Shaw v Building Practitioners Board (Revised) (Review and Regulation) [2015] VCAT 455

1. The decision of the Building Practitioners Board, insofar as it relates to its determination that Allegation 1 and Allegation 2 are proven, is affirmed.
2. By 28 April 2015, the parties may file and serve any further submissions as to what orders are to be made under s 179 of the Building Act 1993.
3. By 28 April 2015, a party wishing to be heard on the question of what orders are to be made under s 179 of the Building Act 1993, must advise the Principal Registrar and the other party in writing of their desire to do so, upon receipt of which I direct the Principal Registrar to list the proceeding for a further hearing before Senior Member E Riegler at the Tribunal's earliest convenience with 2 hours allocated.
4. Liberty to apply.
5. Costs reserved.

1. This proceeding concerns an application for review of a decision made by the Building Practitioners Board ('the Board') following an inquiry into the Applicant's professional conduct as a building surveyor. Under s 178 of the Building Act 1993 ('the Act') the Board is empowered to hold disciplinary proceedings into the conduct of registered building practitioners and impose sanctions as prescribed under s 179(2) of the Act.
2. The Board alleges that the Applicant is guilty of two separate Allegations relating to breaches of the Act. The breaches are alleged to have been committed during the Applicant's engagement as the relevant building surveyor for a domestic building project located in Hawthorn.
3. The Allegations are set out in the Board's Amended Notice of Inquiry dated 6 November 2013,[1] which states:

Allegation 1: ground for inquiry - section 179(1)b) of the Act

1. On or about 9 September 2010 and in relation to building work, namely the construction of the dwelling at ... Hawthorn (Building Work), you failed to comply with section 24(1)(a) of the Building Act 1993 in that you issued a building permit in respect of the Building Work in circumstances where you could not have been satisfied that the Building Work would comply with the Building Regulations 2006.

Particulars

You could not have been satisfied at the time of issuing the building permit that the Building Work would comply with the following regulation in the Building Regulations 2006, as set out in the Technical Report dated 8 October 2012 prepared by Michael Flanagan on behalf of the Building Commission:

1.1 Regulation 419, in respect of overlooking into habitable room windows and secluded private open spaces of a dwelling on an adjoining allotment.

Allegation 2: ground for inquiry - section 179(1(b) of the Act

1. Between 16 March 2010 and 26 October 2010 and in relation to the need for protection work, at a dwelling situated at ... Hawthorn, you failed to comply with sections 87(1) and 87(4) of the Building Act 1993 in that as the relevant building surveyor you failed to make a determination as to the appropriateness or otherwise of protection work and failed to make a determination in writing to the adjoining property owner.

Particulars

2.1 On 2 March 2010 a Form 3 - Protection Work Notice was served on the adjoining property owner ...

2.2 On 16 March 2010, you, as the practitioner, received a Form 4 - Protection work response notice dated 14 March 2010 from the adjoining property owners.

2.3 You failed to make a determination as to the appropriateness or otherwise of protection work.

2.4 You failed to make a determination in writing to the adjoining property owners.

2.5 On 12 May 2010 you sent an e mail to ... advising that the design had been reconsidered and the method used would be in accordance with regulation 603 of the Building Regulations 2006.

2.6 On 8 September 2010 you sent a letter to ... enclosing structural certification from two engineers pursuant to regulation 603 of the Building Regulations 2006 and supporting documents.

2.7 On 26 October 2010, following a receipt of the request from Tress Cox Lawyers, the lawyers for the adjoining property owners, you made a determination in writing.

