The Devil is in the Details: How far into Precise Compliance Does A Certifier Need to Go?
By Justin Cotton, Partner and Head of Practitioner Advocacy at Lovegrove Solicitors
Whether we are talking accredited certifiers in New South Wales, the relevant building surveyor (RBS) in Victoria, or a building certifier in other states or territories, there is a common conundrum where the dust has not yet quite settled.
Is it necessary for these construction professionals, the ‘regulatory gatekeepers’ if you will, to delve into “the minutiae” when checking plans for compliance, as one Victorian case found? Or is it more a situation where a building surveyor or certifier is responsible only for a general overview to ensure basic compliance with the regulations and the Building Code, as other legal decisions suggest?
At a fairly recent public forum in New South Wales, there was robust discussion in regard to private certification. This included in particular the extent to which it is permissible for a Principal Certifying Authority (PCA) to rely on certification from installing contractors rather than performing their own visual checks at a final inspection.
Even though terminology may be different, for example a PCA in NSW is known as the RBS in Victoria, there are actually more similarities in the key functions than differences. As our firm practices in both jurisdictions, we are keenly aware of the parallels in the functions and the common problems across the states.
When speaking generally, the writer brought up case law in Victoria that made the following key points:
- With regard to performing mandatory inspections and approving an Occupancy Permit, it is appropriate for the RBS to rely on the design practitioners and the builder to ensure that the construction is in accordance with the Building Code;
- It is reasonable and common practice to rely on Certificates of Compliance in order to issue an Occupancy Permit; and
- The Tribunal accepted the evidence of a building surveyor to the effect that: “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.”
The case is that of Lewis v Threadwell [2004] VCAT 547, a decision of VCAT in Victoria. All fair and reasonable stuff, and accepted in part in even some of the stricter decisions on private certifiers that evolve at the ADT in Sydney.
Upon mentioning this case though, the speaker on behalf of the Building Professionals Board was able to bring up another Victorian decision, being that in the well known case of Toomey v Scolaro (“Toomey’s case”). This is the decision where the Judge opined that it is incumbent on the building surveyor to “condescend to the minutiae” of the details on plans, to ensure there is compliance, and not rely wholly on a building inspection by others (even if that “other” is a registered building inspector).
The colourful facts of the case were that an athlete had been seriously injured after “having one too many” at home, and had fallen over a balustrade at an apartment block. It was found that the balustrade had been designed and constructed to be too low and outside the requirements of the building regulations. A number of construction practitioners were joined to the proceeding, including the architect, and also the building surveyor and building inspector.
Even though the damages were reduced because of the complainant’s contributory negligence (he was drunk), the Court still awarded damages against various parties. Now, it is true that an RBS is entitled to rely on a certificate of compliance from a registered inspector that attests to compliance, provided that the reliance is in good faith. But here the Court looked at a $10 inspection fee and a compliance certificate that was not in the right format, and decided the RBS’ reliance could not be in good faith.
It was evident to the Court that the building inspector having charged a $10 fee for the inspection had not even bothered to measure the balustrade height and it was clearly too low. The upshot was that both the building inspector and the building surveyor were found to be liable as contributing parties to the damages.
More importantly, it is those words “condescend to the minutiae” that have put the fear into the building surveyor or certification fraternity, and have been gone over by investigating officers like a fine tooth comb.
If one sizes up all the case law though, it would appear that a balance needs to be struck based on common sense but also the crucial public regulatory function of a building surveyor or certifier.
In 2010 a planning director of Sydney Council had this to say in a Sydney Morning Herald article: “It is unreasonable to expect a private certifier or a council inspector to be a structural engineer, fire safety expert, electrician, plumber and waterproofer.”
This statement was made following the widely discussed NSW decision of Dix v Building Professionals Board [2010] NSWADT. In that case, the PCA had issued an Occupancy Permit after both carrying out the final inspection personally and to an extent relying on certificates from specialist installing contractors.
Of course, if compliance certificates under Part 4A of the EP&A Act 1979 had been obtained that would have given the PCA a statutory immunity, but it is not always possible to source such compliance certificates. In that case some other form of certification becomes the next best thing.
Needless to say, the PCA was not an electronics specialist in, for example, the operation of a back to base fire alarm system – and to that extent he pointed toward industry practice to rely on specialist certifications.
In the end, the ADT accepted the investigator’s view that even though the PCA had relied on certificates from installers, such certificates did not go far enough in referencing specific systems or standards. In regard to one of the items, tulip style door handles, the ADT found that:
“This is not a case where it might reasonably be held that the ability and knowledge to be expected of a general building certifier meant that he or she must rely wholly on a provided certificate, as can occur with, for example, major electrical lay-outs or engineering installations…”
Even in saying this though the ADT is accepting in principal that the PCA’s role is of ‘general’ certification to ensure a building is safe and fit for occupation, without glaring breaches of the Building Code. It is well established that a building certifier/surveyor cannot be on every site where they have issued a construction certificate or building permit, looking over the builder’s shoulder and ensuring good workmanship. That is often a contractual matter between builder and owner.
So the conundrum then becomes, how much reliance is too much reliance? The most that can be gleaned it is suggested is:
- Do not rely on certificates (unless they are proper or ‘official’ compliance certificates) when a visual inspection yourself is possible and reasonable; and
- Ensure any certificates relied on reference all applicable standards or parts of the Building Code.
If in any doubt of your responsibilities or the risks in this area, you should seek prompt legal advice from construction lawyer experts in the field.
By Justin Cotton, Partner, Lovegrove Solicitors
ph 9600 1643
www.lclawyers.com.au
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© Lovegrove Solicitors 2013
