Building Professionals Take Note: Successful Appeal of a Building Misconduct Finding
By Justin Cotton, Partner and Head of Practitioner Advocacy at Lovegrove Solicitors
Construction professionals across all states need to know that not all findings of professional misconduct must be an end to the matter. It is sometimes possible to successfully overturn negative findings made against you, if you apply for a review or appeal to an overseeing tribunal.
This can be done as a matter of principal rather than being about considerations of the level of penalty, because an adverse disciplinary finding is a dark stain on your professional reputation. Also the taking of such cases on appeal can assist the entire industry to get a better understanding of any grey areas in the law.
In a recent case a building surveyor client of ours took before the Building Appeals Board (in Victoria), a finding of unsatisfactory conduct against him (made by the Building Practitioners Board) was quashed on appeal.
The building surveyor concerned did not feel comfortable about the decision and knew that many in his industry would have disagreed with the finding. He therefore decided to take issue with the decision on a matter of principle, and the case was decided “on the papers” after written legal submissions were exchanged and filed with the Board.
In essence the finding of guilt that was appealed, was that the building surveyor had breached section 24 of the Building Act 1993 by issuing a building permit on residential land that was not consistent with a relevant planning permit or “other prescribed approval”.
The land concerned was just 1 lot within a 25 lot subdivision, and the building permit was approved to construct a new home and garage on that lot. In this case the building surveyor was only engaged in regard to that 1 lot and the Planning Permit related to the entire subdivision.
Condition 3 of that Planning Permit required the owner of subject land to enter into an agreement under section 173 of the Planning and Environment Act 1987 that contained siting matters, including that any garage on the lot must be set back a minimum of 5.5 metres from any street boundary.
A primary argument from the practitioner was that the Planning Permit related to the entire subdivision and there was no Planning Permit for the individual lot where he was the relevant building surveyor. So he was not bound to take that Planning Permit into account as part of his consideration when issuing a Building Permit under section 24 of the Act.
As a result he was not responsible for ensuring, pursuant to section 24, that the set back requirement in the section 173 agreement attaching to the Planning Permit was complied with.
Furthermore, he had regard to the relevant practice note approved by the industry regulator and that practice note does allow a building surveyor to approve a building permit where the design complies with the Building Regulations but not the specifications of a building envelope. As the design otherwise complied with the Building Regulations, it was the lot owner’s duty to ensure compliance with any section 173 agreement requirement – and the practitioner had drawn the matter to the permit applicant’s attention.
On Appeal the Building Appeals Board upheld the appeal and quashed the finding of guilt against the building surveyor.
The main reasons for the finding were as follows:
- The Planning Permit that specified the section 173 agreement related to and authorised a 25 lot subdivision;
- While the 173 agreement did not appear to seek to create an approved building envelope in terms of regulation 406 of the Building Regulations, the obligations it created would bind
subsequent owners and be enforceable under the Planning and Environment Act;
- Upon registration of the plan of subdivision on 9 May 2006, the Planning Permit was effectively “spent” and was no longer of any legal effect, and a separate title was created for the specific
lot. The building permit was later issued on 11 July 2006;
- Section 24(1)(d) of the Building Act 1993 does not require a building permit to be consistent with an agreement under section 173 of the Planning and Environment Act and on those
grounds the agreement is not a “prescribed approval” within the meaning of section 24(1)(d);
- Given all of the above the building surveyor when making his determination to issue the building permit could not be said to have breached section 24(1) of the Act.
This may well be a decision that clarifies this area of the law somewhat should similar circumstances arise again. The decision reasons did not refer to the practice note directly.
For more advice on your rights and responsibilities in this area of law, or if you are perchance in a dispute yourself, do not hesitate to take prompt legal advice now.
By Justin Cotton, Partner, Lovegrove Solicitors
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© Lovegrove Solicitors 2014