1. Allegation 1 and Allegation 2 were the subject of an inquiry conducted by the Board on 6 November 2013. On 16 December 2013, the Board issued a written determination, in which it found the Applicant guilty of both Allegations.[2] The Board subsequently reprimanded the Applicant and imposed a fine of $2,000. In addition, the Board ordered that the Applicant pay 50% of the costs of and incidental to the inquiry, in the sum of $8,691.73.
2. Under s 182A of the Act, a person to whom a decision of the Board applies, may appeal that decision to the Victorian Civil and Administrative Tribunal. Such an appeal is in the nature of hearing de novo. Accordingly, the parties may ventilate matters not previously raised during the course of the Board's inquiry.
3. On 28 May 2014, the Applicant issued this proceeding, seeking a review of the Board's determination.
4. Section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 provides:

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review;

(b) vary the decision under review;

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. In December 2008, the Applicant was engaged by the Owners as the relevant private building surveyor in respect of a domestic building project to be undertaken on their property located in Hawthorn. The building work involved the demolition of an existing residence and the construction of a new, multilevel, residence on that property.
2. On 9 September 2010, the Applicant issued a building permit in respect of the proposed works. In issuing the building permit, the Applicant was required to comply with s 24 of the Act, which states, in part:

24 Refusal of building permit

(1) Subject to section 24 A and Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that -

(a) the building work on the building permit will comply with this Act and the building regulations; and ...

1. Regulation 419 of the Building Regulations 2006 ('the Regulations') restricts building work in circumstances where overlooking from the proposed building work to an adjourning property might occur. The provision states, in part:

419 Overlooking

(1) A habitable room window or an open space of a building on an allotment must not provide a direct line of sight into a habitable room window or on to a secluded private open space of an existing dwelling on an adjoining allotment.

(2) In the case of a direct line of sight from a habitable room window, the line of sight is any line measured from a height of 1.7 m above the floor level of the habitable room and contained within the space enclosed by -

(a) a vertical plane measured at an angle of 45° from each side of the window; and

(b) a horizontal plane 1.7 m above the floor level of the habitable room; and

(c) the ground level below; and

(d) a horizontal distance of 9 m from the window.

...

(10) In this regulation -

...

secluded private open space means any part of private open space on an allotment -

(a) which is screened for at least 90% of its perimeter by a wall, fence or other barrier that is at least 1.5 m high and that has no more than 25% of its area open; and

(b) which is primarily intended to outdoor recreation activities.

1. In May 2011, the owner of the property adjoining the Owner's property ('the Adjoining Owner') raised concern that the proposed building work may not comply with the Act and the Regulations because of overlooking issues.
2. On 29 July 2011, the Applicant issued an updated building permit for a variation concerning minor structural and architectural changes to the design of the building works. The approved amended architectural drawings now included overlooking diagrams for the basement, ground and first floors of the building works and specifically called for the provision of privacy screening at each level, where necessary, to prevent overlooking into the Adjoining Owner's property. These inclusions were not in the original architectural drawings, which were the subject of the building permit issued by the Applicant on 9 September 2010.
3. Ms Weymouth of counsel, who appeared for the Board, submitted that the inclusion of overlooking diagrams and a notation in relation to the requirements for screening (if necessary) on the amended architectural drawings highlights the deficiency in the original drawings approved on 9 September 2010. She contended that the original architectural drawings did not provide sufficient detail to enable the Applicant to be reasonably satisfied that overlooking was not an issue and in that regard, the Applicant failed to comply with s 24 of the Act.
4. By contrast, the Applicant gave evidence that the original approved permit drawings contained information which put into question whether r 419 of the Regulations had to be complied with or not. In particular, the plan of survey depicted the rear fence of the adjoining property, which bordered a public reserve, as being partly constructed of timber slats. According to the Applicant, this potentially compromised the rear yard of the adjoining property being a secluded private open space. In particular, if more than 10% of the screening to the adjoining property's rear yard was open, then that area did not fall within the definition of a secluded private open space. The Applicant said that he conducted an on-site inspection in order to satisfy himself that the rear yard of the adjoining property was not a secluded private open space. In his witness statement, which he adopted as his evidence, he stated:
   1. The rear yard of the Adjoining Property did not constitute "secluded private open space" as, at the time of the issue of the relevant building permit, there was no fence between a portion of the Adjoining Property and the adjacent property to the north of the Adjoining Property and the rear fence of the Adjoining Property consisted of wooden slats that were 19 mm thick with 45 mm spacing (i.e. were more open than closed) and consequently had more than 25% of its area open. The slatted rear fence was noted on survey documents. The extent of the opening was subsequently confirmed by Martin Versteegen during a site inspection...
   2. In order to establish overlooking requirements Martin initially looked at the heights of fences and finished floor levels for external balconies and habitable room window locations to establish whether there was overlooking of Secluded Private Open Space or adjoining habitable windows. I considered those drawings and heights and, after discussion with Martin Versteegen was satisfied that the building works would comply with the Act and the Regulations and issued the building permit...[3]
5. Mr Versteegen, is a private building surveyor employed by the building surveying company, of which the Applicant is a director. He also gave evidence corroborating the evidence of the Applicant.
6. According to the Board, the issue is not whether the adjoining property falls within the definition of a secluded private open space but rather, whether, on the face of the documents lodged in support of the permit application, there was sufficient information to enable the Applicant to be reasonably satisfied that overlooking was not a problem. The Board relied on the expert opinion of Mr Michael Flanagan, a consulting building surveyor, who prepared a report which was filed in the Tribunal and adopted by him as his evidence. In that report, he states:

4.35. A review of the originally approved building permit documents revealed that little if any consideration has been given to the prevention of overlooking into the habitable room windows or secluded private open space of the adjoining properties. It is noted that Building Permit BS-U 1283 - 2010-0339 0v2 has been issued for "minor structural and architectural changes including clarification of screening". Despite no plans been included in the file that relate to this permit, the description of works strongly suggests that this permit was intended to address previous omissions/non-compliances on the original permit relating to screening/overlooking. As a result, the original building permit documents did not comply with regulation 419 - Overlooking.[4]

1. During the course of the hearing, Mr Flanagan elaborated further:

Regulation 301 also goes on to state that an application for a building permit must contain sufficient information to demonstrate compliance with - with the Regulations and the Act. My particular issue with the assessment of the building permit documents for Creswick Street was that when examining those drawings in relation to Regulation 419 overlooking I saw no evidence or suggestions in the original set of documents to say to me that the matter of overlooking had been considered at all.[5]

...

If the adjoining rear yard had been considered as being secluded private open space you would have expected to see the tell-tale signs that information had been provided or requested and produced on drawings in the form of overlooking analysis, which generally is, as you've mentioned previously this morning, the - 9 m arcs shown on drawings from raised open spaces or from habitable room windows looking into or onto the adjoining property.

You would also be looking for indications that overlooking had been considered in terms of notes on drawings in relation to extensions to fence heights or the provision of trellis or overlooking screens on boundaries.[6]

...

In this particular instance I would have expected to see notes on drawings at least, stating that the adjoining rear yard was not considered to be secluded private open space and, to expand on that, a statement or a calculation even to show that the fence to the perimeter of that secluded private open space was more open than closed or did not comply as - as a fence under the definition of secluded private open space.[7]

1. By contrast, the Applicant relied upon expert opinion from Geoffrey Goddard, another building surveying consultant, who also prepared a report, which he adopted as his evidence in the proceeding. He stated:

Section 24(1)(a) of the Building Act states that an RBS must not issue a Building Permit unless he or she is satisfied that the building works in the building permit will comply with this Act and the Building Regulations. The ways to establish if works that an RBS is about to approve comply with the Act and the Regulations are to:

1. Ensure that the plans and specifications etc submitted show proposed building works that comply,

2. Make necessary enquiries with appropriate authorities,

1. Carry out site inspections to ensure documents submitted reflect the on-site conditions.

Building Regulation 301 states that an application for a building permit must contain sufficient information to show the proposed building works will comply with the Act and the Regulations.

...

There is no specific requirement that overlooking diagrams must accompany an application for a building permit in regulation 302, but as indicated in regulation 301, applications for a building permit must contain sufficient information to show that proposed building works will comply with the Act and the Regulations.

