Carrying out or supervising building work in a negligent/incompetent manner

Complaint before the Building Practitioners Board – BPB25485

This article focuses upon a recent Building Practitioners Board prosecution after a complaint was referred to it. 

Facts 
The Complainant had contracted the Respondent to build and supervise the remodeling and extension of the existing first-floor area over the existing single storey living area. The work involved strengthening the living area ceiling, taking off part of the roof, installation of a ridge beam, creating new dormer roofs, building new outside walls, installation of a new roof and building of new internal wall framing and bracing. 

On 19 March 2019 the bracing inspection failed with Council with the inspection sheet noting:-

This significant structural change will require application for an amended consent before further inspections can be conducted. 

Thereafter a Notice to Fix was issued by the Council for the omission of a load bearing beam which had been detailed in the consent plans. 

At the disciplinary hearing, the following workmanship issues were considered:-
(a)  The use of coach bolts instead of engineer’s bolts;
(b)  Rafters finishing short of the fascia;
(c)  Damage to lead flashing;
(d)  Studs not constructed in accordance with NZS3604:2011
(e)  Master bedroom dormer roof not constructed in accordance with the Building Consent and NZS3604:2011, continuous rafters have been cut at the top plate line. 
(f)    Whether the re-used existing timber was compliant.

Having considered the evidence presented by the Complainant and the Respondent the Board decided
(a)  the Respondent had carried out or supervised building work or inspection work in a negligent manner; (s317(1)(b) of the Building Act 2004);
(b)  the Respondent had carried out or supervised building work or building inspection work that did not comply with the building consent (s 317(1)(d) of the Act).
(c)  the Respondent should be disciplined by paying a fine of $2,000 and pay costs of $3,500.00. 

Whilst the Board recorded that the Respondent had inherited a difficult position in respect of the downstairs work carried out by the Complainant, with a significant amount of the downstairs work having not been revealed to him, nevertheless there were issues of poor workmanship namely items (b) to (e). 

The Board ruled that the LBP had a responsibility to get building work correct initially, and could not rely upon remediating it later. There also appeared to be a significant amount of work completed by the apprentice/employed carpenter without supervision

The Board therefore held that the Respondent had departed from accepted standard of conduct, and the conduct was serious enough to warrant a disciplinary outcome. 

Some of the general principles stated by the Board were as follows:-

  •  The purpose of professional discipline is to uphold the integrity of the profession;

  • The focus is not punishment but protection of the public and the maintenance of public confidence and the enforcement of high standards of professional conduct;

  • Disciplinary proceedings are not designed to redress issues of disputes between a complainant and a respondent; 

  • To invoke the disciplinary mechanisms something more than mere professional incompetence is needed, there needs to be a deliberate departure from accepted standards, such serious negligence to portray indifference and an abuse;

  • The assessment of negligence in a disciplinary context is a two-stage test. Stage 1: consider whether the practitioner has departed from the acceptable standard of conduct of a professional. Stage 2 consider whether the departure is significant enough to warrant a disciplinary sanction. 

  • When considering what amounts to an acceptable standard, the Board must have reference to the conduct of other competent and responsible practitioners, and the Board’s own assessment of what is appropriate conduct, bearing in mind the purpose of the Act (objective test). 

  • The level of supervision required by an LBP to fulfil an LPB’s obligations under the Act depends upon the circumstances.

  • The Building Consent Authority’s role is to check that the building work has been carried out in accordance with the building consent.  It is somewhat inevitable that non-compliance will be identified that requires remediation but it will not always follow that the LBP has therefore been negligent where this non-compliance is detected. 

  • The Board considers that the LBP should be aiming to get building work right initially and should not be relying upon the Building Consent Authority to identify compliance issues, and relying upon their help to address non-compliant building works. 

This fully detailed and reasoned determination by the Board shows that they will apply a careful and principled approach to questions of discipline in respect of LBP’s. 

Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by TM Bates & Co. or Building Today to anyone who relies on the information in this article.