Before the Building Practitioners Board

IN THE MATTER OF Under the Building Act 2004

AND

IN THE MATTER OF A complaint to the Building Practitioners' Board under section 315 by

· · · , Licensed Building Practitioner

DECISION OF THE BUILDING PRACTITIONERS' BOARD

1. Introduction

1.1 ("the Complainant") lodged a complaint with the Building Practitioners' Board ("the Board") on 29 March 2011 in respect o , Licensed Building Practitioner ("the LBP").

1.2 is a Licensed Building Practitioner . in the following classes:

(i) Site/Area of Practice (AOP) 3 issued 18 April 2008; and

(ii) Design/Area of Practice (AOP) 3 issued on 19 January 2009.

1.3 The Board has considered the complaint under the provisions of Part 4 of the Act and the Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008 ("the Regulations").

1.4 The complaint was considered by the Boarc on 25 June 2013 and on 31 October 2013 in accordance with the Act, the Regulations and the Board's "Complaints Procedure" (12 September 2011 ). Written submissions following the hearing were then received by the Board with the final submissions being received on 12 December 2013.

1.5 Those present for the duration of the hearing were:

David Clark Chairman (Presiding) Brian Nightingale Board Member Dianne Johnson Board Member Colin Orchiston Board Member William Smith Board Member

Kata Rangataua-Rameka Board Secretary

• I Licensed Building Practitioner

Mr Norman Williams Special Advisor to the Board

Mr Paul Dell ) Mr Marc Donaldson ) Mr David Waetford ) Mr Bruce Rogers ) Witnesses for the complainant Mr Paul Van Der Sluis ) Mr Stuart Ferris ) Mr Roger Harsant )

Counsel for the Complainant

Mr Ron Esveld A member of the public

The Board deliberations were conducted in private with no other persons present.

2. Board Procedure

2.1 The "form of complaint" provided by the Complainant satisfied the requirements of Regulations 5(a) to (d) of the Building Practitioners (Complaints and Disciplinary Procedures) Regulations 2008.

2.2 On 23 March 2012 the Registrar of the Board prepared a report in accordance with Regulations 7 and 8 of the Regulations. The purpose of the report is to assist the Board to decide whether or not it wishes to proceed with the complaint.

2.3 On 26 March 2012 the Board considered the Registrar's report and in accordance with Regulation 10:

(i ii) It resolved to proceed with the complaint that the LBP:

"carried out or supervised building work in a negligent or incompetent manner contrary to Section 317(1)(b) of the Building Act 2004"

2.4 The Board also requested a special adviser's report should be commissioned and accordingly Mr Williams report was completed in June 2012. The Special Adviser's report was circulated to the parties. The LBP responded to the Special Advisor's report on 9 July 2012. The Complainant responded on 10 July 2012.

3. Background

3.1 ("the Owner") owns a building at . '· The building had been used as

commercial premises (video rentals) and had undergone some structural upgrading in about 1976.

3.2 Upon vacation by the video rental business, the Public Trust instructed the LBP first in relation to building repairs, and over a period of time the instructions expanded to

include upgrading of the building for re-letting as commercial premises, and finally to providing the "base-build" design for a proposed restaurant tenancy.

3.3 On 4 September 2009 a building consent application was submitted to the Complainant by the LBP on behalf of the Owner. The application noted that the intended building work 1 was for the:

"Establishment of (sic) licensed restaurant within existing commercial building"

and further noted;

"Internal fitout of restaurant (counters servers etc) not included in this BC (will be separate BC application) ... "

3.4 Under clause 6.3 of the application where the question asked

"Will the building work result in a change of use of the building?" The box stating "Yes" was ticked.

3.5 Further documentation was submitted by the LBP a few days later which included

• A scope of works and a specification; • Additional detailed drawings.

3.6 On 29 September 2009 the Complainant issued a Project Information Memorandum ("PIM") .

3.7 The Complainant, by letter dated 30 September 2009 advised the LBP that the consent application was

"deficient in detail and not of a standard that allows the application to be accurately processed in a way that would enable a building consent to be issued"

and the building consent application was suspended.