When assessing if a proposal meets the requirements of regulation 419 - Overlooking, the RBS must establish the position of adjoining dwellings habitable room windows and the location of 'secluded private open space' areas on adjoining allotments. The best way to establish this is to review this information, if indicated on the plans, and to carry out a site inspection.

...

... the RBS came to the conclusion that the rear yard of ... Creswick Street was not a secluded private open space and therefore any overlooking into this area was not prohibited.

The conclusion that this rear yard area is not a secluded private open space should have been documented on the RBS file and preferably on the plans endorsed with the building permit, but if this area is not a secluded private open space then the assessment of the overlooking provisions of Building Regulation 419 is not required.[8]

1. According to the Applicant, the revised drawings and revised building permit included additional information concerning overlooking in order to placate concerns raised by the Adjoining Owner and for no other purpose. Ultimately, no additional screening was required, notwithstanding the notation on the revised drawing and building permit.

301 Applications for building permits

...

(3) An application for a building permit must contain sufficient information to show that the building work will comply with the Act and these Regulations and the relevant provisions of this Part.

1. Therefore, two questions arise for consideration:
   • (a) First, do the documents lodged in support of the building permit application contain sufficient information to show that the building work will comply with the Act and the Regulations?
   • (b) Second, if the documents forming part of the building permit application do not provide sufficient information to show that the building work will comply with the Act and the Regulations; can the relevant building surveyor be satisfied of compliance by supplementing the information supplied with a site inspection?

Do the permit documents contain sufficient information?

1. In the present case, the Applicant contends that sufficient information was provided within the permit application documents; namely, by reference to the plan of survey. A copy of the plan of survey was tendered in evidence.
2. That drawing notes that the rear boundary fence of the adjoining property has a horizontal timber slats fence 1.7 m high. There are no details as to the width of the timber slats or the space between them. The opening in the side boundary of the adjoining property, which was seen during the Applicant's inspection of the adjoining property, is not marked on the drawing. Instead, that section of boundary is marked as having a brick garage. According to the Applicant, at the time of inspection that brick garage had been demolished leaving an opening between the adjoining property and its northern neighbour.
3. In my view, the plan of survey does not provide enough information to enable a reasonably competent building surveyor to determine, by way of a desktop audit, that r 419 of the Regulations is not applicable. The fact that the Applicant conducted an on-site visit reinforces my view that the documents supplied in support of the building permit application did not contain sufficient information to determine whether r 419 of the Regulations was applicable or not. Moreover, Mr Goddard, the consulting building surveyor engaged by the Applicant, did not go so far to opine that the plan of survey provided sufficient information to be satisfied that r 419 was not applicable. Indeed, he commented that something should have been noted on the endorsed plans.
4. Accordingly, I accept the expert opinion evidence of Mr Flanagan that the documents lodged in support of the building permit did not provide sufficient information to enable a reasonably competent building surveyor to be reasonably satisfied that r 419 was not an issue.

Can a site inspection be used to supplement permit documentation?

1. In my view, the regulation requires an examination of documents, rather than a physical assessment of the site. It imposes an obligation on a building surveyor to undertake a desktop audit of the permit application documents to ascertain whether enough information has been provided for the relevant building surveyor to be satisfied that overlooking is not an issue. That information might be in the form of a notation on the architectural drawings or other documentation supplied as part of the permit application. In some cases, it might be patently obvious from the design itself, that overlooking is unlikely to be an issue. Ultimately, it is a matter for the relevant building surveyor to determine whether the documentation is sufficient for him or her to be satisfied that overlooking is not a problem. If insufficient information has been provided and there is the potential for r 419 to apply, the application for a building permit should be refused or further information requested.
2. I accept that the Applicant acted diligently in conducting an on-site inspection of the adjoining property in order to determine whether overlooking was a problem. However, the Act is not expressed in a manner which gives a building surveyor discretion to ignore the permit application documents in lieu of conducting an on-site inspection. Regulation 301 is expressed in mandatory terms. It requires an assessment of the building permit application based on documents provided in support of it.
3. Having said that, I do not wish it to be thought that my comments criticise the Applicant for having conducted an on-site inspection. I commend the Applicant for adopting that course, given the uncertainty with the permit documents supplied. However, the Applicant should have then sought confirmation from the permit applicant confirming that r 419 of the Regulations was not applicable. Something should have been recorded on the permit application documents to that effect. That is what is required under r 301 of the Regulations. It follows that a failure to do so means that r 301(3) has not been complied with, in contravention of s 24(1)(a) of the Act, as it was expressed at the relevant time.
4. Accordingly, I find that Allegation 1 is proven.

