Decision of the Board in Respect of the Conduct of a Licensed Building Practitioner Under section 315 of the Building Act 2004

Transcription

1 Before the Building Practitioners Board BPB Complaint No. C Licensed Building Practitioner: Juan Walters (the Respondent) Licence Number: BP Licence(s) Held: Carpentry Decision of the Board in Respect of the Conduct of a Licensed Building Practitioner Under section 315 of the Building Act 2004 Complaint or Board Inquiry Hearing Location Hearing Type: Complaint Auckland In Person Hearing Date: 26 April 2017 Decision Date: 4 May 2017 Board Members Present Chris Preston (Presiding) Mel Orange Robin Dunlop Bob Monteith Procedure: The matter was considered by the Building Practitioners Board (the Board) under the provisions of Part 4 of the Building Act 2004 (the Act), the Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008 (the Complaints Regulations) and the Board s Complaints and Inquiry Procedures. Board Decision: The Respondent has committed a disciplinary offence under section 317(1)(b) of the Act.

2 Contents Introduction... 2 Function of Disciplinary Action... 2 Background to the Complaint... 3 Evidence... 3 Board s Conclusion and Reasoning... 5 Negligence and/or Incompetence... 5 Carrying out Building Work without a Building Consent... 6 Building Work Quality and Compliance... 7 Penalty, Costs and Publication... 8 Penalty... 8 Costs... 9 Publication Section 318 Order Right of Appeal Introduction [1] The hearing resulted from a complaint into the conduct of the Respondent and a Board resolution under regulation 10 of the Complaints Regulations 1 to hold a hearing in relation to building work at [Omitted]. The alleged disciplinary offences the Board resolved to investigate were that the Respondent carried out or supervised building work or building inspection work in a negligent or incompetent manner (s 317(1)(b) of the Act). Function of Disciplinary Action [2] The common understanding of the purpose of professional discipline is to uphold the integrity of the profession. The focus is not punishment, but the protection of the public, the maintenance of public confidence and the enforcement of high standards of propriety and professional conduct. Those purposes were recently reiterated by the Supreme Court of the United Kingdom in R v Institute of Chartered Accountants in England and Wales 2 and in New Zealand in Dentice v Valuers Registration Board 3. 1 The resolution was made following the Board s consideration of a report prepared by the Registrar under in accordance with the Complaints Regulations. 2 R v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, 19 January [1992] 1 NZLR 720 at p 724 2

3 [3] Disciplinary action under the Act is not designed to redress issues or disputes between a complainant and a Respondent. In McLanahan and Tan v The New Zealand Registered Architects Board 4 Collins J. noted that: the disciplinary process does not exist to appease those who are dissatisfied with their architect. The disciplinary process for architects exists to ensure professional standards are maintained in order to protect clients, the profession and the broader community. [4] The Board can only inquire into the conduct of a licensed building practitioner with respect to the grounds for discipline set out in section 317 of the Act. It does not have any jurisdiction over contractual matters. Background to the Complaint [5] The Complainant alleged the Respondent had built a foundation for a garage in a noncompliant manner and had failed to obtain a building consent for the building work. Evidence [6] The Board must be satisfied on the balance of probabilities that the disciplinary offences alleged have been committed 5. Under section 322 of the Act the Board has relaxed rules of evidence which allow it to receive evidence that may not be admissible in a court of law. [7] The Board had obtained a report from William Hursthouse as a Technical Assessor which set out noncompliance issues and his opinion as regards the requirement for a building consent. Mr Hursthouse was to appear at the hearing to answer questions but was not able to as a result of a family bereavement. The Board asked the Respondent whether he would consent to the hearing proceeding in his absence and on the basis that any questions the Respondent had of the Technical Assessor could be put to him in writing following the hearing. The Respondent had no objections to the matter proceeding and, following evidence being heard, had no questions to put to him. [8] The building work complained about involved the construction of a garage foundation. Evidence was heard that the intended garage was to be of a Versatile Garages design but that the home owner who contracted for the building work was not dealing directly with Versatile. The owner gave evidence that a John Henry Ede was recommended to him for the build by a work colleague. He engaged with Mr Ede and another person who he described as Mr Ede s associate who had a relationship with Versatile. Plans based on a Versatile design were shown to him and a page of foundation detail from those plans was produced at the hearing. Those details included foundation dimensions and reinforcing steel requirements. The 4 [2016] HZHC 2276 at para Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 3

