Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gearin v Secretary of the Department of Customer Service [2025] NSWCATOD 9 Hearing dates: 29 February 2024 Date of orders: 29 January 2025 Decision date: 29 January 2025 Jurisdiction: Occupational Division Before: K Mobbs, Senior Member Decision: The decisions under review are affirmed Catchwords: ADMINISTRATIVE REVIEW – Registered certifier –Whether decisions to cancel applicant's registration and disqualify him from registration for 6 years are the correct and preferable decisions Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Building and Development Certifiers Act 2018 (NSW) Building Professionals Act 2005 (NSW) (repealed) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Cases Cited: Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14 Building Professionals Board v Boulle [2008] NSWADT 80 Freixas v Commissioner for Fair Trading, Department of Customer Service (No 2) [2020] NSWCATOD 78 Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155 Law Society of NSW v Shalovsky [2008] NSWADT 14 McDonald v Director-General of Social Security (1984) 1 FCR 354 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Texts Cited: Nil Category: Principal judgment Parties: Paul Gearin (Applicant) Secretary of the Department of Customer Service (Respondent) Representation: Counsel: J Reid (Applicant) M Fozzard (Respondent) Solicitors: Wilshire Webb Staunton Beattie Solicitors (Applicant) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2023/00316840 Publication restriction: Nil REASONS FOR DECISION Background 1. On 6 October 2023, Paul Gearin (the Applicant) made application to the Tribunal for administrative review (application for review) of the extent and severity of the penalty imposed in the Notice of Decision (Decision) dated 14 September 2023 by a delegate of the Secretary of the Department of Customer Service (the Respondent). 2. In the Decision, the Respondent made decisions to cancel the Applicant's Certificate of Registration Number BDC0132 (Certificate of Registration) as a registered certifier and to disqualify him from being registered for a period of six years. The Decision took effect from 5 pm on 21 September 2023. The Respondent also gave Reasons for the Decision dated 14 September 2023 (Reasons). 3. The decision to cancel the Applicant's Certificate of Registration was made pursuant to s 48(1)(e) of the Building and Development Certifiers Act 2018 (NSW) (the BDC Act) and the decision to disqualify the Applicant from being registered for a period of six years was made pursuant to s 48(1)(f) of that Act. 4. The Applicant did not seek internal review of the Decision on the basis that the application for review to the Tribunal was urgent. The Applicant made an Application for stay of the Decision to the Tribunal on 6 October 2023 (Stay Application). 5. On 27 October 2023, following the hearing of the Stay Application, the Tribunal reinstated the Applicant's Certificate of Registration, subject to a number of conditions and pending further order of the Tribunal: Gearin v Commissioner for Fair Trading [2023] NSWCATOD 155. One of the conditions was that the Applicant not enter into any new contracts for any certification work. 6. The application for review was heard on 29 February 2024 and no issue was taken by either party in relation to the Tribunal's jurisdiction to hear and determine the matter. Agreed background and uncontested facts 1. The written submissions for the Respondent set out a number of matters under the heading "Background and Uncontested Facts". No issue was taken with these matters by the Applicant, and they are relevantly summarised below. 2. On 30 May 2014, Sutherland Shire Council (Council) granted Development Consent (DC) for a development (the Development) at a site in Caringbah South (the site), which included the demolition of existing structures and the construction of a townhouse development. The Development was approved to be of three storeys and consist of five townhouses (Townhouse 1, Townhouse 2, Townhouse 3, Townhouse 4, and Townhouse 5), a basement carpark and an above ground pool. The above ground pool was not built. 3. The Applicant was appointed as the Principal Certifying Authority (PCA) for the Development. At all relevant times, the owner of the site was also the developer and builder (the builder) of the Development and retained ownership of Townhouse 1 once the Development was completed. 4. On 1 July 2014, the Applicant issued a Construction Certificate (CC) for the Development. 5. The Applicant subsequently issued four interim Occupation Certificates for the Development as follows: 1. On 16 June 2016, an Interim Occupation Certificate (IOC) for Townhouse 3 (IOC 1); 2. On 2 August 2016, an IOC for Townhouse 5 (IOC 2); 3. On 9 September 2016, an IOC for Townhouse 4 (IOC 3); and 4. On 12 February 2018, an IOC for Townhouses 2 to 5 (IOC 4). 1. On 12 February 2018, a final inspection was conducted by the Applicant with the result of "Satisfactory (Minor issues)" followed by the entry "Issues Resolved". A subsequent "Final inspection" was conducted by the Applicant on 30 May 2018 with the result of "Satisfactory". 2. On 21 April 2021, the Applicant issued a Final Occupation Certificate (FOC) for the Development. An IOC was not issued for Townhouse 1 at any time. 3. On occasion, the evidence and submissions in this matter also referred to the townhouses in the Development as dwellings or units, and as far as possible this has been reflected, where used, in these Reasons. Naming issue 1. Whilst the application for review referred to the Respondent as "Secretary for Department of Customer Service, NSW Fair Trading", further material relied upon by the parties during the hearing identified the Commissioner for Fair Trading as the Respondent in the proceedings. 2. Section 4 of the BDC Act now defines Secretary to mean "the Secretary of the Department" and Department to mean "the department in which this Act is administered". 3. As a consequence, the Tribunal issued directions to the parties following the hearing in order to identify the proper name of the Respondent. 