Incorrect Building Certification
Incorrect Building Certification
by Jonathan Fenwick, Ebsworth & Ebsworth
Released April 2004
briefly addresses some of the issues relating to the building certification
system which have been the subject of recent changes to the law, including:
functions of building certifiers;
accreditation and licensing system;
to failures to execute building certification functions in accordance
with the law; and
changes imposed by the Building Legislation Amendments Regulation.
recent National Competition Policy review ("the NCPR") of the adequacy
of the building certification system has resulted in amendments to the Standard
Building Regulation by the Building Legislation Amendment Regulation (No 1) 2003
("the Amendments"). The Amendments commenced on 14 November 2003.
Amendments are stated to have the objective of ensuring the building
certification system operates to the highest standard, in a competitive
environment, with adequate protection of the public interest. To this end, the
Amendments place a higher degree of responsibility upon building certifiers to
profession is comprised of individuals of suitable character, competence and
of building work are conducted at appropriate times by suitably
and decisions are made only after due consideration of all relevant
documentation of the manner of execution of building certification
problem to be addressed
empirical data has been gathered in Queensland to demonstrate that the building
certification system (established by amendments to the Integrated Planning
Act ("IPA")) in 1998 is dysfunctional.
submissions from the various stakeholders lead the NCPR to conclude that the
level of dysfunctionality in the system was higher than indicated by the low
number of reported complaints. It was perceived that the common law and
legislative requirements on building certifiers to act in the public interest
may occasionally defer to the commercial pressures arising from the competitive
environment in which certifiers operate.
NCPR considered there were structural inadequacies in the system which allowed
unsatisfactory performance of building certification work to go underreported.
These structural problems include:
monitoring by the Government;
of public awareness of the nature of building certification; and
the event unsatisfactory performance was reported, difficulty in assessing
the certifier’s performance after the fact due to inadequate record
Amendments are part of a common trend toward increasing accountability following
initial deregulation and is exemplified in the evolution of the law of
there are no reported cases in Queensland which consider the responsibilities of
building certifiers, the conduct of individual private certifiers is facing
increasing scrutiny in circumstances of personal injury, property damage or
other financial loss which may in any arise out of substandard performance of
building work. Where matters end up in Court, the building certifier is usually
one of a multitude of third party defendants joined to the proceedings and blame
is argued in percentages between professional indemnity insurers. However, with
the greater responsibility imposed by the Amendments, it is more likely that
cases will arise where the building certifier is a primary defendant attacked
for failing to meet the ever increasing standards required of the profession.
The indirect cost will be more expensive premiums for building certifiers which
will be passed onto the market place.
success of the changes will ultimately depend on:
Government’s commitment to provide additional resources to overstretched
agencies to enable them to fulfil the additional requirements imposed
upon them; and
anti-competitive effects of increased insurance premiums and litigious
behaviour thinning the ranks of the profession.
FUNCTIONS OF BUILDING CERTIFIERS
functions of building certifiers under the Standard Building Regulation ("SBR"),
Building Act ("BA") and IPA are:
and deciding development applications;
and accepting certification for compliance of building and demolition work
with the BA;
certificates of classification;
enforcement action by way of issuing show cause and enforcement notices; and
prosecuting individuals for failure to comply with an enforcement notice.
there a common law duty to commence enforcement proceedings?
the resources required to undertake even simple court proceedings as well as the
adverse costs consequences of an unsuccessful prosecution, private certifiers
are concerned about the possibility that they may in some circumstances be
required to commence prosecutions.
to the potential role of building certifiers in prosecutions, notwithstanding
that there is some ambiguity as to whether building certifiers may (or must) in
certain situations commence prosecutions, the Department of Local Government and
Planning Enforcement Guidelines Queensland Building Work Enforcement Guidelines:
Achieving compliance of building work with the provisions of the Building Act
1975 and the Integrated Planning Act 1997 (25/06/02 B/467252/1) and the
commentary to the IPA See commentary to s5.3.6. state that a building certifier
has full power to commence a prosecution for a failure to comply with an
enforcement notice issued by the building certifier.
from the policy issues arising out of the Government delegating the expense and
risk of public law enforcement to a private profession, there is a slight degree
of ambiguity as to whether building certifiers have such a power to commence
prosecutions which alone mitigate against certifiers assuming such a role.
