New point of law: What can be considered as a protected document?
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
On 5 February 2015, Senior Member Erik Riegler of the Victorian Civil and Administrative Tribunal (VCAT) handed down his decision regarding Fiona O'Hehir, Building Practitioners Board, and John Vosti, Building Practitioners Board.
The role of building inspectors was recently considered by VCAT when it was reviewing a determination of the Victorian Building Practitioners Board (BPB) following an inquiry into the conduct of a building inspector. Key findings of VCAT were:
This case concerned the construction of a dwelling in Donvale Victoria in 2007. The site was heavily sloping and had rocky foundations. The building inspector was retained by a registered building surveyor to carry out two mandatory stage inspections – the first being upon completion of the framework stage, the second upon completion of all building work.
The current owner of the property (Owner) purchased it after the building work was completed and later discovered various defects some of which related to sub surface water drainage issues. The Owner complained to the BPB about the builder, building surveyor and building inspector.
The BPB conducted an inquiry into the conduct of all three practitioners. In relation to the building inspector, the BPB found him guilty of two allegations that he had failed to identify defective and non-compliant work during his inspections. The BPB determined that the Practitioner's registration was to be suspended for three months and the Practitioner was to pay $3,000 towards the BPB's costs of the inquiry.
Both the inspector and the Owner made application to VCAT for review of the BPB's decision. The inspector contended that the determination against him was too severe. The Owner contended that the decision to suspend the registration for three months and pay only a fraction of the BPB's costs was too lenient.
One of the items of work the inspector failed to identify or act upon when carrying out the frame inspection and the final inspection was the failure by the builder to install sub surface drains or adequate drainage, which resulted in water entering the subfloor and causing considerable damage to the property. It was accepted that an agricultural drain required in the approved drawings had not been laid. The BPB found that the inspector should have identified that the drain had not been laid at the time he did the frame stage inspection.
The inspector said he had assumed that any required drains had been installed by the plumber and would be included in the plumbing certificate. Further, he did not believe the frame inspection required him to look at anything but the frame.
VCAT considered the obligation imposed under section 34 of the Building Act 1993 (Act) relating to inspections at mandatory notifications stages and said s 34 does not limit the inspection to an inspection of the frame only. VCAT said 'The words 'building work concerned to be inspected' mean the building work the subject of the building permit and not simply an element of that work ... It simply marks when rather than what is to be inspected'. The member noted that that interpretation is consistent with one of the primary objects of the Act, namely, to protect the safety and health of people who use buildings and places of public entertainment.
VCAT went on to find that given the critical significance of not having adequate drainage for this particular property, he considered it was incumbent upon the inspector to have made further inquiries to be satisfied that sub surface drainage had been installed in accordance with the design drawings.
The floor joists used in the construction of the upper storey floor frame were known as WESbeam e-joists. These joists were a prefabricated alternative to solid timber joists. The e-joists were required to be blocked at each end and possibly at mid span in order to prevent twisting under load. No blocking was installed at the time of the frame work inspection. The inspector gave evidence that he did not believe that mid span blocking or any blocking was necessary given that the joists were tied together when the chip board floor above was secured to the joists and he was of the view that there was no possibility of those e-joists twisting.
The role of an inspector is to inspect for the purpose of ensuring that the as-constructed works comply with the building permit. It is not an element of that role to form an opinion as to whether it is permissible to depart from the design.
VCAT went on to observe:
If there is a departure from the design, it is the role of the inspector to bring that to the attention of the relevant building surveyor. That was not done in this particular case. In my view the frame should not have been approved unless there was engineering justification to dispense with any blocking of the e-joists.
VCAT further commented that:
The danger where an inspector approves work that departs from the design or a standard is that the inspector may not be qualified to make that decision, despite the fact that he or she believes otherwise. Although there may be instances where an inspector has the experience and knowledge to know what impact a minor change has to the overall structural integrity of a building, it is difficult to draw a line as to what is permissible and what is not. For that reason the decision making process, as to whether changes in design are permissible or not, is ultimately vested with the building surveyor, who is given a broad range of powers under the Act to deal with this very situation.
The VCAT member concluded that in his opinion, unilaterally approving a departure from the intended design without notifying the building surveyor is of some concern and not to be regarded as a trivial breach of the Act and Regulations.
Similar comments were made in relation to a further defect not identified by the inspector relating to the fact that part of the as-constructed works comprised construction of lightweight walls which were rendered and none of those walls had control joints. As a result cracking was occurring in a number of locations.
The inspector gave evidence that he did not believe control joints were required given that the building was founded on rock and the materials used to construct the lightweight walls were materials that were unlikely to expand. In this instance, no control joints were depicted on the amended design drawings.
The VCAT member, having considered expert evidence on the point, concluded that the issue concerning the lack of control joints ought to have been raised with the relevant building surveyor although the member accepted that there may have been some confusion in circumstances where the design drawings did not depict control joints. The member was of the view the breach was at the lower end of culpability.
Finally, another item of work related to the inspector identifying deficiencies in the frame, in particular concerning the support of roof loads. The inspector had given oral instructions to carpenters working on site to undertake remedial measures. VCAT said that 'allowing non-compliant work to remain, on the assumption that the builder will remedy the work could lead to serious consequences, especially where the building surveyor is not notified'. The member went on to say 'that conduct clearly undermines the operation of the Act by disengaging the building surveyor from what is actually occurring on site'.
VCAT observed that s 37(1) of the Act indicates 'the legislature's intention to vest with the building surveyor or the inspector acting on behalf of the building surveyor, considerable responsibility to ensure compliance with the building permit and the Act. In the case of an inspector, it is not open for that person to reconsider the design documents or the applicable Australian Standard, which form part of the building permit. … the role of an inspector is to require compliance with the building permit and to give directions (which must be confirmed in writing) to ensure compliance'.
VCAT held that suspending the inspector's registration in this instance was not warranted. In forming this view the member placed significant weight on the fact that the inspector had demonstrated that his current work practice was different to what it was in 2007. The member found that the Practitioner had learnt from his mistakes and that suspending his registration would lead to a disposition that was too harsh.
In terms of specific deterrence, the VCAT member cited the Court of Appeal's decision in Stirling v Legal Services Commissioner 2013 VSCA 374 where the Court of Appeal made the following comments:
In assessing specific deterrence, there must be an assessment as to how the penalty reflects the behaviour of the accused. In Brott, (in reference to the decision of Brott v Legal Services Commissioner 2008 [VCAT 2399]) Judge Ross also noted that this factor involves 'a consideration in relation to specific deterrence is the extent to which a practitioner displays an insight into his wrong doing such as to demonstrate an appreciation of what has been done was wrong and must not recur.
The member found that reprimanding the Practitioner and imposing a penalty of $4,000 adequately reflected the requirements of general and specific deterrence, having regard to the objectives of the Act. The BPB's decision to require payment of $3,000 costs (which was approx. one quarter of the BPB's total costs) was considered by VCAT to be reasonable in the circumstances and was affirmed making the total fine and costs $7,000.
A look at Environment Protection Authority v Sydney Water Corporation  NSWLEC 119.
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