1. The decision of the Building Practitioners Board made on 8 March 2018 which found Mr Stanbury guilty of the conduct alleged is affirmed.
2. On or before 7 November 2019 the parties are to file and serve notice as to whether they seek a further hearing in this proceeding to make submissions concerning the respondent's decision under s 179(2) of the Building Act 1993 (Vic) (concerning penalty) which is also under review or, alternatively, whether they seek to file and serve written submissions after which the Tribunal would decide the issue without further hearing.
3. Direct the principal registrar to refer the file to Member Eastman on 8 November 2019 to consider any proposed procedural orders.

Note: You are not required to attend the Tribunal on this day but must advise the Tribunal in writing about the further conduct of this matter.

1. Colin Stanbury is and was at all relevant times registered as a building practitioner. Mr Stanbury's professional conduct was the subject of a disciplinary inquiry conducted by the Building Practitioners Board (Board) following the issue of a Notice of Inquiry dated 30 August 2016 (NOI).
2. The allegations the subject of the inquiry and detailed in the NOI were that, on 85 occasions between 7 October 2013 and 3 December 2014, Mr Stanbury failed to comply with s 176(1A)(a) (as it was at the relevant time) of the Building Act 1993 (Vic) (Act) in that he practised as a building inspector when he was not registered under the Act in the appropriate category or class to do so.
3. By its notice of decision dated 8 March 2018, the Board found Mr Stanbury guilty of the conduct alleged. On 18 May 2018, the Board determined to impose a penalty in the form of a reprimand and a fine of $14,443.60. The Board also ordered that Mr Stanbury pay half the Board's costs incidental to the inquiry fixed at $8,070.00.
4. Mr Stanbury has applied to the Victorian Civil and Administrative Tribunal (Tribunal) for a review of the Board's decisions as to both guilt and penalty pursuant to s 182A of the Act. (By reason of changes to the Act which came into effect on 1 September 2016 the Victorian Building Authority (VBA) rather than the Board is the named respondent to Mr Stanbury's review application).
5. Both parties were legally represented at the hearing. Mr Pumpa of counsel appeared on behalf of Mr Stanbury. Ms Hudgson of counsel appeared on behalf of the VBA. When the matter came before this Tribunal for hearing the parties had prepared an agreed statement of facts. Accordingly, as the facts were not in dispute, no evidence was called, and the hearing as to whether the allegations should be found proven proceeded by way of legal submissions
6. The Tribunal's role when undertaking a review under s 182A of the Act and s 51 of the Victorian Civil and Administrative Tribunal Act (Vic) 1998 (VCAT Act) is to make the correct and preferable decision on the application exercising all of the Board's functions.[1] The Tribunal has the power to affirm, vary or set aside the decision. If the decision is set aside the Tribunal may provide a substitute decision or it may remit the matter to the VBA for reconsideration in accordance with directions provided by the Tribunal.
7. Whilst the particulars to each of the 85 allegations differed in terms of the property where the building work was inspected, the dates and the type of inspection undertaken by Mr Stanbury (be it a mandatory stage inspection or general inspection), the basis and form of each allegation was the same, namely:

On [date] at [site], you failed to comply with the Building Act 1993 (Act), in that, contrary to section 176(1A)(a) of the Act, you practised as a building inspector when you were not registered in the appropriate class or category under Part 11 of the Act to do so.

1. Accordingly, in determining whether the allegations made against Mr Stanbury are proven, I must decide, having regard to the agreed statement of facts:
   1. Whether Mr Stanbury 'practised as a building inspector' within the meaning of s 176(1A)(a) of the Act; and, if so,
   2. Whether Mr Stanbury was registered in the appropriate category or class under Part 11 of the Act to do so.
2. For the reasons detailed below, I find that based on the agreed statement of facts and my view of the construction of s 176(1A)(a) of the Act, the correct and preferable decision is that on the 85 occasions alleged in the NOI, Mr Stanbury failed to comply with s 176(1A)(a) of the Act in that he practised as a building inspector when not registered in the appropriate class or category under Part 11 of the Act. I therefore find the allegations proven.
3. Having found Mr Stanbury guilty of the allegations, the question of penalty now arises for determination. At the conclusion of the hearing, Mr Pumpa indicated that if I found Mr Stanbury guilty, the parties may request that the issue of penalty be determined 'on the papers.' I have made an order to the effect that the parties are to now notify the Tribunal whether they wish to have a further hearing to make submissions concerning penalty or whether they seek to file and serve written submissions after which the Tribunal will decide the issue without further hearing.

1. The following is taken from the parties 'Statement of Agreed Facts' dated 12 September 2019.
   1. Between 7 October 2013 and 3 December 2014, registered building practitioner Colin Stanbury carried out inspections of building work (including mandatory notification stage inspections) on behalf of Brian Ross (the relevant building surveyor) and/or East Gippsland Building Permits Vic Pty Ltd (ACN 600 047 452) (EGBP) (Mr Stanbury's employer) on the 85 occasions at 46 properties (Relevant Sites) as set out in the Building Practitioners Board (Board) Notice of Inquiry dated 30 August and on those occasions he was, under Part 11 of the Building Act 1993 (Vic) (Act):

1. not registered with the Board as a building inspector or building surveyor; 2. registered with the Board as a Domestic Builder - Limited (DB - L 32249) (with the limitation on his registration with the Board for "all domestic building work up to $12,000"); and

1. since 1996 had been registered with the Board in the category Domestic Builder - Unlimited (DB-U 1189) and as (sic) had the registration suspended from time to time (ending in May 2009) for want or renewal of that registration with the Board. 2. Mr Stanbury was mostly unaccompanied by the relevant building surveyor when he carried out the inspections referred to in paragraph [1]. 3. Documents in the brief of evidence indicate that the inspections were carried out on behalf of EGBP (the employer of Mr Stanbury) and/or Mr Ross (the relevant building surveyor). 4. The brief of evidence does not contain any material indicating any defect or complaint arising out of Mr Stanbury's inspections of the building work at the various sites. 5. In each allegation in the Notice of Inquiry, Mr Stanbury is alleged to have contravened s 176(1A)(a) of the Act. 6. On 1 July 2017, s176(1A)(a) of the Act was repealed. 7. On 1 July 2018, s169E was introduced into the Act. 8. On 10 December 2014, Mr Stanbury was (and currently remains) registered with the Board as a building inspector - limited (to buildings classified as class 1, 2 and 10, up to 2 storeys).

