Neller v Queensland Building and Construction Commission [2021] QCAT 426

the question of whether the complaint made pursuant to s 190 of the Building Act 1975 (Qld) was made before the cut-off date and, otherwise, whether the conduct caused or may cause significant financial loss or other serious harm will be determined by a Member of the Tribunal on the papers ...

• [6] Section 190 of the Act relevantly provides:

(2A) A complaint about conduct of a building certifier may only be made before the cut-off day, unless the certifier's conduct has or may have caused significant financial loss or other serious harm.

...

(6) In this section - cut-off day, for making a complaint about conduct of a building certifier, means -

...

(b) for conduct relating to building work for which a building development application has been made to which paragraph (a) does not apply, 1 year after -

(i) a private certifier is engaged for the application; or

(ii) if a private certifier is not engaged for the application - the application is received by the local government; or

• [7] It is not in dispute that the time limit in s 190(6)(b) is applicable to the building development approval issued by Mr Neller. Nor is it in dispute that the complaint by the Sunshine Coast Council was made after the cut-off date.
• [8] The issue before the Tribunal is whether Mr Neller's conduct 'has or may have caused significant financial loss or other serious harm'.
• [9] Wayne Blackman, a Principal Technical Officer with the QBCC, provided a statement in the following terms:

I considered that the Complaint could be made because in my view, by issuing the Applicant's DA Approval for the building work, the Applicant's conduct could be said to have created a situation that may have caused 'other serious harm' to a person. This is because:

(a) I am of the view that the Applicant either knew, ought to have known, or if he didn't know, could have made in inspection, or undertaken enquiries to ascertain for himself, the use of the Rooftop Work, and the fact that the Rooftop Work was for the purposes of a rooftop deck used for recreational purposes, including the establishment of a tennis court on the rooftop deck;

(b) I am of the view that the Applicant either knew, or ought to have known, that the purpose of the work approved under the Applicant's DA Approval was for the inclusion of fences/barriers to the perimeter of the rooftop deck which were mechanically adjustable ... rather than 'Feature hoods on roof line' as described in the Applicant's DA Approval;

(c) in any case, the aerial photographs of the Property included above show that the structure in place has been constructed for the purposes of creating an outdoor recreational area above the roof of the existing dwelling, and including as one of its uses being for the construction of a tennis court. Aerial photographs of the Property showing the use of the rooftop deck as a tennis court were readily available to the Applicant before granting the Applicant's DA Approval;

(d) as diagrammatically shown on the Applicant's Approved Plans, and whiles (in my view, incorrectly) described as 'Hinged Feature Hoods' and 'Hinged Roof Hoods' along the perimeter of the roof, those plans detail what I believe is more correctly described as 'mechanical adjustable barriers/fences' to the external perimeter of the rooftop deck;

...

As the mechanical adjustable barriers/fences approved by the Applicant did not meet the performance requirement P2.5.2 of the [Building Code of Australia], the Property did not have acceptable barriers for the protection of persons falling from the perimeter of the rooftop deck. In my view, this creates an unacceptable risk of serious harm to persons falling from the rooftop deck.

Specifically, whilst orientated in the horizontal position, the mechanical adjustable barriers/fences fail to provide fall protection to the perimeter of the rooftop deck at the Property. The lives and safety of persons who may access the rooftop deck at the Property are therefore at risk (particularly if any vulnerable person access same).

• [10] Nr Neller submission is that the roof of the property is not a deck. He also submits the building development approval did not cause significant financial loss or other serious harm because no actual financial loss or other serious harm occurred. Mr Neller further submits that there is no causal connection between his conduct and the perceived risk of serious harm.
• [11] I do not accept Mr Neller's submissions. In terms of the use of the roof of the property, I reproduce below the photograph appearing in Mr Blackmans statement:

• [12] The roof of the property is obviously configured to be used as a tennis court. Mr Neller's submission that the roof is not a deck is disingenuous.
• [13] In terms of the absence of actual financial loss or other serious harm, s 190(2A) does not require actual harm. It refers to conduct which 'has or may have caused' other serious harm. In my view, the absence of acceptable barriers to the rooftop deck may have caused serious harm to persons accessing the rooftop deck, as it may have led to such persons falling from the deck.
• [14] This interpretation is supported by the Explanatory Note to the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (Qld), which inserted s 190(2A), which relevantly provides:

The provision also limits the period for making a complaint about conduct of a building certifier for breaches unlikely to cause serious financial loss or harm. No limitation of time applies for making a complaint about conduct that is likely to cause serious financial loss or harm.

• [15] In terms of causation, I consider that a useful analogy is the test of causation in negligence. In Bennett v Minister of Community Welfare [1992] HCA 27, all members of the High Court adopted the 'common sense' approach to the question of causation. Mason CJ, Deane and Toohey JJ held:

In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but is not a comprehensive and exclusive test of causation; value judgements and policy considerations necessarily intrude.

• [16] This position was agreed to by Gaudron J, while McHugh J held:

the existence of the causal connection is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaption of such a theory for legal purpose.

• [17] In the present case, the risk of serious harm does not in itself arise from the use of the roof as an outdoor recreation area or tennis court. The risk arises from a lack of acceptable barriers for the protection of persons falling from the perimeter of the rooftop deck. The mechanical adjustable barriers/fences, which fail to provide protection whilst orientated in the horizontal position, were approved in this form by Mr Neller. Adopting a common sense approach, I am of the view that Mr Neller's conduct in approving an adjustable barrier has a sufficient causal connection to the risk of serious harm.
• [18] Accordingly, I find that the requirements of s 190(2A) are met.