LBP cautioned but not sanctioned

A Licensed Building Practitioner (LBP) has been issued a warning after he used substituted building products without seeking design direction or authorisation for the changes   

The LBP was engaged to build a new residential dwelling for the Complainants and a building consent was issued based on an independent designer’s design. The consent included a Specification that stipulated which brand-named product should be used for the deck balustrade, and roof and wall claddings. Instead, the LBP supplied and installed substituted products. The LBP also completed work on the roof eave, garage door flashing and window jamb sealing, which differed from what was stipulated in the building consent. 

“In general, the Respondent submitted that he installed the products that he had priced during the preliminary design phase, which were products supplied by his normal suppliers,” said the report. “He did not reference the building consent Specification. He took the approach that the Specification did not have to be strictly complied with.” 

As a result, the Board investigated whether the LBP had carried out or supervised building work in a negligent or incompetent manner contrary to section 317 (1) (b) of the Act and carried out or supervised work that does not comply with a building consent. It also investigated whether: 

• Correct building consent processes were used for changes to wall and roof cladding materials and the deck balustrade system. 
• The quality and compliance of building work on the roofing eave flashing, garage door head flashes and sealing of window joinery and window installation methodology. 

Substitutions compliant but not approved

The Board viewed the product changes as product substitutions that required a minor variation under section 45A of the Act, as there were no issues regarding the compliance of the substituted products with the Building Code. However, substitutions still need to be approved by way of minor variation applications through the Building Consent Authority (BCA). 

“The Respondent did not consult with the designer or engage with the BCA prior to the products being substituted. He did not seek any minor variations for the changes, which are still outstanding,” said the Board.

Competence questioned

In reviewing the situation, several issues were made clear to the Board.  

Firstly, the LBP was not even aware of the products that had been specified or that he had to follow a process if changes to specified products were made.  

Secondly, he did not refer to the approved Specification at all when carrying out the build and instead worked off the design he originally priced, using his normal suppliers. 

As a result, the Board commented that “a competent LBP should be aware of the process relating to product substitutions” and that he “departed from an accepted standard of conduct”. 

Regarding the LBP’s building work, the most serious oversight was a failure to install a colour steel cladding flashing, with the Board hearing that the LBP wasn’t sure if it was installed or not.  

However, the Board’s main concern was to determine whether the failure to obtain minor variations for the building work was serious enough to warrant disciplinary action. To do so, the board consulted two cases: Collie v Nursing Council of New Zealand and Pillai v Messiter (No 2). After reviewing them, the Board decided a disciplinary finding should not be made. 

Despite not sanctioning the LBP, the Board still found that he had been negligent in his decision to not install specified products, notify his BCA of the product substitutions and not carry out the specified building work. 

Escaped sanctions by a whisker

The Board also noted its concerns over his conduct and warned that it “was only by a small margin that the Board did not uphold the charge”. 

“The Respondent displayed a worrying disregard for the Specification that formed part of the building consent. A Specification is not a guidance document. It is a mandatory part of the building consent, and it must be adhered to. If changes are made, a process to ensure that change is approved and recorded by the BCA must be followed.”