Site B, 51-53 Glen Eira Road, Ripponlea - Allegations 4 to 7

1. Allegation 4 - this allegation concerns the applicant issuing a building permit on the basis of plans submitted failing to contain sufficient information, including the location of the proposed building works in relation to the allotment boundaries and relevant easements. The allegation is based upon a breach of section 24(1)(a) of the Act and relates to a permit issued on 19 March 2010.
2. The premises located at 51-53 Glen Eira Road, Ripponlea were retail premises conducted as a fruit and vegetable business, which were part of a row of adjoining buildings within the Glen Eira Road retail trading precinct.
3. Mr Woods, on behalf of the Board, relied upon evidence called from Mr Timothy James Blankenstein who had prepared a report relevant to this and the further allegations concerning this site on 20 December 2011.[23] This report states inter alia:

"Both the original approved building site plan and subsequent amended site plan do not indicate the allotment boundary dimensions or location of party wall easements as evident on the certificate of title ... It is noted that the approved drawings do contain a general note that all dimensions are to be verified on site prior to the commencement of any construction."[24]

1. Mr Blankenstein gave evidence before me and was cross-examined. He had sworn an affidavit on 18 February 2016 which exhibited his report prepared in 2011. This was tendered in evidence.[25]
2. When being cross-examined by Mr Fairweather as to a drawing depicting the property at number 53 Glen Eira Road he stated:

"... my personal opinion is it is unclear as it's not dimensioned or any allotment boundary dimensions are applied to any of those."[26]

1. He was prepared to concede, on the basis of those drawings, that it was open to conclude that the boundary was depicted, but later described how he believed there was a breach of section 24 of the Act:

"Because again, that the information contained within the case file did not depict the location of easements as required by s.302 of the regulations. It did not depict the dimensions of the allotment boundaries and the proximity of the wall in relation to those boundaries."[27]

1. Mr Tsaganas gave evidence on this issue and stated:

"I do concede that the party wall easement was not shown on the drawing and I believe the allotment dimensions were not shown, but the scope of the building works and the location of the proposed building works were quite clearly depicted on the drawings."[28]

1. Mr Fairweather in final submissions argued that whilst there may have been a minor breach of the Regulations, the deficiency is augmented in this case by other accompanying plans. The submission continues that the word "satisfied" tolerates "substantial" as opposed to "full" or "strict" compliance in isolation. It is always a question of degree.[29]
2. In my assessment the absence of a clear and unequivocal description of property boundaries and the location and dimensions of a party wall easement in relation to a site such as the one in consideration is more than a minor breach of the Regulations.
3. The site concerns a row of shops and the requirement for the recording of accurate dimensions relating to adjoining properties and party wall easements seems highly relevant to those charged with exercising statutory control over proposed building works. Given that Mr Tsaganas accepts there is an absence of these dimensions recorded on the plans accompanying the building permit, I am satisfied to the requisite degree that the allegation is made out.
4. Allegation 5 - This allegation concerns a failure to comply with Regulation 1502(a) in failing to require protection works in circumstances where the applicant should have been aware that the proposed building work could damage the adjoining property, 55 Glen Eira Road, Ripponlea.
5. The protection work regime is contained in Part 8 of the Act, an accurate summary of the operative sections is set out in the final submissions prepared by Mr Woods on behalf of the Board.[30]
6. It is clear from the legislation that Mr Tsaganas as the RBS was the person solely charged with deciding whether or not protection works were required.
7. During the course of cross-examination Mr Blankenstein was asked:

"... one of your allegations is that the building surveyor failed to require protection works, is that correct?---Is that - my opinion was that the building surveyor exercised poor judgment in not requiring protection works for that particular extent of work, yes."[31]

1. Mr Blankenstein's evidence continued (in response to a question from myself):

"The industry practice, and you know, albeit prudent practice, would be to ensure obviously the safety of the adjoining property, which not only extends to the physical property - persons, therefore to construct that wall on that line - not only would it almost be impossible to physically do that without persons being within that air space, you need to have methods of protection to ensure that bricks or however that's carried out, does not fall and damage not only property or persons ... And that - that determination's solely within the responsibility of the RBS at the time."[32]

1. It became clear during the course of Mr Blankenstein's evidence, and during discussion with both Mr Woods and Mr Fairweather, that there is no obligation on the RBS to devise the nature of protection works, but merely to exercise judgment as to whether protection works are required.
2. The evidence given by Mr Tsaganas on this issue was not in disagreement with the opinion of Mr Blankenstein.[33] Mr Tsaganas also agreed with a proposition which I had put to him suggesting, with the benefit of hindsight, he should have issued the permit on condition that protection works were required.[34]
3. The submissions in relation to this allegation put by Mr Fairweather highlighted that the protection work must be protection against damage to property as against personal injury. I accept this as a correct statement of the legislative intent. I was referred also to the definition of "adjoining property" in section 3 of the Act with the submission continuing that I should not find against the applicant unless I could be able to be appropriately satisfied that the facts of the building work properly required the assistance of protection work to avoid "the risk of significant damage to the adjoining property."
4. Mr Fairweather's submission continued suggesting that the substance of Mr Blankenstein's opinion was a concern with issues of personal safety rather than the structural integrity of the adjoining property. He also referred to the evidence given by Mr Tsaganas conceding that the excavation of a small strip footing and the construction of a single story brick wall presented no degree of significant risk to the adjoining owner's property such as to warrant protection work.[35]
5. Given Mr Tsaganas' direct and forthright evidence on the requirement for protection works underpinning this allegation, I am satisfied that it has been made out.
6. Allegation 6 - This allegation is based upon a failure by Mr Tsaganas as the RBS to demand a survey plan of existing site conditions prepared by a licensed surveyor. Such power vests in the RBS by operation of Regulation 305(c).
7. The submission ultimately advanced in support of the breach was that "an RBS acting in a competent manner and to a professional standard should always require a survey plan in a tooth-and-jowl situation such as that at the relevant site.[36]
8. The submission by the applicant on this allegation emphasised the discretionary nature of Regulation 305(c). In essence Mr Tsaganas submitted that the failure to require "a survey plan of existing site conditions prepared by a licensed surveyor"[37] in the circumstances of this case, would not be sufficient evidence to make out the allegation against him.
9. The Board submitted that Mr Tsaganas had made a decision that it was not necessary to require such a survey as he concluded the boundary was in the middle of the party wall and it would have been a matter of squaring up the back yard and the laneway.[38] I was referred to Mr Tsaganas' evidence where he conceded that a site survey "would have given a better picture."[39] I note his evidence went on in response to a question from myself describing the difference between a survey prior to the issuing of a permit and a site set out survey which was usually done by the builders.[40]
10. There was no evidence before me from a land surveyor and the Tribunal has only Mr Blankenstein's report concluding that the applicant had "exercised poor judgment."[41]
11. Without further evidence to substantiate an allegation that this omission is in fact probative of Mr Tsaganas failing to act in a competent manner and to a professional standard remains unclear.
12. Bearing in mind the requisite standard of proof required, I am unable to be satisfied that Allegation 6 is made out.
13. Allegation 7 - The substance of this allegation is that Mr Tsaganas failed to carry out his work in a competent manner and to a professional standard in breach of Regulation 1502(a) in failing to take appropriate action in a timely manner having been made aware of a complaint being made by the owner of an adjoining property alleging damage to her property as a result of the building work.
14. On 10 October 2011 the Building Commission wrote to the applicant referring to the particulars of the damage to the adjoining property.[42] That letter sought the assistance of Mr Tsaganas in, inter alia, commenting on the issues raised and provision of necessary documentation, advice as to what action had been taken to address the issues raised, and copies of applicable documents.
15. Mr Tsaganas responded by letter dated 15 November 2011.[43] That letter addressed the issue of damage to the adjoining property and also other issues concerning the Glen Eira Road site. In particular I note the correspondence as follows:

"● Our understanding is that there were no protection works required to be carried out. We further understand that there was open dialogue between the neighbours during the early stages of construction. Both parties have been neighbours for a number of years.

• We are not aware of any damage caused to their property during construction.
• We understand that the adjoining owner allegedly carried out illegal building works recently that are the subject of council enforcement. ... The building works have been completed and we are awaiting clarification on the alleged boundary encroachment before we can issue the occupancy permit/certificate of final inspection."

1. It is common ground between the parties that Mr Tsaganas issued a building notice on 7 February 2012. The Board submits that Mr Tsaganas had "failed to take action in a timely manner, having been made aware of a compliant about damage for an adjoining property and about an alleged encroachment of building work."[44]
2. The Board also relied upon correspondence from Mr Mario DeLosa, an investigator, sent to Mr Tsaganas on 16 April 2012.[45] This correspondence sets out the substance of the complaint from a Ms Rishworth, the adjoining owner of the property at 55 Glen Eira Road. These matters were put to Mr Tsaganas when he gave evidence before the Tribunal. He stated:

"In this case, I was never notified by anyone that there was an issue with damage being caused to the adjoining property until 12 months later when I received the letter from the Building Commission making up the items that were the subject of the complaint by the adjoining owner."[46]

1. I note the letter from Mr DeLosa recites complaints being made to Mr Tsaganas' office over a three month period from January 2001. These matters were put to him during the course of his evidence. He replied:

"... the first communication I've had with Ms Rishworth, and there was open dialogue from April 12."[47]

1. The final submissions put on behalf of Mr Tsaganas raise the issue of "reasonable time" with reference to earlier authority.[48]
2. The Board's submissions on this point are predicated on the same basis concluding:

"... the Tribunal can be reasonably satisfied that Mr Tsaganas failed to take appropriate action in a timely manner, having been made aware of a complaint about damage to an adjoining property and about an alleged encroachment of building work."[49]

1. In determining this allegation I note that Mr Tsaganas gave evidence before me that he did not have any knowledge of the adjoining owner's complaints until he received the correspondence in October 2011. I cannot be affirmatively satisfied to the requisite degree that he did have knowledge of the complaints at some time prior to October 2011. Having regard to his written response in November 2011 and the fact that he did issue a building notice early in February 2012, I am not satisfied that the allegation is made out against him.

