respondent. Decision under review affirmed; licence application refused for failure to establish required two years' relevant industry experience.
Key principles
An applicant for an individual contractor licence must establish at least two years' relevant industry experience in a wide range of building construction work as defined by the...
Work carried out on buildings that are not 'dwellings' within the definition in Schedule 1 (for example Class 3 BCA buildings) does not qualify as 'residential building work' for...
The Tribunal must assess the reliability and sufficiency of documentary and referee evidence; where referees misclassify building classes, provide incomplete dates or lack detail...
If the primary statutory qualification (two years' experience) is not established, it is unnecessary to consider secondary requirements such as whether the applicant was...
Issues before the court
Whether the applicant possessed at least two years' relevant industry experience in a wide range of building construction work as required by the...
Whether the applicant's work on Department of Defence (DOD) sites and other non-private residences constituted 'residential building work' under the...
Plain English Summary
The Tribunal refused the applicant's claim to an individual contractor licence because he did not prove the statutory minimum of two years' relevant residential building experience. Much of his work was on Defence or institutional buildings that the Tribunal found were not 'dwellings' under the Act (for example Building 120 was Class 3), referees' statements were incomplete or unreliable, and overseas experience was irrelevant. Because the primary experience requirement was not met, the Tribunal affirmed the respondent's decision and did not consider 'lawfully engaged' status.
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Whether the applicant's experience was 'lawfully engaged' as required by the Instrument.
Phillip John Trengrove applied for an Individual Contractor Licence under the Home Building Act 1989 (NSW). The Commissioner for Fair Trading refused his application; an internal review delegate affirmed the refusal. The applicant sought review in the NSW Civil and Administrative Tribunal. The Tribunal (Senior Member J Kelly) heard oral and written evidence including the applicant's affidavit, affidavits and referee statements from Robert Baker and Richard Vernon, a BCA assessment report prepared by Troy Myers for Building 120, project photographs, invoices and other documentary material. The central contested legal question was whether the applicant had at least two years' "relevant industry experience in a wide range of building construction work" as required by the Instrument issued under Home Building Regulation cl 28(1) and Schedule 1 to the Home Building Act 1989 (NSW) (Relevant legislation; Consideration and findings [2], [3], [18]). The Tribunal concluded he had not, and affirmed the refusal (Disposition; Consideration and findings [18]–[20]).
Key timeline items from the record:
Application lodged with respondent on 22 July 2014 (Relevant legislation).
Refusal letter dated 6 November 2014; applicant sought internal review which confirmed the refusal (Consideration and findings [17]).
Tribunal hearing 31 August 2015; decision delivered 16 November 2015.
Why the court decided this way
The decision rests on statutory construction of "residential building work" and the evidential assessment required to prove the two-year experience threshold.
Statutory definitions controlled. Clause 2 of Schedule 1 to the Home Building Act defines "residential building work" in terms of work on a "dwelling" (Consideration and findings [3]). Clause 3 defines "dwelling" to include buildings designed, constructed or adapted for use as a residence (Consideration and findings [4]). The Tribunal emphasised that only work on buildings that fit those definitions can count towards the statutory experience requirement.
The Instrument sets the experience criteria. The Instrument issued under cl 28(1) of the Home Building Regulation 2004 requires at least two years' relevant industry experience gained as an employee of a licensed contractor or otherwise lawfully engaged, and financially remunerated (Relevant legislation). The applicant must therefore both show the requisite period and that the work falls within the statutory definition of residential building work.
Evidence did not prove the requirement. The Tribunal carefully analysed the applicant's claimed employment periods and the referee statements and found the claimed experience was "about 23 months" by the Tribunal's calculation but the supporting material was incomplete, inconsistent or unreliable (Consideration and findings [2], [8], [18]). Critically, several projects relied on were described in the evidence or in a BCA assessment as Class 3 or institutional buildings (for example Building 120 was classified as Class 3 in the BCA assessment), which are not "dwellings" under the Act and therefore do not constitute "residential building work" (Consideration and findings [11]–[13]).
Weight of referee evidence. The Tribunal discounted or gave little weight to several referee statements that either omitted dates or did not describe the applicant's role, or misclassified building classes under the BCA (Consideration and findings [2], [3], [7]–[10], [14]). Where a referee's form was blank or inconsistent, the Tribunal found it unreliable.