1. The conduct of Mr Stanbury was regulated by the Act and the Building Regulations 2006 (Regulations). The allegations the subject of the NOI covered the period 7 October 2013 to 3 December 2014. During this period there were various versions of the Act and Regulations. However, it was agreed that the sections of the Act and the Regulations which the parties referred me to in this proceeding had not been amended between the various versions. During the hearing I was referred to version 100 of the Act and version 23 of the Regulations. Accordingly, for the purposes of my decision, unless otherwise stated, the sections referred to below are taken from these versions.
2. Given the primary issue to be determined by me in this proceeding relates to the proper interpretation of a provision in the Act, I have set out below not only the sections of the Act and the Regulations which the parties referred to during the course of their submissions, but also those provisions which I have had regard to in reaching my decision. The particular provisions relied upon by each party are detailed in the summary of their respective contentions below.

1. The main purposes of the Act are set out in s 1. The purposes include:

1. To regulate building work and building standards;[2] and 2. To provide an efficient and effective system for issuing building and occupancy permits and administering and enforcing related building and safety matters and resolving building disputes;[3] and

1. To regulate building practitioners and plumbers.[4]
2. The stated objectives of the Act are set out in s 4(1). They include 'to protect the safety and health of people who use buildings and places of public entertainment.[5] Section 4(2) states 'It is the intention of Parliament that in the administration of this Act regard should be had to the objectives set out in subsection (1)'.
3. Part 11 of the Act, entitled, 'Registration of Building Practitioners', creates a scheme for the registration of building practitioners and the regulation of their work. Division 1 relates to registration. Relevantly, it provides that a natural person may apply to the Board to be registered as a building practitioner.[6] The relevant section goes on to state that the application must state each category or class of registration sought and be accompanied by relevant specified information.
4. Section 3 defines 'building practitioner' to mean:

(d) an engineer engaged in the building industry; or

(e) a draftsperson who carries on a business of preparing plans for building work or preparing documentation relating to permits or permit applications; or

(g) a person who erects or supervises the erection of prescribed temporary structures; or

(h) a person responsible for a building project or any stage of a building project and who belongs to a class or category of people prescribed to be building practitioners -

18. Section 170 of the Act goes on to state that the Board must register an applicant in each category or class applied for if it is satisfied, amongst other things, that the applicant holds an appropriate 'prescribed qualification'.[7] After a person is registered as a building practitioner, the Board will cause a certificate to be issued and given to that person.

1. Section 176(1A)(a) of the Act, being the provision Mr Stanbury is alleged to have breached, is also contained within Division 1 of Part 11 of the Act. It is a subsection of s 176 which is entitled 'Offences'.
2. Relevantly, s 176 provides:
   1. Offences

(1) A person who is not registered in the appropriate category or class under this Part must not take or use any of the following titles -

(a) building practitioner or registered building practitioner; or

(b) building surveyor, building surveyor (unlimited) or building surveyor (limited); or

(d) engineer, if the use of the title relates to the building industry; or

(e) draftsperson, if the use of the title relates to the building industry; or

(1A) A person who is not registered in the appropriate category or class under this Part must not -

(b) hold himself or herself out as being registered under this Part or in a particular category or class of registration; or

(c) hold himself or herself out as being qualified to practise as a building practitioner either generally or in a particular category or class of work.

(2) A person who is not registered under this Part as a building surveyor must not practise as a building surveyor (unlimited) or building surveyor (limited).

(2A) A builder must not carry out domestic building work under a major domestic building contract unless the builder is registered under this Part in the appropriate class of domestic builder.

(7) If a person ("the first building practitioner") is registered as a building practitioner in a particular category or class and the work usually done by building practitioners in that category or class includes work also usually done by building practitioners registered in another category or class, the first building practitioner -

(a) does not have to be registered in that other category or class; and

(b) may do that work without being registered in that other category or class; and

(c) does not commit an offence under subsection (1), (1A) or (2A) because he or she does that work.

1. Section 178 of the Act provides that the Board may conduct an inquiry about the conduct or ability to practise of a registered building practitioner.
2. Section 179(1) of the Act set outs the grounds for inquiry. Section 179(1)(b) provides that a failure to comply with the Act is a ground for inquiry.
3. Section 179(1)(e) provides that a further ground for inquiry is if a registered building practitioner 'has employed or engaged to do, on his or her behalf, work of a kind that can only be done by a person registered under this Part in a particular category or class, a person who is not so registered'.
4. The ground for inquiry for each of the 85 allegations brought against Mr Stanbury was s 179(1)(b), namely, that he had failed to comply with the Act, and in each allegation the failure was stated to be 'in that, contrary to s 176(1A)(a) of the Act, you practised as a building inspector when you were not registered in the appropriate class or category under Part 11 of the Act to do so'.
5. The functions of a private building surveyor are set out in s 76 of the Act. Those functions include 'the carrying out of inspections of buildings and building work under Part 4'.
6. Part 4 of the Act is headed 'Inspections of Building Work'. The following sections are contained in Part 4 of the Act.

Section 34 - Inspection at mandatory notification stages

On being notified that a mandatory notification stage has been completed, the relevant building surveyor must cause the building work concerned to be inspected.[8]

Section 35 - Inspection of building work - general powers

The relevant building surveyor may cause building work for which a permit has been issued under Part 3 to be inspected at any time whether or not a mandatory notification stage has been completed.

The relevant building surveyor may cause any building work to be demolished, opened or cut into or tested if this is reasonably required to facilitate the carrying out of an inspection for the purposes of this Act or the regulations.

(1) After inspecting building works, the relevant building surveyor or a person acting on behalf of the relevant building surveyor may direct the person who is in charge of carrying out of the building work to carry out work so that the building work complies fully or substantially with the building permit issued in respect of the work, this Act or the building regulations, as the case requires.

(2) If a person fails to comply with a direction under this section, the relevant building surveyor may cause a building notice to be issued under Part 8 or may take any other action permitted by this Act or the building regulations.

(4) If a direction is given orally, the person who gave a direction must confirm it in writing without delay to the person to whom the direction was given.

1. Section 128 of the Act provides:
   1. Immunity for building surveyor relying on certificate

A municipal building surveyor or a private building surveyor appointed under Part 6 is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under section 238.

1. Section 238 is contained in Part 13 of the Act, entitled 'General Enforcement Provisions'. It states:
   1. Building surveyor may rely on certificate by other registered building practitioner

(1) A municipal building surveyor or a private building surveyor, in carrying out a function under this Act or the regulations, may rely on a certificate by a registered building practitioner in a prescribed category or class of practitioners -

(a) that proposed building work of a prescribed class complies with any provision of this Act or the regulations; or

(b) that building work of a prescribed class complies with any provision of this Act or the regulations.

(2) A registered building practitioner must not give a certificate under subsection (1) in respect of building work unless the certificate states that the registered building practitioner has inspected that building work.