1. Prior to issuing the building permit, the Applicant was required, under r 602 of the Regulations, to determine whether any protection work should be provided to an adjoining property. In the present case, the Applicant determined that protection work was required, having regard to the design of the proposed building works. Under s 84 of the Act, an owner who is required to carry out protection work in respect of an adjoining property must serve on the owner of the adjoining property a Form 3 notice, setting out details of the proposed protection work.[9]
2. Under s 85 of the Act, the adjoining owner served with a Form 3 notice must, within a period of 14 days after service, either agree to the proposed protection work or alternatively, disagree or request further information by serving a Form 4 notice.[10] If an adjoining owner fails to serve a Form 4 notice within the time required, then he or she is deemed to have agreed to the proposed protection work.
3. Section 87 of the Act, then states:

(1) On receipt of a notice under section 85(1)(b) [Form 4 notice], the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work.

...

(4) The relevant building surveyor must give the owner and the adjoining owner a notice in writing of the determination under this section.

(4) A written notice of determination by the relevant building surveyor under section 87 of the Act must include-

(a) a statement informing the recipient of the notice of any right of appeal to the Building Appeals Board under section 141 of the Act; and

(b) the prescribed appeal period under regulation 1601 that applies in respect of that right of appeal.

1. In the present case, the builder engaged to undertake the proposed building work served the Adjoining Owner with a Form 3 notice setting out what steps the Owners intended to take to ensure protection of the Adjourning Owner's property.
2. On 16 March 2010, the Adjoining Owner served the Owner and the Applicant with a Form 4 notice, which raised the number of issues regarding the proposed protection work.
3. As a consequence of the issues raised by the Adjoining Owner, the Owners reconsidered the design of the proposed building work and ultimately altered that design, such that construction of the new dwelling was to be setback from the boundary of the Adjoining Owner's property.
4. As a result of the change in the design of the proposed building work, the Applicant determined that the proposed building work would not adversely affect the stability of, or cause damage to, the adjoining property. Under r 603 of the Regulations, the requirement for protection work could be dispensed with if the following criteria were met:
   • (a) the proposed building work was not to be carried out on, over, under or in the airspace of the adjoining property; and
   • (b) before commencing the building work, the owner provided the relevant building surveyor with:
     • (i) a certificate under 238 of the Act from an civil engineer certifying that the structural design of the proposed building work complied with the Act and the Regulations; and
     • (ii) a further certificate under 238 of the Act from an independent civil engineer certifying that the structural design of the proposed building work complied with the Act and Regulations; and
   • (c) the relevant building surveyor was satisfied that the proposed building work would not adversely affect the stability of, or cause damage to, the adjoining property; and
   • (d) before carrying out the proposed building work, the owner provided the adjoining owner with a copy of the certificates obtained from the certifying engineers.
5. The process undertaken under r 603 of the Regulations is known as a dual certification process. When that process is undertaken, an adjoining owner has no statutory right of appeal.
6. Given the change in the design of the proposed building work, the dual certification process was adopted in respect of the proposed building work. As a result, on 12 May 2010, the Applicant corresponded with the Adjoining Owner and advised that a redesign of the proposed building work was underway and that further details would be provided once that redesign had been finalised.
7. On 8 September 2010, the Applicant's office wrote to the Adjoining Owner, advising that a dual certification process was to be adopted. A copy of the two certificates issued by the relevant certifying engineers was attached to that correspondence.
8. Notwithstanding that the original design had been altered and that the protection work process had effectively been abandoned, on 25 October 2010 the Adjoining Owner lodged an application for a Fast Track Appeal with the Building Appeals Board.
9. On 26 October 2010, and upon advice received from the Applicant's lawyers, the Applicant wrote to the Adjoining Owner, setting out his determination that the original protection works would not proceed. That letter did not, however, include a statement informing the Adjoining Owner of her rights of appeal, as required under r 602(6) of the Regulations. According to the Applicant, such a statement was superfluous, given that she had already lodged an appeal the day before.
10. On 25 November 2010, the Building Appeals Board conducted a hearing of the Adjoining Owner's appeal. On 8 February 2011, the Building Appeals Board dismissed the appeal on the ground that it did not have jurisdiction to review a dual certification process.