No need to decide 'lawfully engaged'. Since the Tribunal rejected that the applicant had satisfied the two years' experience requirement, it did not consider the secondary question whether the experience was acquired while he was "lawfully engaged" (Consideration and findings [19]).
The Tribunal therefore concluded the statutory eligibility was not met and affirmed the Commissioner’s decision (Consideration and findings [18], [20]).
Before and after state of the law
Before this decision, the statutory framework for licensing was already set by the Home Building Act 1989 (NSW), its Schedule 1 definitions and the instruments created under the Home Building Regulation. The Tribunal in this decision applied those statutory provisions straightforwardly.
What this decision confirms for practice:
Projects classified under the Building Code of Australia as non-dwellings (for example Class 3 institutional accommodation) will generally not qualify as "residential building work" for the licensing experience requirement (Consideration and findings [11]–[13]).
Documentary proof and reliable referee statements are essential. Mere assertions, photographs without contemporaneous documentation, or incomplete referee forms will attract little weight (Consideration and findings [2], [6]–[10], [14]).
Overseas experience will not qualify unless it meets the statutory description of experience gained as an employee of, or lawfully engaged by, a holder of a relevant contractor licence in the jurisdiction whose rules apply (Consideration and findings [15]).
This decision therefore reaffirms a strict, definition-focused approach by the Tribunal when applying the statutory licensing prerequisites.
Key passages with plain-English translation
Passage: "For the reasons that follow I do not accept that the applicant has the requisite experience." (Consideration and findings [2]).
Plain English: After reviewing all evidence, the Tribunal concluded the applicant failed to establish the required experience.
Passage: "In this Act residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in: 1. The construction of a dwelling... 2. The making of alterations or additions to a dwelling... 3. The repairing, renovation, decoration or protective treatment of a dwelling." (Consideration and findings [3]).
Plain English: Only work on buildings that are actually 'dwellings' counts. If the building is not a 'dwelling', even identical trades (tiling, waterproofing) carried out there do not qualify as residential building work for the licensing test.
Passage: "The BCA assessment included... 'The subject building is considered to be a class 3 building under the provisions of Part A3 of the BCA'... A Class 3 building... is not a dwelling." (Consideration and findings [11], [12]).
Plain English: The formal BCA classification showed Building 120 is Class 3 (an institutional residential building), so the work there was not the kind of residential work the Act requires for licence eligibility.
Passage: "Given my finding that the applicant has not satisfied the two years' experience criterion, it is unnecessary to consider the question whether he was 'lawfully engaged'." (Consideration and findings [19]).
Plain English: Because the main requirement failed, the Tribunal did not need to decide other technical eligibility issues.
What fact patterns trigger this precedent
This decision is directly relevant when:
An applicant for a builder's licence relies primarily on work carried out on institutional, defence, educational or government accommodation sites rather than private residential dwellings.
The classification of the building under the BCA is disputed or unclear and the applicant seeks to count the work towards the Schedule 1 experience test.
Referee statements or documentary evidence are incomplete, undated, misclassified, or otherwise inconsistent and the tribunal must assess whether the two-year threshold is met.
Applicants assert overseas experience, or experience not gained directly as an employee of a licensed contractor, as part of the statutory experience claim.
In these fact patterns the Tribunal will require clear, contemporaneous documentary proof and reliable referee evidence that the projects were dwellings under the Act and that the applicant performed the necessary supervisory/work roles for the statutory period.
How later courts have treated it
This judgment itself cites Locking v Department of Finance and Services [2013] NSWADT 239 for a descriptive summary of a building contractor's role and relied on that characterisation (Consideration and findings [1]). The decision does not report any subsequent appellate treatment of this particular decision. The judgment contains no discussion of later cases applying or distinguishing it. Practitioners should search later Tribunal and court decisions to see whether other panels have repeated or refined the approach to Defence or institutional works and the weight placed on referee evidence.
Still-open questions
Boundary cases between building classes. The decision emphasises the importance of BCA classification; however, the judgment does not set out a detailed methodology for handling borderline projects where part of a site might be a dwelling and part institutional. How to apportion or count partial dwelling works remains a question likely to recur in practice (Consideration and findings [11]–[13]).
Weight to be given to contemporaneous versus retrospective evidence. The Tribunal discounted older photographs and retrospective statements lacking contemporaneous corroboration (Consideration and findings [6], [7], [14]). The precise thresholds for acceptable secondary evidence where primary contemporaneous documents are unavailable are not exhaustively developed in this decision.