1. Relevant extracts of Part 15 of the Regulations entitled 'Building Practitioners' is set out in Annexure A. In summary, the prescribed qualifications for registration of a category or class of building practitioner[9] and the prescribed categories and classes of practitioners who can issue certificates of compliance for prescribed classes of building work for the purpose of s 238(1)(b) of the Act[10] are included in the Regulations.
2. Reg 1506(e) states that for the purposes of s238(1)(b), for a certificate relating to the inspection of domestic building work - category of building surveyor or building inspector.

1. Section 35B was inserted into the Act with effect from 31 January 2018,[11] that is, after the conduct the subject of the allegations contained in the NOI. It provides:

Section 35B - 'Persons Carrying Out Inspections Must be Registered Practitioners or Prescribed Persons'

The relevant building surveyor must not cause a person to carry out an inspection under section 34 or 35 on behalf of the relevant building surveyor unless -

1. the person is registered as a building surveyor or a building inspector under Part 11 and the person's registration authorises the carrying out of that inspection; or
2. in the case of an inspection that is of a prescribed class of inspection, the inspection is carried out by a person of a prescribed class of person.

1. The parties agreed statement of facts referred to s 169E. Neither party referred me to, nor made submissions regarding, this section during the hearing. This provision took effect from 1 July 2018 when Part 11, Division 1 of the Act was repealed and substituted with new ss 169, 169A to 169J. Section 169E was one of a number of new provisions introduced into the Act with effect from 1 July 2018 and replaced s176(1A)(a). For completeness, s 169E states:

169E Offence to carry out work as building inspector unless registered

A person must not carry out work as a building inspector unless -

(a) the person is registered under this Part as a building inspector; and

(b) the person's registration authorises the person to carry out that work.

Penalty: 500 penalty units, in the case of a natural person;

2500 penalty units, in the case of a body corporate.

1. In determining whether or not Mr Stanbury is guilty of the conduct alleged in the NOI, Mr Pumpa said the issue which arises for consideration is what does it mean to 'practise as a building inspector'. In short, Mr Pumpa submitted that, whilst it was agreed Mr Stanbury carried out building inspections, Mr Stanbury was not 'practising as a building inspector'. Rather, he was carrying out the building inspections on behalf of the relevant building surveyor, Mr Ross, in his capacity as an employee of EGBS.
2. Mr Pumpa submitted that during the period covered by the allegations:
   1. there was no express or implied requirement under the Act that building inspections, either general or mandatory stage inspections, had to be undertaken by a registered building inspector; and
   2. properly construed, the Act permitted inspections to be carried out 'on behalf of' the relevant building surveyor by someone other than a registered building practitioner.
3. In support of this submission, reliance was placed on ss 34 -36 of the Act and, in particular, the use of the word 'cause' the building work to be inspected, as well as the wording of s 37(1) of the Act which 'expressly contemplated that a person 'acting on behalf of' a building surveyor may inspect building work.'[12]
4. Mr Pumpa said that the Act did not state that the building surveyor may only 'cause' building work to be inspected 'by a person registered in the appropriate class or category', nor did it expressly state under s 37 that only 'a person registered in the appropriate class or category' may 'act on behalf of the relevant building surveyor'. He said that to construe the sections in that way, required the addition of words which the legislature did not include. Mr Pumpa submitted that ss 34 to 37 of the Act created a scheme whereby the relevant building surveyor retained ultimate responsibility for conducting mandatory inspections of building work, and that Part 4 of the Act permitted inspections to be carried out by persons acting 'on behalf of' the relevant building surveyor, irrespective of whether they were registered building inspectors.
5. When asked in what instance would the provisions of s 176(1A)(a) apply, in summary, Mr Pumpa said that no offence was committed for simply 'carrying out building inspections', rather what was prohibited was 'practising as a building inspector'. He said the section applied to inspections carried out by independent third parties who had been 'caused' by the relevant building surveyor to carry out the inspections. He described a third party as someone running their own business, advertising their services, and issuing certificates under s 238 of the Act. Mr Pumpa said in the present case, Mr Stanbury did not issue a certificate under s 238 and that liability for the inspection was retained by the relevant building surveyor. In those circumstances Mr Pumpa submitted the allegations should be dismissed because Mr Stanbury was not 'practising as a building inspector' for the purposes of s 176(1A)(a).
6. Mr Pumpa referred me to case of Defteros v Scott[13] (Defteros) a decision of the Victorian Court of Appeal, which he said he relied upon to demonstrate that whilst Mr Stanbury carried out building inspections, he was not 'practising as a building inspector', as he was working as an employee and 'under the direction of' the relevant building surveyor. In Defteros the Court considered whether a costs consultant had engaged in legal practice in contravention of the Legal Practice Act 2004 (Vic). I was referred to a passage of the decision where the Court said:

The work performed by the respondent [non-qualified person] in respect of each of those files was conducted under the supervision of the applicant [qualified lawyer]. It was plainly open to the Magistrate to decide, in those circumstances, that on the material placed before her, the applicant had failed to establish that, in respect of that work, the respondent was engaged in legal practice...

Just because work is done by a person with particular professional qualifications does not mean that that work will be work for which the person must have professional qualifications.... Conversely, much of the work which is done by unqualified persons in the office of a solicitor will not involve those persons engaging in legal practice when that work is done under the supervision of a solicitor.

1. Mr Pumpa said that the legislation as it existed at the time of the offence was clear, namely, it was not necessary to be registered as a building inspector in order to carry out inspections under ss 34 and 35 on behalf of a relevant building surveyor. He said in construing the meaning of s176(1A)(a) I should primarily have regard to the words of the Act at the time but that assistance was given by the introduction of s35B.
2. Mr Pumpa said the introduction of ss 35B demonstrated a change in the law and introduced a new requirement that inspections of building work carried out under ss 34 and 35 of the Act 'on behalf of' a relevant building surveyor had to be carried out by a registered building inspector or registered building surveyor . Mr Pumpa submitted that the inclusion of s 35B supports the construction of Part 4 of the Act submitted by Mr Stanbury, namely, that prior to s 35B building inspections were permitted to be carried out by persons acting 'on behalf of' the relevant building surveyor and who were not registered in the appropriate category or class under the Act.
3. He disputed the VBA's submission that s 35B did not demonstrate a change in the law but 'simply states the current status of the law more precisely'.

1. Mr Pumpa referred me to a Practice Note dated June 2008 issued by the Australian Institute of Building Surveyor (AIBS). He readily acknowledged that the Practice Note was not determinative of the relevant legal question that I must decide, nor did it amount to a legal opinion.
2. On page 4 of the Practice Note, under the heading 'Who can carry out Building Inspections?' it is stated:

The AIBS - Victoria is of the view that the use of the word "cause" in the Act in relation to building inspections permits the RBS to do one of two things:

1. inspect the work himself or herself; or
2. delegate the inspection to another person.

