Prosecution of Offence against the Surveying Act 2004: Bogdan Platek

On 1 June 2017, the Board brought a successful prosecution against an unlicensed surveyor, Mr Bogdan Platek (Azimuth Surveying) for offences against s.35(1)(c), s.37(3)(c) and s.37(3)(d) of the Surveying Act 2004. The charges against Mr Platek relate to his preparation of a Plan of Subdivision and the submission of that plan to Monash City Council when he was neither registered as a licensed surveyor, nor under the direction or supervision of a licensed surveyor.

Under the Surveying Act 2004:

a person who is not registered as a licensed surveyor must not carry out any act which is required to be carried out by a licensed surveyor [s.35(1)(c)]

a person who is not registered as a licensed surveyor, or is not acting under the direction and supervision of a licensed surveyor, must not:

- make, or undertake to make, a cadastral survey [s.37(3)(c)]

- carry out, or undertake to carry out, any work in connection with a cadastral survey [s.37(3)(d)]

Section 3 of the Surveying Act 2004 defines a 'cadastral survey' as including a survey made for or in connection with a plan to be used for or in connection with a dealing or matter relating to or affecting title to any land, where a 'plan' includes any plan, sketch or document made or obtained as part of a survey, and a 'survey' includes the act or process of determining the position or any similar particulars with respect to the 'length and direction of boundary lines.'

The Board argued that Mr Platek, in preparing a Plan of Subdivision and lodging it with Council, was in breach of the three legislative provisions quoted above, and all three charges were proven. Mr Platek was convicted and fined $3,000 as part of an aggregate order (with $119.90 statutory costs) and was ordered to pay the Board's costs (to be agreed upon between the parties).

In delivering his decision, Magistrate Sargent commented that the matter was 'serious' and that it was important that any [cadastral surveying] work should be carried out by those licensed as 'enormous consequences' can flow from any mistakes or errors.

In his remarks to Mr Platek, Magistrate Sargent confirmed that 'registration is key' and given that the Board had previously communicated with Mr Platek about such matters in 2004, 2010 and 2015, Mr Platek 'clearly' knew that a licensed surveyor was required to make a cadastral survey.

Magistrate Sargent also commented that the Plan of Subdivision prepared by Mr Platek 'looked like the real deal' and that readers of that Plan of Subdivision were entitled to rely on that plan as if it had been prepared by a licensed surveyor. The magistrate also made it clear that while a survey could include the locating of a survey peg or survey mark for a particular purpose, the performance of a survey was not confined to such an activity.