Overseas experience and cross-jurisdictional licensing history. The Tribunal rejected the applicant's New Zealand experience as irrelevant because it was not gained as an employee of a licensed NSW contractor or lawfully engaged under NSW rules (Consideration and findings [15]). The decision leaves open the parameters under which foreign experience might be accepted, for example where licensing regimes or supervisory arrangements are demonstrably equivalent.
Reliance on certifier reports and BCA assessments. The Tribunal relied on an independent BCA assessment for Building 120 (Consideration and findings [11]). Questions remain about when such assessments will be necessary, who may properly author them for licensing purposes, and the weight accorded to differing expert assessments.
Practical takeaway for applicants and advisers: produce contemporaneous, project-specific documentation showing the BCA class, the applicant's role and dates on site, and reliable licensed-referee statements that correctly classify projects. Without that, reliance on work done for Defence or other institutional clients will be vulnerable to rejection because non-dwelling classifications will disqualify such work from counting towards the two-year residential experience requirement (Consideration and findings [8]–[14], [18]).
Phillip John Trengrove (the applicant) seeks the review of the decision made by a delegate of the Commissioner for Fair Trading, Office of Finance and Services (the respondent) on internal review, to confirm the refusal of his application for an authority under the Home Building Act 1989 (the Act). Although it appears to me that the applicant ticked the box on the application form indicating he was applying for a Qualified Supervisor Certificate for general building work, the original decision-maker, the internal review decision-maker and the parties before me have considered that it was an application for an Individual Contractor Licence. I have therefore proceeded on that basis.
[3]
Relevant legislation
The Act regulates home building and specialist work such as plumbing, gas fitting, electrical, air conditioning and refrigeration work. Section 19(1) provides that the respondent may grant contractor licences for the purposes of the Act.
Section 20(2) of the Act provides that "the regulations may fix or provide for the Secretary to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued".
Section 20(3)(a) of the Act specifies that the Secretary must reject an application for a licence if the Secretary is not satisfied that any such requirement would be met were the licence to be issued.
Section 12 of the Act provides that "an individual must not do any residential building work or specialist work, except:
1. as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or
2. as the holder of an owner builder-permit authorising its holder to do that work, or
3. as an employee of the holder of such a contractor licence or permit.
4. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case."
Section 13(1) of the Act provides that that "an individual must not do any residential building work, except:
1. as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner builder permit authorising its holder to do that work, or
2. under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work.
3. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case."
The parties agreed that the relevant instrument setting out experience relevant in this case was that issued on 3 July 2013, pursuant to cl 28(1) of the Home Building Regulation 2004 (the Instrument) and not the instrument dated 5 January 2015. The applicant lodged his application with the respondent on 22 July 2014.
The Instrument provides that: '"Experience means experience gained by the applicant as:
1. an employee of the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained; or
2. a person otherwise lawfully engaged by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the class of residential building work in which the experience was gained and who has supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the work; and
3. in respect of which the applicant is financially remunerated for their work during the relevant period.'
Schedule 1 of the Instrument requires that the "experience" must be "at least two years' relevant industry experience in a wide range of building construction work".
[4]
The issues in the case
The issue in this case is whether the applicant has had at least two years' relevant industry experience in a wide range of building construction work. The sub-issues are whether:
1. The applicant's experience was relevantly "residential building work" and
2. The applicant's experience was acquired while he was "lawfully engaged" as required by the Instrument.
[5]
The evidence before the Tribunal
The evidence before the Tribunal included the following:
The documents the respondent provided to the Tribunal pursuant to s 58 of the Administrative Decisions Review Act 1997 (Exhibit R1).
An affidavit sworn by the applicant on 22 July 2015 (Exhibit A1);
An affidavit sworn by Robert Baker dated 23 July 2015 (Exhibit A2);
A letter from Robert Baker dated 15 May 2015 (Exhibit A3);'
An affidavit sworn by Troy Myers on 31 July 2015 (Exhibit A4); and
A Tax Invoice from Baker & Brown (B&B) dated 28 February 2011 for works on 120 Amenities Wing and 120 Accommodation Wing at RAAF Base Richmond and a Progress Claim dated 14 February 2013 for Fire Upgrade Works Stage 4 at the same building (Exhibit A5).
[6]
Consideration and findings
Deputy President Hennessy has usefully summarised the role of a building contractor in Locking v Department of Finance and Services [2013] NSWADT 239 at paragraphs 18 and 19:
A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. There are many gaps in Mr Locking's trade supervisory experience and therefore his understanding of certain trades. Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing.
