Licensed Building Practitioner complaints
20171113092028501_jeff_bell_appeal.pdf
The Licensed Building Practitioner (LBP) regime was an important plank to the Building Act 2004. It is designed to recognize and encourage up-skilling of builders and designers and provides practitioners with accountability for building work.
Due to delays in regulations and uncertainty as to implementation of the scheme the LBP process has only recently become active.
An important part of the scheme is the complaints process that is now available to owners and councils where the competence of the building practitioner is in question or negligence is being alleged.
S317 of the Building Act lists some 18 grounds for discipline against the LBP and if these are proven the Building Practitioners board (BPB) can impose a range of penalties including censure, a fine up to $10,000, training, and/or cancelling or suspension.of the LBP's license
While this provision in the Act allows for the weeding out of unqualified and incompetent practitioners it has also given considerable power of complaint to owners and councils to pressure and punish builders and others. Disagreements with council officers (and contractual disputes and disagreements with owners) can now be 'ramped' up to complaints to the BPB that have the potential to put the builder out of business and at least seriously undermine his or her reputation. There is little risk to owners and council in this process as only the LBP is under the spotlight.
The recent Beattie decision is a good example of the abuse that this process can encourage. In this instance a council disagreed with the practitioners approach and that disagreement led to a LBP complaint and one of the first appeals to the District Court to test the LBP process and interpretations. The repercussions of this particular saga are ongoing but Judge McElrea in his decision on appeal found the BPB board and the actions of the Registrar wanting and in particular the actions of the 'special advisor' who assisted the registrar and assumed delegated responsibilities. The delegated functions were not properly carried out under the Building act and the complaint regulations and in particular that govern the complaint process. (.beattie_v_fndc_decision.pdf)
Recent decisions can be viewed at http://www.business.govt.nz/lbp/complaints/view-past-complaint-decisions
The Beattie decision highlighted the need for the BPB to adhere strictly to the Building Act and the regulations in respect to the role of the registrar and special advsiors that may be appointed to give technical advice.
The regulations govern the compliant process,(building_practitioners_complaints_and_disciplinary_procedures_regulations_2008.pdf) Regulation 7 and 8 determine the function of the registrar up to the point that the BPB accept the complaint for investigation (by way of hearing). The special advisor seems to have been used as a technical 'investigator' which is contrary to the strict requirement of the Act and regulations If the advisor has been allowed to investigate then this may be responsible for issues being raised as matters of complaint that were not even things the owner was concerned with in the first place. Building standards and compliance can be some cases to a large extent a matter of opinion.This means that unjustified complaints backed by inappropriate expert investigation can seriously disadvantage the practitioner who may have acted in good faith but now find that their decisions are being questioned by an "industry expert".. Contractual disputes can easily underlie these complaints and disguise the true motivation for the compliant in the first place.
We have recently been engaged giving a builder advice in respect to a complaint made against him and we were perturbed to discover that the BPB is seemingly still not applying the law and regulations correctly. In this case the LBP was being seriously disadvantaged. Our involvement has already meant that a special advisors report that we argued was an unjustified investigation by the registrar and therefore contrary to the Regulations had to be withdrawn and a new registrars report provided.
This is an ongoing case and we will update proceedings as they occur . Any LBP's facing a complaint should contact us in the first instance for building advise in respect to the processes and procedures that should be followed by the BPB but likely they will be experiencing something different and perhaps contrary to the law and something that should be challenged
updated 5 Feb 2017
while the special advisors report was set aside at our insistence the new registrars report still introduced new matters in regard to a Record of Work not being provided on completion (without good reason). We protested that the registrar could not introduce a matter that was not part of the complaint. We also argued that this work was able to be done under schedule 1 and was therefore not in fact 'restricted building work' (by definition) We also submitted that the work was not complete and a record of Work had not been refused. There is doubt as to what work is remaining that is attributable to the LBP.
This argument was overruled and the BPB decision upheld this matter.(but LBP exonerated on the remaining complaint). Currently an appeal has been filed on this point to the district court. A "give a little" funding campaign is in hand to raise funds for court fees ($1500) and contribution for legal representation..
Update 15 Nov 2017
We have succeeded with the Bell appeal !!!!!!!!!!!!!!!!!!!!
With the generous support of so many donors we were able to get this result that benefits all LBP's
as with all decisions there is some gains and losses
1. Judge Gibson didn’t in the end agree that registrar was acting unlawfully and gave the registrar some license to include other matters I don’t think he understood the role as well as he could have? This was despite his emphasis on this issue at the hearing. I think this issue is still unsettled?
2. We won on the RoW not being required as contract cancelled and s87 applied This reinforces the Ali decision which is also referenced in the decsion and fortuitously was issued during the period that the judge was considering his desision. He has reinforced the Judge Harrison
decision ali-kumar_mbie_appeal_(see decision below)
3. The judge made a useful ruling that building work is only RBW if exemptions to obtaining a building consent did not apply and stated that he would have referred the matter back to the BPB for a ruling on whether the work was covered under schedule 1 and therefore not RBW. This is an important precedent for clarifying this meaning on RBW
You can up load the full decision below;
This decision means that the Building Practitioners Board has now had three strikes (including the Beattie and Ali decsions and it is hoped this may cause it to review its processess.