What is delegated is the mechanical act of inspection, not the duty to "cause" the inspection to be carried out. This means that it is the responsibility of the RBS to either carry out the inspection themselves, or to ensure that it is properly carried out.

If the inspection of the building work is to be delegated to another person, then the RBS may delegate it to an employee within their own office, if the employee is acting under the direction and supervision of the RBS. It is likely that further sub-delegations within the same office will also be permitted, provided always that the RBS retains the ultimate responsibility of ensuring that the inspection is properly carried out.

It is important to note that, where a building inspection is delegated to an employee within the RBS's own office, the RBS will remain legally liable for the conduct of the inspection....

If the RBS proposes to delegate the inspection to an independent third party, then the RBS may only delegate the inspection to:

1. a registered building inspector; or
2. a registered building practitioner in a prescribed category or class, whose work usually involves the inspection of the specific type of building work which is the subject of the delegation...

1. The VBA said the questions which arise for consideration in determining whether Mr Stanbury committed the offence alleged in the NOI are:
   1. what does it mean to 'practise as a building inspector'; and
   2. what does it mean by 'appropriate category or class' under Part 11?

1. Ms Hudgson said that it was an unremarkable proposition that building inspectors carry out building inspections. Ms Hudgson said to give meaning to the term 'practise as a building inspector' one was required to look at the Act as a whole, taking into account its structure, purpose and the interaction between relevant sections, to see what the legislature contemplated a building inspector would do. She submitted, as a minimum, that was what was regulated by s176(1A)(a). Ms Hudgson said when construed in that way, it was clear one of the functions the legislature contemplated building inspectors would carry out - and for which they would therefore need to be registered - was the carrying out of building inspections.
2. Ms Hudgson said it was not disputed that a registered building surveyor was able to delegate the act of carrying out building inspections under ss 34 and 35. However, she said, that did not mean the act of carrying out inspections could be delegated to anyone.
3. Ms Hudgson said it was clear the Act contemplated that if the relevant building surveyor delegated the act of carrying out inspections, that those inspections would be carried out by a registered building inspector or registered building surveyor, by reason of the following sections of the Act and the Regulations;

1. section 76(b), which charged the relevant building surveyor with the duty to carry out inspections of the building works; 2. section 128, which provided immunity for a relevant building surveyor from anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under s 238 (s 238 certificate);

1. section 238(1)(b), which provides that 'in carrying out a function under this Act or the regulations, the relevant building surveyor may rely on a certificate by a registered building practitioner in a prescribed category or class of practitioners 'that building work of a prescribed class complies with any provision of this Act or the regulations'; and

1. regulation 1506(e), which provides that the prescribed classes of building work and the prescribed categories and classes of practitioners in respect of the building work for the purpose of s 238(1)(b) of the Act are, for a certificate relating to the inspection of domestic building work - category of building surveyor or building inspector.
2. Ms Hudgson said that given s 76(b) of the Act charged the relevant building surveyor with the duty to carry out inspections of the building works, once a building surveyor 'causes' another to carry out an inspection, the building surveyor has delegated the act of inspection. She said the Act provides that in those circumstances a relevant building surveyor will be given immunity if they obtain a s 238 certificate. This, in turn, requires compliance with reg 1506.
3. Ms Hudgson said by reason of the operation of ss 128 and 238 and regulation 1506, an indemnity is only given to a relevant surveyor who has delegated the act of inspecting domestic building work under s 34 and s 35, if they delegate to another registered building surveyor or registered building inspector.
4. When it was put to Ms Hudgson that Mr Stanbury's employer had not delegated the duty to carry out the inspection and that no s 238 certificate had been issued by Mr Stanbury, Ms Hudgson said
   1. s 128 and s 238, the immunity provisions, did not distinguish between employees and independent contractors; and
   2. inherently sending someone else out to carry out the inspection is a delegation of the function - regardless of whether they issue a separate s 238 certificate.
5. In response to the applicant's reliance on the decision in Defteros, Ms Hudgson said that case involved a completely different fact scenario and profession. She said every profession has different regulations and are governed by different Acts and principles and that case had no bearing in this matter and could not be relied upon in determining what it means to 'practise as a building inspector' under the Act.
6. Ms Hudgson submitted regulation 1506 shows a clear intention that the one thing building inspectors do is carry out building inspections and, therefore, the carrying of inspections involves 'practising as a building inspector.' She said that is not to say that is the only thing a building inspector does, but under the legislation it was contemplated building inspectors would carry out building inspections and that doing so forms part of their practice.

Appropriate category or class to practise as a building inspector

1. In answering the question 'what is the appropriate category or class in which to be registered, in order to practise as a building inspector?', Ms Hudgson said, broadly, it is someone with appropriate qualifications and experience. She said it cannot be anybody can carry out inspections and that much is gleaned from:
   1. the objective of the Act - which is to ensure the health and safety of the public: and
   2. the serious consequences if there was a failure to comply with a direction issued under s 37(1) of the Act. She said section 37 contemplates the person issuing the directions is the person who has inspected the work, noting it would be difficult for a relevant building surveyor to issue directions regarding compliance of work they had not seen. Ms Hudgson noted s 37(2) can act as a trigger for, amongst other things, the issuing of show cause notices and building orders by the relevant building surveyor. She said these draconian powers contemplate building inspections are undertaken by someone with appropriate qualifications.
2. Ms Hudgson said further, the legislature had evinced an intention as to what was the appropriate qualifications through the operation and interaction of ss 128, 238 and reg 1506. She said it was axiomatic that if the liability for an inspection was taken off the building surveyor and now rests with the person undertaking the inspection, that the legislature contemplated that person now undertaking the inspections had appropriate qualifications. The statutory exemptions given to a relevant building surveyor if they delegate a function will only apply if the function is delegated to someone in accordance with s 238. It was submitted that the Act clearly contemplated that building inspections would be carried out by registered building practitioners in prescribed categories and classes by reason of the operation of s 238(1)(b) and regulation 1506.
3. Ms Hudgson said it is clear from regulation 1506 that inspections of prescribed classes of building work can only be carried out by prescribed categories and classes of practitioners in respect of the building work. She said the registered building practitioners specified in reg 1506 as able to undertake particular types of inspections are the people that the legislature contemplated had the requisite qualifications and experience to undertake those inspections. In the case of domestic building work more generally, the legislature contemplated, as set out in paragraph (e), that the persons who are suitably qualified and experienced to undertake domestic building work inspections generally are either a registered building surveyor or a registered building inspector.