4. On 15 October 2024, it was submitted on behalf of the Respondent that the correct name of the Respondent is "Secretary of the Department of Customer Service" and that the Respondent consented to this issue being dealt with on the papers. No submission was made by the Applicant. 5. I am satisfied on the material before me that this issue can be adequately determined in the absence of the parties having regard to the material before the Tribunal and I dispense with a further hearing in this matter pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). I am satisfied that the proper name of the Respondent in this review is Secretary of the Department of Customer Service. Relevant legislation 1. The BDC Act commenced on 1 July 2020 and provides for the registration of persons as registered certifiers. 2. The objects of the BDC Act are set out in s 3 as follows: 3 Objects of Act The objects of this Act are as follows— (a) to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work, (b) to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest, (c) to provide for the approval of certain bodies corporate as accreditation authorities to exercise accreditation functions under this Act, (d) to ensure appropriate scrutiny and review of actions taken by persons exercising functions under this Act and the certification legislation, (e) to provide a framework to permit the continuous improvement of the carrying out of certification work. 1. Section 5(1) of the BDC Act requires that a person must be registered to carry out "certification work" and this term is defined in s 4(1). 2. Part 4 of the BDC Act is entitled "Disciplinary action against certifiers". Section 45, which is in Part 4 of the BDC Act relevantly provides: 45 Grounds for taking disciplinary action The Secretary may take disciplinary action against a registered certifier on any one or more of the following grounds— (a) the registered certifier has engaged in conduct in connection with the carrying out of certification work that has fallen short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent registered certifier, (b) the registered certifier has contravened the certification legislation, whether or not the registered certifier is prosecuted or convicted for the contravention, … 1. The Building Professionals Act 2005 (NSW) (repealed) was in force up to and including 30 June 2020, and was superseded by the BDC Act, which came into force on the following day. "Unsatisfactory professional conduct" was defined in s 19 of the Building Professionals Act. 2. Schedule 1 of the BDC Act contains savings, transitional and other provisions. Consequently, conduct of an accredited certifier occurring before the commencement of the BDC Act and amounting to unsatisfactory professional conduct under the Building Professionals Act is a ground for taking disciplinary action under Part 4 of the BDC Act: Sch 1, cl 2 and cl 7. 3. The Respondent, and by extension this Tribunal who steps into the shoes of the Respondent in these proceedings, has a range of options if satisfied that a ground for taking disciplinary action against a registered certifier has been established. Section 48 of the BDC Act relevantly provides: 48 Disciplinary action that may be taken by Secretary (1) The Secretary may, if satisfied that one or more of the grounds for taking disciplinary action against a registered certifier has been established, do any one or more of the following— (a) determine to take no further action against the registered certifier, (b) caution or reprimand the registered certifier, (c) make a determination requiring the registered certifier to pay to the Secretary, as a penalty, an amount not exceeding $220,000 (in the case of a body corporate) or $110,000 (in the case of an individual) within a specified time, (d) impose a condition on the registration of the registered certifier, including a condition requiring the registered certifier to undertake specified education or training relating to a particular type of work or business practice within a specified time, (e) suspend or cancel the registration of the registered certifier in accordance with Part 2, (f) disqualify the registered certifier, either temporarily or permanently, from being registered or being registered in a particular class. (2) In determining the disciplinary action to take, the Secretary— (a) must take into account any other disciplinary action taken against the person under this Part, and (b) may take into account any written undertaking that the person proposes to give under Part 8. 1. In oral submissions at the hearing, the Applicant agreed with the summary of legislation set out in the Respondent's written submissions. Role of the Tribunal 1. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all functions conferred or imposed by any relevant enactment. 2. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. Evidence for the Respondent 1. The Respondent relied upon a bundle of documents filed pursuant to s 58 of the ADR Act (exhibit R1) (s 58 documents) together with three bundles of supplementary s 58 documents (exhibit R2) (Supplementary s 58 documents). The Supplementary s 58 documents were voluminous, and they were admitted on the basis that the Tribunal would only have regard to those documents specifically referred to in the Respondent submissions. Both parties agreed to this course. A USB containing the two YouTube videos indicated in the hyperlink in footnote 38 of the Reasons was also tendered (R3) and these videos were viewed by me following the hearing. No oral evidence was called on behalf of the Respondent. Evidence for the Applicant 1. In the substantive proceedings, the Applicant relied on his two affidavits, one dated 13 February 2024 (2024 affidavit) (exhibit A1) and the other dated 6 October 2023 (2023 affidavit) (exhibit A2). The 2023 affidavit was provided in relation to the Stay Application and was relied on in the substantive proceedings in relation to the Applicant's qualifications and experience and to provide some history of the matter. The Applicant also relied upon a document headed "Building Work Rectification Order" dated 3 August 2023 (exhibit A3). The Applicant gave oral evidence before the Tribunal and was cross-examined. Applicant's evidence 1. In his 2023 affidavit, the Applicant stated that between 1985 and 1999 he was a Health and Building Surveyor and has been practising as a registered certifier since 1999. The affidavit also sets out the significant effects that the Respondent's disciplinary action has had and will have on the Applicant, his business, his business colleagues and to those parties who require certification. The Applicant disputed the categorisation of his conduct in the Reasons as 'Extensive' and stated that the conduct should be assessed as "minor". He also disputed the categorisation of his conduct in the Reasons as "reckless" and the severity as "major severity" and that instead it should be categorised as "minor" and of "minor severity". 