3.8 The Complainant then requested that two sets of amended plans and specifications be submitted and also listed some of the items that the Complainant considered to be outstanding and needing to be addressed in respect of the original building application .

3.9 Throughout October a series of letters crossed between the Complainant and the LBP and two meetings were also held between the parties where the issues were addressed. On 23 October 2009, the LBP advised that revised documentation would be provided and then on 10 November 2009 the LBP submitted further additional documentation which included plans and specifications covering :

• Roofing; • Entry porch • Fire safety precautions • Fire design • Kitchen and bar appliances • Drainage and waste reticulation

1 Clause 6 of th e Applica t ion form

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• Ventilation • Electrical distribution • Kitchen equipment, the attic stairway and existing doors

3.10 On 17 November the Complainant advised that it wished to take the matter to the (then) Department of Building and Housing for a determination on the basis that it could not issue the building consent because it still did not accept the application complied with section 45 of the Building Act 2004.

3.11 The application was submitted to the Department and received by it on 23 November 2009. The LBP wrote to the Department on 24 November 2009 requesting that the application for determination should be refused because no grounds for a determination existed.

3.12 Between late November 2009 and 31 January 2011, the matter proceeded through the determination process with the final Determination being issued by the Manager of Determinations, Mr John Gardiner on 31 January 2011. The substantive determination was issued on 2 September 2010 with some amendments being made on 31 January 2011 .

3.13 In summary Mr Gardiner reached a view that the documentation submitted by the LBP lacked sufficient detail for the Complainant to issue a building consent under section 45 and upheld the Complainant's decision not to issue the same.

3.14 In doing so Mr Gardiner relied upon an internal report dated 14 January 2010 from Mr Malcolm MacMillan; an expert report submitted by Mr Ron Pynenburg dated 9 March 2010 and, the evidence gathered at a hearing held between the parties on 20 May 2010

3.15 The building consent application was withdrawn by the LBP before the Determination was finally delivered as significant structural defects had been discovered in the roof structure of the building .

Substance of the complaint

4.1 In the complaint form (as part of an attached letter) the Complainant stated

"Details of Complaint

On or about 4 September 2009 , CJ made an application for a building consent in which the documents were seriously der,c1ent in information and detail to accept as adequate for building consent under section 45 of the NZ Building Act 2004.

WDC considers that ·, a LBP has carried out building design work in respect of DC 0900965 in a negligent or incompetent manner."

4.2 The Complainant has further alleged that the deficiencies and incompetency of the LBP includes the following:

With specific reference to design (area of practice 3) competence 3 "comprehend and apply knowledge of the regulatory environment of the building construction industry";

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With specific reference to design (area of practice 3) competence 3 "established design breach and scope of work and prepare preliminary design";

3. With specific reference to design (area of practice 3) competence 4 "develop designs and produce construction drawings and documentation ".

4.3 Although it was not specifically mentioned in the complaint form filed by the Complainant the thrust of the complaint was that the change of use for the building meant that the requirements of s115 of the Building Act 2004 needed to be addressed by the LBP. Counsel on behalf of the Complainant, states (para 18 Closing Submissions);

"there is no dispute that the building consent application was for a "change of use" and as such falls to be considered under section 115 (BA '04) . The requirements of that section are well distilled in the competencies ... ". However with respect I submit that I failed to properly grasp the requirements of that assessment."

Special Advisors Report.

5.1 The Special Advisor confirmed his report as tabled .

5.2 That report can be summarised as follows :

5.2 .1 General comments relating to the expectations of the designers role and in particular when the designer holds a Design (Area of Practice) 3;

5.2.2 Comments dealing with the specification of the proposed building work, the quality of work, the standards and materials and workmanship which would be needed and to ensure that overall , the requirements of the Building Act and Building Code are met;

5.2.3 An examination of the building itself in its current state;

5.2.4 An examination of the building consent application including the associated plans and specifications which were submitted with the building consent application together with the specification and the fire reports which were submitted following the meetings in October 2009.