4 owner stated that he had been assured by Mr Ede that a permit (building consent) had been obtained for the building work prior to it being commenced. [9] The Respondent was engaged by Mr Ede to carry out the building work. The owner stated he did not know the Respondent and had met him only once early on in the work when Mr Ede introduced him as the person who would be carrying out the building work. [10] The Complainant, the home owner s neighbour and a retired licensed building practitioner with some 35 years of experience in the building industry, gave evidence that he was checking the progress of the building work being carried out and took an interest in it as he was concerned as to the quality and compliance of the work. His observation was that the preparation of the footings for the foundations were such that they should not have been poured. The Complainant subsequently took over the build. He obtained a building consent and demolished the footings built by the Respondent. He noted that the noncompliance issues listed in the Technical Assessor s report were evident when he demolished the footings. [11] The issues listed by the Technical Assessor included: (a) (b) (c) footings designed and poured without plans, specifications and building consent; the footings as poured are well outside the tolerances found in the relevant documentation; and the starters are not centrally placed, nor evenly spaced, nor set at the correct centres. [12] The Respondent accepted the findings in the Technical Assessors report as well as responsibility for the poor and noncompliant building work carried out. He outlined that at the time he was involved in another large build and, due to payment issues in relation to it, he was facing cash flow problems. He looked for and took on other work to provide additional cash flow. He stated that he had been told by Mr Ede that a building consent had issued but accepted that he had not sighted the building consent and did not have stamped plans and specifications with which to carry out the building work. Rather he relied on a drawing provided by Mr Ede and verbal instructions from him as regards the depth and width of footings. [13] The Respondent gave evidence that he had two employees on site. Both had only been engaged by him approximately two weeks prior to starting the building work. One had told him he had experience with foundations. The other was a labourer. The Respondent stated he checked the site daily over the four days of work undertaken but accepted he did not pick up the issues complained of and accepted that at the time he was focused on obtaining payment and was not paying close enough attention to quality issues. He stated that the workers he had on the site did not follow his instructions. 4

5 [14] No inspections were organised or carried out prior to the concrete for the footings being poured. The Respondent stated that both he and Mr Ede took photographs for later reference to show the council that the work was compliant. The Respondent, who was present at the start of the pour, relied on Mr Ede to arrange the inspection and stated he allowed the pour to proceed as Mr Ede had booked the concrete. The Respondent accepted that the pour should not have proceeded and that he should have been making the decision on site as regard quality and compliance as the licensed building practitioner, not Mr Ede. Board s Conclusion and Reasoning [15] The Board has decided that Respondent has carried out or supervised building work or building inspection work in a negligent manner (s 317(1)(b) of the Act) and should be disciplined. Negligence and/or Incompetence [16] In considering whether the Respondent has carried out or supervised building work in a negligent or incompetent manner the Board has had regard to the case of Beattie v Far North Council 6. Judge McElrea provided guidance on the interpretation of those terms: [43] Section 317 of the Act uses the phrase "in a negligent or incompetent manner", so it is clear that those adjectives cannot be treated as synonymous. [44] In my view a "negligent" manner of working is one that exhibits a serious lack of care judged by the standards reasonably expected of such practitioners, while an "incompetent" manner of working is one that exhibits a serious lack of competence. [46] The approach I have adopted recognises that the terms "negligent" and "incompetent" have a considerable area of overlap in their meanings, but also have a different focus - negligence referring to a manner of working that shows a lack of reasonably expected care, and incompetence referring to a demonstrated lack of the reasonably expected ability or skill level. [17] The Board has also considered the comments of Justice Gendall in Collie v Nursing Council of New Zealand 7 as regards the threshold for disciplinary matters: [21] Negligence or malpractice may or may not be sufficient to constitute professional misconduct and the guide must be standards applicable by competent, ethical and responsible practitioners and there must be behaviour which falls seriously short of that which is to be considered acceptable and not mere inadvertent error, oversight or for that matter carelessness. [18] There are two matters for the Board to consider as regards negligence and/or incompetence. The first is whether the Respondent was negligent in carrying out building work without a building consent. The second is whether the Respondent has 6 Judge McElrea, DC Whangarei, CIV [2001] NZAR 74 5