2. The Applicant further stated that the matters raised in these proceedings relate only to a single development that was constructed between mid-2014 and mid-2016 and that to his knowledge does not involve any fire safety, structural or waterproofing issues. 3. In his 2024 affidavit, the Applicant referred to his prior disciplinary history (Attachment 2 of the Reasons, part exhibit R1) and stated that the last five entries for the period 2005 to 2007 contain little, if any, information. Whilst he did not remember specific details of the individual items, he recalled some details which he set out in his affidavit. 4. In relation to his subjective factors, he indicated that he was not aware of any specific loss or damage to any unit owners resulting specifically from his admitted breaches and stated that his firm only received the agreed fee for the certification work and that he did not obtain any financial advantage or gain from the breaches. 5. The Applicant indicated that when he became aware of the concerns of the owner of unit 5 about the extra levels for units 1 and 2, he spoke with the builder, who was also the developer and owner of Unit 1, as well as representatives of the owners corporation about lodging an application for a building certificate to regularise the works. The Applicant stated that he believed that this would occur, however in about September or October 2022 he was advised by the builder that it would not. 6. The Applicant stated that he co-operated fully with the Respondent during the investigation and referred to his submissions to the Respondent during the investigation dated 14 October 2022 (Submissions to the Respondent) (part exhibit R1) and to the transcript of his recorded interview with the Respondent on 22 November 2022 (Record of Interview) (part exhibit R1). He stated that he did not "duck and weave" and that he readily and properly admitted his mistakes. 7. He stated that it has been difficult for him to address the allegations as the events occurred approximately six to eight years previously and whilst he recalled inspecting the property prior to the issue of the occupation certificate, he did not recall seeing the unauthorised works, save that he recalled seeing some "last minute works like painting were being undertaken". 8. The Applicant said that he had ruminated extensively about the way he carried out his certification work for the Development and that he was sorry about his actions and that there had been a need for any investigation. The Applicant referred to his shame and embarrassment after being disqualified as a registered certifier after a long career and that he was particularly distressed and depressed about being disqualified for the long period of six years. He noted that he was aged 61, that he was towards the end of his career and that if he was to be disqualified from practising as a certifier for any period of years then his career would "effectively be over". 9. The Applicant said he understood the need for disciplinary action but requested leniency and that he not be given a period of disqualification so that he could continue to practice as a certifier on a limited basis. He stated that if this were to happen, the Tribunal may be minded to impose special conditions on his registration in the interests of protecting the public, and requested that the Tribunal consider disciplinary action along the following lines: 1. no disqualification from being a registered certifier; 2. his registration be restricted to doing certification work for only BCA class 1a, 10a and 10b buildings; and 3. inspections only and under supervision for BCA class 2-9 buildings. 1. The Applicant said that whilst all certification work is important to get right, he believed that limiting his work would mean that he was limited to less complicated assessments. 2. In cross-examination, the Applicant was taken to two photographs, including photograph 4 showing the storage area of Townhouse 2 (part exhibit R2) and agreed that it was not being used as a storage area. The Applicant also agreed that if the area had no windows and no ventilation it would not comply with the Building Code of Australia (BCA). The Applicant was taken to photograph 3.01 depicting the upper basement level of the Townhouse 2 rumpus room (part exhibit R2). He was asked if he agreed with the suggestion that the room could be called a rumpus room, given the way in which it was now used. The Applicant replied "no" but stated that it was furnished as a rumpus room. He then agreed that it was being used as a rumpus room and stated that a rumpus room was a "habitable" room. 3. The Applicant agreed that a habitable room required natural light and ventilation under the BCA and that the area did not have that. The Applicant also agreed that one way of controlling the use of such a room would be by way of a DC condition that restricted the use and that the DC issued did not have such a condition. Submissions 1. Both parties provided the Tribunal with written submissions. Whilst there were references in the written submissions to particular expert evidence on behalf of both parties, the parties indicated that this evidence was not being relied upon at the hearing and was not tendered. Accordingly, I have had no regard to any submission in relation to this material or the material itself. 