Handling complaints made against you

Having a complaint made against you as an LBP can be a worrying event. This article provides an overview of the complaints process, along with practical tips on what to do at each stage – plus, we review the recent case of an LBP who was cleared of the complaint made against them

Complaints can be made by a customer to the Building Practitioners Board (the Board), if they believe an LBP has carried out unsatisfactory work. The Board investigates and determines all complaints.

As part of the investigation, the investigator will:

• Provide full details of the complaint.
• Write to request the LBP’s response to the complaint and any further information they can provide.
• Seek additional/supporting information and/or seek clarification of information from both the LBP and the complainant.
• Seek information from other parties involved and from witnesses.
• The investigator may also have an independent person provide an expert assessment of the matter.

You can read more detail about the complaint investigation process and the parties involved in this two-page guidance document: www.lbp.govt.nz/assets/lbp/documents/bpb-complaints-guidance-quick-guide.pdf

Complaint hearings

If the Board decides to proceed to consider a matter, they must hold a hearing. This hearing can be held on the papers in some cases. The purpose of the hearing is to further investigate and determine if a disciplinary offence has been committed by the LBP. If the Board decides it has, they will also consider the appropriate penalty, if any costs should be imposed and whether the matters should be published.

Hearings are a formal procedure. The Board will try to hold the hearing at the closest suitable location to where the LBP lives. The LBP will be advised of the date and time for this and will be asked if they wish to attend. Hearings are usually held in public. The complainant is entitled to attend the hearing. The Board may call witnesses to assist with the investigation. The LBP is entitled to call witnesses or have a legal representative or support person to attend. If they wish to engage a lawyer, it is important to consider that the lawyer will likely require some time to become familiar with the complaint before a hearing.

Remote hearings

The Board may direct that a hearing be held remotely (via Zoom or other remote options).

The Board’s guidelines for attendance at hearings via Zoom (or other remote options) should be adhered to. If an LBP has concerns about meeting the requirements for remote participation, the Board Officer should be contacted in the first instance.

The following guide is intended to help remote hearing participants: www.lbp.govt.nz/assets/lbp/documents/board-practice-direction-remote-hearings-participation.pdf

Provision of documents

This Guide is intended to help participants who are participating in a tribunal hearing and wish to submit documents to support their position: www.lbp.govt.nz/assets/lbp/documents/board-practice-direction-provision-of-documents.pdfRecusal guidelines

This guide is intended to clarify requirements for recusal.

Requests with any concerns can be sent directly to the Board Officer as bpb@lbp.govt.nz and must include the reasons for the request. For more information, visit: www.lbp.govt.nz/assets/lbp/documents/guidelines/brb-recusal-guidelines.pdf

Adjournments

Request for an adjournment to the time and date that have been set for the hearing, should be made via the Board Officer in writing, stating the reasons with supporting documents. It is advised that this request is made as soon as can reasonably be expected. If a hearing is adjourned once it has been set down, the Board may reserve the right to consider the costs from the adjournment when considering the costs to be applied to an upheld decision.

Read the guidance document on adjournments here: www.lbp.govt.nz/assets/lbp/documents/board-practice-direction-adjournments.pdf

Possible outcomes

If the Board finds that a disciplinary offence was not committed, the matter ends there. However, if the Board upholds a complaint about an LBP, it can:

• Suspend or cancel that person’s licence.
• Restrict the kind of work they can do.
• Fine the practitioner up to $10,000.
• Order the practitioner to do training.
• Formally reprimand the person, and/or;
• Order the practitioner to pay costs.

Any disciplinary action the Board takes will be recorded on the public register of LBPs for three years or until their licence is cancelled. That information will be available to anyone who searches the register.

The Board can publicly announce the action in any other way it sees fit, such as a press release.

The Board cannot order an LBP to compensate someone or to remedy the situation (such as to fix the work).

Fines and costs

If the Board orders an LBP to pay fines and/or costs related to a disciplinary proceeding, the LBP has 60 days from the date of the decision to pay those fines or costs.

If an LBP fails to pay within that period, the Board can suspend or cancel that LBP’s license for failure to pay those fines or costs.

Media attendance

Board hearings may be attended by the media.

The purpose of this is to set out the Board’s practice and procedure in relation to private hearings, suppression and media attendance at hearings. Requests and questions relating to media attendance should be referred to the Board Officer.

To learn more, read this document: www.lbp.govt.nz/assets/lbp/documents/board-practice-direction-private-hearings-suppression-and-media-attendance-at-hearings.pdf

Appeals to the District Court

LBPs can appeal to the District Court if they don’t agree with the Board’s decision about a disciplinary penalty. The right to appeal a decision of the Board is provided for under section 330(2) of the Building Act. It is important to note that:

• An appeal is an appeal of a decision of the Board to take action under section 318 of the Act (Disciplinary Penalties).
• Appeals are made to the District Court.
• Appeals must be lodged within 20 working days of receiving the decision of the Board.
• The Notice of Appeal must be sent to the Board when lodged in the District Court.
• If an LBP wishes to appeal the decision of the Board, they should cite the complainant and the Registrar of LBPs as the Respondents to the appeal.
• An appeal to the District Court does not have the effect of suspending the disciplinary action taken against you. An application must be made to the District Court with the Notice of Appeal if an LBP wishes to stay the disciplinary actions.
• LBPs are encouraged to seek legal advice.