A building contractor is also able to contract with the public, and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work has passed fit when appropriate.
The applicant provided the following employment and experience history, including the type of work, in his application:
30/1/03 to 20/7/03 Baker & Brown Constructions Building
30/1/09 to 30/8/09 Baker & Brown Constructions Building
20/7/13 to 30/11/13 Baker & Brown Constructions Building
3/1/14 to 22/7/14 Baker & Brown Constructions Building
The experience claimed is not detailed and does not, on my calculation, amount to two years. It is about 23 months experience.
Initially, the applicant provided copies of three referee statements in support of his application which contained little useful information. One was disregarded before it was provided by the holder of a contractor licence in the class of work of carpentry. It identified two building sites, Garden Island Naval Base and Mosman "job". The sections showing the starting and finishing dates were not filled in, nor was the description or work or the applicant's roles and responsibilities in respect of either site. Richard Vernon, a licensed builder signed a form with no information about any building work provided. Mr Robert Baker of B&B provided a letter dated 26 February 2014 with headings "Head Contractor" "Defence Bases" certifying that he has supervised the applicant "for five years on the building works attached, undertaken by (B&B) associated with Multiplex and Brookfield, Johnston Controls". He had completed a Referee's Statement form. He holds a contractor licence for general building. The part of the form headed "Applicant's Residential Building Experience" contained no information apart from Mr Baker's name, licence number, date and signature.
Parties
Applicant/Plaintiff:
Trengrove
Respondent/Defendant:
Commissioner for Fair Trading
Legislation Cited (3)
Environmental Planning and Assessment Regulation 2000(NSW)
Decision under review affirmed; licence application refused for failure to establish required two years' relevant industry experience.
Following a notice for the provision of further information being sent out by the respondent, the applicant provided completed referee statements from Mr Baker and Mr Vernon.
Mr Baker indicated that the applicant was employed full-time sub-contractor as a supervisor. He set out the "applicant's residential building experience" in relation to RAAF Base Richmond and Defence Establishment Orchard Hills.
The starting and finishing dates for the applicant's presence on site at the RAAF Base Richmond were:
01/05/2013 to 01/09/2013
01/12/2012 to 04/02/2013
02/11/2011 to 04/03/2012
Mr Baker ticked boxes to indicate that the work was additions/alterations, Class 1A and Class 2. He described it as "D&C", which I understand means demolition and construction of "Aviation Fire Vehicle Facility, BCA to Occupied Buildings". He described the applicant's role as "supervision of all sites".
In respect of the Orchard Hills site, Mr Baker provided the following starting and finishing dates for the applicant's presence on site:
04/10/2011 to 05/02/2012
02/05/2011 to 04/09/2011
01/02/2010 to 01/04/2010
Mr Baker indicated that the work was additions/alterations, Class 1A and Class 2. He described it as "D&C of Warehouse Facility (BCA Compliance) Defence Buildings, D&C of occupied accommodation blocks (BVCA Compliance). He described the applicant's role as "supervision of all sites".
Mr Vernon holds a contractor licence for building. He indicated that the applicant was employed full-time as a sub-contractor supervising sites. He provided details about the "applicant's residential building experience" at two building sites, the University of Western Sydney and RAAF Base Richmond, Main Office Fitout.
Mr Vernon indicated that the work at the University of Western Sydney was Class 1A and Class 2, alterations and additions to existing building (teaching kitchen) and "M10 Building. He set out the starting and finishing dates for the applicant's presence on site:
02/02/2008 to 04/06/2008
02/01/2009 to 04/03/2009
01/01/2010 to 03/04/2010
In respect to the RAAF Base Richmond, Mr Vernon indicated that it was an office fitout. He ticked none of the boxes Class 1A, Class 2, Class 10 or Class 10b. The applicant was on site from 02/01/2008 to 04/02/2008.
Mr Lambert provided the following information. He holds a contractor licence for building. The applicant was employed full-time as a sub-contractor. He provided the following information about the applicant's "residential building experience". The applicant worked supervising alteration/additions of an office fitout at Albury Police Station from 01/04/2014 to 06/08/2014. The applicant worked supervising new building work at the Goulburn Police Station, a weapons cleaning shed - cleaning weapons facility after training, from 08/08/2014 to 09/09/2014.