2. Oral submissions were made at the hearing by both parties, and counsel for the Applicant also made oral submissions in reply. 3. In addition to the hard copy documentary evidence and submissions filed by the parties, the USB (exhibit R3) also contained a PDF copy of portions of this material. These additional PDF copies were helpfully provided for the assistance of the Tribunal and did not include copies of the Supplementary s 58 documents. Scope of review 1. The Grounds set out in the application for review were to the effect that the Applicant was only "disputing the extent and severity of the penalty imposed in the [Decision]". 2. Prior to the oral evidence at the hearing, it was made clear by counsel for the Applicant that the Applicant's position was that he did not disturb the findings as to breaches and only sought to challenge the penalty that was imposed by the Respondent. Counsel for the Respondent accepted that this position was well understood. 3. The Applicant's written submissions also indicated that the Applicant had limited his application for review to the question of penalty only. 4. On this basis, the issues for determination in this application for review are limited to the Respondent's decisions pursuant to s 48(1)(e) and 48(1)(f) of the BDC Act to cancel the Applicant's Certificate of Registration and to disqualify him from being registered for a period of six (6) years. Accepted breaches 1. As demonstrated by the limited scope of the application for review, the Applicant accepted the three disciplinary grounds set out in the Reasons as follows: 1. That the Applicant engaged in unsatisfactory professional conduct under the Building Professionals Act (Disciplinary Ground 1); 2. Under s 45(b) of the BDC Act – that the Applicant has contravened the certification legislation, whether or not he was prosecuted or convicted for the contravention (Disciplinary Ground 2); and 3. Under s 45(a) of the BDC Act – that the Applicant has engaged in conduct in connection with the carrying out of certification work that has fallen short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent registered certifier (Disciplinary Ground 3). 1. In limiting the application for review, the Applicant also did not challenge the findings at paragraph 8 of the Reasons relating to Disciplinary Ground 1, Disciplinary Ground 2, and Disciplinary Ground 3, namely that the Applicant had: 1. On 1 July 2014, contravened provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) by issuing a CC when the CC approved plans: 1. were inconsistent with the DC; 2. did not meet the requirements of the relevant BASIX Certificate (BASIX certificate); and 3. did not meet requirements of the BCA. 1. Between 16 June 2016 and 12 February 2018, contravened provisions of the EPA Act and EPA Regulation by issuing interim occupation certificates (IOCs) when: 1. the Development was inconsistent with the DC; 2. relevant BASIX commitments for the Development had not been fulfilled; and 3. critical stage inspections had not been carried out. 1. On 21 April 2021, contravened provisions of the EPA Act and EPA Regulation by issuing a FOC when: 1. the Development was inconsistent with the DC; 2. relevant BASIX commitments for the development had not been fulfilled; and 3. critical stage inspections had not been carried out. Disciplinary Ground 1 1. The detailed findings in relation to Disciplinary Ground 1 are set out at paragraphs 70 to 77 of the Reasons and pertain to the CC issued on 1 July 2014 and the IOC's issued between 16 June 2016 and 12 February 2018. The conduct can be relevantly summarised as follows: Contraventions relating to CC issued on 1 July 2014 1. The Applicant issued the CC when the CC approved plans and specifications did not include the individual water tanks for each townhouse specified in BASIX certificate. 2. The Applicant issued the CC when the approved architectural plans were inconsistent with the DC in that they depicted: 1. a redesigned basement carpark incorporating two additional lifts to provide access to Townhouses 1 and 2; 2. a redesigned ground floor in Townhouses 1 and 2 incorporating a lift to provide access to the basement carpark; and 3. no laundry in Townhouses 1 and 2. 1. The Applicant issued the CC when the CC approved architectural plans did not provide for laundry facilities as required under the BCA. Contraventions relating to IOC's issued between 16 June 2016 and 12 February 2018 1. Between 16 June 2016 and 12 February 2018: 1. the Applicant issued IOCs 1 to 4 when the individual water tanks as specified in the BASIX certificate had not been installed; 2. the Applicant issued IOC 4 when Townhouse 2 was inconsistent with the DC in that it incorporated an additional floor comprising laundry facilities, toilet, storeroom, and rumpus room, and with internal lift access to the basement; and 3. the Applicant issued IOCs 1 to 4 when the critical stage inspection prior to covering the stormwater drainage connections had not been carried out as required. 1. Between 16 June 2016 and 9 September 2016: 1. the Applicant issued IOCs 1 to 3 when the final inspection had not been completed as required, as the final inspection took place on 12 February 2018, after the issue of IOCs 1 to 3. Conduct that falls short of the standards of competence, diligence, and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier. 1. Between 1 July 2014 and 12 February 2018, the Applicant's conduct in carrying out certification work: 1. contravened relevant building laws and regulations; 2. was not in the public interest; 3. amounted to conduct that could bring the profession of certifiers into disrepute; 4. demonstrated a lack of reasonable care and attention; 5. was negligent; and 6. was misleading as the CC and IOCs 1 to 4 presented that the development would be/was compliant with all relevant laws and regulations when this was not the case. Disciplinary Ground 2 1. The Respondent's detailed findings in relation to Disciplinary Ground 2 are set out at paragraphs 78 to 81 of the Reasons and relate to the FOC issued on 21 April 2021. 