5.3 The Special Adviser then looked at the allegation whether the LBP carried out work in a negligent or incompetent manner in relation to the documentation received with respect to the building consent application. Applying the competencies under the Licensed Building Practitioner Rules 2007 the Special Adviser was of the view that the LBP did not adequately provide documentation that satisfied indicators 1.3 and 1.3.72

5.4 The Special Adviser however did not express a view as to whether the failure to meet those competencies meant that he was incompetent or negligent in failing to meet the competencies described.

5.5 The Special Adviser then looked at the change of use issue and believed that this

was the crux of the complaint. In commenting on this issue the Special Adviser referred to the Determination which , as stated, found that the documentation which had been submitted did not adequately address the requirements of section 115 of the Building Act. He made the following observations;

"56. However BC application and variation, documentation does not appear to specifically address the matters required by the section 115 assessment. From paragraphs 8.4 and 10.2.5 of the Determination and IB 's written responses to the Registrar and the Board it appears that IB does not turn his mind to the specific section 115 assessment.

57. In standing back from the file dor- 11mP,ntation from viewing the correspondence exchanged objectively it seems ; and IB were viewing the project from completely different perspectives. , whether based on the permit application or institutional experience with the alteration of buildings seemed to assess the BC documentation submitted in light of the required matters for assessment in section 115. However (based on the paragraph cited above) it seemed that I B did not turn his mind to those assessment matters so did not specifically address the matters in the documentation.

58. It seems 1 : was looking fnr matters in the documentation that it had expected to be specifically addressed. concern with the documentation failing to meet the standard expected in a section 115 assessment seems to have triggered its request for a Determination. But if 18 had not turned his mind to section 115 matters his designs and application would not be likely to reflect them.

59. From the information orovided, I do not see any direct correspondence that would have alerted the or 18 to the apoarent disconnect in the two perspectives. For example there is no statement from to the effect that it thinks the proposal is a change of use, which is defined in regulations and the matters for assessment in section 115 must be addressed.

60. The issue of the change of use was contentious in the determination process. The Determination found that while there is no specific application of s112 or s115 the actual description of the proposed building work was in itself a change of use. The Determination considered that the building work was a change as described in Schedule 2 of the Building (Specified Systems, Change of Use and Earthquake Prone Buildings) Regulations 2005 and found that the change from a retail store having a Working Low (WL) designation to a Crowd Large (CL) designation meant that the requirements of section 115 should apply.

61 . In a context of a BC application the significance of the change of use from WL to CL affects the number of occupants and other matters associated with the fire report and has implications for the building itself in terms of section 114 and 115. I considered that a LBP Design Level 3, given the scope of the license, should be familiar with the meaning and implications of section 114 and section 115 and know when input from others was required. See performance indications 1.3.2, 1.3. 7 and 4.3.7.

62. A change of use can sometimes be confused with resource planning issues, which frequently would be outside a scope of an LBP. However, given performance indicator 1.3. 7 I would expect an LBP to know such planning input if and where relevant.

63. It is my view that in the complex circumstances that apply to this matter, I consider that IB does not appear to have turned his mind to issue of change of use. In my view an LBP Design Level 3 should have. IB therefore has not met the standard expected of a Design area practice 3 license holder. For this reason I am somewhat reluctantly forced to conclude IB has carried out building work in a negligent or incompetent manner."

6 The Licensed Building Practitioners Evidence

6.1 The Licensed Building Practitioner's evidence can be summarised as follows:

6.1.1 The LBP had supplied all of the information that he needed to supply to the Complainant. This was supplied either;

(i) In the original building application;

(ii) In the material supplied on the 10th of November 2009;

(iii) In the material supplied on the 13th of November 2009 (e.g. the fire report).

6.2 Furthermore, information that was required by the Complainant (for example the ventilation ) was not information that was required or, that the Complainant through its various officers (e.g the Complainant's Senior Building Compliance Officer) was satisfied with the information which had been received.