6 been negligent and/or incompetent in the carrying out or supervising the building work. Carrying out Building Work without a Building Consent [19] The Board has found in previous decisions 8 that a licensed person who commences or undertakes building work without a building consent could, in such circumstances, be considered to be negligent and as such that the conduct can come within the provisions of s 317(1)(b) of the Act. Full reasoning was provided by the Board in decision C [20] More recently Justice Brewer in Tan v Auckland Council 10 stated in relation to a prosecution under s 40 of the Act: [35] The building consent application process ensures that the Council can check that any proposed building work is sufficient to meet the purposes described in s 3 (of the Act). If a person fails to obtain a building consent that deprives the Council of its ability to check any proposed building work. [37] those with oversight (of the building consent process) are in the best position to make sure that unconsented work does not occur. [38] In my view making those with the closest connection to the consent process liable would reduce the amount of unconsented building work that is carried out, and in turn would ensure that more buildings achieve s 3 goals. [21] The Board considers the Court was envisaging that those who are in an integral positon as regards the building work, such as a licensed building practitioner, have a duty to ensure a building consent is obtained (if required). It follows that failing to do so can fall below the standards of care expected of a licensed building practitioner. [22] The question for the Board to consider is whether, at the time the building work was undertaken by the Respondent, the Respondent took reasonable steps to ensure that a building consent had actually been issued prior to undertaking the building work. [23] The Respondent enquired with the head contractor Mr Ede as regards a building consent. He was given an assurance that there was one but did not sight it. No other steps were taken. [24] Section 40 of the Act requires that building work be carried out in accordance with a building consent. It is difficult for the Board to conceive how this could have been achieved unless the licensed building practitioner had a copy of the consented plans. Moreover it is a condition of all building consents issued in the Auckland Territorial Authority area that a copy of the consented plans be kept on site at all times. The Respondent as a licensed practitioner working in the area should have been aware of this. 8 Refer for example to Board Decision C1030 dated 21 July Board Decision C dated 31 August [2015] NZHC 3299 [18 December 2015] 6

7 [25] Given these factors the Board finds that relying on an assurance was not sufficient to meet the Respondent s obligations as a licensed building practitioner. Accordingly the Board finds that he has been negligent in that his conduct has fallen below the standard of care expected of a licensed building practitioner. Building Work Quality and Compliance [26] Both the Complainant and the Technical Assessor have identified poor quality and non-compliant building work. The Respondent has accepted that the building work did not meet the required standards. He supervised the work and as such is responsible for the quality and compliance of it. In Board Decision C the Board found that the definition of supervise in s 7 12 of the Act must be interpreted in such a way as to give effect to the purpose of the legislation which includes the regulation and accountability of licensed building practitioners the fundamental requirement of which, under section 7 of the Act, is that the supervision of the building work is sufficient to ensure it is performed competently. [27] In C the Board also discussed the levels of supervision it considers will be necessary to fulfil a licensed building practitioner s obligations noting that the level of supervision required will depend on a number of circumstances including: (a) (b) (c) (d) the type and complexity of the building work to be supervised; the experience of the person being supervised; the supervisor s experience in working with the person being supervised and their confidence in their abilities; the number of persons or projects being supervised; and (e) the geographic spread of the work being supervised. [28] The Board also needs to consider whether the work met the requirements of the building code and if not, the level of non-compliance. [29] Supervision in the context of the Building Act has not yet been considered by the courts. It has, however, been considered in relation to Electricity Act The definition of supervision in that Act is consistent with the definition in the Building Act and as such the comments of the court are instructive. In th case Judge Tompkins stated at paragraph 24: As is made apparent by the definition of "supervision" in the Act, that requires control and direction by the supervisor so as to ensure that the 11 Board Decision dated 14 April Section 7: supervise, in relation to building work, means provide control or direction and oversight of the building work to an extent that is sufficient to ensure that the building work (a) is performed competently; and (b) complies with the building consent under which it is carried out. 13 Electrical Workers Registration Board v Gallagher Judge Tompkins, District Court at Te Awamutu, 12 April