Site - 10 Hanke Place, Sunbury - Allegations 8, 9, 10 and 12

1. Allegation 8 - This allegation alleges a failure to comply with section 24(1)(a) of the Act in issuing a building permit for the premises when the applicant could not have been satisfied that the building work would comply with the Act and Regulations.
2. The allegation particularised issuing a building permit for a swimming pool which did not contain sufficient information to show that the building work would include a barrier to the swimming pool compliant with Parts P2.5.3 and 3.9.2 of the BCA.
3. Mr Tsaganas issued a building permit on 16 June 2010 with approved plans.[50]
4. The Board called evidence from Mr Peter Jolly, the municipal building surveyor for the City of Hume. His evidence concerned not only this allegation but further allegations in relation to Hanke Place and other locations within the City of Hume.
5. Mr Jolly had sworn an affidavit on 19 February 2016, together with Exhibits PJ-1 to PJ-4.[51]
6. The affidavit concerned the construction of a swimming pool and safety barrier at 10 Hanke Place, the details of which were contained in a letter sent by Mr Jolly to Mr Tsaganas on 9 December 2011.[52]
7. There were further concerns with work performed by Mr Tsaganas involving the construction of a swimming pool and safety barrier at another site, 10 Armstrong Court, Roxburgh Park. Mr Jolly had written to Mr Tsaganas on 2 August 2011 setting out the issues in relation to that property.[53]
8. Further issues concerning the Armstrong Court site were set out in a second letter to Mr Tsaganas dated 11 January 2012.[54]
9. Mr Tsaganas had written a response to the initial letter concerning Armstrong Court on 4 August 2011. That letter is also exhibited to Mr Jolly's affidavit.[55]
10. In addition to the evidence from Mr Jolly, the Board relied upon a statement from Mr Sergio Perna, a performance auditor with the Victorian Building Authority. Mr Perna had sworn an affidavit on 19 February 2016 dealing with Hanke Place, Armstrong Court and two other sites. The record of interview conducted between Mr Perna and Mr Tsaganas is exhibited to Mr Perna's affidavit.[56]
11. The allegation specifically relies upon the failure to comply with Regulation 302(1)(b) in that the material lodged with council did not contain "specifications describing materials and methods to be used in the construction." The particulars in this case were that the permit issued by Mr Tsaganas on 16 June 2010 noted "safety barrier by client" and did not contain evidence of compliance with sections P2.5.3 and 3.9.3 of the BCA concerning swimming pool access. These are referred to in full in the Board's submissions and it is unnecessary to recite them here.[57]
12. In Mr Jolly's evidence he stated that there was insufficient information in the permit documents that were lodged to enable the building surveyor to be satisfied under section 24(1)(a) that it was appropriate to issue the permit.[58] His evidence continued stating that the initial permit application should be supported by drawings which stated an adequate description of the materials of which the pool fence was to be constructed.[59]
13. Mr Tsaganas' evidence was very much in accordance with that of Mr Jolly. He stated:

"You can use any material as long as it fits the testing regime, but then the Regulations also say that you need to (as RBS) - you know, have - to be satisfied with what you're approving."[60]

1. It was clear from the evidence that at the time the permit was issued Mr Tsaganas did not know what type of fence would be installed, nor did he have any accurate knowledge of the cost of a fence. Further, he accepted that there was significant differences in cost between a panel bar system and a glass in-ground system seated in concrete.[61]
2. The argument put in final submissions by Mr Fairweather on behalf of the applicant makes reference to the use of part of an existing boundary fence to form part of a swimming pool barrier. It is argued that these boundary fences do not come with test or engineering certificates and are examined and tested on site by the building inspector or building surveyor for a performance based compliance in accordance with the relevant standard.[62]
3. Here there is no evidence of any more detailed consideration of the swimming pool barrier at the time of the issue of the permit other than the endorsement on the permit "safety barrier by client." It is not relevant to the circumstances of this case to argue that compliance can be achieved partly by using an existing boundary fence. The fact is in this case Mr Tsaganas was prepared, at the time of issuing the permit, to delegate responsibility for compliance to the client. I am satisfied that this constitutes a breach of section 24(1) of the Act.
4. Allegation 9 - This allegation was ultimately admitted by Mr Tsaganas and relates to a breach of section 179(1)(b) of the Act in that he failed to obtain the consent of the Hume City Council as the relevant service authority in relation to an easement existing in the area where the swimming pool fence was to be located.
5. Allegation 10 - This allegation relates to a breach of 201(5) of the Act, as it then was.[63]

"The relevant building surveyor must estimate the costs of the building work for which the application is sought (including the cost of labour and materials) having regard to the information given under sub-section (4)(a) or (b) and must without delay give written notice of the estimate and amount of levy payable to the applicant."

1. The building permit issued for the Hanke Place property set out a cost of $39,860 and noted "safety barrier by client." The evidence given by Mr Jolly was to the effect that the amount stated in the permit did not make an allowance for the additional cost of the safety barrier (pool fence).[64]
2. During the course of his extensive cross-examination of Mr Jolly Mr Fairweather put the following matters to him:

"Yes, and what would be the cost of the barrier, say, in this case for this particular site at Hanke Place?---Who would know?

All right, so you can't - - -?---No one has told us.

Twenty thousand?---We're still waiting for the relevant building surveyor to give us an amended building permit with all that information."[65]

1. Mr Tsaganas' evidence on this point was that his usual practice, as in this case, was to copy the "exact value that's stated on the application form and the warranty insurance certificate."[66] He went on to state:

"We don't normally question the value of work when it's come to us in that fashion."[67]

1. The final submissions on behalf of Mr Tsaganas made reference to ColeSinclair v Building Practitioners Board[68] quoting the following passage:

"In my view, the Act clearly imposes an obligation on building surveyors to conduct some evaluation of the cost of the proposed building work. In that regard, they may have regard to the contract price, if a contract exists. Alternatively, if there is no contract there must be sufficient information available to enable the building surveyor to estimate the cost of the building work. A figure stated in the permit application, of itself, may not constitute sufficient information. Ultimately, the building surveyor must exercise his or her judgment as to what is sufficient information."[69]

1. In my view the absence of any specification for the pool barrier, the statement in the application that the safety barrier was being constructed by the client, provides unchallenged and perhaps unchallengeable evidence that no estimate of the cost of the pool barrier was made by Mr Tsaganas as he was required to do by statute. I am therefore satisfied that this allegation is made out against him.
2. Allegation 12 - This allegation related to a breach of section 179(1)(b) of the Act in that Mr Tsaganas issued a conditional certificate of final inspection noting "temporary pool barrier only" but took no action to ensure that that condition had been ultimately complied with. This allegation was admitted.

1. Allegation 13 - This again involved the construction of a swimming pool and safety barrier and alleged that Mr Tsaganas had breached Regulation 1502(a) of the Regulations in that he had failed to take appropriate action having identified that the building work did not comply with approved plans which formed part of the permit. This allegation was admitted.
2. Allegation 14 - This allegation also related to the premises in Townsend Bluff Road. This allegation was withdrawn.

Site - Various sites within City of Greater Dandenong

1. Allegations 15 to 18 - Each of these allegations were said to constitute a breach of section 179(1)(b) of the Act in that Mr Tsaganas failed to notify the Urban Renewal Authority "in writing, without delay of the receipt of an application for a building permit for work at the relevant premises in contravention of section 18A(2) of the Act." Each of these four allegations were admitted. For completeness I should note in these reasons that the four offences occurred on or about 12 October 2009, 11 January 2010, 23 August 2011 and 14 March 2012.

1. Allegation 19 - This allegation related to a breach of section 179(1)(b) of the Act and concerned a footings inspection at the subject premises conducted on 2 October 2007.
2. Following evidence being led before me on behalf of the Board, I gave strong indication that the matter would not satisfy the requisite proof. Mr Woods obtained instructions to withdraw this allegation.
3. Allegation 20 - This allegation concerned a failure by Mr Tsaganas to comply with section 44 of the Building Act in relation to the Oban Road property. Section 44 of the Act states as follows:

"The relevant building surveyor must not issue an occupancy permit under [Division 1 of Part 5] -

(a) unless the building, or part of the building, to which the permit applies is suitable for occupation; and

(b) if plumbing work for which section 221ZH required the issue of a compliance certificate was carried out in conjunction with the building work on the building or part of the building in respect of which the permit is sought, unless the building surveyor has seen a copy of the compliance certificate."

1. The particulars alleged against Mr Tsaganas were that agricultural drains specified on the approved building permit documentation were not installed, nor were catch and table drains connected to a point of discharge as required by the approved building permit documentation and the conditions of an amended planning permit. Clause 10 of the conditions of the building permit issued by Mr Tsaganas on 14 August 2007 required that:

"The builder shall ensure that all storm water drainage works are constructed in accordance with the Council's and Melbourne Water's requirements."