1. Ms Hudgson rejected Mr Pumpa's submission that the introduction of s 35B represented a change in the legislation and could be relied upon to demonstrate that previously anyone could undertake inspections under ss 34 and 35.
2. Ms Hudgson submitted that the fact the provision had been inserted with prospective operation did not assist this Tribunal in interpreting the legislation now under consideration. Whilst accepting s35B contained clearer terms, Ms Hudgson said it did not bear on the interpretation of the previous legislation. In support of this submission Ms Hudgson relied on the decision of the Full Court of the Supreme Court of Victoria in Transport Accident Commission v Clarke[14](Clarke). In that case the Court said

It is one thing to refer to the Parliamentary debates to aid in the interpretation of the legislation being enacted; it is another thing altogether to refer to the debates to justify a view about pre-existing legislation, passed some time previously and under consideration only indirectly because of the legislation being enacted. Even with an amending Act (as distinct from mere debate about an amending act) there are limits to the use that can be made of the latter legislation in interpreting the earlier. If the latter proceeds upon an erroneous assumption about the meaning of the earlier, that will not of itself alter that meaning. But if there be in the early act some word or phrase fairly and equally open to more than one meaning, then the amending act may fix the proper meaning to be adopted of that word or phrase earlier used.

1. Ms Hudgson said therefore that I need only look at the provisions of the Act and the Regulations as they were at the time of the conduct. She said, having regard to the provisions discussed above, part of a building inspector's practice includes building inspections and the only persons who were qualified to carry out that work were those stated under reg 1506.

1. the question of who carries out the inspections under s 34 and 35 on behalf of the relevant building surveyor was a matter for the relevant building surveyor and that if the registered building surveyor arranged for someone who was not 'up for it', the relevant building surveyor took that risk; 2. s 128 and s 238 and reg 1506 have no relevance to the issues involving Mr Stanbury because no s 238 certificate was issued by him, and there is no claim that liability rests with anyone other than his employer, the relevant building surveyor;

1. if somebody carries out a building inspection, that did not make them a building inspector - it makes them a person who has carried out a building inspection. In this regard Mr Pumpa referred to section 37 of the Act and noted it provided 'After inspecting the building work, the relevant building surveyor or a person acting on behalf of the relevant building surveyor may direct the person.' He noted the section did not refer to the 'building inspector'. When asked if he agreed Mr Stanbury could issue directions under s 37, Mr Pumpa said he could, acting on behalf of the relevant building surveyor';

1. Mr Stanbury was a person who had been caused by Mr Ross to inspect works. That did not make him a building inspector and it certainly did not mean he was 'practising as a building inspector'.
2. In the event I found Mr Stanbury was 'practising as a building inspector' when he carried out the inspections, I asked Mr Pumpa what he said about the second aspect of the VBA's submissions, namely that Mr Stanbury was not registered in the appropriate category or class. Mr Pumpa said he did not necessarily agree Mr Stanbury was not registered in the appropriate class, but also said he was not seeking to rely on s176(7) of the Act which provides 'if a person ("the first building practitioner") is registered as a building practitioner in a particular category or class and the work usually done by building practitioners in that category or class includes work also usually done by building practitioners registered in another category or class, the first building practitioner -

(a) does not have to be registered in that other category or class; and

(b) may do that work without being registered in that other category or class; and

(c) does not commit an offence under subsection (1), (1A) or (2A) because he or she does that work.

1. Mr Pumpa also said that whilst reg 1506 was not relevant to the issue to be determined, he noted it focused on domestic building work. He said he had not been through all 85 allegations brought against Mr Stanbury but recalled some of them related to inspections of commercial premises.

1. Whilst much of the focus of Mr Pumpa's submissions was on the interpretation of ss 34 and 35 of the Act, it is apt to reiterate that what I am required to determine is whether the allegations made against Mr Stanbury, namely, that he 'practised as a building inspector' when not registered in the appropriate category or class, have been proven, based on an agreed statement of facts. That is not to say that the sections in the Act that relate to the carrying out of inspections are irrelevant, but rather, those sections must be considered in the context of the allegations made against Mr Stanbury, namely, that he failed to comply with s 176(1A)(a) of the Act.
2. One of the basic principles of statutory interpretation is that words in a particular section of a statute ought to be interpreted having regard to the context in which they are used and the overall purpose of the Act. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[15] the High Court said:

This court has stated on many occasions the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes a general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

1. More recently, the Victorian Court of Appeal said in DPP v Leys;[16]

The process of construction must always begin by examining the context of the provision with the object of adopting an interpretation that is consistent with the ordinary and natural meaning of the words derived from the context in which they appear and having regard to the legislative purpose of all the provisions of the statute.

1. These common law principles of statutory interpretation are consistent with s 35 of the Interpretation of Legislation Act 1994 (Vic) which 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 that 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;

1. In Project Blue Sky v Australian Broadcasting Authority[17] the High Court addressed the way in which an apparent conflict between two provisions of an Act is to be addressed that is consistent with the purpose of the Act. The Court said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute... When conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all statutory provisions... Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which are the subordinate provisions, and which must give way to the other'.

1. With these principles in mind, I now turn to consider the meaning of the words 'practise as a building inspector' as used in s 176(1A)(a) of the Act. This, in turn, requires consideration of:

1. the context in which the provision exists, including having regard to the legislative purpose of the Act; 2. why the provision exists - what is the mischief the provision was intended to remedy; and

1. what is the 'ordinary and natural meaning' of the text derived from the context in which it appears?
2. Two of the main purposes of the Act are;
   1. 'to regulate building work and building standards';[18] and
   2. 'to regulate building practitioners'.[19]

One of the principal objects of the legislative scheme is to 'protect the safety and health of people who use buildings.'