The Notice of Appeal template and guidance on how to fill it in is available from the Ministry of Justice Website. You can access it here: www.justice.govt.nz/assets/Notice-of-appeal.docx

Complaint process in action – recent case details

Not all builders who have complaints brought against them are found guilty. In August 2024, carpentry LBP licence holder Steven Ruthven (the respondent) was alleged to have carried out or supervised building work in a negligent or incompetent manner, carried out or supervised building work that does not comply with a building consent and failed to provide a Record of Work (ROW).

Ruthven was subcontracted to install cavity battens, cladding and associated flashings on a new residential build.

“The Respondent both carried out and supervised the Restricted Building Work (RBW) and was mostly present when the work was completed,” stated the LBP Board.

Ruthven’s work was initially inspected and passed by a Building Consent Authority (BCA), which allowed construction to progress through its stages, before being re-inspected 12 months after his involvement in it as part of a final inspection. Following the re-inspection, the BCA issued a Notice to Fix (NTF), which stipulated the cladding was to be removed and replaced due to compliance issues.

However, the first NTF was withdrawn and replaced with a second NTF following the BCA’s additional enquiries with Ruthven and others involved in the build, as well as the receipt of further evidence which indicated there were reasonable grounds to be satisfied that the building work was compliant.

“The new notice requires the roof flashings and all cladding systems to be installed as per the approved building consent a BA-[OMITTED] and the manufacturer’s specifications,” stated the LBP Board’s decision.

“The Board was also provided with email correspondence from the Dunedin City Council dated 26 August 2024. It contained an itemised list of issues to be addressed under the replacement NTF to comply with the Building Code.”

Ruthven’s involvement in the issues raised by the second NTF related to the installation of cladding and associated flashings. They were:

• Head flashings are to be sealed to the top of the window and door, as required for a very high wind zone.
• Internal corner between main house and lean-to needs to be rectified.
• Bargeboards to be installed in the lean-to-roof area.
• Bargeboards to the main roof have been cutting into the cladding system and need to be extended to allow the cladding to run behind the barges.
• Oblique flashings are required for soffits to wall junctions.
• Soffit moulding was not installed; however, this was an optional component for the drawing owners to confirm if they wanted it installed or left off.
• Gaps at the bottom of windows should be closed off with cladding.
• Linea oblique has less than 10mm of cover on windows and doors.
• It appears the Linea weather board has been fixed at the floor joist junction, where it’s meant to be unfixed as per figure 26 on the manufacturer’s specifications.
• The edges of the cladding are still to be sealed.
• Gaps under head flashings and penetrations are to be appropriately sealed.
• Items on the cladding report from Jamies Hardie are to be addressed to the point that James Hardie will issue its warranty.
• Cladding system to be adequality re-sealed (painted) to meet the durability requirements.

The Board’ findings

The Board stated that to find whether Ruthven was negligent, it needed to determine if he departed from an accepted standard of conduct. To make a finding of incompetence, it needed to determine whether Ruthven demonstrated a lack of ability, skill or knowledge. In its decision, the Board found Ruthven did not carry out or supervise building work in a negligent or incompetent manner.

“Looking at the issues raised in the replacement NTF and the associated list, the Board was satisfied that whilst there was some non-compliance, the issues did not reach the threshold for disciplinary action. In coming to this decision, the Board has noted that the overall seriousness of the matters under investigation had significantly decreased between the first NTF and the replacement NTF,” stated the Board.

When considering whether the applicant departed from an acceptable standard of conduct, the Board considered whether the issues raised reached the threshold for disciplinary action and found they did not. However, the Board issued a warning to all LBPs in its judgement.

“Notwithstanding the finding, the Respondent should note that there is an expectation that LBPs will get building work right the first time. He should not rely on others to identify compliance issues or on rectification processes to bring his building work up to the required standard.

“The Board also cautions the Respondent as regards his practice of installing what is supplied. There is a strict requirement in the Act to build in accordance with the building consent. As such, if materials are supplied that differ from those that are specified in the building consent or that will not achieve compliance requirements, then he should either insist that the correct materials are supplied or liaise with the designer to establish if a consent change is required.”

In respect to the charge of failing to comply with a building consent, the Board found Ruthven had not been negligent or incompetent for the same reasons.

“The Board also investigated whether the Respondent had failed to provide a Record of Work on completion of RBW,” said the decision. “The Board decided that because the RBW was ongoing (due to the requirement to carry out additional work to satisfy the second NTF requirements), completion had not occurred.”

At the time of the Board decision, Ruthven stated he would be returning to carry out or supervise the fixes required to the cladding and associated flashings.