1. These catch and table drains were not installed at the top and bottom of the batters.
2. Evidence before me was given by the present owner of the property, Ms Fiona O'Hehir. She had purchased the property in December 2010, taking possession in March 2011. She had to move out in mid-2012.[70]
3. She was aware when she purchased the house that it was not completed by the previous owners, who had been owner/builders. She was aware that there had been a certificate of occupancy in relation to the building works and stated:

"I relied very heavily on the s.32 of the sale of property where it details the various inspections and the letter from the council saying everything had been completed. What the issue was the master bedroom ensuite had not been fitted to. It was plumbed out, everything was ready to go but it had never been plumbed - it had never been fitted out."[71]

1. Due to a fall Ms O'Hehir made a decision to install a lift from the downstairs bedroom to access the upper floor:

"We had to cut a hole in the floor to find out the landscape below ground - well, downstairs and that's when we found the 2,000 litres of water encapsulated in the downstairs."[72]

1. It was not disputed that the house was constructed on a sloping site and Ms O'Hehir described excavating 40 tonnes of rock that was up against the house looking for the agricultural drain.[73] She agreed in cross-examination that the builder had carved a spoon drain in the rock and when asked about the agricultural drains she stated:

"He came to site and he said there was no agricultural drain, it was not his problem.[74]

1. There was no argument advanced before me to suggest that the agricultural drain had been installed.
2. The evidence given by Mr Tsaganas on this point was less than satisfactory. Submissions relating to the value of his evidence on this matter are made in the Board's submissions [78] to [84].
3. In short compass on 15 June 2016, during cross-examination by Mr Woods the following evidence was noted:

"... do you accept that the presence of the agricultural drain on 20 March 2008 was crucial to this building being fit for occupation?---Yes.[75]

1. On the following day Mr Fairweather stated to the Tribunal as follows:

"Mr Tsaganas approached me yesterday and after I told him what his evidence was, and he said that is wrong. And it relates to Mr Tsaganas' evidence when Mr Woods put a question to him where he's answered.

Yes. He's told me he didn't say that, I said, 'You did,' and I showed him the transcript and he said, 'Well that's wrong.'"[76]

1. The submissions put on behalf of the Board demonstrated that Mr Tsaganas had otherwise admitted seeing three plumbing compliance certificates, none of which related to or confirmed the existence of the agricultural drain.[77] The submissions also referred to evidence strongly supportive of the proposition that without the agricultural drain in place the building was not suitable for occupation.[78]
2. The applicant in final submissions put the proposition that there was no evidence before the Tribunal to enable it to be comfortably satisfied (notwithstanding the apparent non-compliance with the building permit) that conditions existed in March 2008 making it unsuitable for occupation.[79]
3. Mr Fairweather went on to submit:

"The latency of this unknown defect in March 2008 is to be contrasted with, say, a palpable danger or obvious omission of a building's features making occupation of it unsuitable or intolerable at the time the lawful occupation is sought."[80]

1. He also took issue as to whether an agricultural drain was in fact "plumbing works" as defined in the Plumbing Regulations.
2. Reference was made to the definition of "drainage works" in Mr Fairweather's submissions urging me to accept that an "aggie drain" was not plumbing work requiring a plumbing certificate.
3. The submissions by Mr Woods also made reference to the definition of "plumbing (draining)" work from the Plumbing Regulations applicable in March 2008. Those submissions also made reference to the evidence of Mr Tsaganas accepting that the agricultural drain would be plumbing work to which the regulations applied.
4. Mr Woods referred me to a letter written by the applicant to Mr Sergio Perna on 30 November 2012.[81] This letter stated inter alia:

"I have previously confirmed with Ms O'Hehir that the approved plans required the installation of an agricultural drain at this location. The installation of the agricultural drain is 'plumbing work' as defined in Part 12A of the Building Act 1993. Part 12A of the Act establishes a separate and independent regime for the regulation of plumbing work and plumbers in this state."

1. This letter was put to Mr Tsaganas during cross-examination:

"And it was your view when that letter was sent that the installation of the agricultural drain is indeed plumbing work under part 12 of the Building Act. Do you agree with that?---That's what I have said in that letter."[82]

1. Further in cross-examination Mr Tsaganas accepted that at least the connection point between the agricultural drain and the storm water system constituted plumbing work.[83]
2. Mr Fairweather further submitted that there was an exemption in the Plumbing Regulations where the value of plumbing work was under $500. The contrary submission put by Mr Woods was to the effect that the exemption would only apply if the totality of plumbing work, rather than an individual portion of it, was valued at less than $500.
3. I prefer Mr Woods' analysis as it appears unlikely that Parliament would have intended to create an exemption from the certificate regime which would "allow a number of unqualified people to carry out various portions of plumbing works which unregistered persons are able to do, each portion under $500, and thereby avoid the need for a plumbing compliance certificate."[84]
4. The applicant in final submissions referred to evidence from a Mr Fenton, a civil engineer who had performed a technical assessment at the site on 6 April 2013.[85] The applicant submits that a spoon drain and an agricultural drain would serve the same purpose, but would in each case be inadequate due to the actual site conditions. A further submission was made that the site had flooded during severe storms that hit Melbourne in early 2011 and "the spoon drain did not cope with the torrent of water that it would have been faced with and the water collected and ponded in the sub-floor area."[86]
5. To my mind it is no defence to the allegation to submit that the compliant system of drainage approved by the applicant on the plans would have been no more effective than what was actually in place at the site. Perhaps this is a matter which impacts on the consequences affecting the site owner, but it is no defence to the allegation.
6. I am satisfied to the requisite degree that Allegation 20 has been made out.
7. Allegation 21 - By this allegation the Board submits that the applicant has displayed a pattern of conduct by failing to comply with section 24(1)(a) of the Act such that he is "not a fit and proper person to practise as a building practitioner. The allegation is predicated on proof of Allegations 4, 8 and 23 in the consolidated proceeding. It is unnecessary to further consider this allegation in these reasons as it is a matter to be addressed in relation to penalty.
8. Allegation 22 - This allegation relies upon a breach of section 18A(2) of the Act relating to the applicant's failure to notify the Urban Renewal Authority of applications and costs relevant to the matters admitted in Allegations 15 to 18. I note that the Board concedes that these admitted breaches are properly characterised as "lower end matters". Nevertheless they must be taken into account in terms of penalty.

1. Allegation 23 - This allegation alleges a failure to comply with section 24(1)(a) of the Act in issuing a building permit for the premises when the applicant could not have been satisfied that the building work would comply with the Act and Regulations.
2. On 24 March 2010 the applicant as RBS issued a building permit with associated documents and plans which the Board submitted did not contain sufficient information to identify compliance with Parts P2.5.3 and 3.9.3 of the BCA. Letters were tendered from the municipal building surveyor, Mr Peter Jolly, dated 2 August 2011 and 11 January 2012.[87]
3. The following paragraph was contained in both letters written to the applicant:

"The location and compliance of the Safety Barrier is not consistent with your endorsed plans and the regulations. Reference to your endorsed plans indicates that there is little specific information determining the actual approved construction of the barrier apart from a general location depicted on your site plan and general references. The actual siting and location of the Safety Barrier is not consistent with your enclosed plan."

1. The applicant responded to Mr Jolly's first letter on 4 August 2011.[88] This letter stated in part:

"In response to your letter dated 2/08/2011 please be aware that your comment on the location of the pool safety barrier has been noted although given the final certificate was issued over a year ago there is no way for us to confirm that there has not been changes made to the Safety Barrier since then."

1. The Board relied also on a statement from John Royce, the Acting Deputy Municipal Building Surveyor of the Maribyrnong City Council. His statement was taken on 29 July 2013 and is contained in the section 49 material.[89]
2. Mr Royce conducted a site inspection at 10 Armstrong Court, Roxburgh Park on 24 May 2011. He noted the approved site plan contained the following notation, "nominal pool fence shown. Actual location may differ." Mr Royce's statement continued:

"The required swimming pool fence as shown in the approved site plan extended along the front of the pool and then along the right side, had not been constructed. Instead only a section of the front fence had been constructed and there was no fence along the right side at all.

I compiled file notes of my site inspection which noted there were no structural details in relation to the barrier or glass panels, that the Certificate of Inspection was dated 21 June 2010 and that the drawing showed a safety barrier location but had no design and that the location did not appear to be as per the drawings. I also noted the barrier fence was over the easements with no BRC (Building Report and Consent).