1. Part 11 of the Act is entitled 'Registration of building practitioners.' From the provisions in this Part it can be seen that in applying for registration as a building practitioner with the Board, a natural person is required to, amongst other things, specify the category or class of registration sought and demonstrate that they hold an appropriate 'prescribed qualification' before that person could obtain registration.[20] The prescribed qualifications for registration of a category and class, including seeking registration in the category of a building inspector, are set out in the Table in Schedule 7 to the Regulations. Item 3 of the Table sets out the prescribed qualifications for the category of 'building inspector (unlimited)' and item 4 for 'building inspector (limited)'. Each category required a diploma of building surveying from an accredited course and 2 years of practical experience. The category of building inspector (limited) also required a certificate issued by the Board, after examination of the applicant, certifying that the applicant has adequate knowledge and experience to inspect the classes and types of buildings or the components of building work specified in the certificate.
2. Part 11 includes s 176, the 'Offences' provision. These provisions make it an offence for people who are not registered in the appropriate category or class, to do the work or perform the functions of a registered building practitioner. For example, a builder must not carry out domestic building work under a major domestic building contract unless the builder is registered in the appropriate category or class[21] or a person who is not registered as a building surveyor must not practise as a building surveyor (unlimited) or building surveyor (limited)[22] or, in the case of s 176(1A)(a), a person who is not registered in the appropriate category or class under Part 11 must not practise as a building inspector.
3. In my view, the provisions of Part 11 are consistent with the objectives and purposes of the Act referred to in paragraph 68 in that they create a scheme for the registration of building practitioners which ensures those responsible for the safety of buildings are appropriately qualified. The provisions of Part 11 do this by prescribing what qualifications are required before a natural person could obtain registration as a building practitioner, and by making it offence to 'practise' as a registered building practitioner, if not registered in the appropriate class or category.
4. I think it is plainly clear that carrying out an inspection of building work, is work a building inspector would do. It is not disputed that the words 'must cause' and 'may cause' in ss 34 and 35 of the Act make it clear that either the relevant building surveyor may personally carry out the inspections or, alternatively, the relevant building surveyor may arrange for them to be carried out by another.
5. Mr Stanbury does not deny that he was carrying out building inspections, nor does he deny that carrying out building inspections is the work of, or a function that, a building inspector performs. What is said, however, is that Mr Stanbury was not 'practising as a building inspector' because he was, at the relevant time, working as an employee and carrying out inspections 'on behalf of' his employer as permitted by ss 34 and 35 of the Act.
6. Mr Pumpa said that there was more to 'practising as a building inspector' under s 176(1A)(a) than carrying out building inspections. When explaining what 'more' was required in order to fall foul of s 176(1A)(a), Mr Pumpa said a third party that advertised services of carrying out building inspections and who issued a certificate for the inspection pursuant to s 238 of the Act, if that person was not registered in the appropriate category or class, then an offence would be committed pursuant to s 176(1A)(a). That is, someone who ran a practice as a building inspector.
7. The effect of Mr Pumpa's submissions was that if a relevant building surveyor caused an employee under ss 34 or 35 of the Act to carry out a building inspection, that person did not fail to comply with s176(1A)(a) of the Act if they were not registered in the appropriate category or class under Part 11. However, if the relevant building surveyor caused an independent third party under ss 34 and 35 to carry out an inspection, that person would fail to comply with s 176(1A)(a) if they were not registered in the appropriate class or category.
8. For the following reasons, I do not agree with that interpretation of s 176(1A)(a).
9. Firstly, the act of carrying out a building inspection is the same, regardless of the status of the person performing the inspection. Section 176 (1A)(a) does not differentiate between an employee carrying out an inspection under ss 34 and 35, or an independent third party. The context in which s 176(1A)(a) appears, demonstrates Parliament's intention to ensure those who carried out the work of a building inspector had the relevant qualifications and experience to do the work. The focus was therefore on ensuring only those who had the appropriate and prescribed qualifications, carried out the specific functions or work, not the capacity in which they performed those functions.
10. In my opinion, support for this view is found in s 179(1)(e) which provides that one of the grounds for an inquiry into a registered building practitioner's conduct is if they have 'employed or engaged to do, on his or her behalf, work of a kind that can only be done by a registered building practitioner in a specified category or class'. Mr Pumpa said this provision was not relevant to the matters I had to consider and was a ground for which the relevant building surveyor may face disciplinary consequences. Whilst it is true the section did not provide a ground for inquiry relevant to Mr Stanbury, the provision, when seen in the context of Part 11 and of the Act, clearly shows that the focus of the legislature in the s 176 offence provisions was on the qualifications of those performing functions or work, not the capacity in which they undertook the work or function. Furthermore, and importantly, it demonstrates a relevant building surveyor may be held to account if they have 'employed' or 'engaged' another who did not hold the relevant qualifications, that is, regardless of whether the person is an employee or a third party.
11. Secondly, the ramifications of Mr Pumpa's submission that an employee may carry out the inspections on behalf of the relevant building surveyor without being registered under Part 11 has the effect, as Mr Pumpa said, that the relevant building surveyor decides whether that person has the relevant qualifications to perform the task. In my view, this is contrary to the scheme provided for under the Act and which is intended to ensure the safety and protection of the public, namely a scheme which provides that only those who have 'prescribed qualifications' may carry out the work and functions of registered building practitioners, not those who the relevant building surveyor considers to be appropriate.
12. Thirdly, the way in which the submission was put, which I note reflected what was stated in the AIBS Practice Note, has the effect that whether or not there has been a failure to comply with s 176(1A)(a) is dependent upon who is accepting liability for the inspection; if an employee carries out the inspection and the relevant building surveyor remains liable, then there has been no failure to comply with s 176(1A)(a). On the other hand, Mr Pumpa contended if a third party issues a s 238 certificate, and that third party is not registered, then there has been a failure to comply.[23] I again reject an interpretation of s 176(1a)(a) which supports that submission. In my opinion whether or not there has been a failure to comply with s 176(1A)(a) is not determined by who is liable for the building inspection undertaken. 'Liability' for an inspection and corresponding 'immunity' are separate issues and are addressed through the operation of different sections under the Act. I have discussed the interaction of these sections in the paragraphs below. I note for present purposes that, in my view, these sections support my view that s 176(1A)(a) made it offence for a person to perform the function of a building inspector, namely, carrying out an inspection of building work, unless registered in the appropriate category or class under Part 11.
13. Fourthly, as I have said, I think it is readily understood that the core task a building inspector does, is inspect building work. I note the 'extra' tasks Mr Pumpa referred to as being necessary before one could be considered to be 'practising as a building inspector' under s 176(1A)(a) relate to activities which might occur both before (advertising) and after (issuing a s 238 certificate) this core activity is performed. I do not think these 'extra' tasks are central or determinative to whether a person has 'practised as a building inspector' in the sense of carrying out the work of a building inspector for the purposes of s 176(1A)(a).
14. Fifthly, it is important to read ss 34 and 35 in the context of the Act. Part 4, including ss 34 and 35, is focused on the act of carrying out inspections to ensure the building work undertaken is compliant with the building permit. The inspections play a significant role, serving as they do to identify and correct non-compliant work before the next stage of the works are undertaken. If works are found to be non-compliant, it may lead to further directions being made under s 37 and, if those directions are not followed, the issuing of building notices and orders. Further, Mr Pumpa agreed that it was open to Mr Stanbury to issue directions under s 37, having carried out the inspection. If he did so, he would be doing 'more' than carrying out the inspection.
15. Whilst ss 34 and 35 did not expressly state that inspections carried out on behalf of a relevant building surveyor could only be carried out by registered building practitioners, I reject the submission that meant anyone could carry them out. This is because that statement ignores s 176(1A)(a). In my opinion, regard must be had to the provisions of s 176(1A)(a) when considering who can carry out inspections under ss 34 and 35 on behalf of the relevant building surveyor.
16. In my opinion, ss 34 and 35 (which permit a relevant building surveyor to cause another to carry out inspections on their behalf) and s 176(1A)(a) (which provides that it is an offence to practise as a building inspector unless registered in the appropriate category) are capable of being read together. To my mind, the sections each inform the other - s 176(1A)(a) informs who it is that may carry out an inspection on behalf of the relevant building surveyor. The focus of Part 4 of the Act was on ensuring works were compliant, by regulating the process of carrying out and inspecting building work. The focus in Part 11 was on ensuring those carrying out tasks under the Act had the appropriate qualifications to do so. The importance of inspections supports the view that the person the relevant building surveyor 'causes' to carry out the inspections must still comply with the requirements of s 176(1A)(a), that is, be registered in the appropriate class and category.
17. Further, even if these sections were considered to be conflicting, I note the Court's words in Project Blue Sky that 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all statutory provisions'. Given the objectives and purposes of the Act to 'protect the safety and health of people who use buildings' and to 'regulate building work and building standards', the meaning of s 176(1A)(a) which best gives effect to those purposes is the one I have found, namely, to 'practise as a building inspector' includes any person who carries out the act of inspection of building work under ss 34 and 35 of the Act.