6.3 The LBP also questioned why the Complainant had, after only a few days, decided to make the application for a determination. He believed that any further queries regarding the documentation that had been submitted on 13 November, should have been further discussed with him and any issues arising could have been dealt with at the time. The Board understands the LBP's contention to be that the Complainant had already decided to proceed down the determination path.

6.4 The LBP also queried why the PIM did not make any reference to the Complainant's earthquake prone buildings policy. No information had been supplied to him relating to the policy and nor was it contained within the property files in respect of the building.

6.5 In addition, no mention by the Complainant was made of s112 or s115 of the Building Act but in any event, the manner and description of the building consent made it obvious that a change of use was to occur. This was further supported by the fact that the LBP had ticked the box "Yes" in the PIM application referring to a change of use.

6.6 The LBP also contended that given his status as a holder of a Design (Area of Practice) 3 license, and given that the nature of the application was relatively straight forward, any concerns that the Complainant had should have been addressed and dealt with in a constructive manner.

7. The Complainant's Evidence

7.1 As it can be noted a number of witnesses appeared for the Complainant. However their evidence can be summarised as follows:

7.1 .1 Any argument over whether the earthquake prone building policy should or should not have been given to the LBP is a red-herring because; the documentation had already been forwarded to the Public Trust; it was publically available which the LBP should have been aware of.

7.1.2 The requirements of s 112 and s 115 were more onerous than the earthquake prone buildings policy and overrode it. It was fundamental that the LBP should have been aware of it and should have known what was needed in order to meet the criteria as outlined within those sections.

7.2 The Complainant rejected any criticism that it didn't co-operate with the LBP during the course of processing the building consent. It pointed to the meetings held and correspondence that it sent to the LBP during October and November 2009 to establish that it was trying to assist the Owner and the LBP to achieve the issuing of the building consent.

7.3 In pointing to the Determination made by the Department of Building and Housing, the Complainant maintained that;

7.3.1 It was right in not processing and issuing the building consent under section 45;and

7.3.2 The criticisms contained within the Determination (especially the comments made by ) over the quality of the documentation submitted with the building consent meant that the LBP was incompetent and/or negligent in undertaking this work.

8. Legal Principles

8.1 The grounds for this complaint are that the LBP has carried out building work in a negligent or incompetent manner. (Refer s.317(1 )(b) of the Building Act).

8.2 In Beattie v The Far North District Council Judge McElrea made the following findings with respect to negligence and incompetence;

".. . the term negligence .. .focuses on a practitioner's breach of their duty in a professional setting. The test as to what constitutes negligence ... requires as a first step in the analysis, a determination of whether or not, in the Tribunal's judgment, the practitioner acts or omissions fall below the standards reasonably expected of a ... practitioner in the circumstances of the person appearing before the Tribunal. Whether or not there has been a breach of the appropriate standards is measured against standards of a responsible body of the practitioner's peers."

8.3 Judge McElrea continues3

".. . However, in a case brought to my attention by Mr Corkill, 4Gendall J stressed that not all negligence or malpractice amounts to professional misconduct but only "behavior that falls seriously short of what is to be considered acceptable and not mere inadvertent error, oversight or for that matter carelessness". 5 While the legislation I am considering does not require a finding of "professional misconduct", this is a timely reminder that disciplinary sanctions should not be applied unless there is a serious issue being addressed. (The fact that no loss or damage has occurred can be very relevant in that context but is not determinative of the matter.) .. . "

8.4 Furthermore Judge McElrea stated6 :

".. . a "negligent manner'' of working is one that exhibits a serious lack of care judged by the standards reasonably expected of such practitioners, while an "incompetent" manner of working is one that exhibits a serious lack of competence (or deficient in the required skills) ... "

".. . negligent" and "incompetent" have a considerable area of overlap in their meanings, but also have a difference focus - negligence referring to a manner of working that shows a lack of reasonably expected care, and incompetence referring to a demonstrated lack of reasonably expected ability or skill level ... "

9. Board's Findings and Reasoning

9.1 As stated the Complainant places much of its reliance on the Determination made by the Department of Building and Housing. It should be noted that while the Department dealt with the same subject matter and issues as this Board in this complaint, the Department's focus is clearly different to what the Board needs to determine.