2. The conduct can be relevantly summarised as follows: Contravention of the certification legislation relating to the FOC issued on 21 April 2021 1. The Applicant issued the FOC when the individual water tanks specified in the BASIX certificate had not been installed; 2. The Applicant issued the FOC when Townhouses 1 and 2 were inconsistent with the DC in that they each incorporated an additional floor comprising laundry facilities, toilet, storeroom, and rumpus room, and with internal lift access to the basement; and 3. The Applicant issued the FOC when the critical stage inspection prior to covering the stormwater drainage connections had not been carried out as required. Disciplinary Ground 3 1. The Respondent's detailed findings in relation to Disciplinary Ground 3 are set out at paragraphs 82 to 86 of the Reasons and relate to the FOC issued on 21 April 2021. 2. The conduct can be relevantly summarised as follows: Conduct that has fallen short of the standard of competence, diligence and integrity relating to the FOC issued on 21 April 2021. 1. On or around 21 April 2021, the Applicant carried out certification work that fell short of the standards in that the conduct: 1. contravened relevant building laws and regulations; 2. was not in the public interest; 3. amounted to conduct that could bring the profession of certifiers into disrepute; 4. demonstrated a lack of reasonable care and attention; 5. was negligent; and 6. was misleading as the FOC presented that the Development was consistent with the DC when that was not the case. 1. The Applicant did not challenge the finding at paragraph 9 of the Reasons that the Respondent was satisfied that Disciplinary Grounds 1 to 3 had been established. In addition, the Applicant did not dispute that disciplinary action could be taken by the Respondent. Accordingly, I am satisfied in relation to both these matters. Matters raised by the Applicant in relation to the disciplinary grounds 1. Whilst the Applicant confirmed that the application for review was limited to the severity of the penalty imposed, some matters were raised on behalf of the Applicant in respect of the findings relating to the disciplinary grounds and these are considered below. Water tanks 1. In the Applicant's written submissions, it was submitted that the Reasons appear to construe the BASIX certificate as requiring individual water tanks to be installed for each dwelling in the Development, and this was an error in the construction of the BASIX certificate. It was submitted that properly construed, the BASIX certificate required a rainwater tank for Townhouse 3 with a minimum capacity of 2,000 litres; and a rainwater tank to service the remaining four townhouses to a minimum capacity of 2,000 litres (i.e. with a total minimum capacity of 4,000 litres). It was not in dispute that the Applicant issued the CC with one rainwater tank with a capacity of 10,000 litres to service all of the townhouses. 2. It was further submitted that the approved DC plans from Council did not identify the location of the rainwater tanks on the plans and therefore some degree of discretion was given to the Applicant to determine the appropriate location of the rainwater tanks, and that notwithstanding the Applicant's approach to these proceedings, the determination of consistency with the DC in relation to the rainwater tanks was reasonably open to him as the change was to form rather than function. 3. It was submitted that there was no finding in the Reasons that the provision of a single rainwater tank has any impact on amenity or is unsafe and that the breach in this regard is technical. It was conceded by counsel for the Applicant that in the Record of Interview with the Applicant, some eight years after initially forming an opinion, the Applicant admitted that he now considers that the plans were not consistent. Counsel for the Applicant made oral submissions to a similar effect. 4. Counsel for the Respondent submitted that at the commencement of the application for review, the Applicant had maintained his position that there was no challenge to the findings set out in the Reasons. It was submitted that the Reasons refers to the BASIX certificate requiring an individual water tank with a minimum size of 2,000 litres for dwelling 3; and for all other dwellings, an individual water tank with a minimum size of 2000 litres, namely one tank per dwelling. It was also submitted that in response to question 29 in the Record of Interview, the Applicant accepted that the BASIX certificate required that each townhouse must have a minimum 2000 litre water tank. Reference was also made to the various plans referred to in the DC for the Development that indicated the position of the five individual water tanks. 5. In her oral submissions in reply, counsel for the Applicant confirmed that the Applicant was not seeking to disrupt the disciplinary findings and that the highest that she was putting the submission was that the relevant test in the EPA Regulation confers a discretion on the certifier in such instances. She submitted that at its highest, the Development required 10,000 litres of rainwater and that this was what was provided. It was accepted by her that the Applicant conceded in the Record of Interview that the BASIX certificate required five tanks of 2,000 litres. It was submitted that the end result provided 10,000 litres and met the intention of the DC and accordingly, that it was a minor error and had no impact whatsoever. 6. I have considered the submissions and evidence in relation to this issue, including the BASIX certificate, the various plans referred to in the DC, and the Applicant's response in the Record of Interview. I am grateful to the parties for providing portions of the material on the USB, as this allowed me to more closely examine the documentary material, particularly the various plans that were referred to. 7. I am satisfied that the BASIX certificate required individual water tanks for each townhouse in the Development, namely five individual water tanks and that each water tank was required to be a minimum of 2,000 litres. I am satisfied that only one rainwater tank of 10,000 litres was provided. This finding is consistent with the relevant finding in the Reasons, which was not challenged by the Applicant in these proceedings. Misleading conduct 1. In the Applicant's written submissions, it was submitted that the matters raised in Disciplinary Ground 3 arise from the findings in Disciplinary Grounds 1 and 2. It was submitted that the finding in paragraph 85 of the Reasons did not provide sufficient reasons for the conclusion, particularly in relation to the allegation of the Applicant undertaking 'misleading' conduct. It was also submitted that the Supplementary s 58 documents did not include any material to support a finding that the Applicant had engaged in misleading conduct. 