8 electrical work is performed competently, that appropriate safety measures are adopted, and that when completed the work complies with the requisite regulations. At the very least supervision in that context requires knowledge that work is being conducted, visual and other actual inspection of the work during its completion, assessment of safety measures undertaken by the person doing the work on the site itself, and, after completion of the work, a decision as to compliance of the work with the requisite regulations. [30] Taking the above into consideration the Board finds that the Respondent has been negligent. Whilst the building work undertaken was not complicated and did not require a high level of supervision the Respondent was relying on two staff members who he had only recently been hired and of whom he had little actual knowledge of their levels of skills and knowledge. More importantly though, the work was not performed competently and the Respondent failed to identify and/or deal with the noncompliance issues. As such the Respondent is found to have been negligent as regards his supervision of the building work. Penalty, Costs and Publication [31] Having found that one or more of the grounds in section 317 applies the Board must, under section 318 of the Act i, consider the appropriate disciplinary penalty, whether the Respondent should be ordered to pay any costs and whether the decision should be published. [32] The Respondent made submissions at the hearing as regards penalty, costs and publication. [33] The Respondent informed the Board that he has stabilised his business and is moving forward with it. He now employs 18 staff who are broken into three teams, each of which has a leading hand foreman who is trade qualified but not licensed. He works for volume builders and supervises the work himself going to each site daily to give instructions, check on progress and review completed work. He now ensures that stamped plans are always on site when carrying out building work under a consent. [34] From a personal perspective he is the main income earner for his family and he stated he would be able to pay a fine if that was the Board s decision. [35] The Respondent expressed regret and remorse for the matters which lead to the complaint. He had previously undertaken to repay the owner the funds he had received for the building work and provided evidence of those payments at the hearing. The owner confirmed receipt of the payment by letter following the hearing. Penalty [36] The purpose of professional discipline is to uphold the integrity of the profession; the focus is not punishment, but the enforcement of a high standard of propriety and professional conduct. The Board does note, however, that the High Court in 8

9 Patel v Complaints Assessment Committee 14 commented on the role of "punishment" in giving penalty orders stating that punitive orders are, at times, necessary to provide a deterrent and to uphold professional standards. The Court noted: [28] I therefore propose to proceed on the basis that, although the protection of the public is a very important consideration, nevertheless the issues of punishment and deterrence must also be taken into account in selecting the appropriate penalty to be imposed. [37] The Board also notes that in Lochhead v Ministry of Business Innovation and Employment 15 the court noted that whilst the statutory principles of sentencing set out in the Sentencing Act 2002 do not apply to the Building Act, they have the advantage of simplicity and transparency. The court recommended adopting a starting point for penalty based on the seriousness of the disciplinary offending prior to considering any aggravating and/or mitigating factors. [38] The Board initially considered suspension or cancellation of the Respondent s licence. This was based on the failings being extreme and on what appeared to be a disregard for the building consent process. However, having received submissions in mitigation and having obtained a better picture of the Respondent s business and business practices the Board was satisfied that such action was not necessary. [39] Based on the above the Board s penalty decision is that the Respondent pay a fine of $2,000. The Board had a starting point of $3,000 but reduced this on the basis that the Respondent had accepted responsibility and has repaid the owner of the property. Costs [40] Under s 318(4) the Board may require the Respondent to pay the costs and expenses of, and incidental to, the inquiry by the Board. [41] The Respondent should note that the High Court has held that 50% of total reasonable costs should be taken as a starting point in disciplinary proceedings and that the percentage can then be adjusted up or down having regard to the particular circumstances of each case 16. [42] In Collie v Nursing Council of New Zealand 17 where the order for costs in the tribunal was 50% of actual costs and expenses the High Court noted that: But for an order for costs made against a practitioner, the profession is left to carry the financial burden of the disciplinary proceedings, and as a matter of policy that is not appropriate. 14 HC Auckland CIV , 13 August 2007 at p November 2016, CIV , [2016] NZDC Cooray v The Preliminary Proceedings Committee HC, Wellington, AP23/94, 14 September 1995, Macdonald v Professional Conduct Committee, HC, Auckland, CIV , 10 July 2009, Owen v Wynyard HC, Auckland, CIV , 25 February [2001] NZAR 74 9

