Saturday, 1 December 2012

Building a commission complaint

This is going to be another atypical post, both in its verbosity and its lack of specific relevance to Port Melbourne, although there's certainly no shortage of building work going on here. It follows on from two similar rants about apparent flaws in the law regarding building Protection Works and the effectiveness of the Building Appeals Board in dealing with them.

I'm going to go out on a limb here and suggest that some builders, even those with fancy adverts on the radio, are ... downright shonky. Most people seem to either have some direct experience of the phenomenon, or know someone who has. And that's before you even start to consider the potential for dodginess amongst the full range of "building practitioners"; building inspectors, surveyors and the like.
Thank goodness then for Victorian building regulations and for the primary (and alas only) upholder of them ... the soon to be replaced Building Commission. Providing that the building practitioner is at least registered, then they provide a number of avenues for dealing with problems. One of these is the Building Appeals Board, however as I discovered this isn't focused on enforcement, and in any case is only applicable in certain specific cases. This post documents my experience with a different approach; a complaint regarding a registered building practitioner...

The Building Commission's practice note for protection works states that a 'relevant' Building Surveyor "can play a positive role in assisting all parties to reach a successful outcome when protection work is required". Sadly this was not my experience, indeed I suspected that the relevant builder surveyor from Banyule BPI (a private company under the auspices of Banyule city council) had breached the Building Act in his dealings with me. Having slowly come to the painful realisation that the only way that legislation in this area stands a chance of being enforced is if individuals force the commission to do something about breaches, I decided to lodge a complaint.

The disciplinary body within the Building Commission is the Building Practitioners Board. Individuals can either lodge an inquiry directly with them or lodge a complaint with the commission (who may then refer the matter to the practitioners board). Concluding that the former approach might be intended for very serious matters, I opted for the latter.

In the interests of fairness I must first unequivocally record that the result of my complaint was that the practitioner was, on this occasion, completely exonerated. However he had on a previous occasion been reprimanded and fined by the Building Practioners Board (although they have since seen fit to remove their published record of previous inquiries) and there are factors surrounding my experience which might affect how others in a similar position might approach the task.

I submitted a written complaint on the 25th September. At the time, the answer to the question posed on the commission's How can the Building Commission help me? page would have to be .... not a whole lot. I didn't then know that if you e-mail, they send you an 18 page form, made specifically for the purpose, which usefully outlines the required information and likely areas for complaint. My own complaint was just in the form of a single page letter.

I received two standard letters advising me of the progress of my complaint followed, just under two months after submission, by the response which read:

"I can advise you that a preliminary compliance review has been conducted by the Commissions Case Administration Unit. As part of this review information was sought and received from the relevant building surveyor and one of the Commission's technical advisors.


Based on its findings and in the absence of any other corroborated evidence of non compliance, the Commission determines there are no practitioner conduct issues to be considered at this time and this file is now closed."

Note that the relevant building surveyor in this case is the subject of the complaint, so it would appear that (in essence) the sacred upholders of Victorian building law asked the 'defendant' for their version of events, it didn't tally with the 'charge' that had been laid, and no corroborating evidence for either account could be found anywhere. End of story.

Well not quite. You might reasonably expect that where contradictory information is received, its nature would be published along with the determination. It was not. However I did receive a 'courtesy' phone call out-of-the-blue, shortly before the decision was posted, which gave some clues as to its logic. At the time I was at work, some time had passed since I'd written the complaint, I couldn't remember the specifics of it, and I didn't have any of the documentation relating to it at hand. In any case this appeared to be a call intended to pass information to, rather than obtain it from, me. Regrettably therefore there is no published record of some of what follows, it is my only recollection and must be treated as such.

There were four parts to my complaint, I will now quote each in turn, along with the commission's (verbal) stance:

Complaint #1: Suspected breach of Building Act section 87(4)
"On 21/11/2011, we sent a request for further information (relating to the proposed protection works) to the relevant building surveyor and the owner's agent in accordance with Section 85(1)(b)(ii). The relevant building surveyor failed to respond with notice of a determination in accordance with Section 87(4)."

I realised after my discussion with the commission's representative that this was the only part of my complaint that they had been interested in discussing. It relates to one of the clearest stipulations of the act regarding protection works. The commission's logic for dismissing this part was that more than 14 days had elapsed between a Protection Works Notice having been served, and my request for further information being given, this being the period specified in section 85(1) of the act. There appeared to be no disputing whether, or when, the request for further information was given. It seems that this part of my complaint was discounted on the basis that notice had been served (comfortably) more than 14 days prior. I could accept this to be an entirely valid conclusion from this fact (although one might reasonably expect a "sorry, you were too late" response in the circumstances), were it true.

