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HG Building and Construction Alert: Planning Law Perspectives - 19 March 2014

Issue 6

Welcome to the sixth issue in our rolling series of Alerts offering planning law perspectives on issues relevant to the building and construction industry.

Duties of building certifiers

The Code of Conduct for Building Certifiers sets out the standards of conduct and professionalism expected from building certifiers when performing building certifying functions. The standards include that a building certifier must “take all reasonable steps to obtain all relevant facts when performing building certifying functions” and must “clearly document reasons for building certifying decisions”.

In order to meet these standards, a building certifier should carefully investigate and maintain properly documented details of work performed and reasons for building certifying decisions, including:

  • all building work inspections, including random auditing;
  • any tests carried out;
  • enquiries made about inspections carried out by others and the reason why those inspections are considered to have been properly performed; 
  • sources and copies of any advice from third parties being relied upon (for example, an alternative solution involving fire engineering analysis);
  • when relying upon a certificate from a competent person, retaining copies of the documents and setting out the reasons and information relied upon in deciding that the person providing the certificate is competent and that the certificate provided is competent;
  • how details in plans and documents were examined for compliance with building legislation and standards, and any earlier approved plans;
  • any findings of fact cross-referenced to the evidence or other material on which the finding was based (for example, the relevant Australian Standard); and
  • how any ambiguity between the plans and applicable standards and codes was resolved, including any changes made to correct errors.

The importance of detailed records should not be underestimated. The case of Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) and Others (No 2) [2001] VSA 279 highlights the importance of building certifiers instigating a reasonable and reliable checking process, including a realistic level of random auditing as part of an inspection schedule.

The building certifier was held negligent for personal injuries suffered by a man who fell over a balustrade railing at an apartment block. Mr Toomey sustained severe injuries which left him a quadriplegic. There were 10 defendants to the claim, including the building certifier. The Court awarded damages of $2.248 million against all defendants. 

The building certifier was held to have negligently certified the balustrade railing as compliant. The constructed balustrade railing was 933mm high. The final drawing specified the rail at a height of 950mm. The Building Code of Australia 1990 (BCA) applicable at the time, required balustrades to be built to restrict accidental falls. A height of 1000mm above the landing was identified in the BCA’s deemed-to-satisfy provisions.

The Court held that the architect was responsible for the design which was approved by the building certifier. The certifier was considered responsible for checking the architect’s plans in minute detail for compliance with the requirements of the BCA. In this case, the architect’s plans contained an ambiguity which the building certifier failed to identify and have corrected. 

The building certifier relied on a building inspector to issue a compliance certificate certifying that, among other things, the height of the balustrade was compliant with the BCA. Despite an argument that the certifier engaged an inspector and relied upon the inspector’s certificate in good faith, the Court found that the building certifier was vicariously liable for the failings of the building inspector, who was negligent in his inspection, and the certificate issued did not meet the statutory requirements.

This case indicates that there exists a good faith requirement that cannot be satisfied in circumstances where the certifier fails to adequately supervise the performance of the inspections. This requirement exists even if an inspector is engaged and that inspector fails to bring the standard of care to this task of inspection which a reasonably competent inspector should have applied.

The Queensland Building Regulation 2006 enables building certifiers to rely upon competent persons to give certificates with respect to building design or specifications and to give certificates following inspections of single detached class 1a buildings in prescribed circumstances. The Toomey judgment reinforces that despite these provisions, a building certifier remains responsible to ensure that compliance is achieved.

What does this mean?

Certifiers should adopt a “hands on” approach and check that reasonable care and skill is being employed on site, including by those who may be performing the duties of a building inspector. Failure to do so may have significant consequences, in terms of both civil liability for death or injury and for failing to meet professional standards.  

If you would like to discuss any of the issues raised in this Alert series to date or would like assistance with respect to another aspect of the building and construction industry, please contact HopgoodGanim’s Building and Construction or Planning and Development teams.

Now in its 40th year and with offices in Brisbane, Perth and a presence on-the-ground in Shanghai, HopgoodGanim offers commercially focused legal advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.