After the application was refused by a letter dated 6 November 2014, the applicant provided further material to support his application for internal review. In his letter of 3 December 2014 he said that he has been involved in the Australian building industry for 12 years and before that had a trade certificate and was a registered master building in New Zealand. He has built "in excess of 80 homes in New Zealand for which" he can provide evidence. He said that in Australia he has worked for Infinity Constructions building a new residential home in Palm Beach and for LT Group as site manager for a residential block of units in Mosman. He had worked on "numerous Defence sites which have included Domestic/Residential works. "These have included new homes, alterations and additions as well as a duplex".
The applicant provided the following in relation to a project in Mosman: one page of a specification for building work at an address in Mosman which identifies the builder as LT Group Pty Ltd but provides no description of the work but refers to the work described in a contract dated December 2005; an application to Mosman Municipal Council "to stand and operate plant" by LT Group Pty Ltd dated 2 November 2006, identifying the applicant as representing the company and signed by the applicant, and a Home Warranty insurance certificate issued on 10 May 2006 in respect of "Alteration/Addition" at Unit No. 1 House No: 2" at the Mosman address.
In a letter dated 14 December 2014, the applicant provided the following additional information. He had his own building company in New Zealand. He was the site manager for the residential block of units in Mosman for a year. He said that he was providing "Photo evidence and relevant documents". He has been employed on numerous Government sites which have included "Domestic/Residential" properties for B&B and Dick Vernon Constructions. He has also worked on new homes, alterations and additions as well as a duplex, as stated in Mr Baker's letter, over a six-year period.
The applicant provided three pages showing six photographs, two of which were dated 19/11/2006. One page is annotated with the Mosman address, "Value of project $1 million Refurbishment of a block of 6 units, internally and externally including the new construction of a 2 level carpark". He provided a coloured copy of a Google map of part of Palm Beach NSW showing a house outlined by a red rectangle.
The applicant provided a further seven pages of photographs of buildings under construction, including houses, a building behind temporary fencing and various aspects of construction. No written information accompanied them. Some appear to be quite old and may have been of New Zealand sites as one includes a photograph of a young man next to a trailer bearing the name of the applicant's New Zealand company.
The applicant also provided:
An illegible copy of a Certificate of Due Completion of Apprenticeship
An application to convert to a WorkCover construction induction certificate and an accompanying identification document
A certificate showing Artisan Homes was a member of the Wellington Master Builders' Association, the date of which is unclear but may be 1986
A photograph of a man, perhaps the applicant, sitting at a desk and looking at a construction plan
A one-page print-out from the OneGov web-site showing that LT Group Pty Ltd has held a contractor licence since 11 October 2005 which will expire in 2016 and listing a number of names of individuals. The applicant's name does not appear.
Mr Baker wrote a letter dated 3 December 2014. He said that he had supervised the applicant for six years in building works undertaken by B&B associated with Multiplex and Brookfield Johnson Controls. During that time, he had supervised the applicant over several residential projects associated with the RAAF Richmond. "They varied from residential houses, single and double story dwellings including but not limited to units, townhouses and a duplex, as well as other major extensions, alteration and additions." He provided the following examples:
22A Earl Street, Wilberforce 2756 Alterations and additions
Percival Street, Richmond 2756. Alterations and additions
McNamara Ave, RAAF Base Richmond 2756. Internal renovation
7 Riches Rd, Woodford. New dwelling
170 Box Hill Rd, Oakville 2756. Extension to dwelling and major alterations to home
28 Box Rd, Oakville 2756. Alterations to home to re-purpose to Duplex.
The applicant stated in his affidavit of 22 July 2015, the he has been involved in the construction of residential buildings over the last seven years which were built in accordance with the relevant provisions of the Building Code of Australia (BCA) and 'all of which were "residential building works" as that term is defined in the' Act. He said that the majority of the works are residential buildings built for use by defence personnel and erected on land owned by the Commonwealth, "the Defence works'. He said that the work was "largely carried out for the Department of Defence (DOD) "and included sites at HMAS Kuttabul Sydney, January - April 2008, DOD Orchard Hills NSW from December 2012 to April 2013, the Police Academy at Goulburn NSW during May to July 2014 and in August 2014.and Windang Town MF Windang NSW in November 2014. The applicant said that he had also been involved in works carried out for the Shellharbour City Council in June 2015.
The applicant listed 15 types of work done, such as preparation of foundations, construction of footings, internal framing, and wall cladding. He concluded that the work he has undertaken for more than two years "demonstrates that I have achieved a wide range of residential building experience".
