Building Surveyors Are not Arbiters of Good Taste
By Kim Lovegrove FAIB of Lovegrove & Cotton – Construction and Planning Lawyers
Plaintiffs love to sue building surveyors, and a great many builders have a habit of joining building surveyors as third parties.
Even though a search of case law will reveal a number of decisions where building surveyors have been found “guilty” as it were, they seem to have become “claytons defendants” or “the defendants you have when you don’t have a defendant.”
Building surveyors are popular defendants because they are principal actors involved in every building project in the state of Victoria. They issue the building permit, carry out the inspections and issue the occupancy permits or the certificates of final inspections. The north of three-storey exemption where you can’t sue builders (this exemption is under review in many jurisdictions) hasn’t helped either, for it has meant that absent the ability to pursue warranty cover in builder insolvencies, building surveyors are sized up.
The legislature intended that building surveyors play an important, if not critical role in the enforcement of building regulations. However, the legislature never contemplated that building surveyors would become the fall guy for all things that found wanting in the as built product.
This may come as a surprise to some plaintiff lawyers, who adopt a pretty cavalier approach to suing building surveyors. Hopefully, aspirational litigants will learn enough to ensure that when they decide to have a crack at a building surveyor they doing so on in circumstances where the cause of action is built on very solid foundations.
In my 29 years of construction law experience, the basis of many a lawsuit against building surveyors is misconceived. Contrary to popular belief, building surveyors are not arbiters of good taste, and here’s where Senior Member Davis has come to the rescue, stating precisely that which building surveyors do not do.
“A building surveyor/building inspector is not engaged ‘to design, construct, project manage, act as a site foreman, clerk of works, supervisor for any part, of any construction process,'” he noted. “The building surveyor does not have any overriding duty but has a specified, finite responsibility to ensure compliance with minimum standards of the Building Code.”
It should also be borne in mind that building surveyors can also rely upon section 238 compliance certificates issued by prescribed classes of building practitioners such as engineers or building surveyors that certify that the work complies with the relevant aspect of the BCA. As long as the reliance upon the compliance certificate is in good faith, the building surveyor enjoys a statutory immunity and is exonerated from liability that is attached to the misconceived issue.
One of the paramount roles of a building surveyor is to carry out a final inspection and issue an occupancy permit when the owner or the builder considers the building work is completed. But here’s the thing: just because the building surveyor issues an occupancy permit doesn’t mean at law that the building surveyor assumes the liability for a whole host of defective work related sins.
Section 46 of the Building Act is very carefully worded and provides that an occupancy permit is “evidence that the building or part of a building to which it applies is suitable for occupation…but is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations.”
The legislation is quite clear in emphasising two key points:
• an occupancy permit is issued when the building is suitable for occupation
• an occupancy permit is not evidence that the building work complies with the Act
Senior Member Davis hammered this point home in said case when he opined that “it is not the role of the a building surveyor or inspector to assure for aesthetics, quality, durability, reliability of workmanship on behalf of the owner and/or the builder. Weatherproofing, waterproofing are specific issues dependent upon quality workmanship and the reliability of products, these are the responsibility of the builder and product manufacturer.”
After all, under Acts of Parliament like the Domestic Building Contracts Act, there are statutory warranties that make it crystal clear that the builder has to build well and warrant the quality and the suitability of the as built product.
You may wish to read Senior Member Davis’ findings and seminal utterances very, very carefully because they are quite profound. Profound in the sense that if anyone is intent upon joining “the defendant you have when you don’t have a defendant” on the basis of a whim or a misconceived “industry practice,” then member Davis’ findings should give one pause. The last thing a consumer wants is to issue proceedings against a building surveyor when the grounds to do so are shallow, as costs may be visited upon the unsuccessful plaintiff.