decision in respect of the complaint (‘the original decision’) was made on 6 November 2017.