Although describing the work as residential building work, the applicant did not describe the buildings the subject of the work. In his curriculum vitae attached to the affidavit, the applicant listed the following under the heading "Projects involved in":
Construction of 6 apartment units - Gladstone Ave Mosman
BCA compliance, Maintenance, Reroof Terracotta tiles and Kitchen Refit LIA buildings - HMAS Kuttabul Garden Island
Continuity of Defence Operations - Holsworthy Army Barracks
New Kitchen Facility - Holsworthy Army Barracks
BCA Refurbishment of Building 89 and 90 - HMAS Navy Base Garden Island
SFTF CT 400 Range, Moving Target Slab, Wall and shed Construction - Holsworthy Army Barracks
The applicant did work for a joint Multiplex Pty Ltd / John Holland Pty Ltd entity from January 2003 to June 2006 "implementing and promoting the latest Quality, Environmental, OH&S, Industrial Relations and Best Practice matters that will affect personnel and the Integrated Management System (IMS)".
Under the heading "Projects completed by Phil Trengrove" the applicant listed:
Completion of 4 Warehouse Conversions for the Defence Special Services
Completion of Hangar 523, QDS Docking Project, Richmond RAAF Base
Completion of the Air Traffic Control Tower BCA Fire Upgrade, Richmond RAAF Base
Conversion of RAAF Buildings into 6 office complexes Richmond RAAF Base
Building 120 BCA Upgrade Works to Accommodation Blocks
Building 350-365 RAAF Richmond, Accommodation BCA Upgrade Works
Interior Refurbishment of bathrooms Towers 1-8, Goulburn Police College
DTC Weapons Cleaning Facility Building, Goulburn Police College
DTC Waste Water System Upgrade.
Albury Police Station Refurbishment & New Bathroom Works
Oakleigh Park Hall BCA Refurbishment Works Shell Harbour Council
Construction of a Teaching Kitchen, Building M10 Western Sydney University
The applicant said that the Defence works were put out to tender and had to be built in compliance with relevant state codes. They do not need Home Warranty Insurance. The Defence works are subject to a "very specific specification". He annexed a lengthy example. He said that the Defence works were subject to the same inspection regime as set out in Regulation 162A of the Environmental Planning and Assessment Regulation 2000 (NSW). That is, typically an authorised private certifier issued a Construction Certificate.
The applicant said that each of the buildings comprising the Defence works "is constructed in accordance with Classes 1 & 10 of the BCA and an Occupation Certificate is issued 'which is in the same form and fulfils the same requirements as a certificate issued in respect of any "non-military" house in NSW'.
Mr Baker stated in his affidavit that he had read the applicant's affidavit and had "supervised him (the applicant) doing the works specified in that Affidavit". He annexed a schedule of works undertaken at DOD sites he specified:
RIC - C4 P3 Fire Survey Audit Works Richmond RAAF, Orchard Hills Building 120 LIA NSW, Blacktown MUD Refurbishment Stage 2 NSW and Fire & BCA Audit Works LIA RAAF Base Richmond
The "schedule of works" contained 16 types of work and was almost identical to the 15 types of work the applicant had listed in his affidavit, referred to above.
Mr Baker attached a BCA assessment report in relation to the DOD Orchard Hills site prepared by Mr Myers. That report describes the project as "Alterations and additions to existing accommodation building 120". It states that: "The subject building is considered to be a class 3 building under the provisions of Part A3 of the BCA".
Class 3 buildings under the BCA are: "A resident building, other than a class 1 or 2, which is common place of long term or transient living for a number of unrelated persons".
The BCA assessment included a number of annexures, including a "Description of Work" which listed 21 items. Although the left-hand side of the document is cut off, it is apparent that it refers to Building 120 and described it as an Amenities Wing. Although not specified in the Description of Work, other attachments to the BCA assessment show that the work included wall and floor tiling and waterproofing of male and female "shower / toilets", accessible bathroom, cleaners room, showers (level 1) and laundry.
Mr Baker said the following in his letter of 15 May 2015. He certified that he had supervised the applicant for six years on the residential building works "attached" undertaken by B&B. He said that the applicant acted as Project Manager and Site Foreman and was based on-site full time and performed carpentry work as part of his role for the following projects:
BCA Refurbishment of Building 105: This building was a single story residential home with double brick walls and a concrete tiled roof
BCA Upgrade to Buildings 26, 27, 30: these buildings were medium heritage full brick 2 storey building. Double brick homes with concrete tile roofs.