1. Allegation 2 is directed at the Applicant's failure to 'determine' the initial application for protection work in a timely manner. In particular, the Board raises no concern that the dual certification process was subsequently adopted in lieu of the initial proposal for protection work. However, the Board contends that prior to adopting the dual certification process, the Applicant should have determined that the initial proposal for protection work was refused and that such a determination was made in accordance with r 602(6) of the Regulations.
2. The submissions made by the Board are premised on an allegation that the correspondences of the Applicant do not constitute a determination under s 87 of the Act and do not contain information required by r 602(6) of the Regulations, being information regarding appeal rights. However, the Amended Notice of Inquiry describes Allegation 2 differently. It expressly states that the Applicant's correspondence dated 26 October 2010 was a determination in writing. Moreover, the particulars to Allegation 2 do not mention any contravention of r 602 (6) of the Regulations.
3. In my view, Allegation 2, as described in the Amended Notice of Inquiry, alleges that the Applicant breached s 87 of the Act because he failed to make a determination under s 87 of the Act in a timely manner, following receipt of the Form 4 notice. It is not alleged that the Applicant failed to make a determination at all or that the purported determination was invalid because it was not in the proper form. Therefore, I will proceed to determine Allegation 2 based on the particulars of Allegation 2 as described in the Amended Notice of Inquiry.
4. Accordingly, it is unnecessary for me to determine whether the Applicant's correspondence dated 26 October 2010 constitutes a determination made under s 87 of the Act. That fact is not in contention. Similarly, it is unnecessary for me to determine whether the form of the determination made on 26 October 2010 breaches the Regulations. That fact is not the subject of any inquiry.
5. In my view, the questions that I need to determine are whether the Applicant breached the Act by making a determination on 26 October 2010 in circumstances where it is alleged that:
   • (a) he received the Adjoining Owner's Form 4 notice on 16 March 2010; and
   • (b) he had decided to adopt a dual certification process without first having determined the original protection work proposal.

Is there a time by which a determination under s 87 of the Act must be made?

1. Section 87 of the Act does not expressly specify any time by which a registered building surveyor must give the owner and the adjoining owner notice in writing of the determination made under that section. Subsection (1) merely states upon receipt of a notice under section 85(1)(b), the relevant building surveyor must examine the proposal for protection work and determine the appropriateness or otherwise of the work. The Board submitted that while there is no express time period in the provision, the words on receipt indicate that a sense of immediacy.
2. Section 35 of the Interpretation of Legislation 1984 states:

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not the purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and...

1. The purposes of the Act are set out in s 1 of the Act and provide:

1 Purposes

The main purposes of this Act are -

...

(c) to provide an efficient and effective system of issuing building occupancy permits and administering and enforcing related building and safety matters in resolving building disputes; and...

1. In my view, the purpose and objects of the Act would not be served in circumstances where s 87 were construed without any limitation as to when the relevant building surveyor is to make a determination upon receipt of a Form 4 notice. Clearly, the provision of an efficient and effective system of issuing building permits would be frustrated if the relevant building surveyor did not issue a determination in a timely manner following receipt of a Form 4 notice. Moreover, the issuing of a determination made under s 87 of the Act crystallises appeal rights under s 141 of the Act. That provision states, in part:

An owner is required to carry out protection work or an adjoining owner an appeal to the Building Appeals Board against -

(a) a determination under section 87 as to the appropriateness of the work; or

...