power to commence proceedings for a failure to comply with an Enforcement Notice
(IPA 4.3.15) is reserved to an "assessing authority" (s4.3.18(3))
which following the 2000 amendment to the dictionary in schedule 10, may mean
"the private certifier or the local government" for "assessable
development for which a private certifier has been engaged to perform the
functions of a private certifier under Chapter, 5 part 3" of the IPA. This
appears to empower certifiers to undertake prosecutions.
as to the meaning of the legislation arises in circumstances where:
contrast to the explanatory note to the amendment which allowed private
certifiers to issue show cause and enforcement notices Building and
Integrated Planning Amendment Bill 1997 Explanatory Notes (the Bill was
passed as Act13/98), the explanatory notes to the amendment which supposedly
conferred the power to prosecute Local Government and Other Legislation
Amendment Bill 2000 (Act4/00); See 4.3.18 makes no comment as to what would
be a significant conferral of power;
specifically provides that a private certifier is an assessing authority for
the purposes of Chapter 4, Part 3, Division 2 (issuing Show Cause Notice)
and Division 3 (issuing Enforcement Notice and doing things required by an
Enforcement Notice). This section has not been amended to specifically
provide a power to commence prosecution proceedings (contained in Division
explanatory note to amending Act No 4/00 says of the definition of
"assessing authority" that "assessing authorities may, within
their jurisdiction, issue enforcement notices with respect to the stated
development", again omitting reference to a power to prosecute; and
"assessing authority" may be the local government or the private
certifier, possibly indicating a legislative intent that local government
perform onerous law enforcement role of prosecutions.
a matter of statutory construction, it may be argued that the specific grant of
power to issue show cause and enforcement notices impliedly limits the scope of
private certifiers’ powers to issuing such notices, by omitting reference to a
power to commence prosecution proceedings.
ambiguity as to whether the profession has such power is of concern given the
High Court decision in Pyrenees Shire Council v Day  HCA 3, in which the
Court found a local authority had breached an affirmative duty of care requiring
it to exercise a statutory power which was invested to protect the community
from a particular risk and the authority was aware of a specific risk to a
specific individual. The principle espoused was that where the legislature
invests the power for the purpose of protecting the community, it clearly
intends that the power be exercised in appropriate circumstances. A failure to
exercise the power may constitute negligence.
the context of building certification, while it is unlikely that circumstances
would arise in which the commencement of a prosecution is a reasonable step to
take to protect a person from a known risk, there is no reason in principle (as
distinct to policy), why a building certifier invested with a power to commence
a prosecution to protect an identifiable individual or group from a particular
risk, may not bear a duty of care to take that step if it would avoid the risk.
This is the view of the DLGP. Op cit no 1 at 3.2
building certification profession is concerned about the expense and drain on
resources created by a quasi-statutory obligation to commence proceedings.
Unfortunately, the Government missed the opportunity to use the Amendments to
also clarify the Government’s position as to the responsibility of building
certifiers to prosecute individuals for failing to comply with an enforcement
notice issued in respect of work for which they were retained.
Amendments merely provide that where there is a failure to comply with an
enforcement notice, the building certifier need merely inform the local
government and BSA of that fact.
if such a power does exist, the outsourcing of a law enforcement function to
private certifiers may not serve the public interest given that:
role of enforcing public law is traditionally the responsibility of the
certifiers have no competence to conduct legal proceedings, and have no
access to subsidised legal or financial assistance to assist in the conduct
a successful enforcement proceeding would be result in a private certifier
incurring unrecoverable expense given the high degree of unrecoverable costs
under the Magistrates Court scale;
unsuccessful prosecution by a private certifier would ordinarily result in
the private certifier incurring his own and the other party’s costs; and
exercise of statutory powers, whether by government or private certifiers,
should be subject to administrative review.
LICENSING & ENDORSEMENT OF LICENCES
accreditation standards body (the Australian Institution of Building Surveyors)
is responsible for:
the educational and experience standards necessary for each level of
those standards comply with the national accreditation framework approved by
the Australian Building Codes Board; and
an approved professional development scheme for ongoing training and
education which addresses inadequacies and incompetencies of the building
two tier licensing regime
BSA is responsible for licensing accredited building surveyors as building
are two levels of licence:
normal licence, granted to persons of suitable character and qualifications,
which authorises performance of standard building certification functions.