Mr Baker said that the applicant "was involved with projects below (working as well as on-site supervision)":
Refurbishment of Building 120: This building was full brick single storey concrete floor and asbestos roof.
Mr Baker said that the applicant had worked with them on "several off-base projects". They were:
22a Earl Street Wilberforce Alterations & Additions: 2 storey residence with large elevated back veranda.
7 Riches Rd Woodford: 2 storey brick veneer dwelling
170 Bocks Road Oakville: Split Level 4 bedroom brick veneer residence, timber floor & tiled roof
In his affidavit, Mr Myers said that he is a licensed private certifier under the Building Professionals Act 2005 (NSW). He has known the applicant as a foreman on building sites for B&B for over seven years. He has certified residential building works completed in accordance with plans and specifications prepared for the DOD and issued Letters of Compliance with the BCA "for those building works". "These are residential building works as that term is defined in the Home Building Act 1989 (NSW)". Mr Myers said that he has "always found the work carried out by Baker & Brown Constructions and in particular by Mr Trengrove to be of a high standard and compliant in all respects". He believes that the applicant has the skills and abilities to be licensed as a builder in New South Wales.
It was not in dispute before the Tribunal that the two years' experience referred to residential building work. The applicant made it clear that he relied on the work done for the Department of Defence (DOD) to satisfy the two years' experience requirement. For the reasons that follow I do not accept that the applicant has the requisite experience.
The definition of "residential building work" is set out in clause 2 of Schedule 1 to the Act. The Tribunal has taken into account the totality of the definition, but it is sufficient to set out clause (1):
In this Act residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in:
1. The construction of a dwelling, or.
2. The making of alterations or additions to a dwelling, or
3. The repairing, renovation, decoration or protective treatment of a dwelling.
"Dwelling" is defined at length in clause 3 of Schedule 1 of the Act. Clause (1) of that definition provides:
In this Act, dwelling means a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).
Clause 2(a) to (p) of the definition includes various structure or improvements in the definition of dwelling house "if it is constructed for use in conjunction with a dwelling". Some examples are a swimming pool or spa, detached garages, carports, decks porches, verandahs, pergolas and the like, driveways, paths and other paving, and retaining walls.
Clause 3 of the definition excludes various structures from the definition of dwelling, for example, a boarding house, guest house, hostel or lodging house, any residential part of an educational institution and any residential part of a health care building that accommodates staff.
The form required to be filled out by referees is headed "Applicant's Residential Building Experience". It includes boxes to tick to indicate the class of building: Class 1A, Class 2, Class 10a and Class 10b. I understand the classes to refer to the categorisation of buildings in the BCA. Class 1A is a single dwelling or one or more attached dwellings which is not located above or below another dwelling or another Class of building other than a private garage. Class 2 is a building containing 2 or more sole-occupancy units each being a separate dwelling. Class 10 includes two sub-classes, 10A which is a private garage, carport, shed or the like, and 10B, a structure being a fence, mast, antenna, retaining or free-standing wall swimming pool or the like.
I find that the respondent understands that work on those types of building is comprehended by the definition of residential building work in the Act. I agree.
It follows that I do not accept that any of the work done for Mr Vernon was relevantly residential building work. Construction of a teaching kitchen at a university is not residential building work. I do not accept that Mr Vernon's categorisation of the buildings at the University of Western Sydney as 1A and 2 is correct. The applicant did not give sufficient details about Building M10 for me to be satisfied that the work was residential building work. The office fitout at RAAF Base Richmond was not residential building work.
I do not accept that any of the work carried out for Mr Lambert at Albury and Goulburn Police Stations was residential building work.
I do not accept that Mr Baker's categorisation of buildings under the BCA is correct. For example, in the completed referee form, he ticked the boxes indicating that the buildings were Class 1A and 2. Two of the buildings were an "Aviation Fire Vehicle Facility" and a Warehouse Facility. They clearly do not fall within either of those categories. Further the "accommodation blocks" at Orchard Hills referred to as Building 120 is described as a Class 3 building in the BCA assessment report prepared by Mr Myers. Work on such a building is not relevantly residential building work, although aspects of the work such as tiling and waterproofing showers and toilets is similar. It follows that I do not accept Mr Baker's description of work being relevantly residential building work is correct. I do not find Mr Baker's evidence reliable.