2. In the Respondent's written submissions, it was submitted that the Applicant appeared not to be accepting the Respondent's finding in respect of Disciplinary Ground 3. It was further submitted that this ground relates to the Applicant's conduct in relation to 'certification work', namely the issue of the FOC and that it is sufficiently clear that Disciplinary Ground 3 is to conduct regarding only the issue of the FOC. 3. It was submitted that when properly read (and attributed), the Reasons provide a proper basis " and it is clear from paragraph [85.1] that what is being alleged (amongst other things) is a contravention of the relevant building laws, which are elaborated in [Disciplinary Ground 2]…In this way the underlying facts, not really disputed clearly apply to [Disciplinary Ground 3]. To read otherwise is to disregard the preceding paragraphs in the whole of the decision." 4. At the hearing, counsel for the Respondent, submitted that all that was necessary to establish Disciplinary Ground 3 was a failure by the Applicant to comply with the relevant legislation and that there was no need to be further satisfied. Counsel also indicated that the Respondent accepted the submission that there is no evidence of misleading conduct by the Applicant in this matter. He submitted that this is not what paragraph 85.6 of the Reasons was referring to, and that the only way to read it was that the FOC as presented was not consistent with the DC. The Respondent's ultimate submission was that the finding in paragraph 85.6 was not necessary to make out Disciplinary Ground 3. 5. In submissions in reply, it was confirmed that the Applicant accepted the finding in relation to Disciplinary Ground 3, especially with the concession on behalf of the Respondent that there was no evidence of misleading conduct by the Applicant. 6. I accept the Respondent's concession that there is no evidence before the Tribunal of misleading conduct by the Applicant. In my view, once the FOC was issued by the Applicant on 21 April 2021, the FOC presented that the Development was consistent with the DC when this was not the case, and as a consequence, the FOC is of itself misleading. The misleading nature of the FOC is a consequence of the Applicant's conduct and does not mean that the Applicant's conduct was of itself intentionally misleading. Even if I am wrong in my view relating to the FOC, I accept that Disciplinary Ground 3 is made out based on the finding of a contravention of the relevant building laws and regulations and that there is no evidence of misleading conduct by the Applicant. Appropriate Disciplinary Action 1. As set out above, the Applicant does not dispute the findings in the Reasons or that Disciplinary Grounds 1 to 3 have been established and provide a basis for disciplinary action against the Applicant. It is accepted by both parties that this application for review is limited to a review of the extent and severity of the penalty imposed in relation to those disciplinary grounds and I accept this to be the case. Show cause 1. In the Reasons, the Respondent considered whether it was appropriate under s 47 of the BDC Act to invite the Applicant to show cause prior to the Decision and was of the opinion that it was in the public interest to take immediate action under s 47(7) of the BDC Act. The application for review has provided an opportunity for further evidence to be adduced on behalf of the Applicant and as referred to above, this includes further written evidence by the Applicant as well as oral evidence before the Tribunal. Supplementary s 58 documents and the videos on the USB were also relied upon by the Respondent and written and oral submissions were made by both parties. I have considered all of the material before the Tribunal, although as previously referred to, my consideration of the Supplementary s 58 documents is limited to the specific documents referred to during the proceedings. The Guidelines 1. The Respondent had regard to the "Guidelines for Determining a Disciplinary Outcome" (the Guidelines) in determining the appropriate disciplinary action as set out in the Decision. Both parties submitted that whilst not bound to do so, the Tribunal could have regard to the Guidelines in determining any appropriate disciplinary action in this matter. 2. In the decision of Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali), Senior Member Lucy made a number of observations at [128] – [131], that included references to the matter of Freixas v Commissioner for Fair Trading, Department of Customer Service (no 2) [2020] NSWCATOD 78 (Freixas) and other decisions, as follows: 128. The purpose of disciplinary action under the Building and Development Certifiers Act is to protect the public (see, for example, Freixas at [37]-[39]). The action should be proportional to the nature of the improper conduct viewed as a whole (Freixas at [42]). 129. The range of disciplinary action which may be taken by the Commissioner, and by the Tribunal standing in the Commissioner's shoes, is set out in s 48(1) of the Building and Development Certifiers Act, which is quoted earlier in this decision. The available responses range from determining to take no further action against the registered certifier to cancelling the registered certifier's registration and disqualifying the registered certifier, either temporarily or permanently, from being registered. 