In my opinion, the inspector that conducted the final inspection should not have approved the inspection because there was no design and structural detail, the swimming pool barrier was not located as shown on the building permit approved drawings, and the side barrier fence was over the easement without the required Report and Consent."[90]

1. Mr Royce was not required for cross-examination.
2. The applicant's submissions in relation to this allegation are essentially the same as those made in response to Allegation 8. Mr Fairweather referred to Mr Jolly's concession that a swimming pool barrier may be constructed of any type of material including a treated pine paling fence which would not come with a test or engineering report. He referred also to Mr Tsaganas' own evidence that it is most common to have part of an existing boundary fence form part of a swimming pool barrier. Mr Fairweather emphasised the performance based compliance required by the relevant Australian Standard.[91]
3. Notwithstanding the submissions made by Mr Fairweather, the Board submitted that Mr Tsaganas' own evidence was that at the time he had issued the permit he did not know the materials which would be used in the construction of the required pool barrier:

"... am I correct to say when you issued the permit you didn't have any idea at all what the final fence would be constructed of, what materials it would be constructed of?---The materials, no, with the exception of the boundary fence because the plans depict that part of the pool barrier is a boundary fence."[92]

1. In view of the frank concession made by Mr Tsaganas I am comfortably satisfied that this allegation is made out.
2. Allegation 24 - This allegation again relates to the swimming pool safety barrier at 10 Armstrong Court, Roxburgh Park and alleges a breach of section 179(1)(b) of the Act. It particularises a breach of Regulation 310(1) requiring the report and consent of the relevant service authority (here the Maribyrnong City Council) for the construction of such a fence over an easement. This allegation was admitted by Mr Tsaganas as a failure to comply with section 24(1)(b) of the Act.
3. Allegation 25 - This allegation relates to the claim that Mr Tsaganas failed to properly estimate the cost of building work having regard to the information accompanying the application for building permit. It arises out of the permit issued on 16 June 2011 relating to the construction of the swimming pool and safety barrier at 10 Armstrong Court, Roxburgh Park.
4. The Board relies upon the evidence of Mr Sergio Perna noting a specified contract price for building work of $30,850 recorded in the building permit application, building permit and certificate of insurance.[93] The Board also relied upon the letter from Mr Jolly of the Maribyrnong City Council sent to Mr Tsaganas on 2 August 2011 which states:

"No cost has been attributed to the construction of the safety barrier in the overall building work cost."

1. The letters sent by the applicant to both Mr Jolly and Mr Perna in August 2011 and March 2012 did not deny the absence of this cost estimate.[94]
2. In final submissions Mr Fairweather pointed out that the applicant's evidence was that he was not privy to any provisions which may have been made in the contract between the builder and the property owner relevant to an allowance for the cost of the proposed swimming pool barrier. I was referred again to the decision of the Tribunal in Cole-Sinclair v Building Practitioners Board.[95] I accept that the authority quoted is a correct interpretation of the law. In the course of that judgment Senior Member Riegler stated:

"The Act imposes an obligation on the (building surveyor) to ensure that the stated value of the proposed building works is reasonably accurate."[96]

1. In the present situation, given the lack of detail of the material to be used in the proposed pool safety barrier, I am unable to conclude that any reasonable building surveyor could have concluded that the contract price specified by the swimming pool provider had made any allowance for a pool barrier.
2. Mr Tsaganas was under a positive statutory obligation to ensure that there was sufficient information accompanying the application for the building permit to enable a professional judgment as to whether the stated value of the proposed building works was reasonably accurate. In my view Mr Tsaganas could not have done so on the very limited information relating to the swimming pool barrier. I therefore find this allegation proved to the requisite standard.
3. Allegation 26 - This relates to Mr Tsaganas issuing a certificate of final inspection in circumstances where he could not have been satisfied that the building work complied with the building permit. The Board alleges that this action constituted a failure by Mr Tsaganas to carry out his work in a competent manner and to a professional standard, and breach Regulation 1502(a). This allegation, if proved, provides a basis for an inquiry into the practitioner's conduct in accordance with section 179(1)(b) of the Act.
4. The Board particularises this breach by reference to both the certificate of final inspection and the stamped site plan.[97] Reference to these documents was made in the evidence of Mr Perna. The Board also relied upon the letter sent to Mr Tsaganas on 2 August 2011 stating:

"The actual siting and location of the safety barrier is not consistent with your endorsed plan.[98]

1. Further evidence in relation to this allegation was called on behalf of the Board from Mr Royce. Mr Royce had noted from the approved site plan an endorsement "Nominal pool fence shown. Actual location may differ."[99]
2. Mr Royce's statement continued:

"The required swimming pool fence as shown in the approved site plan extending along in front of the pool and then along the right side, had not been constructed. Instead only a section of the front fence had been constructed and there was no fence along the right side at all."

1. The only oral evidence given in relation to this allegation was that from Mr Tsaganas himself. He confirmed that he had conducted the final inspection of the pool on 21 June 2010. I then noted the following evidence:

"You would accept from what I understand the evidence to be, on the date you inspected, the fence was not in the position that it was indicated that it would be and the permit you had issued. Is that correct?---That's correct."[100]

1. The applicant's final submissions on this allegation were brief and stressed the fact that the barrier as inspected was compliant with the relevant Australian Standards, notwithstanding it did differ "slightly from the approved drawing."[101]
2. The issue raised on behalf of Mr Tsaganas in final submissions is in my view relevant only to the penalty to be imposed.
3. I am satisfied that at the date of the final inspection of the pool and pool barrier the location of the safety barrier was not consistent with the endorsed plans. In issuing the certificate of final inspection Mr Tsaganas had breached Regulation 1502(a). I am satisfied by this action he had failed to carry out his work as a building practitioner in a competent manner and to a professional standard.

1. Allegation 27 - This allegation relates to building permits issued for extensions and alterations to an existing dwelling at the above address. There were staged permits issued on 22 September 2003 and 9 October 2003. On 7 June 2004 Mr Tsaganas issued a variation to the stage 1 permit which had been issued on 22 September 2003. The Board led oral evidence from Luke Williams, whose affidavit and exhibits were tendered.[102]
2. Mr Williams was a senior technical adviser between October 2012 and April 2013. At the time of swearing his affidavit for this proceeding, in February 2016, he was employed as a practitioner assessor by the VBA. Mr Williams had prepared a memorandum to the Complaints Assessment Unit of the then Building Commission on 23 November 2012.[103]
3. He later prepared a technical assessment regarding building work at the site in a further document dated 8 April 2013.[104] It is apparent from the initial memorandum that a complaint had been received from an adjoining property owner and Mr Williams identified three principal areas as follows:
   • Building work continuing without a current building permit and in contravention of a building order to stop work;
   • Compliance with swimming pool legislation with respect to the existing swimming pool barrier for a pre-1991 swimming pool;
   • General compliance of the building work undertaken as at the date of that memorandum.
4. His recommendation at that time was that the compliance unit should conduct an investigation into the conduct of Mr Tsaganas, suggesting potential breaches of section 24(1) of the Act and Regulation 1502. There was a further recommendation that the owner and builder be investigated for breaches of the Act relating to work continuing after a building permit had expired.
5. I should note that both permits expired in September and October 2005 and Mr Tsaganas had issued a building order to stop work on 25 September 2009. According to Mr Williams' report that order had not been referred to the Building Commission, nor had it been cancelled by the relevant council as at the date of the report.
6. The second report noted inter alia:

"2.10 The Council and the Building Commission have both received complaints concerning the undertaking of building work at the site from the adjoining property owner.

2.11 A certificate of final inspection is yet to be issued and the building permits (stages 1 and 2) have lapsed. Building work is incomplete.

2.12 An inspection was initially undertaken by Luke WILLIAMS of the Building Commission on 31 October 2012. However, a thorough inspection was not permitted by HALPERIN (the owner/builder)."[105]

1. That report goes on to note that Mr Tsaganas had issued a building order to stop work on 25 September 2009 and had written to the owner/builder on 30 September 2012 identifying further work that was required to allow for the issue of a certificate of final inspection. The report contains a large number of photographs taken of the property, many of which are frankly quite disturbing.
2. I should comment that I have formed a view that the owner/builder appears to have paid little regard to the regulatory framework and probably less regard to inconvenience and potential danger caused to adjoining property owners. Notwithstanding that the owner/builder has in all probability been a major instigator of the lack of compliance in this case, it is necessary to consider the substantive allegations insofar as they relate to Mr Tsaganas.
3. Allegation 27 requires me to be satisfied that the variation to the stage 1 plans issued on 7 June 2004 did not contain sufficient information to demonstrate compliance with swimming pool safety measures mandated under the then current regulations with regard to windows and doors to be installed within the meals area.
4. Mr Tsaganas' evidence in relation to this allegation was that the swimming pool barrier and its compliance had been deliberately excluded from the scope of approved works authorised by the building permit by way of condition.[106]
5. Mr Tsaganas added, in response to a question from me, as to the exclusion of the swimming pool:

"... it may have been that it was an owner-builder doing it, they might have said to the builder, look, we don't know whether we're going to leave the swimming pool there or fill it in and turn it into a gazebo or something?---It could have been something like that."[107]

1. There was, to my mind, some confusion as to the endorsements made on the plans which were provided to Mr Tsaganas for the purpose of obtaining the building permit. Matters were put to Mr Williams in cross-examination, and also to Mr Tsaganas, which demonstrated a degree of uncertainty as to which of the windows depicted on the plans were of a fixed type and which were openable. Notwithstanding this uncertainty, it was clear that the plans showing the south or rear elevation of the dwelling depicted a set of French doors abutting the area where the swimming pool was located.[108]
2. The ground floor plan and the south rear elevation plan appear to give conflicting descriptions of the French doors. I am satisfied that at the time the variation was approved by Mr Tsaganas on 7 June 2004, he did not have sufficient information in the plans to form a view as to whether or not compliance with swimming pool safety measures could be demonstrated. I therefore find this allegation has been proved to my comfortable satisfaction. I do however note the evidence of Mr Tsaganas and the condition excluding the swimming pool from the initial planning permit. These are matters to be taken into account in terms of penalty.
3. Allegation 28 - By this allegation it is claimed that Mr Tsaganas failed to "take appropriate enforcement action in a timely manner" contrary to various forms of what is now Regulation 1502(a) between May 2005 and May 2013.
4. The Board relies on the evidence of Mr Williams to establish that as at 31 October 2012 the following items were identified as not complying with the building permits issued by the applicant:
   • Height of the curved ceiling in the eating room (3700 mm);
   • Laundry/toilet configuration. Change to accommodate internal staircase;
   • Raised floor level of the external balcony off bedroom 5;
   • Extension of the western external wall to the south to accommodate an alfresco area;
   • New mid-level windows to the eating room;
   • Urns and other mouldings to the front facade;
   • Openings in brickwork within the basement/garage;
   • Window/door locations and sizes to the eastern elevation. Window 7 not installed and window 8 incorporates a door and different external stair configuration.
5. It is noted that Mr Tsaganas issued a building notice to the owner on 1 May 2013, but the Board alleges that he had knowledge as early as 3 May 2005 in relation to a number of non-compliant items, but failed to take appropriate enforcement action.
6. A close examination of the evidence relied upon shows that Mr Williams in fact conducted an inspection of the premises noting the above defects on 3 April 2013.[109]
7. Mr Williams' report goes on to note:

"It would seem TSAGANAS has known about some of the noncompliances since 3 May 2005. In TSAGANAS's letter dated 30 September 2012 he refers to non-compliances, but yet failed to take enforcement action to address the matter."

