Transcript Document

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 nonpractising) 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:
Failure to maintain professional standards
Non-compliance with Surveying (Cadastral Surveys) Regulations 2005
Inadequate supervision of field and/or office staff
Unreasonable delays in undertaking and/or completing a survey and/or
associated documentation
Poor communication with clients and other parties
a)
b)
c)
d)
e)
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

a)
b)
c)

a)

a)
Survey Audit Matters (10):
8 findings of unprofessional conduct (3 serious; 5 not serious)
1 finding of no unprofessional conduct
1 hearing is scheduled for September 2013
Further Professional Education or Training Matters (2):
2 findings of no unprofessional conduct
Other Professional Conduct Matters (2):
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:
[email protected]
www.surveyorsboard.vic.gov.au