9.2 To put it simply, the Department must focus on whether the Authority (the Complainant) was right to refuse to issue the building consent. It reached that conclusion because it found that the documentation was inadequate for the purposes of issuing a consent under section 45.

9.3 On the other hand the Board must, in accordance with relevant legal principles, consider two issues;

9.3.1 Whether the LBP was negligent or incompetent as exhibited by his lack of knowledge of the scope and ambit of sections 112 and 115 of the Building Act ("the regulatory issues") and,

9.3.2 Whether or not the inadequacies in the application and supporting documentation, establishes that the LBP was negligent or incompetent ("the documentation issues").

9.4 In terms of the above and the submissions which have been presented the Board makes the following findings:

3 Supra at paras 42 4Col/ie v Nursing Council of New Zealand[2000] NZAR 74 5 at para 21, following similar reasoning by Elias Jin B v Medical Council of New Zealand (High Court, Auckland, HC11196, 8 July 1996) 6 Supra at paras 44 and 46

10. The Regulatory Issues

10.1 Competencies 1.3.2, 1.3.7, 3.3.2 are relevant. The Board is of the view that an LBP with a Design Licence in Area of Practice 3 is required to hold the regulatory knowledge sufficient to respond to the requirements that would arise from a change of use. Those requirements are set out in the Building Act s112 and s115 .

10.2 A fundamental task at the inception of any project, and in particular an alteration project, is to research the applicable regulatory controls . In this project, a change of use under the Building Act s112 and s115 would have been apparent at a very early stage. Even a preliminary investigation would have revealed the difference in (for example) the fire code issues between the previous retail outlet (in this case a video rental store) and the proposed licensed restaurant. This would have alerted the designer to the need for further more detailed pre-design consideration of the specific project requirements.

10.3 At the time the building consent was applied for, or shortly thereafter, the Complainant and the LBP agreed that the project involved a change of use and this was marked on the building consent application form. If the LBP had turned his mind to the effect of that declaration, it would have been clear that it arose both because of, and in order to respond to, the different compliance requirements for the previous and proposed uses.

10.4 We agree with Mr Williams that the approaches of the parties as to the effect of the Building Act s112 and s115 appear to differ. The LBP's relationship with the Complainant was fractious, and there did not seem to be a "meeting of minds" on what information was required. The LBP only provided the necessary information for the building consent application in response to several demands by the Complainant, but perhaps the latter did not make it clear why they were requesting that information.

10.5 However, when questioned by the Board, the LBP still did not appear to understand the effect of the Building Act s112 and s115; he acknowledged that he was not working in commercial buildings at the time and was therefore not aware of the requirements for a structural assessment nor that a change of use may trigger additional ventilation considerations. His acceptance that he "wasn 't up to speed" with some of the requirements perhaps suggests that he was working beyond his level of competence, but - of itself - does not establish incompetence to the extent required by the legal test.

10.6 A general lack of knowledge of the regulatory environment could justify a finding of incompetency against a LBP. However, in this complaint the LBP did not properly address what was required under a particular provision of the Building Act, and the Board must assess whether the seriousness of that failure is such that a finding of incompetence should be made.

10. 7 The Board notes that the project was subject to "mission creep": What started as an investigation of building defects developed into a fit-out design for a licensed restaurant. Nevertheless, the LBP had ample time to reflect on the consequences of that evolution, and the opportunity to revisit the compliance issues involved.

10.8 It is the Boards view that at the relevant time, the LBP neither understood the implications of nor the effect of the Building Act s112 and s115, and failed to

comprehend the seriousness of his failure to ascertain adequate design information ahead of the design process. That failure resulted in significant efforts being expended in design work and building consent processing, until the point when the information - belatedly obtained - led to the project being abandoned.

