Looking back: The LBP Board’s first appeal

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Timothy Bates of Auckland law firm Legal Vision.

The appeal concerned a complaint originally laid by the Far North District Council against Mr Beattie. Mr Beattie was the subject of adverse findings through that forum. 

 

In particular, the board made findings of incompetence against Mr Beattie and, in a later but interim decision dealing with penalty, ordered that his “work as a licensed building practitioner design be restricted to Area of Practice 2”, and that he contribute $5000 towards the board’s costs. 

 

These findings were appealed by Mr Beattie. The council cross-appealed against the finding that Mr Beattie had not been negligent (as well as incompetent). In particular, the board had reached that view based on a legal interpretation of the word “negligent” in section 317 of the Building Act 2004. 

 

This section required proof of loss, because loss caused by breach of a duty of care is a critical component in the tort of negligence. The council argued that to apply the tortious concept to the Act was misconceived. 

 

Facts 

The original complaint laid by the council with the board related to Mr Beattie’s handling of an application to the council for a building consent for the repair of a leaking residential building in Opua, Bay of Islands. 

 

Mr Beattie’s design solution for this property was to apply new cladding over the old cladding without first removing the old cladding to establish the extent of damage by water ingress. The council complained that Mr Beattie had carried out building work “in a negligent or incompetent manner” in contravention of section 317(1)(b) of the Building Act 2004. 

 

The board refrained from deciding whether Mr Beattie’s proposed design solution was acceptable, this having been already decided in related proceedings. Instead, it focused upon whether the building work had been completed in a negligent or incompetent manner. 

 

Whilst finding that he had not been negligent, it did find that he had carried out his work in an incompetent manner, judged against the four competencies described for Level 3 design work in the Licensed Building Practitioners’ Rules. 

 

There were two grounds of appeal relied upon by Mr Beattie. In the first instance he complained he was not afforded sufficient time to respond to the expert report provided by the expert appointed by the Registrar. 

 

Furthermore, Mr Beattie complained that he was not provided with adequate time to prepare for the hearing itself with the board. The District Court agreed with both of these criticisms. 

 

It also went on to find that the Registrar’s report, including the appointed expert’s report, wrongly transgressed into the merits of the complaint, and did not include the Registrar’s summary of facts as agreed and disputed between the parties. 

 

The expert report itself went well beyond the role of a special adviser, and the expert’s report was not balanced which, in turn, tainted the Registrar’s report. 

 

Overall, the court held that the cumulative effect of failing to follow the statutory procedures had robbed the board’s process of integrity, or the assurance of integrity. 

 

As a result of those problems, both the substance and the appearance of fair dealings with Mr Beattie had been seriously compromised, and the matter was sent back to the board for a rehearing (with the requirement for a new report from the Registrar that addressed its prior failings). 

 

Since this matter was the first appeal from the board, the District Court judge also made a number of miscellaneous findings, no doubt to assist the board moving forward in its decision-making capacity. 

 

It held that even if the complaint had been made out as against Mr Beattie, a warning to him rather than a restriction of the work he might carry out was the appropriate remedy. To reduce his area of design work immediately would be an excessive penalty. 

 

The meaning of the words “negligent” in section 317(1)(b) of the Act is not the same as the constituent parts of a successful negligence cause of action in the law of torts. The absence of damage is not determinative of liability. 

 

The focus is upon behaviour that falls short of what is to be considered acceptable and not mere inadvertent error, oversight or, for that matter, carelessness. 

 

A negligent manner of working is one that exhibits a serious lack of care judged by the standards reasonably expected of such practitioner, while an incompetent manner of working is one that exhibits a serious lack of competence (or deficit in the required skills) judged by the four areas of design competence. 

 

This was the first appeal from a Licensed Building Practitioners Board, and it is noted that the board typically goes back to this District Court decision where complaints are made against builders in terms of negligence/ incompetence in accordance with section 317 of the Building Act 2004. 

 

Note: 

This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by Legal Vision or Building Today to anyone who relies on the information contained in this article.

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