Grounds for complaints

Codewords 105: February 2022

The RWB has to be completed to a certain standard and be compliant with the Building Code. Deviation from the expected standards or the building consent, negligent work and failure to provide a record of work (RoW) are just a few examples of grounds for complaints the Building Practitioners Board (the Board) receives from the affected parties.

There are 11 grounds for discipline as stated in section 317 of the Building Act 2004. Those include:

• being convicted by any court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of 6 months or more
• carrying out or supervising negligent or incompetent building work
• carrying out or supervising building work of a type that the practitioner is not licensed to carry out or supervise
• carrying out or supervising building work that does not comply with a building consent
• failure to provide a Certificate of Work about any plans and specifications required to accompany the building consent application (Designers) or a Record of Work on completion of the RBW (Building Practitioners)
• holding oneself as being licensed to carry out or supervise certain building work or building inspection of a type that he or she is not licensed to carry out
• making a false declaration or representation, knowing it to be false or misleading
• breaching the code of ethics for Licensed Building Practitioners
• conducting oneself in a manner that brings, or is likely to bring, the LBP regime into disrepute.

The most common ground for discipline is negligent work or poor workmanship. This may include anything from using incorrect fixings to basically any deviation from good trade practice or the Building Code. It is important to remember that the term “negligent work” covers not only the RBW but any type of building work where the LBP did not demonstrate due diligence in completing the work.

If an LBP does not provide a Record of Work (RoW) following the completion of RBW, they may also face a penalty. Remember, if you did not complete the project, or your contract was terminated, you are still required to provide the RoW for the amount of work you completed.

It is worthwhile mentioning that at the moment the Board does not enforce Code of Ethics breaches, simply because the Code of Ethics was only recently developed. There is a 1 year transition period until 26 October 2022 for the LBPs to familiarise themselves with the expected standards of behaviour in the industry.

So, what happens if your client/contractor/council makes a complaint against you to the Board under 1 of the above grounds?

An Investigator from the Ministry of Business, Innovation and Employment (MBIE) will contact you and provide you with a full set of complaint documentation. You will have 20 working days to study the documentation, consult with your lawyer (if necessary), obtain expert opinion (if required) and produce a response.

While the situation may be extremely stressful for you, it is a good idea to provide your response to the Investigator, as this is your chance to present your side of the story, explain your actions, and provide evidence to support your statements. Upon receiving your response the Investigator will write a report to the Board summarising the information received from both parties. Consent-related documentation may be requested from the Council as well.

The Board makes a decision on whether to proceed with the hearing. The hearing can be held on papers in some cases, which means that the Board will make a decision based on written submissions from both parties. The purpose of the hearing is to further investigate and determine if a disciplinary offence has been committed by the licensed building practitioner. If the Board decides it has, then they will also consider the appropriate penalty, if any costs should be imposed, and whether the matters should be published.

The penalties may include one or more of the following:

• Suspension or cancellation of the LBP licence.
• Restrictions on the kind of work LBP can do.
• A fine of up to $10,000.
• Order the LBP to complete certain training.
• A formal reprimand of the person.
• Order the LBP to pay costs.

Knowing your rights and responsibilities, fine-tuning your client interaction practices and increasing your level of competence would help you achieve high level of compliance with the current legislation and avoid going through the stressful disciplinary process.

By Irina Vanags

Investigator
Occupational Regulation Team
Ministry of Business, Innovation and Employment

Quiz

1. Which of the following is NOT one of the grounds for discipline under section 317 of the Building Act 2004?
   1. Carrying out or supervising building work that does not comply with a building consent
   2. Carrying out or supervising building work in a slow manner
   3. Conducting oneself in a manner that brings, or is likely to bring, the LBP regime into disrepute
   4. Carrying out or supervising negligent or incompetent building work
      
      
2. Upon receiving the Investigator’s report, the Building Practitioners Board will:
   1. Always hold a hearing
   2. Hold a hearing “on papers”
   3. Make a decision on whether to proceed with the hearing
   4. Dismiss the complaint
      
      
3. When does LBP have to provide a Record of Work document?
   1. Upon the full completion of RBW
   2. Upon partially completing RBW, if LBP no longer intends to finish the project
   3. Upon receiving a full payment for the work completed
   4. Upon resolving the disputes with the homeowner
   5. a and b above
   6. a, c, and d above