10.9 The Board's view is that the failure of the LBP to understand the requirements of sections 112 and 115 meets the threshold of incompetence as described by Judge McElrea. This is because it was fundamental to the nature and type of building consent that was being applied for that the LBP should have turned his mind to what was required of a change of use. He failed to do so even though he was aware that a change of use was to occur. This failure establishes the LBP's demonstrated lack of knowledge of what was required by sections 112 and 115 and the design tasks which arise from them, and that in turn falls well short of the expectations of a Design Licence Area of Practice 3.

11. The Documentation Issues:

11 .1 Competencies 4.3.1, 4.3.2, 4.3.3, 4.3.4, 4.3.7 are relevant.

11.2 For an LBP to be either incompetent and/or negligent in relation to the design documentation, it must be demonstrated that the LBP has fallen seriously short on what is to be considered acceptable.

11 .3 The Board notes that the LBP was progressively briefed by the owners and the proposed restaurant tenant as the design was being documented, and , in particular, that initially the building consent was applied for on the basis of a "base build" for the premises, rather than a fit-out design.

11.4 A Building Consent Authority is entitled (under the Building Act s45, 49) to seek such documentation as necessary for them to make a decision whether or not to issue a building consent. In this project, the extent of the required documentation reflected the change of use. This led to the documentation being submitted in several stages, and in response to requests from the Complainant.

11.5 Given the close proximity between when the final documentation from the LBP was received by the Complainant, and the Complainant's decision to apply for Determination occurred, the Board queries whether the Complainant had already made up its mind to proceed with the Determination rather than trying to sort out what was needed for the consent to issue.

11.6 The Determination reflects the documentation requirements appropriate to the final project. On that basis, the quality of the LBP's documentation is noted in the Determination as being unsatisfactory, and - for all the reasons therein - the Board accepts that it was not of a requisite standard for the building consent to issue at the time the application for Determination was made.

11.7 However, it does not necessarily follow that the LBP was incompetent or negligent in preparing the documentation. This is because, on an application of the legal principles against the evidence, in consideration of the way in which this project evolved , and bearing in mind the relationships between the Complainant and the LBP , we do not find that the documentation falls so seriously short of what might have been expected.

11.8 We note however that the LBP's approach to this issue was less than helpful and there is simply no ability for him to point to the fact that he holds a Design (Area of Practice) 3 license and expect that others must accept what he says is correct. Such assertions run the considerable risk of bringing the scheme into disrepute, which in it itself is a ground for discipline.

12. Board's Decision

12.1 In relation to the regulatory issues the Board has determined that the LBP did carry out or supervise building work in an incompetent manner.

12.2 In relation to the documentation issues the Board has determined that the LBP was neither negligent nor incompetent and the complaint is dismissed.

13. Publication of Name

13.1 Pursuant to s318(5) of the Act, the Board may publicly notify any disciplinary action taken against a Licensed Building Practitioner in any way it thinks fit.

13.2 The Board invites the LBP to make written submissions on the matter of publication of disciplinary penalties, up until close of business on 16 May 2014.

14. Disciplinary penalties

14.1 Section 318(1) of the Act provides for a range of disciplinary penalties which the Board may apply in these circumstances.

14.2 The Board invites the LBP to make written submissions on the matter of possible disciplinary penalties, up until close of business on 16 May 2014. Such submissions may include information on his financial circumstances.

15. Costs

15.1 Under s. 318(4) of the Act, the Board has the power to order the LBP to pay the reasonable costs and expenses of, and incidental to, the Board's the inquiry.

15.2 The Board has been advised by Ministry of Business, Innovation and Employment that the relevant costs and expenses of the Boards inquiry is attached to this decision.

15.3 The Board, therefore, is prepared to receive written submissions from the LBP on the matter of payment of costs up until close of business on 16 May 2014. Such submissions may include information on his financial circumstances.

16. Right of Appeal

16.1 The right to appeal Board decisions is provided for in Section 330(2) of the Building Act 2004

Signed and dated this ............ ... ................. 22nd day of April 2014.

Chairman David Clark