(c) a failure, within a reasonable time, or refusal to make that determination or declaration; or ...

1. Section 87 of the Act must be read in context with s 141 of the Act. If appeal rights crystallise when the relevant building surveyor fails to make a determination within a reasonable time, then s 87 must mean that the determination also has to be made within a reasonable time. To construe s 87 differently would lead to an inconsistency between the two provisions, which clearly would not have been the intention of the legislature. Therefore, I construe s 87 of the Act to mean that the relevant building surveyor must give the owner and the adjoining owner notice in writing of the determination made under that section within a reasonable time.

Was a determination made within a reasonable period of time?

1. What is a reasonable period of time is a question of fact having regard to all the circumstances.[11] In the present case, the Applicant contends that he informed the Adjoining Owner that the design of the work was to be altered which would, in all likelihood, not require any protection work to be carried out. That information was conveyed to the Adjoining Owner by email correspondence dated 12 May 2010, which stated, in part:

Dear Greg,

For your information please be aware that due to your response to the protection work notice, the design has been reconsidered & construction method/requirements of the common boundary. The method that is to be presented to me which I am yet to see will be in accordance with Regulation 603 of the Building Regulations 2006. Before I agree to this I must be satisfied they meet the requirements of this regulation...

1. Further email correspondence was forwarded to the Adjoining Owner on 16 June 2010, which stated, in part:

As per my e-mail of the 12/5/10 sent to you, we are yet to receive the final details, once these have been received I will review for further action and ensure documents forwarded to you in accordance with the Act...

1. In his witness statement, adopted as his evidence in the proceeding, the Applicant states that on 8 September 2010 he wrote to the Adjoining Owner and advised that in accordance with r 603 of the Regulations, no protection work was necessary. The letter dated 8 September 2010 was tendered in evidence. The letter is written by Mr Versteegan and not the Applicant personally. Moreover, in my view, it is not clear from the content of that letter that the original proposal for protection work is refused. The letter states, in part:

On behalf of the owners and in accordance with Regulation 603 of the Building Regulations 2006, please find enclosed the structural certification from two independent engineers and associated documentation.

These documents are per your information only and related building works adjacent to your allotment boundary; you are not required to respond.

1. In my view, the chain of correspondence emanating from the Applicant or from the offices of the Applicant, leave the issue of the original proposal for protection work open-ended. It is only after the letter dated 26 October 2010 that the position of the Applicant is made unequivocally clear.
2. However, by that stage, the Adjoining Owner had already lodged a Fast Track Appeal with the Building Appeals Board. One of the criticisms raised in the appeal notice concerned the failure on the part of the Applicant to make a determination in relation to the original proposal for protection work. In my view, that highlights the confusion created by failing to make a definitive determination on the original proposal for protection work within a timely manner. Once it had become known that the design of the work was to be altered, with the effect that a dual certification process was to be adopted, the Applicant should have determined that the original proposal for protection work was refused, it no longer being appropriate for the altered design. Sufficient information must have been at hand by 8 September 2010, at the very latest, to make that decision, given that engineers' certification had been obtained by that date.
3. Therefore, I find that none of the 12 May, 16 June or 8 September 2010 correspondences constituted a determination. That only occurred on 26 October 2010. That correspondence stated, in part:

1. I confirm that my determination under section 87 of the Act was that no protection works were required since the works the subject of the Form 3 notice had been abandoned and the work had been re-designed.

