QBCC Dispute Resolution

Can Mascot Towers happen in Queensland?

QBCC Dispute Resolution – The Lambert Report – Mascot Towers in Sydney is a topical current News story in New South Wales, previously it was Opal Towers. The potential failures in this building comes in light of the 2015 Independent Review of Building Professionals Act 2005, (‘the Lambert Report’).

The purpose of the Lambert Report was to “assess the effectiveness of the Building Professionals Act (BP Act) and the broader issue of the effectiveness of the building regulation and certification system that applies in NSW and to make recommendations to improve the operation of the Act and the overall system.” [1]

It was a thorough review of the building regulation and certification system in NSW and it made a number of recommendations. They included among other recommendations:

  • Create a principles based legislative framework for building regulation.
  • Strengthen the administration of building regulation and certification.
  • Enhance the accountability and clarify the role of certifiers.
  • Achieve and maintain a best practice building regulation and certification system.

However, after some four years these recommendations have not been adopted in full and the NSW system seems to be failing, evidenced by now two separate residential high-rise evacuations as the buildings in question have been assessed as structurally unsound.

Could a Mascot Towers happen in Queensland?

The Queensland Building and Construction Commissions as a restructure of the Queensland Building Services Authority. The QBSA was created as a one stop shop to deal with licensing, dispute resolution and administer the Queensland home warranty insurance scheme.  It was however determined that inherent conflicts of interest existed in a body which had a role to assist consumers and regulate and discipline building practitioners. So, the Queensland Building and Construction Commission was created. It is regulated by the content of the Queensland Building and Construction Commission Act 1991.

The purpose of the Queensland Building and Construction Commission was to create an organisation which partitioned it various functions. Under the QBCC Commission, five separate committees were created. They are:

  1. The Regulatory and Resolution Committee;
  2. The Stakeholder Advisory Committee;
  3. The Finance, Audit and Risk Committee;
  4. The Insurance Committee; and
  5. The People and Culture Committee.[2]

The multi-unit approach was legislative designed to address the deficiencies of the old system, but does it work?

 

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Queensland Building and Construction Commission

The system in Queensland is mostly complaints based. A building owner, being either the owner of a commercial building or a domestic building, complaints to the Queensland Building and Construction Commission about an aspect of their building which they do not believe has been done correctly. The QBCC does not offer any guidance nor does it provide any overall assistance. That is, simply it is up to the complainant to identify what the complaint is about and what specific areas within the QBCC the complaint must be lodged in.

One of the intersections between the QBCC, the building industry and a building owner is the QBCC regulatory function, particularly in relation to a building dispute, or a QBCC dispute. That is generally dealing with consumer/owner complaints. Building complaints are dealt with separately to certification complaints which are separate again to licensing complaints.

However, what happens when the compliant drifts into the realm of certification or the provision of Form 16 certification for persons either not licensed or experienced enough to provide that certification? The answer seems to be very little. It is not an area which is dealt with by the Technical Officer who deals with building complaints. Therefore, the owner of a commercial building or the consumer in a residential setting, must then look to make a further complaint against the certifier and potentially a further complaint against the builder relating to licensing or rather the use of unlicensed tradesman. The detail of these complaints is left to the complainant, whether they are correct or not. In the vast majority of incidences, the QBCC only responds to complaints.

How does the untrained building owner or member of the public traverse these issues? It seems that it is difficult if not impossible. The interplay between the builder, the use of unlicensed trades and certifiers potentially accepting inappropriate Form 16’s is left to the owner to navigate. If they are unable to do so, then the issue is simply not dealt with.

Generally, the building industry is full of hard-working honest tradesman and builders who work in a highly regulated industry, which is subject to high levels of legislative oversight. However as with every industry there are a small percentage of participants who disregard or are unaware of the rules and look to actively work outside the system. A common term used in the building industry is “cowboy”. Universally within industry, everybody would like to see all of the “cowboys” removed from the industry.

Provision of Form 16’s

So, what happens if a builder, uses an unlicensed or inappropriate person to provide a Form 16 in relation to a specific aspect of a building? Anecdotally nothing. This involves the interplay of three different areas of the Queensland Building and Construction Commission, which is not easy. Particularly for an untrained member of the public. Building regulation, building licensing compliance and regulation of certifiers are three separate areas within the QBCC.

In the practical sense, builder rely upon their subcontractors to provide them with Form 16’s. Those same Form 16’s are then provided to the certifier. In some circumstances, the provision of a Form 16 becomes a precondition to the payment of a subcontractor’s payment claim. In those circumstances little importance is given to the content of the Form 16 or what should be the legal purpose of the Form 16. The purpose of the Form 16 being to confirm that the works have been done by a suitably qualified and experience person in accordance with the approved plans, specifications and the NCC.

Form 16’s are provided with little concern about their content. In these circumstances they are seen as a piece of paper provided to ensure payment. The certifier has an obligation to check if the person providing the Form 16 is able to do so, but without any overview of this process, there is and remains no guarantee that the works done have been done correctly and certified; or was the Form 16 provided as part of a payment claim?

How does a member of the public or an inexperienced building owner piece this all together? It seems that the very purpose of the formation of the Queensland Building and Construction Commission and it partitions has effectively created barriers to the safe regulation of building works in Queensland.

The answer to the question; can Mascot Towers happen in Queensland? The answer is yes, because on a smaller scale it is already happening.

If you have any questions regarding anything contained within this article or any other QBCC Dispute Resolution matter, contact the team at
Becker Watt Lawyers.

 

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Len Watt is a Brisbane Construction Lawyer who has vast experience dealing with QBCC Dispute Resolution. If you have any questions in relation to this article or require building and construction law advice, contact the team at Becker Watt Lawyers on 07 3269 4888

 

[1] Lambert Report, page 11

[2] https://www.qbcc.qld.gov.au/sites/default/files/QBCC_Organisational_Chart.pdf