endorsed licence, issued by the BSA to private certifiers with appropriate
competencies and insurance (as prescribed in the Amendments), authorising
the assessment of development permits for building work against local
competencies required to be endorsed are set out very generally in the
Amendments, and include an ability to ascertain what other approvals are
necessary preconditions for issuing a development permit.
of up to $12,375 apply if a person performs certification functions without the
tier statutory disciplinary system
person may make a written complaint to the BSA about the work or conduct of a
BSA, upon receipt of a written complaint, may recommend it be dealt with by
mediation. If mediation is unsuitable or unsuccessful, a BSA auditor must
investigate the complaint.
investigation, the BSA decides what type of disciplinary action should be taken.
aspects of the disciplinary system following the Amendments are:
action may be taken against past as well as present building certifiers;
type of disciplinary action depends upon whether the conduct is
"professional misconduct" or the lesser infringement of
BSA is responsible for disciplining unsatisfactory conduct;
CCT is responsible for proceedings prosecuted by the BSA in respect of
professional misconduct; and
CCT may make monetary compensation orders against past and present
certifiers for professional misconduct.
misconduct is conduct:
would be regarded as disgraceful or dishonourable by one’s peers;
severe disciplinary action; and
conduct that compromises the health or safety of a person or amenity of a
conduct is conduct which:
an error of professional judgment, such as incompetent work; and
not warrant severe disciplinary action.
instances of unsatisfactory conduct considered together may amount to
the CCT is satisfied a building certifier has engaged in professional
misconduct, it may:
or cancel a building certifier’s licence;
a building certifier, in respect of defective or incomplete work as a result
of professional misconduct, to arrange rectification or make payment for
rectification of the work;
fines ranging from $6,000 (for a first offence) up to $12,000 (for a third
any other order the CCT considers appropriate.
the building certifier’s employer, be it a private company or a local
government, should reasonably have prevented the professional misconduct, it may
be subject to the CCT's orders as if it were itself guilty of the charge.
or cancellation of building certifier’s licence
Amendments increase the BSA’s powers to regulate the profession by providing:
BSA may cancel or suspend or change the Building Certifier’s level of
licensing, at any time (rules of procedural fairness must be observed); and
BSA must cancel a building certifier’s licence to act as a private
certifier if the private certifier does not hold the necessary insurance.
COMMON LAW/STATUTORY CAUSES OF ACTION AGAINST CERTIFIERS
from the disciplinary remedies available against private certifiers, loss
arising as a result of a building certifier’s conduct may be recoverable
pursuant to a cause of action under statute or common law.
certifier may breach an express term of the contract to provide services using
reasonable care and skill, which may be expressed in the agreement or implied by
law. If the certifier is a corporation, it will be implied by s74 of the Trade
under contract depends upon the person suffering the loss being a party to the
agreement, as well as the loss being referable to the breach of the term.
from implied contractual terms, a (corporate) building certifier may breach s52
of the TPA if it engages in conduct that is misleading and deceptive, for
certifier represents itself as possessing a level of competency or licence
beyond that actually possessed, which is relied upon by another to their
building certifier acting in conflict of interest; or
a building certifier certifies work as compliant in circumstances where it
is not and the representation is relied upon by another to their detriment.
independently of the express or implied contractual duties, building certifiers
have a tortious duty of care to exercise reasonable care and skill in the
performance of the building certification functions. Voli v Inglewood Shire
Council (1962-63) 110 CLR 74 This duty is all but legislatively confirmed and
amplified by the duty imposed on private certifiers to act in the public
interest. IPA, s5.3.8
duty of care may be breached where personal injury or economic loss is suffered
as a result of breach of contract or the legislation, including where:
certifier issues a development permit before all necessary approvals are
certifier carelessly certifies work as compliant when it is not;
certifier issues a certificate of classification of a building or structure
that does not meet the requirements of the Building Code; or
to notify the local government or BSA or possibly to take enforcement
certification: the significance of deemed-to-satisfy provisions of the BCA
deemed to satisfy provisions under the BCA were discussed in Toomey v
Scolaro's Concrete Construction and others Toomey v Scolaro’s Concrete
Construction and ors (No 2)  VSC 279 ("Toomey").