10 [43] Based on the above the Board s costs order is that the Respondent is to pay the sum of $750 toward the costs of and incidental to the Board s inquiry. The Board s starting point was $1,500 but it again it has given recognition to the Respondent being cooperative and to his accepting responsibility for his action in setting the final costs order. Publication [44] As a consequence of its decision the Respondent s name and the disciplinary outcomes will be recorded in the public register maintained as part of the Licensed Building Practitioners scheme as is required by the Act 18. The Board is also able, under s 318(5) of the Act, to order publication over and above the public register: In addition to requiring the Registrar to notify in the register an action taken by the Board under this section, the Board may publicly notify the action in any other way it thinks fit. [45] As a general principle such further public notification may be required where the Board perceives a need for the public and/or the profession to know of the findings of a disciplinary hearing. This is in addition to the Respondent being named in this decision. [46] Within New Zealand there is a principle of open justice and open reporting which is enshrined in the Bill of Rights Act The Criminal Procedure Act 2011 sets out grounds for suppression within the criminal jurisdiction 20. Within the disciplinary hearing jurisdiction the courts have stated that the provisions in the Criminal Procedure Act do not apply but can be instructive 21. The High Court provided guidance as to the types of factors to be taken into consideration in N v Professional Conduct Committee of Medical Council 22. [47] The courts have also stated that an adverse finding in a disciplinary case usually requires that the name of the practitioner be published in the public interest 23. It is, however, common practice in disciplinary proceedings to protect the names of other persons involved as naming them does not assist the public interest. [48] Based on the above the Board will not order further publication. Section 318 Order [49] For the reasons set out above, the Board directs that: Penalty: Pursuant to s 318(1)(f) of the Building Act 2004, the Respondent is ordered to pay a fine of $2, Refer sections 298, 299 and 301 of the Act 19 Section 14 of the Act 20 Refer sections 200 and 202 of the Criminal Procedure Act 21 N v Professional Conduct Committee of Medical Council [2014] NZAR ibid 23 Kewene v Professional Conduct Committee of the Dental Council [2013] NZAR

11 Costs: Publication: Pursuant to s 318(4) of the Act, the Respondent is ordered to pay costs of $750 (GST included) towards the costs of, and incidental to, the inquiry of the Board. The Registrar shall record the Board s action in the Register of Licensed Building Practitioners in accordance with s 301(1)(iii) of the Act. In terms of section 318(5) of the Act, there will not be action taken to publicly notify the Board s action, except for the note in the register and the Respondent being named in this decision. [50] The Respondent should note that the Board may, under section 319 of the Act, suspend or cancel a licensed building practitioner s licence if fines or costs imposed as a result of disciplinary action are not paid. Right of Appeal [51] The right to appeal Board decisions is provided for in s 330(2) of the Act ii. Signed and dated this 4 th day of May Chris Preston Presiding Member i Section 318 of the Act (1) In any case to which section 317 applies, the Board may (a) do both of the following things: (i) cancel the person s licensing, and direct the Registrar to remove the person s name from the register; and (ii) order that the person may not apply to be relicensed before the expiry of a specified period: (b) suspend the person s licensing for a period of no more than 12 months or until the person meets specified conditions relating to the licensing (but, in any case, not for a period of more than 12 months) and direct the Registrar to record the suspension in the register: (c) restrict the type of building work or building inspection work that the person may carry out or supervise under the person s licensing class or classes and direct the Registrar to record the restriction in the register: (d) order that the person be censured: (e) order that the person undertake training specified in the order: (f) order that the person pay a fine not exceeding $10,000. (2) The Board may take only one type of action in subsection 1(a) to (d) in relation to a case, except that it may impose a fine under subsection (1)(f) in addition to taking the action under subsection (1)(b) or (d). 11

12 (3) No fine may be imposed under subsection (1)(f) in relation to an act or omission that constitutes an offence for which the person has been convicted by a court. (4) In any case to which section 317 applies, the Board may order that the person must pay the costs and expenses of, and incidental to, the inquiry by the Board. (5) In addition to requiring the Registrar to notify in the register an action taken by the Board under this section, the Board may publicly notify the action in any other way it thinks fit. ii Section 330 Right of appeal (2) A person may appeal to a District Court against any decision of the Board (b) to take any action referred to in section 318. Section 331 Time in which appeal must be brought An appeal must be lodged (a) within 20 working days after notice of the decision or action is communicated to the appellant; or (b) within any further time that the appeal authority allows on application made before or after the period expires. 12