..............
The Licensed Building Practitioner (LBP) regime was an important plank to the Building Act 2004. It is designed to recognize and encourage up-skilling of builders and designers and provides practitioners with accountability for building work.
Due to delays in regulations and uncertainty as to implementation of the scheme the LBP process has only recently become active.
An important part of the scheme is the complaints process that is now available to owners and councils where the competence of the building practitioner is in question or negligence is being alleged.
S317 of the Building Act lists some 18 grounds for discipline against the LBP and if these are proven the Building Practitioners board (BPB) can impose a range of penalties including censure, a fine up to $10,000, training, and/or cancelling or suspension.of the LBP's license
While this provision in the Act allows for the weeding out of unqualified and incompetent practitioners it has also given considerable power of complaint to owners and councils to pressure and punish builders and others. Disagreements with council officers (and contractual disputes and disagreements with owners) can now be 'ramped' up to complaints to the BPB that have the potential to put the builder out of business and at least seriously undermine his or her reputation. There is little risk to owners and council in this process as only the LBP is under the spotlight.
The recent Beattie decision is a good example of the abuse that this process can encourage. In this instance a council disagreed with the practitioners approach and that disagreement led to a LBP complaint and one of the first appeals to the District Court to test the LBP process and interpretations. The repercussions of this particular saga are ongoing but Judge McElrea in his decision on appeal found the BPB board and the actions of the Registrar wanting and in particular the actions of the 'special advisor' who assisted the registrar and assumed delegated responsibilities. The delegated functions were not properly carried out under the Building act and the complaint regulations and in particular that govern the complaint process. (.beattie_v_fndc_decision.pdf)
Recent decisions can be viewed at http://www.business.govt.nz/lbp/complaints/view-past-complaint-decisions
The Beattie decision highlighted the need for the BPB to adhere strictly to the Building Act and the regulations in respect to the role of the registrar and special advsiors that may be appointed to give technical advice.
The regulations govern the compliant process,(building_practitioners_complaints_and_disciplinary_procedures_regulations_2008.pdf) Regulation 7 and 8 determine the function of the registrar up to the point that the BPB accept the complaint for investigation (by way of hearing). The special advisor seems to have been used as a technical 'investigator' which is contrary to the strict requirement of the Act and regulations If the advisor has been allowed to investigate then this may be responsible for issues being raised as matters of complaint that were not even things the owner was concerned with in the first place. Building standards and compliance can be some cases to a large extent a matter of opinion.This means that unjustified complaints backed by inappropriate expert investigation can seriously disadvantage the practitioner who may have acted in good faith but now find that their decisions are being questioned by an "industry expert".. Contractual disputes can easily underlie these complaints and disguise the true motivation for the compliant in the first place.
We have recently been engaged giving a builder advice in respect to a complaint made against him and we were perturbed to discover that the BPB is seemingly still not applying the law and regulations correctly. In this case the LBP was being seriously disadvantaged. Our involvement has already meant that a special advisors report that we argued was an unjustified investigation by the registrar and therefore contrary to the Regulations had to be withdrawn and a new registrars report provided.
This is an ongoing case and we will update proceedings as they occur . Any LBP's facing a complaint should contact us in the first instance for building advise in respect to the processes and procedures that should be followed by the BPB but likely they will be experiencing something different and perhaps contrary to the law and something that should be challenged
updated 5 Feb 2017
while the special advisors report was set aside at our insistence the new registrars report still introduced new matters in regard to a Record of Work not being provided on completion (without good reason). We protested that the registrar could not introduce a matter that was not part of the complaint. We also argued that this work was able to be done under schedule 1 and was therefore not in fact 'restricted building work' (by definition) We also submitted that the work was not complete and a record of Work had not been refused. There is doubt as to what work is remaining that is attributable to the LBP.
This argument was overruled and the BPB decision upheld this matter.(but LBP exonerated on the remaining complaint). Currently an appeal has been filed on this point to the district court. A "give a little" funding campaign is in hand to raise funds for court fees ($1500) and contribution for legal representation..
Update 15 Nov 2017
We have succeeded with the Bell appeal !!!!!!!!!!!!!!!!!!!!
With the generous support of so many donors we were able to get this result that benefits all LBP's
as with all decisions there is some gains and losses
1. Judge Gibson didn’t in the end agree that registrar was acting unlawfully and gave the registrar some license to include other matters I don’t think he understood the role as well as he could have? This was despite his emphasis on this issue at the hearing. I think this issue is still unsettled?
2. We won on the RoW not being required as contract cancelled and s87 applied This reinforces the Ali decision which is also referenced in the decsion and fortuitously was issued during the period that the judge was considering his desision. He has reinforced the Judge Harrison
decision ali-kumar_mbie_appeal_(see decision below)
3. The judge made a useful ruling that building work is only RBW if exemptions to obtaining a building consent did not apply and stated that he would have referred the matter back to the BPB for a ruling on whether the work was covered under schedule 1 and therefore not RBW. This is an important precedent for clarifying this meaning on RBW
You can up load the full decision below;
This decision means that the Building Practitioners Board has now had three strikes (including the Beattie and Ali decsions and it is hoped this may cause it to review its processess.
..............
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