I have taken into account the six examples of "residential projects associated with RAAF Richmond" Mr Baker referred to in his letter of 3 December 2014. He does not provide individual descriptions of each building, but provides a wide ranging description, including "as well as other major extensions, alterations additions". In his letter of 15 May 2015 he spells out that the Wilberforce, Woodford and Oakville properties are relevantly dwellings and I accept that is so. However, there is no detail about the applicant's role in each case or how long he worked on the buildings. I give this evidence little weight.
I do not accept that any of the sites Mr Baker described in his affidavit, which included Orchard Hills Building 120, involved residential building work. Further his claim to have supervised the work the applicant specified in his affidavit is, at best, unhelpful. Even if I assume he was referring to DOD sites, his evidence is clearly not correct. Mr Baker does not mention Garden Island in any of his evidence, which the applicant did refer to in the body of his affidavit, as well as in his curriculum vitae. From the other evidence before me, it is clear that Mr Baker did not supervise all the DOD projects referred to in the applicant's curriculum vitae, for example Holsworthy and Garden Island.
I give no weight to Mr Baker's evidence in his letter of 15 May 2015 about the applicant's work on buildings 105, 26, 27 and 30 for the following reasons. I am not satisfied that they are different from sites referred to in his 3 December 2014 identified by addresses in Percival Street, McNamara Avenue and 28 Box Road, Oakville. There is no detail about how long the applicant worked on each site. I also have difficulty finding any reference to that work in the applicant's evidence, including in his curriculum vitae which lists many projects.
Mr Myers' affidavit is unhelpful. The only example of his certification before me is in respect of Building 120, which he says is a Class 3 building. A Class 3 building is not a dwelling. I do not accept that work on Building 120 is relevantly residential building work. His evidence lacks detail. I do not accept that his understanding of what is relevantly residential building work is correct.
I do not accept that the applicant's understanding of "residential building work" is consistent with the definition in the Act. While aspects of his work on DOD accommodation blocks such as Building 120 and work on bathrooms at Goulburn Police College and Albury Police Station and in general building work is similar to work carried out in residential building it is in a different context and scale and is not what is required by the Act. Such buildings are not relevantly "dwellings".
Similarly, I do not accept his claim in his affidavit that each of the buildings comprising the Defence works "is constructed in accordance with Classes 1 & 10 of the BCA". He does not specify which buildings are the Defence works but refers to sites at HMAS Kuttabul, DOD Orchard Hills, the Police Academy Goulburn and Windang Town MF Windang and being involved in works carried out for the Shellharbour City Council. Doing the best I can taking into account his descriptions of the work in his curriculum vitae set out above, where only some of that sites are referred to specifically and some aspects of the work are referred to by building references, and some not apparently mentioned at all, for example Windang, I do not accept that any of the buildings fall into Class 1 or 10 of the BCA or that work on those buildings is residential building work.
I find the applicant's evidence unreliable in respect of his understanding of what is, relevantly, residential building work, and the types of buildings that fall within Classes 1A and 10 of the BCA. The only reference in his curriculum vitae to what I accept is residential building work is the residential unit project at Mosman. That he does not refer to his work on the other residential properties referred to in Mr Baker's letter of 15 May 2015, reinforces me in not accepting that work as relevant experience.
I give no weight to the applicant's evidence about his work in New Zealand because it is not relevant. He did not carry out the work as an employee of a licensed contractor or as a person otherwise lawfully engaged by such a person.
I do not accept that the applicant worked for a year as a site manager at Mosman on a residential unit project. The applicant has not provided a referee's report in relation to that project. The builder holds a current licence. The incomplete reference from the licensed carpenter referred to the "Mosman job". I accept that the applicant had some role when he lodged the application with Mosman Council "to stand and operate plant" for the Mosman address. I do not accept that the description on the Home Warranty insurance certificate of "Alteration/Addition" at Unit No. 1 House No. 2 is consistent with a six residential unit construction project.
I give no weight to his claimed work on the Palm Beach house. There is no contemporaneous supporting evidence or reference and no detailed evidence of his role or how long he worked on the building.
For the above reasons, taking into account all the evidence before me and the written and oral submissions, I am not satisfied that the applicant has two years' relevant industry experience in a wide range of building construction work.
Given my finding that the applicant has not satisfied the two years' experience criterion, it is unnecessary to consider the question whether he was "lawfully engaged".
For the above reasons, I affirm the decision under review.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 16 November 2015