In that case a building certifier was held negligent for personal injuries
suffered by a man who fell over a balustrade railing. The certifier negligently
certified the balustrade railing as compliant when it did not meet the BCA90
requirement that it restrict accidental falls. The railing was 933 mm high,
whereas the deemed-to-satisfy provisions of the BCA90 provided that the railing
would be deemed to satisfy the requirements of the BCA if it was 1,000 mm high.
to the significance of the deemed-to-satisfy provision of the BCA, the Court
compliance with the BCA is not determinative of discharge of the private
certifier’s duty of care, it would be highly relevant evidence to the
issue of discharge of duty of care given that the BCA represents the
collective expert opinion of a panel of industry professionals;
balustrade railing of less than 1,000 mm in height (even without approval or
dispensation of the relevant appeals board) may still comply with the code
if it restricts accidental falls;
railing 933.5 mm high did no less to restrict accidental falls than the
thousands of rails of 900 mm in height which were built under previous
regulations and which the BCA did not require to be replaced;
it was found the balustrade did not meet the deemed to satisfy requirements
of the BCA, the question of compliance with the performance requirements of
the BCA became a question of fact to be determined on the balance of
a hypothetical balustrade rail of 990 mm might satisfy the BCA requirement
to restrict accidental falls, the only way to place beyond argument that
compliance had been achieved would be by satisfying the deemed to satisfy
provision which stipulates compliance at 1,000 mm; and
balustrade did not satisfy the BCA requirement to restrict accidental falls.
Toomey, the certifier was required under his contract of retainer to check the
architect’s plans to ensure they were compliant with the requirements of the
BCA90. The architect’s plans were negligently drawn and contained an ambiguity
which the building certifier negligently failed to identify and have corrected.
The Court said of this function that a building surveyor "charged with
statutory and contractual responsibility for examining plans for compliance, and
being well paid to do so, is being called on to apply expertise which
condescends to examine the minutiae of plans, so as to detect error, ambiguity
which might reasonably produce error by those who will subsequently rely on
was held that:
certifier was responsible for checking the architect’s plans in minute
detail for errors and ambiguities and failed to do so;
was an ambiguity in the drawing which was such that, had it been noticed,
queries should have been made and the plan should not have been approved;
was irrelevant to the issue of liability that such dire consequences arose
from a seemingly minute detail.
other than personal injury: liability to a subsequent owner for pure economic
the nature of building certifiers’ functions, as well as the duty to act in
the public interest, certifiers can be sued for personal injury to any member of
the public arising out of negligent performance of their duties.
it seems clear that there is sufficient closeness or proximity in the
relationship between a private certifier and the owner of the building or
structure in respect of which building certification functions are performed, to
allow the certifier to be sued in negligence for any economic loss sustained.
situation is less clear as regards economic loss suffered by subsequent
purchasers of buildings.
particular, whether a building certifier may be sued for pure economic loss
suffered by a subsequent owner of a building in respect of which the certifier
performed functions depends on whether the premises are a residential or
pure economic loss to be recoverable by subsequent owners, they must establish a
special relationship with the certifier to give rise to a duty of care on the
certifier to avoid such loss.
appears that sufficient proximity exists in cases where an unsophisticated
subsequent purchaser of residential premises suffers diminution in value of the
premises caused by the negligence of the designer. Bryan v Maloney (1994-1995)
182 CLR 609 In principle, a building certifier could bear a very similar duty of
care as a designer and may be liable for such loss.
the Courts have quarantined the ability of subsequent purchasers to recover pure
economic loss to specific circumstances. The Queensland Court of Appeal has held
that a designer of a commercial building had no duty of care to a avoid the risk
to a subsequent purchaser of pure economic loss caused by dangerous defects
arising from negligent design, even where there was a partial collapse of the
building. Fangrove Pty Ltd v Tod Group Holdings Pty Ltd (1999) 2 Qd R 236
Court of Appeal expressed the following views:
special treatment afforded to subsequent owners of residential dwellings by
the High Court was founded in complex policy considerations such as the
likelihood that subsequent purchasers of residential dwellings are likely to
be less skilled in building matters and property investment than subsequent
purchasers of commercial premises.
fact that subsisting defects were likely to lead to injury or damage to
other property was not a sufficient reason to expand the duty of care.
further extension [of the categories of recoverable loss] should lie within
the province of the High Court.
the Court’s logic has merit in preventing the consequences of opening the
floodgate on claims against designers and related professionals, it seems not to
properly accommodate circumstances where:
commercial premises is purchased by someone who lacks commercial or building
domestic purchaser has significant building and commercial savvy; or
building has a mixed commercial and residential use.
