BP Board hands down two verdicts

Earlier in 2022, the Licensed Building Practitioner (LBP) board held hearings following complaints against two Licensed Building Practitioners. What follows is the Board’s judgements

Earlier this year the Building Practitioners Board held a hearing following a complaint against Licensed Building Practitioner (LBP) David Jaquiery.

Following a complaint, the Board decided to investigate:

• Whether the LBP had carried out or inspected work negligently.
• Whether the work did not comply with a building consent.

Both of these are grounds for discipline under s317 of the Building Act.

The Board gave notice that they would also investigate:

• Whether the LBP carried out work before a building consent was issued.
• An alleged failure to have building inspections carried out.

The Board also looked at:

• Non-compliance issues set out in Site Notices and Reports.
• Notices to Fix and Stop Work that were issued.
• Any further issues raised by the Special Advisor to the Board.

Respondent 1

David Jaquiery is licensed in 4 licence classes:

• Carpentry.
• Site AOP 2.
• Design AOP 3.

Areas of practice within the roofing class (including the Roof Membrane, Torch-on Roof Membrane, Liquid Membrane, Shingle or Slate, and the Profiled Metal Roof and/or Wall Cladding areas of practice).

Background

Jaquiery was engaged by the body corporate of a 5-storey multi-unit building to prepare a proposal for, and then carry out, remedial works.

This work included:

• The waterproofing of the existing membrane flat roofs.
• Concrete nib walls.
• Exterior plastered cavity wall systems.
• Deck membranes with new balustrades.
• Replacing most of the exterior joinery.

He applied for building consent early in January 2020. After several requests for more information, a consent was granted on 1 July 2020. There were nine required council inspections listed in the consent.

Evidence

The Special Advisor found that Restricted Building Work (RBW) was carried out before the building consent was issued.

Jaquiery did not agree with the extent of that work listed in the Advisor’s report but did state: “The work progress on the 13th of July was about 50% of the contract works was done.”

Jaquiery put forward five justifications for starting work before the building consent was issued. The Board did not accept any of these.

The first council inspection was carried out on 13 July 2020. It was found that none of the required inspections up to that time had been carried out. Jaquiery stated that these requirements “made him laugh” as many of them were not needed.

Three more site notices were issued, each noting that:

• No council inspections had taken place.
• No further work was to be carried out.

A Notice to Fix was issued in late September 2020. Work continued to be carried out during that time.

The Special Advisor found four instances of work not completed in accordance with the consented drawings:

Membrane from the deck had been taken up over the cladding preventing moisture in the cavity from escape.

• Upstands to joinery were insufficient.
• The gap between the cladding and deck was insufficient.
• Scupper sizes did not comply with E2.

A further issue of ponding on the decks which suggested they did not have the minimum falls required by the Building Code was not able to be proven from the photographic and documented evidence used for his report.

Jaquiery’s responses to all the issues raised was consistent — the job was not yet complete, or what he had done was acceptable unless the council required more, in which case he would do what they required.

The Board noted that Jaquiery’s prevailing attitude was that he could undertake the work and then concern himself with compliance issues only if the council picked it up during their inspections. This ‘mop up’ approach is unacceptable and contrary to the statutory process and purpose of the Act.

The Board’s conclusion

The Board decided that Jaquiery has carried out or supervised building work:

• In a negligent manner.
• That does not comply with the building consent.

Jaquiery was ordered to pay both:

• A fine of $4,500.
• Costs of $8,000.

It was also decided that the Board’s action was to be recorded on the Register of Licensed Building Practitioners as well as being publicly notified.

RESPONDENT 2

The Board has chosen to publish the details of Desmond Allen’s hearing due to the Licensed Building Practitioner (LBP):

• Carrying out or supervising building work in a negligent manner.
• Conducting themselves in a manner that brings the LBP regime into disrepute.

Negligence and/or incompetence

The homeowner contracted Allen to act as a project manager for the conversion of a standalone garage into a habitable space. Before the start of the project, Allen had completed the design for the conversion.

The work started in March 2021 and progressed to a stage where internal framing had been carried out and a prewire completed. In mid-March 2021, plumbing was to commence, but the plumbers engaged by Allen refused to progress the work on the basis that a building consent was needed. At that stage, Allen had invoiced and been paid 90% of the project price. 

However, none of the external door units, kitchen cabinetry, bathroom fixtures and fittings or floor coverings paid for were on site. The garage door was still in place, none of the external walls had been altered, and only the internal partitions were in place with some GIB board fixed.

There was no progress on site for four months until August 2021, when Allen assured the homeowners that he would complete a building consent application and submit it to the council.

The Board was provided with copies of correspondence between the homeowner and Allen in September 2021, where Allen stated he had submitted the building consent application and that it was being progressed:

“I have just called one of the building inspectors and he said they are still processing the consent and said it is very rare that a consent [would be] issued before the 20 working days are up”.

In November 2021, the homeowner contacted the council to check on progress with the building consent and was advised that no building consent applications had been received with respect to the property.

Therefore, the Board’s considerations in relation to negligence and/or incompetence relate to Allen’s failure to:

• Obtain a building consent.
• Advise that a resource consent was required for the change of use.

Bringing the licensing regime into disrepute

With respect to conduct that brings the LBP regime into disrepute, the Board noted that Allen had taken 90% of the funds intended to complete the work but did not take the work beyond the early stages of construction. He has not returned any funds or delivered any materials, fittings or fixtures that have been paid for. Put simply, Allen took the money and has not applied it to the purposes for which it was received. The homeowner has had to resort to legal measures to try and recover the funds.

The Board found that Allen’s conduct has resulted in him obtaining a financial gain at the expense of the homeowner. Such conduct in the Board’s view brings the LBP regime into disrepute. 

The Board’s decision

The licensing regime exists to ensure the public can have confidence in those who carry out Restricted Building Work which is integral to the safe and healthy functioning of a home. A practitioner who fails to display the required competencies puts those objects at risk.

Taking all of the above factors into account, the Board decided to:

• Suspend Allen’s LBP licence for nine months.
• Order Allen to pay costs of $3,500.

The Board’s disciplinary findings will be recorded on the public register for three years.

What we can learn from this decision
Building work must be carried out to industry standard. The necessary consents need to be obtained from the territorial authorities before the commencement of works.

It is also important that LBPs display a high standard of behaviour when dealing with clients. The LBP scheme is a professional organisation, and all of our dealings with the public, our clients, and the Board should reflect that professionalism.

 

This article is an excerpt from Codewords Issue 110. Reading Codewords articles that are relevant to your licence class is a mandatory requirement for Licensed Building Practitioners. These questions can be answered through the LBP portal, online on the Under Construction website or recorded on the magazine, then provided at the time of renewal.