Relevance of sections 128, 238 and regulation 1506

1. In my opinion this interpretation of s 176(1A)(a) is consistent with and supported by other sections of Act.
2. It is not disputed that, under the Act, one of the functions of a building surveyor is 'the carrying out of inspections of building and building work under Part 4'.[24] The provisions of Part 4 of the Act relate to 'inspection of building work'.
3. In Toomey v Scolaro's Concrete Constructions Pty Ltd[25] (in liq) (No2) the Supreme Court held that there is no doubt that a building surveyor may delegate the task of inspection which falls due at the mandatory notification stages and that so much was clear by the language of ss 34 and 35 and the power to give directions under s 37. The Court noted they are acts which may be performed through another person. The Court found the primary responsibility for the inspections remained with the surveyor and said the surveyor was not delegating the duty to inspect, but merely the act of inspection which the surveyor was permitted to delegate. The surveyor holds the statutory obligation to cause the inspection and may obtain immunity in certain circumstances. The Court commented that the statutory duty cast on a building surveyor was an important one, being concerned as it is with public safety.
4. Accordingly, having giving the relevant building surveyor the option to arrange for another to carry out the inspection under ss 34 and 35, and noting that the carrying out of inspections is a statutory function of the building surveyor, the Act provides a way for a relevant building surveyor to obtain immunity and therefore limit liability in circumstances where another has carried out their functions, namely, through the operation of ss 128 and 238.
5. Section 128 states that a relevant building surveyor is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under s 238. In particular, s 238(1)(b) states that a relevant building surveyor may rely on a certificate by a registered building practitioner in a prescribed category or class of practitioners 'that building work of a prescribed class complies with any provision of this Act or the regulations.' Subsection 238(2) states that a registered building practitioner must not give a certificate under subsection (1) in respect of building work unless the certificate states that the registered building practitioner has inspected the building work.
6. Regulation 1506 of the Regulations sets out the prescribed classes of building work and the prescribed categories and classes of practitioners in respect of building work for the purposes of s 238(1)(b). Reg 1506(e) provides that for 'a certificate relating to the inspection of domestic building work - category of building surveyor or building inspector'.
7. In my view the effect of the provisions discussed above may be summarised as follows:

1. Carrying out inspections of building work is a statutory function of the relevant building surveyor; 2. Building inspections may be carried out personally by the relevant building surveyor or they may arrange for another to carry out the inspection on their behalf;

1. If a relevant building surveyor arranges for another to perform the act of inspection, they have delegated that function;

1. A building surveyor will only be entitled to indemnity in circumstances where they have arranged another to carry out one of their statutory functions if they obtain a certificate from the 'other registered building practitioner'; 2. In relation to inspections of domestic building work, the prescribed category or class of registered building practitioners who may carry out the inspections is a registered building surveyor or building inspector.
2. I accept that these provisions are not strictly relevant to an interpretation of s 176(1A)(a), focusing as they do on the question of liability and immunity. However, in my opinion they demonstrate Parliament's intention that if a relevant building surveyor causes another to carry out their statutory function of inspecting building work, that is, they delegate the act of inspection to another, given they will only be entitled to immunity if that person is a registered building practitioner, it is intended that the person carrying out the inspection is registered in the appropriate class or category specified under reg 1506.
3. I note Mr Pumpa says these provisions are not relevant in the present case because Mr Stanbury did not issue a s 238 certificate and the relevant building surveyor is not seeking to pass liability to Mr Stanbury, but rather it is intended he will retain liability. In those circumstances he says there has been no failure to comply with s 176(1A)(a). However, that argument relies on looking at where liability lays rather than looking at whether the person performing the inspection has the required qualifications and experience. In my opinion such an interpretation is contrary to intention of s 176(1A)(a) as discussed above. The fact no certificate was issued goes to liability for the inspection - but that is a different question to what s 176 is about, which is ensuring only appropriately qualified people perform the work of registered building practitioners.

1. The AIBS's view of 'who can carry out building inspections' as expressed in its June 2008 Practice Note is not relevant to my determination of whether Mr Stanbury failed to comply with the provisions of s 176(1A)(a) of the Act. Accordingly, I have had no regard to it.
2. Mr Pumpa conceded that point and explained he drew my attention to it more by way of explanation of Mr Stanbury's conduct and as a matter of mitigation. Whilst I am sympathetic to the position in which Mr Stanbury finds himself, in that it appears both he and his employer were following the information and views expressed in the Practice Note, that is unfortunately not the basis upon which I must determine the intent of the legislation and the meaning of s 176(1A)(a).

Effect of introduction of s 35B to interpretation of s 176(1A)(a)

1. The inclusion of s 35B in the Act precisely states and makes it clear that the relevant building surveyor must not cause a person to carry out an inspection under ss 34 or 35 on behalf of the relevant building surveyor unless the person is registered as a building surveyor or building inspector under Part 11 and the person's registration authorises the carrying out of that inspection.
2. However, I do not accept Mr Pumpa's submission that the inclusion of s 35B therefore means that, prior to its inclusion, an inspection carried out pursuant to ss 34 or 35 could have been carried out by anyone the relevant building surveyor 'caused' to carry it out. In following the words of the Court in Clarke, the inclusion of s 35B is of no assistance to me in determining the meaning of s 176(1A)(a) and the intention of the legislature at the time of the offences, other than to highlight that the legislation was not expressed as precisely and clearly as it could have been.

Did Mr Stanbury 'practise as a building inspector?'

1. the agreed statement of facts; 2. the purposes and objectives of the Act as discussed above;

1. the context in which s 176(1A)(a) appears, namely, the registration of building practitioners under Part 11;and

1. the 'mischief' that is sought to be addressed by its inclusion, namely, that only appropriately qualified persons perform the function and tasks of registered building inspectors,

I find that Mr Stanbury 'practised as a building inspector' as that phrase is used in s 176(1A)(a) when carrying out inspections under ss 34 and 35 of the Act.