130. The Commissioner has issued "Guidelines for determining a disciplinary outcome," being a policy providing guidance as to the appropriate disciplinary action in any given case. The guidelines provide that for a case of "major severity," cancellation with a disqualification of up to six years is an appropriate penalty. In a case of "extreme severity," cancellation with a disqualification of up to ten years or permanent disqualification is an appropriate penalty. The guidelines provide for the determination of the degree of severity, depending upon the degree of harm caused by the conduct and the degree of culpability (negligent or reckless, or deliberate). 131. I have had regard to the guidelines when determining the correct and preferable decision, as the Tribunal has done in previous decisions (see, for example, Lilli v Building Professionals Board [2019] NSWCATOD 119 at [73]-[74] and Murrant v Building Professionals Board [2019] NSWCATOD 130 at [43]-[47]). As the Tribunal observed in Freixas at [73], "[p]olicy guidelines promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike." However, a policy should not be treated as a fetter on administrative decision-making and the Tribunal is not bound by the guidelines. 1. I agree with these observations and in my view, they are applicable to the matter before me. I have had regard to the Guidelines in determining the correct and preferable decision in this matter. Severity of the conduct 1. Whilst the application for review was limited to the extent and severity of the penalty, the parties took very different views as to the seriousness of the Applicant's conduct and the effect that this has on the appropriate disciplinary action. 2. Counsel for the Applicant submitted that the Applicant's evidence demonstrates that he took the investigation seriously, co-operated with investigators and admitted his mistakes. Amongst other matters, it was submitted that the Applicant has shown contrition and attempted to resolve the concerns of the owners by engaging with the builder to encourage regularisation of the works. 3. It was further submitted that the Applicant's errors were not wilful and that he did not receive any financial advantage from his action. Counsel for the Respondent conceded that there was no evidence that the Applicant received a financial advantage, and I accept this to be the case. 4. It was submitted on behalf of the Applicant, that having regard to the Guidelines, the Applicant's conduct falls within the range of "moderate severity". 5. The Respondent's position is that objectively the contraventions are serious and that the disciplinary action taken by the Respondent is appropriate. 6. Further issues were raised by the parties in relation to the Applicant's conduct that are relevant to my consideration of its severity under the Guidelines and these issues are considered below. Issues raised by the parties Duplicity 1. Counsel for the Applicant submitted that there is significant overlap in the disciplinary grounds in that the same "actions" are subject to more than one finding and that the Reasons did not take into account the duplicitous nature of the disciplinary grounds raised. It was acknowledged by the Applicant that whilst these are not criminal offences, as a matter of fairness the significant overlap of the facts ought to be taken into account on penalty in this instance (see Law Society of NSW v Shalovsky [2008] NSWADT 14). 2. Whilst reference was made to the duplicitous nature of the disciplinary grounds, this application for review was limited to the question of penalty only. In circumstances where there has been no challenge by the Applicant to the nature and form of the three disciplinary grounds in these proceedings, including in relation to duplicity, I am not satisfied that the issue of duplicity is relevant to the consideration of the appropriate disciplinary action. 3. In any event, the disciplinary action the subject of this application for review, was imposed in relation to all of the disciplinary grounds, rather than separate action being taken in relation to each ground. Neither party submitted that this Tribunal take a different approach in this regard, and as I have previously indicated, I am satisfied that any disciplinary action ought to be proportional to the nature of the improper conduct viewed as a whole: Orfali and Freixas. Water tanks 1. As previously referred to, counsel for the Applicant made submissions in relation to the Applicant's actions arising from the provision of only one water tank for the Development. Whilst I have previously accepted that this water tank provided an equivalent capacity to the minimum required capacity of the five individual water tanks, I do not accept the Applicant's written submission to the effect that the water tank provides a surplus capacity and a beneficial outcome to the Development. Having regard to the plans referred to in the DC for the Development relating to the water tanks, the plans indicating their location and the Applicant's response in the record of interview, I do not accept that the Applicant's conduct in this regard amounts only to a 'technical' breach or a minor error. Critical stage inspection 1. The disciplinary grounds included the Applicant's conduct in issuing the IOCs and the FOC when the critical stage inspection, prior to covering the stormwater drainage connections, had not been carried out as required. It was submitted on behalf of the Applicant that an inspection was carried out by an engineer (and an accredited A1 engineering certifier at the time and continuing) under direction by the Applicant. Notwithstanding this, it was conceded on behalf of the Applicant that the relevant critical stage inspection that complied with the legislation was not carried out by him. The submission was put on the basis that it was not an excuse but was relevant to penalty as a qualified engineer had inspected the relevant works at the relevant time. 2. On the basis of the observations and concessions made by the Applicant, in particular that it was an inspection that was missed, the Respondent accepted that the Applicant's conduct on this issue was towards the lower end of the spectrum when viewing the totality of the Applicant's breaches. However, it was submitted that the Applicant's remaining conduct was so serious, that this concession did not change the overall severity of the conduct when the totality of the conduct was taken into account. 