1. I have read the letter referred to by Mr Williams.[110] This letter refers to a site meeting on 28 September 2012 and advises the owner of matters requiring completion before the certificate of final inspection can be issued. The letter refers to the need for the owner to supply an engineer's report and supporting documentation for frame inspections, amended plans to reflect the actual built form as noted (reference is made to the higher ceiling area and raised balcony). It further notes amended plans required reflecting the internal stair, accessing the basement garage from the study and amended external elevations to accurately reflect the completed appearance of the building. Reference is also made to the swimming pool and pool barrier requirements.
2. Mr Tsaganas also required the owner to actually complete the kitchen, laundry and bathroom fit offs to make those areas fully functional, and to complete other works "that are relevant to the health and safety of the future occupants."[111] This referred to the completion of various works, repairs to broken windows, installation of smoke alarms and general cleaning of the dwelling.
3. The Board also submitted that Mr Tsaganas was aware that his building permit had lapsed and that building work was continuing other than that in accordance with the building permit he had issued. The report from Mr Williams comments:

"This in-action has effectively assisted HALPERIN in undertaking illegal building work.

Furthermore, it would appear that TSAGANAS has no processes in place to monitor and address his lapsed building permits."[112]

1. The evidence included a site inspection report prepared by Mr Tsaganas on 3 May 2005.[113] This document was put to Mr Williams during crossexamination and noted as follows:

"The subfloor inspection conducted today has revealed that variations from the design drawings have been made. You are directed to consult with the designing engineer to justify the altered structure state works as constructed. You are advised to not continue works in these areas until justified by the engineer. ... Furthermore, you have increased the height of the rear extension and associated rooftop balcony over. This needs to be documented and justified by the project architect draftsperson."[114]

1. I am therefore satisfied that as at 3 May 2005 Mr Tsaganas had knowledge of various areas of non-compliance in relation to the permits he had issued.
2. Mr Tsaganas accepted that he had observed structural differences between the permit and the actual build in the course of his evidence.[115] He had earlier responded to the following question from the Tribunal:

"... Mr Tsaganas, if you had your time again, do you agree that if you look back now and say there's an eight-year delay there, do you think given that you have the power to enforce compliance with a permit or otherwise prohibit illegal building activity that a delay of eight years was unacceptable?---I accept that proposition, Your Honour."[116]

1. Mr Fairweather tendered in evidence a frame inspection report from May 2006 as part of Exhibit 14. He submitted that this document had not been contained with the Board's section 49 materials. Frankly such a submission has little impact on the determination of this allegation. Mr Fairweather also submitted that shortly after the inspection in May 2005 the building permit lapsed and the progress of the works was abandoned by the owner. The submissions continued to note that the applicant monitored the project even though the building permit had lapsed. I do accept that Mr Tsaganas acted promptly following the information being provided to him on 1 May 2013 that subsequent building works had occurred that were not on the approved drawings.[117]
2. In my assessment the allegation is made out largely on the acceptance by Mr Tsaganas of the proposition I had put to him, that a delay of eight years was unacceptable. In my view the matters raised in finals submissions by Mr Fairweather are relevant to penalty, but not otherwise.
3. Allegation 29 - On 25 September 2009 Mr Tsaganas was informed that there was no compliant pool safety barrier at the site and the pool had rainwater in it. This followed a visit to the site by a Mr Vosti.[118] Mr Tsaganas then issued a building order for minor works on 21 January 2010 which in part required rainwater to be drained out of the pool.[119]
4. The Board alleges that as at 3 April 2013 the swimming pool safety barrier had not been installed, nor had the door and window openings on to the swimming pool enclosure been restricted to prevent access.
5. Once the order had been issued by Mr Tsaganas in January 2010 an obligation existed pursuant to section 115(1) for him, within 14 days of the date specified in the order for compliance, to refer the matter to the then Building Commission for enforcement. Making an allowance for service of the order upon the owner, the relevant date by which the matter should have been referred was mid-March 2010.
6. The specific allegation in this case is based upon the failure of Mr Tsaganas to refer the matter, as required by section 115(1) of the Act, once he had become aware of the failure of the owner to comply with his order.
7. The Board further relied on material contained in the technical assessment report prepared by Mr Williams which shows photographs taken on 3 April 2013 showing an absence of a swimming pool safety barrier or appropriate modifications to the doors and windows opening on to the swimming pool area.[120]
8. Mr Tsaganas' own evidence was that there had been no compliant swimming pool barrier at the property while it had been a building site.[121] He further confirmed that having been informed in September 2009 he formed a view that there was "a serious danger to the life and safety of occupants and any member of the public that might enter the property."[122] Mr Tsaganas explained that was the reason he had issued the order in January 2010. He further confirmed in evidence that he had received a letter from the council in December 2009 informing him that the pool was filling with contaminated rainwater. His evidence on this matter was as follows:

"Obviously we've addressed that concern and issued a building order minor works."[123]

1. There was no evidence given by Mr Tsaganas to explain why the building order had not been referred to the Building Commission. I have noted the submission made on behalf of Mr Tsaganas that the site had remained a "building site" throughout the relevant period. Those submissions also point out that:

"... Council was content with his conduct with regards to monitoring the rainwater levels in the swimming pool, while the site remained an incomplete building site with works in a state of incompletion."[124]

1. I have previously referred to the obvious difficulties caused by the owner/builder at the Toorak site. These are matters which may be taken into account in relation to penalty. Given the admission by Mr Tsaganas to which I have referred, I am comfortably satisfied that Allegation 29 is made out.
2. The final allegation in the consolidated proceedings is one of gross incompetence in accordance with section 179(1)(d) of the Act. In relation to this allegation the Board relies on findings of guilt in relation to Allegations 1 to 13, 15 to 20 and 23 to 29 of the consolidated proceedings. This final allegation is one appropriate to be considered following submissions in relation to the penalties or other dispositions which should be made consequent upon these findings.

1. The allegations against Mr Tsaganas originally made by the Board totalled 18 in separate proceedings described as "Cromwell Part 1" and "Cromwell Part 2." At the hearing before the Board Mr Tsaganas was found not guilty of six allegations within the Cromwell Part 2 proceeding and two allegations from Cromwell Part 1 were withdrawn.
2. The hearing before me proceeded with evidence relating to the Cromwell Part 2 allegations. I have ruled in this hearing that Mr Tsaganas' challenge to the Cromwell Part 1 allegations was limited to penalty. It is convenient in terms of analysis of the evidence and recording findings to deal with those allegations in the order in which they were conducted before me.
3. Cromwell No. 2 - Allegations 6, 7, 8, 10, 11, 12 and 13
4. Allegation 6 - This allegation concerns Mr Tsaganas' involvement in the construction of two double storey dwellings at 30 Cromwell Street, Caulfield North. Allegation 6 claims Mr Tsaganas failed to comply with section 30(1A) of the Act in failing to give to the relevant council a copy of notices served on him under section 84 of the Act within seven days of the issue of the building permit. The particulars of this allegation are as follows:
   • You issued a building permit for the building work at the site on 25 November 2009.
   • You failed to provide to the Glen Eira City Council a copy of the Form 3 Protection Work Notices served on and given to you.

This allegation was admitted by Mr Tsaganas during the course of the hearing.

1. Allegation 7 - The Board alleges that Mr Tsaganas failed to comply with section 24(1)(a) of the Act on 25 November 2009 in issuing a building permit when he could not have been satisfied that the building work would comply with the regulations.
2. This allegation is particularised as follows:
   • Structural computations were prepared by Alex Sorgiovanni and dated 8 May 2008 to 9 December 2008. (The structural computations);
   • The structural computations were not submitted with the approved drawings;
   • The structural computations were not stamped as approved by you.
3. This allegation was also admitted by Mr Tsaganas in the course of the hearing before me.
4. Allegation 8 - This allegation is similar to Allegation 7, and again specifies a failure to comply with section 24(1)(a) in relation to the building permit issued by Mr Tsaganas on 25 November 2009.
5. The particulars of that allegation are as follows:
   • The drawings were deficient, lacked detail, there were significant differences/discrepancies between the approved structural engineering documents and the approved architectural drawings;
   • The drawings failed to detail the reinforcement to be used for the deep trench retaining walls;
   • The drawings failed to specify additional N20 vertical bars;
   • The drawings failed to identify that bracing was required to the rear open plan of Unit 2;
   • There were insufficient details for the façade to be constructed with a lack of framing shown on the roof framing plan and no structural details to construct the façade;
   • The recesses in the slab were not properly detailed and instead referred to the architect for recess set-down who then referred back to the engineering drawings;
   • The bracing design incorporated both town houses instead of the design providing for them to be independent;
   • The computations and ground floor plan for RCB1 shows the beam to be 2500 millimetres wide, however the Concrete First Floor Schedule states the beam to be 3000 millimetres wide;
   • The computations for RCB2 shows the beam to be 3800 millimetres wide, however the ground floor plan shows the beam to be 3200 millimetres wide at the east side and 3000 millimetres wide at the west side and the Concrete First Floor Schedule states the beam is to be 3200 millimetres wide;
   • There are no computations for RCB4.
6. This allegation was also admitted during the course of the hearing before me.
7. Allegation 10 - This allegation relates to a failure by Mr Tsaganas to comply with Regulations 1502(a) in that Mr Tsaganas conducted a foundations inspection at the premises on 2 February 2010 and approved that inspection when the building work was not in accordance with the approved building permit diagrams.
8. There were three matters particularised as follows:
   • The depth of the western side deep trench basement wall was measured at 1190 millimetres to 1200 millimetres, whereas the building permit approved structural drawings specified the depth at 1300 millimetres;
   • The strip footing SF3 shown on the building permit approved structural drawings was not constructed;
   • The retaining wall footing RW1 shown on the building permit approved structural drawings was not constructed.
9. The only oral evidence before me was from Mr John Gibcus, a civil engineer appointed by the VBA, and Mr Tsaganas himself.
10. Mr Tsaganas had issued the relevant building permit on 3 December 2009. He was required, as part of the mandatory notification stage inspections, to conduct an inspection of the foundations. He conducted such an inspection on 2 February 2010 and approved the foundations on the same date.[125]
11. The Board relied on evidence from Mr Alex Sorgiovanni, consulting engineer, who had prepared structural drawings on 10 May 2008 and revised drawings on 5 October 2009. Mr Sorgiovanni provided a statement to an investigator from the VBA on 24 April 2014. That statement is included in the section 49 materials.[126] Mr Sorgiovanni was not called to give evidence before me.
12. Mr Sorgiovanni was provided with a copy of a report from CMD Civil Pty Ltd dated 19 July 2013 which advised the reinforcement details of the asbuilt concrete beams did not correspond with the approved design engineering drawings revealing significant differences between the design requirements specified and the actual amount of reinforcing bars installed within the checked beams.[127]
13. The statement made by Mr Sorgiovanni also noted:

"My Structural Drawings required the depth of the deep trench wall footings to be a minimum of 1300 millimetres from the finished surface level of the basement."[128]

1. Mr Sorgiovanni had visited the site on 29 July 2013 and noted the problem with the reinforcing slab (particularly RCB1) "which did not comply with AS 3600."[129]
2. He again visited the site on 2 October 2013 to check the depth of the footings and notes in his statement:

"I observed the left hand side (western) deep trench to the blockwall was not in accordance with my drawings as the depth was 1190-1200mm instead of the required 1300mm. There were N-12 dowel bars @ 500 centers into trench which were hammered in, not chemset or drilled as per my details. The right hand side (eastern) deep trench wall had a similar result but the depth of this trench was 1000mm to 1020mm with an infill slab, the depth was short 290-300mm of my design."[130]

1. The Board also relied on evidence from Mr Alan Temling, a drafts person who had been engaged as a building consultant for the property owners and had met with Mr Tsaganas, Mr Sorgiovanni and the original builder, Mr Grigoriy Trunov. Mr Temling also provided a statement to the VBA on 11 April 2014. It is contained in the section 49 materials.[131]
2. Mr Temling had attended the site on 12 February 2014 and also measured the depth of the footings. In relation to this he stated:

"On 12 February 2014 I attended the site and measured the depth of the western basement retaining wall was approximately 850mm from the top of the slab or approximately 650mm from the finished surface level which is contrary to the building permit approved structural drawings which specified the depth as 1300mm from the finished surface level or 1500mm from the top of the basement slab."[132]

1. Mr Temling was not cross-examined.
2. The Board called Mr John Gibcus a civil engineer to give evidence. He had sworn an affidavit on 19 February 2016 exhibiting various documents. These were tendered in evidence before me.[133]
3. Mr Gibcus had prepared technical reports dated 12 February 2014 and 30 October 2014.[134] The first report by Mr Gibcus is quite detailed and makes the following observations in relation to potential breaches of the Act and Regulations.
   • Builder carried out building work not in accordance with the building permit. RBS approved this work.
   • RBS failed to issue a permit for which building work would comply with the Act and Regulations.
   • RBS and engineer failed to carry out work in a competent manner and to a professional standard.
   • The builder failed to notify the RBS after completion of mandatory stage (footings).[135]
4. The second report prepared by Mr Gibcus on 30 October 2014 made the following comments by way of summary:

"The practitioner - Jim Tsaganas failed in his duty as the relevant building surveyor to ensure strip footing SF3 was constructed. He also failed to address the requirement of footing RW1 at the entrance to the car park. He needed to enquire with the structural engineer to question the requirement of RW1 or if it was identified in error, whether any or another footing was required.

Strip footing FS3 must be installed as required in the design drawings. Alternatively the design engineer may assess the necessity of the footing.

The provision of RW1 at the entrance to the car park appears to have been documented in error as there is no retaining wall at that location. The requirement and type of strip footing must be referred to the design engineer.

The removal of the support of the columns C1 by the current builder is a critical issue as the structural integrity of the support of the floor system over is compromised. The design engineer must address the rectification work necessary to provide adequate support to the steel beams at ground floor."[136]

1. Mr Gibcus again noted in the second report potential breaches of the Act and Regulations by Mr Tsaganas. He noted that the inspection revealed that Mr Tsaganas had failed to carry out building work in accordance with the building permit and failed to carry out work in a competent manner and to a professional standard.[137]
2. When Mr Tsaganas gave evidence in relation to this allegation he challenged the findings of Mr Temling in relation to the measurement of the depth of footings. He stated:

"... the finding that Mr Temling has made is in the absence of any confirmation of the excavated ground level in the basement."[138]

1. However, there is no evidence before me that Mr Tsaganas made any measurement. Additionally, he did not require either Mr Sorgiovanni or Mr Temling to be cross-examined on this point.
2. Notwithstanding that the evidence of Mr Tsaganas was not put to either Mr Temling or Mr Sorgiovanni, there may be some doubt as to the actual depth of the footings prior to the slab being excavated. I am in any event satisfied comfortably that the applicant had approved the foundations inspection when the strip footing SF3 was not constructed. Mr Tsaganas' evidence on this point was that he had simply missed it.[139]
3. I am also satisfied that the retaining wall shown as RW1 on the approved plans had also not been constructed. It is highly likely that RW1 was shown on the plans in error. Nevertheless those plans had been approved by the applicant and its absence should have been noted at or before the foundations inspection was approved by him.
4. I am therefore satisfied that Allegation 10 is proved to the requisite standard.
5. Allegation 11 - This allegation relates to a mandatory inspection of a suspended slab on 12 May 2010 which was conducted on behalf of the applicant by Patrick Charles Richardson, who was first registered as a building inspector on 8 December 2010. The allegation relates to a breach of Regulation 1502(a) in that the applicant failed to carry out his work in a competent manner and to a professional standard by permitting the mandatory inspection to be carried out by a person who was not a registered building inspector.
6. There is no challenge made by Mr Tsaganas to the factual basis of this allegation. It is not contested that Mr Richardson was not a registered building inspector at the date of the inspection, nor is it suggested that he did not conduct the inspection at the request of the applicant.
7. The submissions on behalf of the applicant highlight the uncontradicted evidence that Mr Richardson did not make any representation that he was a registered building inspector at the time of the relevant inspection, and ultimately the approval was signed off by Mr Tsaganas. Mr Fairweather notes the immunity provided by sections 128 and 238 of the Act in relation to inspections conducted by third parties and gives numerous practical examples of where delegation of discrete tasks can actually promote efficient and timely building control.[140]
8. Nonetheless the submissions on behalf of Mr Tsaganas do not claim an immunity under section 128, probably for the obvious reason that Mr Richardson was not a registered building practitioner at the time of the inspection and therefore could not have provided a certificate in a form so as to comply with section 238.
9. The final submissions on behalf of the Board concede that section 34 of the Act allows the relevant building surveyor to "cause" the inspection rather than to "personally inspect". Those submissions go on to make reference to Regulation 1506(e) describing the prescribed classes of building work and practitioners for the purposes of section 238(1)(b). This is limited in the present case to a building surveyor or a building inspector.[141]
10. The Board's submissions also note the authority of O'Hehir v Building Practitioners Board[142] as authority for the proposition that a mandatory inspection does not simply require the inspection of an element of the work, but:

"The building work concerned to be inspected means the building work, the subject of the building permit and not simply an element of that work. ... That interpretation is consistent with one of the primary objects of the Act; namely, to protect the health and safety of people who use buildings and places of public entertainment."[143]

