Builder’s conduct not serious enough for disciplinary action…

The Building Practitioner’s Board has recently dismissed three claims of disciplinary offences against a builder because his conduct was not serious enough to constitute a disciplinary offence.

The builder was part of a company owned by another Licensed Building Practitioner. The builder was employed to carry out and supervise the construction of a residential dwelling, supervised by the Licensed Building Practitioner.

The builder completed and supervised work on the installation of windows, cladding and flashings. Some issues arose with the build due to a lack of required materials, the build was completed out of the ordinary sequence, and particularly areas of the build had been focused on more than others.

Issues arose in relation to the windows, cladding and flashings and the builder was charged with three disciplinary offences. These were that the builder had carried out or supervised building work in a negligent manner, contrary to a building consent and had failed to provide a record of work without good reason.

In relation to the claim of negligence, the Board had to consider whether the builder’s conduct fell below the accepted standard of work. This must be assessed against the accepted standard of conduct of builders with the same licence.

To meet the threshold of negligence, there must be a serious departure from the accepted standard of work.

In this case the Board considered that the builder’s conduct had been dictated by his boss, the other Licensed Building Practitioner. The Practitioner had instructed that the build be done out of the ordinary sequence to weatherproof the building.

Other issues out of the builder’s control, such as long delays in the build, also meant that the work had been done under urgency and therefore below standard.

The Board accepted that the issues arising with the work fell below the accepted standard of a builder. However, the builder’s conduct had been directed by the other Licensed Practitioner, who was also the overall project and contract manager. There was also a power imbalance between the two practitioners.

The Board decided that the main issues were a result of the sequence of the build. While usually builders are held responsible for their actions, in this case the decisions in relation to sequence were not made by the builder.

Therefore, the failure to meet accepted standard of work, in this context, was not serious enough to meet the threshold of negligence. The Board came to the same conclusion in relation to work carried out contrary to a building consent.

The Board then considered the final alleged disciplinary offence, a failure to provide a record of work. A builder must provide a record of work upon completion of any restricted building work.

“Completion” means completion of the builder’s own work, and not completion of the work on the property altogether.

The Board heard evidence that there had been a dispute after the builder left the work site, and the builder may have later been tasked with further work on the site to fix certain issues. The Board therefore concluded that the builder’s work had not actually been completed and so he was not required to provide a record of work.

The Board concluded that the builder had not committed any of the alleged disciplinary offences and the complaint was dismissed.

It is important to be aware of your obligations as a Licensed Building Practitioner. If you are confused about these obligations, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors