Complaints made under the Surveying Act 2004

ISV 2013 Surveying Expo, 30 August 2013

Michael Loy LS

Member, Surveyors Registration Board of Victoria

Unprofessional Conduct

a) conduct by a licensed surveyor in the course of engaging in business as a licensed surveyor that falls short of the standard of competence and diligence that a member of the public is reasonably entitled to expect of a licensed surveyor; or

b) conduct by a licensed surveyor in the course of engaging in business as a licensed surveyor that would be regarded by a licensed surveyor in good standing as being unacceptable; or

c) professional misconduct; or

d) conduct by a licensed surveyor that contravenes a condition, limitation or restriction on his or her registration.

Investigations into Licensed Surveyors

A person may make a complaint to the Board about a Licensed Surveyor. The Board must investigate all valid complaints.

Complaints may be investigated by an officer of the Board, a sub-committee of the Board or a person whom the Board reasonably believes has the qualifications or experience to carry out a preliminary investigation.

The Board may refuse to investigate a complaint that is assessed as being frivolous, vexatious, misconceived or lacking in substance.

The Board may, of its own motion or following a preliminary investigation, arrange to settle a matter by agreement with a Licensed Surveyor.

The Board may, of its own motion, institute a formal hearing into the professional conduct of a Licensed Surveyor.

The Complaints Process

The Board formally acknowledges receipt of the complaint with the Complainant.

The Licensed Surveyor is formally notified of the existence of the complaint and invited to submit a response (usually within 14 days).

The complaint document and surveyor’s response are sent to an investigator who has confirmed no conflict of interest in the matter.

A preliminary investigation is conducted into the matter (parties may be interviewed during the investigation process).

The investigator submits a report to the Board and makes a recommendation as to whether the Licensed Surveyor has a case to answer.

Outcome of Preliminary Investigation

The Board must determine whether or not to act on the investigator’s recommendation:

a) that the investigation into the matter should not proceed further; or

b) that a formal hearing should be held into the matter; or

c) that the matter be settled by agreement between the Board and the Licensed Surveyor.

Formal Hearing

The Board appoints a Panel comprising at least 3 Board Members (the Panel must include a Lawyer and at least one Licensed Surveyor).

The Board usually engages Counsel Assisting to facilitate the preparation of a formal Notice of Hearing that sets out the allegations against the Licensed Surveyor.

The Licensed Surveyor and the Complainant receive at least 21 days’ notice of the hearing.

The Licensed Surveyor and the Complainant are entitled to be present at the hearing, to be represented and make submissions.

Hearings are open to the public unless the Board decides otherwise.

The Panel is bound by the rules of natural justice.

Findings of a Formal Hearing

Pursuant to s.27(1) of the Surveying Act 2004, the Panel may find that:

a) the Licensed Surveyor has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

b) the Licensed Surveyor has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

c) the Licensed Surveyor has not engaged in unprofessional conduct.

Determinations of a Formal Hearing

Pursuant to s.27(2) of the Surveying Act 2004, the Panel may make one or more of the following determinations for a finding of unprofessional conduct of a serious nature:

a) caution the Licensed Surveyor

b) reprimand the Licensed Surveyor

c) require the Licensed Surveyor to undertake further education or training

d) impose, amend, vary or revoke any conditions, limitations or restrictions on the Licensed Surveyor’s registration

e) require the Licensed Surveyor to rectify a faulty survey

f) impose a fine on the Licensed Surveyor of not more than $2,000

g) suspend the Licensed Surveyor’s registration

h) cancel the Licensed Surveyor’s registration.

Determinations of a Formal Hearing

Pursuant to s.27(2) of the Surveying Act 2004, the Panel may make one or more of the following determinations for a finding of unprofessional conduct which is not of a serious nature:

a) caution the Licensed Surveyor

b) reprimand the Licensed Surveyor

c) require the Licensed Surveyor to undertake further education or training.

Section 23 Hearings

The Board may, of its own motion, whether or not a complaint has been made, determine to hold a formal hearing into the professional conduct of a Licensed Surveyor pursuant to s.23 of the Surveying Act 2004 on the basis of:

a) survey audit matters

b) non-compliance with Further Professional Education or Training requirements

c) failure to comply with an order of the Board or an undertaking made to the Board

d) any other professional conduct matter.

Review by VCAT

A person, whether the Licensed Surveyor or the Complainant, may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the Panel’s finding(s) and determination(s) made at a formal hearing within 28 days of the Panel issuing its decision.

To date, one Licensed Surveyor applied for a review by VCAT. The application was limited to seeking a review of the determination relating to a condition imposed on the registration of the Licensed Surveyor.

Settlement by Agreement

The Licensed Surveyor must first admit to having engaged in unprofessional conduct.

Settlement by agreement negates the need to conduct a formal disciplinary hearing.

The Licensed Surveyor undertakes to comply with the terms of the agreement.

The Licensed Surveyor acknowledges that any breach of the undertaking may result in the Board taking any action necessary to implement the agreement or instituting a formal hearing into the Licensed Surveyor’s professional conduct.

In a matter settled by agreement, the name of the Licensed Surveyor is not publicised.

Settlement by Agreement

To date, the Board has settled 4 matters by agreement with Licensed Surveyors:

a) two 3rd party complaints (unreasonable delays by the Licensed Surveyor in undertaking survey work)

b) two survey audit matters (unsatisfactory audit histories reported to the Board by the Office of Surveyor-General Victoria).

See www.surveyorsboard.vic.gov.au > Professional Conduct > Settlement by Agreement for outcomes.

Statistics on Complaints Number of complaints (by individuals):

a) lodged with SRBV since 1 January 2005 63

b) lapsed due to insufficient information 4

c) not in SRBV’s jurisdiction 1

d) withdrawn 4

e) settled by agreement 2

f) not investigated (misconceived / lacking in substance) 2

g) no formal hearing following investigation 28

h) proceeded to a formal hearing following investigation 22

i) resulted in no finding of unprofessional conduct 5

j) resulted in a finding of unprofessional conduct 17 (11 serious)

k) currently being processed 0

Findings of Unprofessional Conduct

To date, there are 531 Licensed Surveyors (426 practising and 105 non-practising) on the Register of Licensed Surveyors (down from 581 when the Act commenced in 2005).

Since 1 January 2005, 17 complaints have been made out against Licensed Surveyors on the basis of allegations not limited to the following:

a) Failure to maintain professional standards b) Non-compliance with Surveying (Cadastral Surveys) Regulations

2005c) Inadequate supervision of field and/or office staffd) Unreasonable delays in undertaking and/or completing a survey

and/or associated documentatione) Poor communication with clients and other parties

Statistics on Section 23 Hearings

Number of hearings of Board’s own motion instituted under s.23 of the Surveying Act 2004 since 1 January 2005:

a) Survey audit matters 10

b) Further Professional Education or Training matters 2

c) Other professional conduct matters 2

Outcomes of Section 23 Hearings

Survey Audit Matters (10):a) 8 findings of unprofessional conduct (3 serious; 5 not serious)b) 1 finding of no unprofessional conductc) 1 hearing is scheduled for September 2013

Further Professional Education or Training Matters (2):a) 2 findings of no unprofessional conduct

Other Professional Conduct Matters (2):a) 2 findings of unprofessional conduct of a serious nature

- failure to comply with an undertaking made to the Board- failure to attend in a timely manner to requisitions issued by Land

Registration Services

Example Cases and Issues

CASE 1 : BUILDING SUBDIVISION

Background

P.S. certified June 2003 S.O.C. issued July 2003 P.S. lodged at L.V. July 2003 S.O.C. lodged at L.V. August 2003 Requisitions issued 2003

Queries regarding information on plan (cross-section/boundaries etc.)

CASE 1 (continued)

Complaint lodged January 2006.

(approximately 2½ years after requisition issued). Plan of Subdivision still not registered in January 2006. Owner having difficulty obtaining information from surveyor, and

frustrated to the point where forced to lodge a complaint.

CASE 1 (continued)

Surveyor I was extremely busy, sought some advice from L.V., matter put

into the “too hard basket”. I was not sure how urgent the matter was.

A significant number of Complaints lodged with the Board relate to:-

Surveyor not providing survey documents and plans within the required timeframe.

Surveyor promised to have survey and plans completed by a certain date and failed to do so.

Projects and jobs taking far too long and clients unable to contact surveyor to confirm progress or when job will be completed.

Delays by the surveyor have caused considerable anxiety, other consultants to readjust work schedules etc., and added considerable extra cost to a project.

CASE 2

Background

Property located between two roads. Permit issued for two units to front rear road, existing house fronts

existing road containing services. Owner wishes to sell house and build two units after sale. No sewerage or water supply reticulation services are located

within the rear road reserve.

CASE 2 (continued)

Initial two lot subdivision creates lot for existing house.

Owner instructs surveyor not to create Body Corporate or create additional easements.

Owner says this will devalue house lot and he has been receiving advice regarding sewerage issues from his plumber.

Owner ignores advice from surveyor.

CASE 2 (continued)

First subdivision completed, house lot sold. Unit construction commenced, second subdivision commenced. Issues arise with sewerage and water supply services as services

not available in the rear road for the two unit development. New owner of house lot difficult to deal with and developer put to

considerable additional cost to resolve servicing issues from Fitzroy Street for second subdivision.

CASE 2 (continued)

Complaint lodged. Owner denies he received appropriate advice regarding sewerage

issues, and in any case surveyor “should not have allowed me to do the first subdivision”.

Surveyor Produced Written record of phone advice. Written record of advice provided in face-to-face meetings with the

client. Letters to the client confirming that Owners Corporation should be

created in the first subdivision, and evidence that the owner refused to sign the Form 1 with an Owners Corporation in the first subdivision.

CASE 3 : BOUNDARIES DEFINED BY BUILDINGS

Background

Two lot subdivision registered at L.V., some boundaries defined by buildings.

Approximately 2 years later allotments sold. Another surveyor contacted and requested on behalf of a

purchaser to confirm the location of boundaries prior to settlement.

Surveyor attends on site and notices that the complete site is a “vacant allotment”.

Surveyor seeks advice from L.V. and O.S.G. as to how boundaries should or can be positioned.

Audit and complaint results.

CASE 3 (continued)

CASE 3 (continued)

S.R.B.V. considered this to be a serious breach of the relevant Regulations.

Form 23 (now Form 13) had been lodged with the relevant municipality in order for a S.O.C. to issue.

Two complaints regarding this type of matter were considered by the Board within a period of approximately 12 months.

Significant penalties were imposed on the surveyors concerned.

CASE 4

Issues: Appropriate supervision of staff. Appropriate location of fences, gates, etc.

Background Rural subdivision. Hilly terrain. Some trees, vegetation, etc. located on site. Property generally surrounded by old fencing. Subdivision registered at L.V. 12 months later purchaser of Lot 3 requests his surveyor to carry

out check survey of boundaries prior to settlement.

CASE 4 (continued)

CASE 4(continued)

CASE 4 (continued)

CASE 4 (continued)

Issues:

Appropriate supervision of inexperienced staff. The Licensed Surveyor is responsible for the surveys he undertakes

and certifies. Location of fences in both Rural and Urban Surveys in an

appropriate manner and in accordance with the relevant Regulations is critical.

Location of existing gates or even old gates which may be partially hidden in vegetation can be a trap for inexperienced staff.

Gates and old access tracks etc. can be extremely relevant with respect to the rights of adjoining owners when carrying out subdivisions, application surveys and the like.

More Information

Surveyors Registration Board of Victoria

Level 17, 570 Bourke Street

Melbourne VIC 3000

Tel: 8636-2553

Fax: 8636-2589

Email: info@surveyorsboard.vic.gov.au

www.surveyorsboard.vic.gov.au