1. Mr Tsaganas' own evidence on this allegation was as follows:

"So you've sent Mr Richardson to count the number of bars, and does he next do anything in relation to the bars?---As I said, he's counting bars, he's looking at the - the arrangement. He's checking the - the diameter of the bars to accord with the - the schedule. He's looking at the slab fabric reinforcement placement."[144]

1. The Board relied upon a technical report from Mr Stuart McLennan who had sworn an affidavit on 25 February 2016 annexing a technical report marked as SRM-1. That technical report was dated 20 March 2014 and was prepared by Mr McLennan in his capacity as a performance auditor employed by the VBA. That technical report is set out in the section 49 materials.[145]
2. Mr McLennan notes by way of background:

"TSAGANAS relied on/procured the services of an unregistered practitioner (Pat Richardson) to carry out the 'Suspended Slab' steel inspection as nominated in the Inspection Report dated 12th May 2010."[146]

"The Subject as the relevant building surveyor in relying on an inspection from an unregistered inspector is acting unprofessionally and breaching Regulation 1502(a). The reason is that there is an expectation that he would use appropriately qualified and registered practitioners to act on his behalf and that the inspection has been conducted in a manner consistent with the requirements of the Act (ie use of registered practitioners)."[147]

1. I am satisfied that there is no immunity provided to Mr Tsaganas in accordance with section 128 of the Act. I am therefore satisfied to the requisite degree that this allegation has been proved.
2. Allegation 12 - This allegation relates to Mr Tsaganas' approval of the mandatory inspection of the suspended slab at the Cromwell Street site in circumstances where he was aware that Mr Richardson, who had conducted the inspection, was not a registered building inspector at the time of the inspection. The Board, by this allegation, claims a further breach of Regulation 1502(a).
3. The evidence relied upon is essentially the same as that being the subject of Allegation 11. There is no dispute that Mr Tsaganas approved the inspection, nor is there any dispute that Mr Richardson was not a registered building inspector at the relevant date.
4. The allegation requires me to be comfortably satisfied that Mr Tsaganas failed to carry out his work in a competent manner and to a professional standard. The final submissions on behalf of the Board reference is made to the fact that this inspection, being required for a mandatory notification stage, was an important one.[148]
5. Whilst I accept the general tenor of the argument advanced on behalf of Mr Tsaganas that there are circumstances giving rise to immunities on behalf of an RBS within the Act itself,[149] I note that those exceptions are specifically defined by the legislation and regulatory framework.
6. Mr Tsaganas has consciously delegated a mandatory inspection to a person who was not at the time qualified to undertake such an inspection. He has then approved that stage of construction. In my view he does so at his peril and such an approval in the present circumstances satisfies me comfortably that this allegation has been made out.
7. Allegation 13 - The Board alleges a further breach of Regulation 1502(a) in that the approval by Mr Tsaganas of the mandatory suspended slab inspection did not comply with the building permit approved documents.
8. The Board relies on the evidence of Alan Temling, Alex Sorgiovanni and John Gibcus.
9. On 25 July 2013 Mr Temling, an engineer, attended the site where the top reinforcement of the ground floor concrete slab had been cut back to expose the top reinforcement of the three concrete beams. Mr Temling prepared a report on the following day addressed to one of the owners of the property. That report concludes relevantly:

"4. Whilst there is a discrepancy between the member schedule and plan view for beam RCB1 this should have been noticed by the Building Surveyor Jim Tsaganas and questioned by the Builder Grigory Trunov prior to construction.

It should also have been questioned by the person who inspected the formwork and reinforcement prior to the pouring of the concrete.

5. The Building Surveyor and his Inspector should not have approved the reinforcement when there main bars were not as per the Engineers design nor when the N12 bars were not in place - yet this unfortunately was a common practice with Jim Tsaganas and his inspectors throughout the entire project and the main reason why this construction has had devastating if not terminal problems and failures throughout."[150]

1. Mr Temling had also made a statement on 11 April 2014 which formed part of the section 49 materials.[151] In that report he states:

"A report by CMD Civil Pty Ltd dated 19 July 2013 advised the reinforcement details of the as built concrete beams did not correspond with the approved design engineering drawings revealing significant differences between the design requirements specified and the actual amount of reinforcing bars installed within the checked beams.

On 25 July 2013 I attended the site with Vinko Lucic who had cut back and exposed the top reinforcement of the three reinforced concrete beams supporting the ground floor slab. Three concrete beams have comprised a major part of the suspended slab structure as all of them had a substantial deficiency in the amount of reinforcing bars, including main longitudinal bars at the top and bottom as well as the ligatures installed along the length of the beams."[152]

1. The Board also relied on a statement from Mr Sorgiovanni, the civil engineer who had been engaged by the site owners to prepare the structural drawings. His statement was made on 24 April 2014.[153] In that statement Mr Sorgiovanni refers to an attendance at the site on 29 July 2013 where he:

"... checked the suspended slab and found the major problem was RCB1 which did not work or comply with AS 3600. This beam is located in the middle of the slab and spans across the building between the basement walls and required significant structural rectification. ... The steel reinforcement in the band beams for the suspended slab is not compliant with the drawings/specifications in that less N24 bars were installed and ligatures as reported by CMD Civil and therefore the suspended slab steel inspection should not have been approved."[154]

1. The final witness to give evidence in relation to this allegation on behalf of the Board was Mr John Gibcus. His report dated 12 February 2014 was also in evidence as part of the section 49 materials. In that report Mr Gibcus makes reference to the ground floor beams.[155] He states:

"In general there are considerable discrepancies between the structural engineering computations and the approved drawings on the project.

The computations and Ground Floor Plan for RCB1 shows the beam to be 2500mm wide. However the Concrete First Floor Schedule states the beam is to be 3000mm wide.

The computations for RCB2 shows the beam is to be 3800mm wide. However the Ground Floor Plan shows the beam to be 3200mm wide at the east side and 3000mm wide at the west side. The Concrete First Floor Schedule states the beam is to be 3200mm wide.

1. He goes on to make comments noting the reduction of strength of both band beams RCB1 and RCB2, and concludes by stating:

"I recommend a full re-design of the whole support system for the reinforced concrete ground floor, including slab, beams columns and footings. If necessary, additional supports or reinforcement may be necessary to ensure full compliance with the appropriate standards."[156]

1. Mr Tsaganas gave evidence in relation to this allegation. He stated in evidence that he was aware that Mr Richardson was not registered at the time of the relevant inspection.

"... he was an assistant to the building surveyor which was me. He was academically qualified, he had two diplomas. And he had been working for - under me for over three years at that time. And as he was nearing his - the prerequisite for qualification as a practitioner in the field of inspector was two years of industry based learning."[157]

1. He went on to state that after Mr Richardson had done this inspection, "We sat down and ran through the schedule to the structural drawings.[158]
2. Mr Tsaganas stated that he believes he discussed the matter in detail with Mr Richardson:

"It would've been ten minutes, just running through those items. It's at least a half hour, 45 minute inspection, it's not a - it's quite an involved process."[159]

1. The evidence led on behalf of the Board included a GPR scanning survey report dated 19 July 2013.[160] This survey involved non-destructive testing using ground penetrating radar systems to verify the top and base steel reinforcing bar numbers and the spacing within three specified beams. It was also used to verify that the top and bottom layers of reinforcing mesh were present within the suspended slab locations.
2. There was criticism of the limitations of this method of testing advanced on behalf of Mr Tsaganas in final address. This much was conceded by Mr Gibcus in his own report where he agreed that radar scanning equipment is not conclusive. The submissions concerning this aspect of Allegation 13 are set out in paragraphs 129 to 141 of the applicant's final submissions. Mr Fairweather submitted on this point:

"It is the applicant's submission and the opinion of CMD Civil on their 'test limitations' section that the scanning tool has limitations and therefore one cannot comfortably rely on this type of report to prove the omission of the bars as alleged. It is submitted, Mr Gibcus ought to have looked at the data, images and test limitations before forming his conclusions that the main bar reinforcement is deficient and does not comply with the approved plans.[161]

1. Notwithstanding the challenge as to the accuracy of the scanning report, there was no expert evidence called on behalf of Mr Tsaganas to enable me to reach any particular conclusion other than to note the comments as to the limitations expressed in the report itself.
2. In my view the evidence of Mr Temling is the best evidence as to the structure of the particular beams and I note he was not required for crossexamination. I am fortified in this conclusion by the opinion expressed by Mr Sorgiovanni to which I have earlier referred.
3. I am comfortably satisfied that this allegation has been made out.
4. Cromwell No. 1 - Allegations 2, 3 and 4 - I ruled in relation to these allegations that the applicant's challenge was limited to the penalty which had been imposed by the Board. For the sake of completeness I will set out the substance of these allegations made against Mr Tsaganas.
5. Allegation 2 - The Board alleges on or about 13 October 2010 Mr Tsaganas failed to carry out his work as a building practitioner in a competent manner and to a professional standard and has therefore failed to comply with Regulation 1502(a) in that he approved a mandatory frame inspection when it ought not to have been approved given the presence of defects in the basement steel and first and second floor framing. The following particulars were relied upon by the Board as evidence of the breach:
   • Strap bracing had not been installed to the underside of FJ1's - floor joists located at the rear of the dwellings, as per engineer's design.
   • Double studs (DS1-2/90 x 45 F17 studs) at the end of DJ - double joists had not been provided as per plan and either needed to be rectified or certification/comments obtained from the engineer confirming 2/90 x 45 MGP10 studs are structurally acceptable.
   • Type "D" and Type "G" structural wall bracing throughout the dwelling had not been provided as per the engineer's design.
   • Steel stiffener plates to all structural steel floor beams as per engineer's comments/notes listed within the "members schedule" had not been installed. Alternatively, engineer's certification confirming stiffener plates are no longer required ought to have been provided.
   • The stud used along the separating wall (Unit 2) do not appear to be "MGP" studs or even structurally graded, due to the lack of markings (stress grade approval stamp)/amount of knots etc. Certification from suitably qualified person who is able to identify and stress grade timber to confirm whether the timber studs used are structurally acceptable ought to have been obtain.
   • Steel connection welds (in general) are of a poor quality, based on inconsistent thickness achieved along the continuous weld and noticeable air-bubbles/gaps/breaks within the weld. Assessment/certification from a suitably qualified person (structural engineer) ought to have been provided to determine whether welds are structurally acceptable/of an acceptable level of quality.
   • Engineer's comments/certification ought to have been obtained as structural steel column walls have been modified/cut to facilitate the fixing of a single bolt (located internally) to the slab in lieu of being fitted with base plates and 4/M16 bolts as per the engineer's detail.
   • Engineer's comments/certification ought to have been obtained confirming the installation of structural steel beams/top plate connections are acceptable as the required bearing plate and bolts have not been installed as per the engineer's design. Alternatively, install all bearing plates and appropriate bolts as per plan to achieve adequate tie down to all structural steel beams.
   • Posistrut (floor joists) ends to the first floor, west wall of unit 2 had not been braced/blocked in accordance with the manufacturer's specifications. A single horizontal length of speed bracing has been installed.
6. Allegation 3 - The Board alleges that between on or about 2 February 2010 and 19 October 2010 Mr Tsaganas failed to carry out his work as a building practitioner in a competent manner and to a professional standard and therefore failed to comply with Regulation 1502(a) of the Regulations in that as the appointed RBS at 30 Cromwell Street, Caulfield he approved the "foundations" inspection when he ought not to have been satisfied that the works had been carried out in accordance with the approved plans.
7. The particulars alleged were as follows:
   • On 2 February 2010 you approved your inspection of the foundations "with conditions" including:

(a) provide engineer's compliance for the use of trench mesh and

(b) provide inspection certificates for trench wall construction.

• As the builder, FNP Pty Ltd had failed to call for a steel inspection and as there had been no inspection by you or on your behalf, you relied upon a declaration provided by Grigoriy Trunov on behalf of FNP Pty Ltd to the effect that the building works had been carried out in accordance with the approved plans.

1. Allegation 4 - The Board alleges on or about 18 December 2009 Mr Tsaganas was guilty of unprofessional conduct in that as the appointed RBS at 30 Cromwell Street, Caulfield he inspected and approved the trench and steel for the western retaining wall and failed to identify that it had not been constructed in accordance with the approved engineering design. This was particularised as follows:
   • The western deep trench retaining wall has not been constructed in accordance with the approved structural engineering drawing Job Ref 07355 Sheet 6 of 7, rev B2 by Strucsand Consulting - the approved drawing required two layers of SL82 mesh on each face but the walls have been constructed with only one layer of reinforcing mesh on each face.
2. The remaining allegations forming part of the Cromwell No. 1 proceeding, being Allegations 1 and 5, were withdrawn.
3. Having made findings in relation to each of the allegations referred to above, and set out in summary form in Appendix "A", the Tribunal proposes to publish these reasons and to further adjourn this matter to permit both parties to deliver further written submissions as to the penalties to be imposed and the final disposition of these proceedings on or before 11 November 2016.
4. The Tribunal will permit short oral submissions in support of the written submissions as to penalty on 18 November 2016, to be limited to a maximum of two hours for each party.

1, 3, 4, 5, 8, 10, 20, 21, 22, 23, 25, 26, 27, 28, 29

[1] The hearing before the Tribunal in relation to Cromwell No. 1 were limited to the question of penalty

[2] [1938] HCA 34; (1938) 60 CLR 336

[3] Consolidated matters - Section 49 material - Folder 2 of 6, Tab 1

[6] Transcript ("T")178, Line ("L")17-20

[16] Consolidated matters - Section 49 material - Folder 6 of 6, Tab 4

[22] Applicant's Written Submissions As To Findings ("Applicant's submissions") p.7[19]

[23] Consolidated matters - Section 49 material - Folder 2 of 6, Tab 2

[30] Board's Submissions As To Findings ("Board's submissions") [34] to [37]

[38] T347 and Board's submissions [45.2]

[42] Consolidated matters - Section 49 material - Folder 2 of 6, Tab 20

[43] Consolidated matters - Section 49 material - Folder 2 of 6, Tab 21

[45] Consolidated matters - Section 49 material - Folder 2 of 6, Tab 22

[48] Shaw v Building Practitioners Board (Revised) [2015] VCAT 455 at [54]

[50] The plan was contained in Consolidated matters - Section 49 material - Folder 2 of 6, Tab 5

[52] Exhibit PJ-1 to affidavit of Peter Jolly.

[53] Exhibit PJ-1 to affidavit of Peter Jolly

[54] Exhibit PJ-4 to affidavit of Peter Jolly

[56] Exhibit SP-10 to affidavit of Sergio Perna sworn 19 February 2016

[57] Boards submissions [58] and footnotes 90 and 91

[63] Version 82 incorporating amendments up to 1 July 2010

[68] [2014] VCAT 902

[81] Consolidated matters - Section 49 material - Folder 4 of 6, Tab 27

[85] Exhibit RRF-1 to the affidavit of Robert Rosco Fenton sworn 22 February 2016 contained in Section 49 material.

[87] Exhibit D, and particularly letters exhibited at PJ-2 and PJ-4 to Mr Jolly's affidavit

[88] Exhibit D, Exhibit PJ-3 to Mr Jolly's affidavit

[89] Consolidated matters - Section 49 material - Folder 5 of 6, Tab 2

[91] AS 1926.1, Applicant's submissions [56] to [58]

[93] Consolidated matters - Section 49 material - Folder 5 of 6, Tabs 4, 5 and 6

[94] Consolidated matters - Section 49 material - Folder 5 of 6, Tabs 17 and 20

[95] [2014] VCAT 902 (24 July 2014)

[97] Consolidated matters - Section 49 material - Folder 5 of 6, Tabs 13 and 7

[98] Consolidated matters - Section 49 Material - Folder 5 of 6, Tab 16

[103] Exhibit LW-2 to Luke Williams' affidavit

[104] Exhibit LW-3 to Luke Williams' affidavit

[105] Exhibit LW-3 to Luke Williams' affidavit

[106] Applicant's submissions [92] and T1205, L19-30

[108] Consolidated matters - Section 49 materials - Folder 6 of 6, Tab C11

[109] Technical assessment report marked Exhibit LW-3 referred to in Exhibit G at [5.12] to [5.14]

[110] Letter dated 30 September 2012 from the applicant to Ms Emilia Hazperin contained in bundle of documents exhibited as LW-1 to Exhibit G

[111] Letter dated 30 September 2012 from the applicant to Ms Emilia Hazperin contained in bundle of documents exhibited as LW-1 to Exhibit G

[112] Exhibit LW-3 at [5.9] to [5.10]

[117] Applicant's submissions [99] to [105]

[119] Consolidated matters - Section 49 material - Folder 6 of 6, Tab C13

[120] Technical assessment marked LW-3 forming part of Exhibit G [5.12.5] to [5.12.6] and Photographs 14 to 16

[125] Cromwell No. 2 - Section 49 material - Tab 13

[126] Cromwell No. 2 - Section 49 material - Tab 3

[127] Sorgiovanni statement - Section 49 material - Tab 3, lines 42-46

[128] Sorgiovanni statement - Section 49 material - Tab 3, lines 62-63

[129] Sorgiovanni statement - Section 49 material, lines 52-53

[130] Sorgiovanni statement - Section 49 material, lines 65-72

[131] Cromwell No. 2 - Section 49 material, Tab 2

[132] Cromwell No. 2 - Section 49 material, Tab 2, Temling statement at 167-171

[134] Documents exhibited as JWG-1 and JWG-3 to Exhibit H

[135] Document exhibited as JWG-1 to Exhibit H (page 22)

[136] Document exhibited as JWG-3 to Exhibit H, page 5

[137] Document exhibited as JWG-3 to Exhibit H, page 5

[140] Applicant's submissions at [118] to [126]

[141] Board's submissions at [143.2] and [143.4]

[142] [2015] VCAT 113 at [34]

[145] Cromwell No. 2 - Section 49 material, Tab 9

[146] Cromwell No. 2 - Section 49 material at [5.1.c]

[147] Cromwell No. 2 - Section 49 material at [6.83] page 22

[150] Cromwell No. 2 - Section 49 material, Tab 18 at p.7

[151] Cromwell No. 2 - Section 49 material, Tab 2

[152] Cromwell No. 2 - Section 49 material, Tab 2 Statement at L244 to 255

[153] Cromwell No. 2 - Section 49 material, Tab 3

[154] Sorgiovanni statement - Section 49 material, Tab 3 at L51-60

[155] Exhibit H at page 19[7.1] page 19

[160] Cromwell No. 2 - Section 49 material, Tab 17

[161] Applicant's submissions at [142]