1. Pursuant to the above, the work being conducted at the site are not protection works under the process commenced by the Form 3 notice dated to March 2010. That process was abandoned as notified to you on 12 May 2010, alternatively by my determination in paragraph 4 above.
2. The current works are being conducted pursuant to my certification under Regulation 603 dated 8 September 2010.
3. I am of the opinion that a definitive determination should have been made by the Applicant refusing the original proposal for protection work before adopting the dual certification process. My view is supported by guidelines published by the then Building Commission, in the form of a Practice Note, which specifically states that a building surveyor should not adopt a dual certification process, once he or she has already determined that protection work is required. Although I accept that the Practice Note, in all likelihood, focuses on a situation where the design of the work has not altered, which is different to the present case, the fact remains that the failure to determine one process before commencing another process is apt to lead to confusion. It may also lead to an apprehension that the relevant building surveyor is not acting independently in the performance of his or her functions under the Act and the Regulations.
4. Consequently and having regard to the fact that it is likely that the Applicant was aware that the original proposal for protection work was not going to proceed because of the change in building design, I find that the Applicant failed to make a determination on the original proposal for protection work within a reasonable time, contrary to s 87(1) and (4) of the Act.
5. The Board concedes that the breach is a 'technical breach'. Mr Grahame of counsel, who appeared on behalf of the Applicant, referred to the stated purposes of the Act. He submitted that a construction of s 87 of the Act which would lead only to an allegation of a 'technical' breach of the Act could hardly be said to be a construction that would promote the stated purposes and objects of the Act.
6. I do not accept that submission. Although the circumstances in the present case had led to a situation where the Board concedes that the Applicant has committed a 'technical' breach of the Act, the same might not be the case in other situations. The mere fact that a person abandons or purports to withdraw an application to undertake protection work does not, in my view, mean that the relevant building surveyor is discharged of any of his or her functions under the Act, even if the design of the building work is altered.
7. Section 87 of the Act is prescriptive and expressed in mandatory terms. Once a Form 3 notice has been received by the relevant building surveyor, he or she must determine the appropriateness or otherwise of the proposed protection work. In a situation where the applicant indicates that the design of the building work is to change, such that protection work is no longer required, the relevant building surveyor should, nevertheless, still proceed to make a determination in the form required under r 602(6) of the Regulations. That determination might be couched in terms of simply stating that the proposed protection work is refused on the ground that it is inappropriate, having regard to the altered building design.
8. The fact that the Building Appeals Board dismissed the Adjoining Owners application does not alter my view. In particular, I note that the Applicant's written determination post-dated the lodging of that appeal. Therefore, by the time the matter came before the Building Appeals Board, there was nothing left to review. It appears that the only matter considered by the Building Appeals Board was whether it had jurisdiction to interfere with the Applicant's determination to proceed with a dual certification process. In that regard, the Building Appeals Board correctly identified that the Act did not confer jurisdiction on it to review that decision.
9. Therefore, I find that Allegation 2 is proven, notwithstanding the Board's concession that the Applicant's conduct constitutes a 'technical' breach of s 87 of the Act.

1. As I have not heard any submissions as to what determination should be made pursuant to s 179 of the Act, I will give liberty to the parties to file and serve written submissions on the question of penalty or alternatively, relist the proceeding for further hearing, should either party wish to be heard on that question.

SENIOR MEMBER E RIEGLER

[1] The original Notice of Inquiry was dated 22 May 2013 but was amended prior to the hearing of the Board's inquiry on 6 November 2013.

[2] The Notice of Inquiry originally raised three separate allegations against the Applicant. Allegations 1 and 2 were found proven. Allegation 3 was found unproven. It is not being pressed in this review hearing.

[3] Witness statement of Peter Shaw dated 2 January 2015.

[4] Expert report of Michael Flanagan dated 8 October 2012.

[8] Expert witness statement of Geoffrey Goddard dated 27 February 2015 at pages 3-4 .

[9] See further the requirements of a Form 3 notice as set out in r 602(3) of the Building Regulations 2006.

[10] See further the requirements of a Form 4 notice as set out in r 602(3) of the Building Regulations 2006.

[11] Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liquidation) [1978] HCA 45; (1978) 141 CLR 335 at 354.