is understandable that the Court viewed the matter as best left to the High
Court to resolve. See also Proprietors Units Plan No 95/98 v Jiniess Pty Ltd
 NTSC 89
LEGISLATION AMENDMENT REGULATION (NO 1) 2003
Amendments amend the Integrated Planning Regulation, the SBR and the State
Penalties Enforcement Regulation. Several of the significant changes have been
discussed in the foregoing text.
amendments to the Standard Building Regulation also affect significant changes
to the obligations of private certifiers to ensure that individual certifiers
are ultimately accountable against more prescriptive criteria for the building
certification work performed.
stated objective of the Amendments are to implement the NCPR to ensure the
Building Certification System operates to the highest possible standard and that
public interest is properly protected through:
scrutiny in the licensing of Building Certifiers to ensure the profession
possesses minimum competencies and behaves according to an enforceable code
the requirement upon building certifiers to fully document each decision
made, including reasons and setting out the material considered;
more rigorous inspection procedures and constraints on use of
"competent persons" for inspections;
the spot fines for various infringements; and
a legislative framework which will enable the adoption of the Queensland
Development Code ("QDC") once it is completed by the Government.
certifiers are now required to create and retain significant amounts of
additional documentation in respect of the performance of building certification
enable the assessment of the performance of functions and decision making
the conduct of disciplinary (and other legal) proceedings; and
be retained for a period of at least 5 years.
explanatory memorandum to the Amendments states "Building Certifiers should
be able to demonstrate that they have acted in the public interest when forming
an opinion or making a decision".
Amendments create the same administrative onus on certifiers as the amendments
to the Workplace Health & Safety Act have placed upon employers. As
such, whenever something goes awry and the manner in which certification
functions have been performed is questioned, it will be a matter for the
certifier to prove that all obligations were met.
requirements: competent persons
is common for a building certifier to have a competent third party perform
inspections on their behalf. Prior to the Amendments, the certificate of a
competent person could be relied upon in good faith without checking. This
afforded a degree of protection in the event the inspection certificate was
found to be incorrect.
the extent to which a certificate may be relied upon in good faith, without
checking, was severely compromised by the decision in Toomey’s case. In
Toomey, the building certifier sought to use the Victorian equivalent of s86 of
the SBR (as it was prior to the Amendments) as a form of statutory immunity from
an action in negligence.
the certifier had incorrectly certified the railing as compliant in reliance
upon a certificate provided by an independent contractor retained to perform
inspections, the certifier argued he had relied upon the erroneous inspection
certificate in good faith and hence was immune from liability. However, the
Court found that the good faith requirement was not satisfied in circumstances
where the certifier had failed to adequately supervise the inspector in the
performance of the inspections.
in response to the Toomey case, the Amendments to the definition of
"competent person" now require the competence of the "competent
person" to be assessed against specific (and less subjective) criteria,
which may be prescribed (eg in relation to fire engineering).
the inspection of the final stage of work may be made by a "competent
person" other than the building certifier only if the person is also a
building certifier licensed to perform building certifying functions for the
work is inspected and is noncompliant and the builder does not make the work
compliant, the building certifier must take enforcement action by issuing a show
cause and, if necessary, enforcement notice to the builder.
Building Certifier is required to keep a documentary record of all information
relied upon in assessing the competence of the person providing the certificate,
including a statement of reasons for considering the person providing the
certificate to be competent (to be kept at least 5 years). This will enable the
decision to use a "competent person" to be vetted.
decision is made in the course of performing building certification
certificate is issued;
builder fails to comply with the requirements of the Amendments to provide
notices of inspection at the times set out in the Amendments;
enforcement notice is issued; or
enforcement notice is not complied with,
certifier must notify, or provide a copy of specific documentation, to the
local government and/or the BSA, and in some instances to the owner.
level of consultation will enable the Government to take action more promptly in
respect of breaches of the SBR and also to better monitor the performance of
ever local governments have been placed on notice by a certifier as to any
inadequacy posing a risk to health and safety, it will be incumbent upon them to
exercise their powers in appropriate circumstances.
the level of regulation and accountability of the building certification
designed to be proactive by prescribing requirements in respect to the
manner in which building certification functions are executed;
designed to be reactive by facilitating disciplinary and other proceedings
in respect of failures to perform building certification functions in
accordance with the legislation and the common law; and
designed to further facilitate the enlargement of the role of the building
certification system, by increasing the powers and responsibilities of the
professional and the regulator.