You will note that my complaint doesn't state a date when notice was received (although the date 08/11/11 was stated, and not disputed by the sender, on a separate submission to the Building Appeals Board). The commission did not request a date from me, but then according to their representative it is the date of postage that counts anyway (section 236 of the act is disappointingly unclear on this matter).

I asked the commission's representative how they had determined the date on which they believed the notice to have been served. He listed for me a variety of proofs that they would entertain ... including a statutory declaration from the building surveyor, and when pressed it turns out that this was the case here. So this part of the complaint was dismissed as a result of a declaration by the subject of the complaint, who was a recipient of the notice rather than its source, without (as far I as know) any attempt to corroborate this declaration.

The notice was actually delivered by registered post (but alas I didn't retain the envelope), so it should have been possible to ascertain the true date of postage. Unfortunately when I asked Aus Post whether I, as recipient, could retrospectively obtain proof of postage they replied:

"If it was a Registered Post article and a signature was obtained, we might not still have this on record. Even if we do have this on record, only the sender can request a copy of the signature."

Complaint #2: Professional conduct - assessment of protection work
"On 22/03/2012 and 26/03/2012, we e-mailed the relevant building surveyor requesting guidance in the light of apparent deviations from the prescribed protection works, but received no response. This leads us to doubt whether the relevant building surveyor ever assessed the appropriateness and/or application of the prescribed protection work."

This part was not mentioned during my discussion with the commission, however I can see how its validity might be undermined if complaint #1 was considered invalid. In other words by dismissing complaint #1, I suspect that this complaint was also dismissed.

Complaint #3: Professional conduct - unresponsive correspondence
"On 04/04/2012 we e-mailed the relevant building surveyor requesting prompt confirmation of their position regarding suspected boundary encroachment resulting from the building work. Despite a land survey being performed 17/04/2012 which confirmed this suspicion, the relevant building surveyor appeared unresponsive, merely advocating the builder's stance in e-mails to us dated 23/04/12, 31/05/12 and 19/06/12."

This part was not mentioned during my discussion with the commission. When I originally asked about making a complaint the commission happily declared that:

"The Building Commission takes seriously all complaints about registered building practitioners where they may have breached professional standards or the requirements of the Building Act 1993."

However they provide no definition of the standards of professionalism that are expected of registered building practioners. To me, responding to relevant building queries promptly and with independence are reasonable professional expectations of a registered building surveyor.

Complaint #4: Suspected breach of Building Action section 92
"On 19/06/2012 we e-mailed the relevant building surveyor notifying them of our intention to inspect the documentation relating to the building work, in accordance with section 92, and asking when this would be possible, but received no response. Then on 25/06/2012, we visited the offices of the Building Surveyor to attempt to inspect the documentation, but were refused. We were told by Danny Hick in person that the file was not available, and in any case that we could not inspect it without the owner's permission due to copyright. He said he would request the file and call us back, but never did."

This part would not have been mentioned during my discussion with the commission had I not brought it up. The response was that this was not disputed, but that it was not enforceable, and that unfortunately instances of it were seen from time to time.

By not enforceable I have to assume he meant not punishable, as this section of the act has no defined penalty. However it seems a mockery to have a law for which there can be no consequence at all to breaches, not even reprimand. Remember that the decision letter I received from the commission said:

"Based on its findings and in the absence of any other corroborated evidence of non compliance, the Commission determines there are no practitioner conduct issues to be considered at this time"

This seems to me to be a factually false statement, based on the conversation that I describe.

Advice to others
So, aside from bitching about the total dismissal of a complaint with at least parts that seemed impossible to dismiss, and the possible conclusions about the professional standards within this industry that could be inferred as a result, what constructive advice can I give to people considering following this path?
  1. Don't be put off. There's nothing to lose and you might just prevent someone else suffering the same issue in the future.
  2. Give due consideration to the option of applying directly to the Building Practitioner's Board
  3. If you have time, request and use the official form.
  4. If you receive any calls on the matter from the commission:
    • Record the person's name and role in the case
    • Unless you have all information to hand, ask them to call you back when you do
    • Ask for written confirmation of anything that sounds suspicious

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