Was he registered in the appropriate category or class?

1. Initially, Mr Pumpa did not dispute that if I found that the act of carrying out inspections by Mr Stanbury under s 34 and 35 of the Act amounted to practising as a building inspector, that Mr Stanbury did so when not registered in the appropriate category or class under Part 11. That is, it was not disputed that Mr Stanbury's registration as a domestic builder limited was not an appropriate category or class to carry out inspections of domestic building work and, in this regard, Mr Pumpa certainly agreed that he was not relying on s 176(7) of the Act. However, towards the end of the hearing Mr Pumpa appeared to contradict this submission when he said he did not accept that Mr Stanbury was not appropriately qualified to conduct the inspections.
2. For completeness, I find that the appropriate category or class of building practitioner Parliament intended was required in order to carry out inspections under s 34 and 35 was a registered building surveyor and/or a registered building inspector (unlimited) or (limited), as the case may be, depending on the inspection being undertaken. In making this finding I have had regard to:
   1. the prescribed qualifications for the purposes of registration detailed in the Table in Schedule 7 of the Regulations; and
   2. the provisions of Regulation 1506 which sets out the prescribed categories and classes of practitioners with respect to prescribed classes of building work for the purposes of s238 of the Act and the issuing of a certificate of compliance, noting that reg 1506 relates only to inspections relating to domestic building work.
3. For the above reasons I find Mr Stanbury guilty of the allegations detailed in the NOI in that I find that he practised as a building inspector when not registered in the appropriate category or class under Part 11 to do so.

1. Having found Mr Stanbury guilty of the allegations, the question of penalty now arises for determination. I have made relevant orders to the effect the parties are to now notify the Tribunal whether they wish to have a further hearing to make submissions concerning penalty or whether they seek to file and serve written submissions after which the Tribunal will decide the issue without further hearing.

1. Mandatory notification stages for inspection

(1) For the purposes of Part 4 of the Act the mandatory notification

(b) prior to pouring an in situ reinforced concrete member nominated by the relevant building surveyor; and

(2) The relevant building surveyor may vary a stage set out in sub regulation (1) in relation to building work if it is inappropriate to the building work.

(3) The mandatory notification stages for building work determined in accordance with sub regulation (1) or (2) must be set out in the building permit for that building work.

For the purposes of registration under section 170 of the Act, the prescribed qualifications for registration of a category and a prescribed class of building practitioner set out in column 2 of the Table in Schedule 7 are the relevant qualifications set out in column 3 of the Table in Schedule 7 for that category and class.

The prescribed classes of building work and the prescribed categories and classes of practitioners in respect of building work for the purpose of section 238(1)(b) of the Act are as follows -

(a) for a certificate relating to the inspection of domestic building work relating to a structural, sewerage, water or drainage matter - category of engineer, class of civil engineer;

(b) for a certificate relating to the inspection of domestic building work relating to a mechanical matter including hydraulic services within a building - category of engineer, class of mechanical engineer;

(c) for a certificate relating to the inspection of domestic building work relating to an electrical matter - category of engineer, class of electrical engineer;

(d) for a certificate relating to the inspection of domestic building work relating to a fire safety matter - category of engineer, class of fire safety engineer;

(e) for a certificate relating to the inspection of domestic building work - category of building surveyor or building inspector;

(f) for a certificate relating to the erection of a prescribed temporary structure - category of building surveyor or building inspector or category of engineer, class of civil engineer or category of erector or supervisor (temporary structures) in the appropriate class.

CATEGORIES/CLASSES OF BUILDING PRACTITIONERS AND QUALIFICATIONS

(1) For the purposes of the Table in this Schedule components of domestic building work include, but are not limited to, any of the following work associated with the construction, renovation, improvement, or maintenance of a home -

(a) the construction or installation of retaining structures, garages, carports, sheds, pergolas, verandahs, patios, stairways, brickwork, internal or external cladding, swimming pools, spas and the like;

(b) the provision of lighting, heating, ventilation, air conditioning and electrical services;

(c) site work involved in relocating an existing home;

(d) door or window installation, sub-floor work, roofing, fencing, bathroom and kitchen renovations and the like.

(2) In the Table in this Schedule special buildings means -

(a) buildings of composite, precast or tilt-up panel construction; or

(b) buildings incorporating prestressed concrete elements; or

(c) stressed skin structures, chimneys, towers, masts or any similar structures.

Category/prescribed class of building practitioner

(a) a degree in building surveying from a university or institution approved and authorised under Part 4.3 of the Education and Training Reform Act 2006 to conduct an accredited course leading to that degree; and

(b) 3 years of practical experience to the satisfaction of the Board

(a) an advanced diploma in building surveying from a course accredited under the Education and Training Reform Act 2006; and

(b) 2 years of practical experience to the satisfaction of the Board.

(a) a diploma of building surveying from a course accredited under the Education and Training Reform Act 2006; and

(b) 2 years of practical experience to the satisfaction of the Board

(i) a diploma of building surveying from a course accredited under the Education and Training Reform Act 2006; and

(ii) 2 years of practical experience to the satisfaction of the Board; or

(b) a certificate issued by the Board, after examination of the applicant, certifying that the applicant has adequate knowledge and experience to inspect the classes and types of buildings or the components of building work specified in the certificate

[1] Drake v Minister for immigration and Ethnic Affairs [1979] 46 FLR 409.

[7] Regulation 1503 of the Regulations provides that for the purposes of registration under s 170 of the Act, the 'prescribed qualifications for registration of a category and a prescribed class of building practitioner set out in column 2 of the Table in Schedule 7 are the relevant qualifications set out in column 3 of the Table in Schedule 7 for that category and class'. Schedule 7 of the Regulations is set out in Annexure A.

[8] Regulation 901 of the Regulations entitled 'Mandatory notification stages for inspection' required the relevant building surveyor to establish mandatory notification stages in the permit, which triggered an inspection of the building work concerned and approval, refusal and/or directions as to work. Regulation 901 is set out in Annexure A.

[11] By s 25(2) of No 21 of 2017 - Building Amendment (Enforcement and Other Measures) Act 2017.

[12] Paragraph 11 of applicant's (then respondent) written submissions filed before BPB.

[13] [2014] VSCA 154.

[14] [1994] VicRp 7; [1994] 1 VR 117.

[15] [2009] HCA 41; (2009) 239 CLR 27 at [46]- [47].

[16] [2012] VSCA 304 at [46].

[17] [1998] HCA 28; (1997) 194 CLR 355 at [69]- [70].

[23] I note in that instance, however, it seems to me the relevant building surveyor would remain liable as there is no indemnity available for them to rely upon.

[25] [2001] VSC 279.