3. I am satisfied that in the circumstances of this matter that it is appropriate to have regard to the severity of the totality of the Applicant's conduct, rather than separately assessing each action or disciplinary ground. In my view, this is consistent with my previous finding that any disciplinary action ought to be proportional to the nature of the improper conduct when viewed as a whole. Laundry facilities and lifts 1. It was acknowledged in the Applicant's written and oral submissions that the CC approved architectural plans did not include provision for laundry facilities for Townhouse 1 and Townhouse 2. It was not contested that laundry facilities for these two townhouses were included in the DC and were required under the BCA. It was also not contested that whilst the DC did not include lifts for Townhouse 1 and Townhouse 2, lifts were provided for in the CC plans and were subsequently installed. 2. The Applicant was asked about these laundries and the lift access in the Record of Interview and responded to the interviewer's questions as follows: Q 20 …the DA plans depict the laundries of townhouses 1 and 2 on the ground level…construction certificate drawings depict no laundry for town house 1 and townhouse 2 anywhere within the townhouse, and also plus an addition to a lift… A Yeah… … Q 24 So, my question when you guys are ready, and just how, can you tell me how construction, construction certificate drawings are consistent with the DA plans in relation to that laundry? A They're not. Q 25 Okay, can you tell me how the construction certificate plans will comply with the BCA as there's no laundry, all laundry facilities on the plans, and feel free to go through all the plans just to make sure as well. A I can't from these plans I can't. Q 26 So, you can't, okay. A In town house 1 and 2. 1. The disciplinary grounds accepted by the Applicant include his conduct relating to the issuing of IOC 4 and the FOC when Townhouse 1 and Townhouse 2 each incorporated an additional floor comprising laundry facilities, toilet, storeroom, and rumpus room that were inconsistent with the DC. 2. Counsel for the Applicant submitted that whilst it "perhaps is not helpful" to the Applicant's case, the outcome of the works ultimately undertaken by the builder, without development consent, provided an amenity, namely a laundry for each of Townhouse 1 and 2. This submission was made on the basis that it did not provide an excuse for the Applicant's initial error but to acknowledge that there was ultimately no impact on any person. There was also an acknowledgment on behalf of the Applicant, that if there had been an intention by the builder to deceive the Applicant, then the Applicant had had the opportunity to question the changes on the CC plans and did not. 3. In oral submissions for the Respondent, it was submitted that the Applicant was right to make the concession that the CC plans did not include provision for the laundries in Townhouse 1 and Townhouse 2. It was further submitted that the 'missing' laundries that were subsequently installed were unauthorised and unlawful, and that unauthorised works should never be condoned and that to do so would go against the aims and objects of the EPA Act. 4. It is apparent that one of the aims of the planning scheme in NSW is to ensure that all building works are carried out in a lawful fashion, namely in accordance with statutory approvals and relevant legislation, and registered certifiers have an important role to play in the scheme. 5. The Applicant's evidence was that at the time that he issued IOC 4 and the FOC, he was unaware of, and had never inspected, the additional levels in either Townhouse 1 or Townhouse 2. These additional levels contained the unauthorised laundry facilities for these two townhouses. It follows that when the Applicant issued IOC 4, he could not have been aware that Townhouse 2 contained laundry facilities and that when he issued the FOC, he could not have been aware that either Townhouse 1 or Townhouse 2 contained laundry facilities. 6. In my view, even if the relevant laundry facilities could be said from a practical perspective to provide some form of amenity, they were unauthorised and unlawful at the time that the Applicant issued both IOC 4 and the FOC, and this significantly impacts on their amenity, particularly given the potential remedies available in relation to unauthorised building works. There is no evidence before the Tribunal that would support a finding that the additional floors in Townhouse 1 and Townhouse 2, including the laundry facilities, have been subsequently regularised. 7. In these circumstances, it is difficult to see how the Applicant's admitted conduct in relation to the laundry facilities for Townhouse 1 and Townhouse 2 at the time of issuing the CC, can in anyway be offset by the subsequent provision by the builder of unlawful and unauthorised laundry facilities for those townhouses, particularly when the Applicant's evidence is that he was unaware of them until after he had issued the FOC. Accordingly, I reject the Applicant's submission that the provision of the laundry facilities for Townhouse 1 and Townhouse 2, ultimately resulted in no impact to any person, or can be viewed as providing an amenity to the owners or occupiers of those townhouses. Additional levels 1. The written submissions for the Applicant indicate that no admission was made in the Record of Interview but the Applicant "reluctantly accepted that if the mezzanine was there, it should have been apparent to him." I accept that the reference to the "mezzanine" is a reference to the additional level in each of Townhouse 1 and Townhouse 2, and which has also referred to in these proceedings as the upper basement level. 2. The Strata Plan for the Development was issued on 14 March 2016 (part exhibit R1). Whilst I accept that there is no evidence that the Applicant was involved in its preparation, the Strata Plan indicates that as of 14 March 2016, Townhouse 1 and Townhouse 2 each had a lift installed to the basement and contained an upper basement level. The Strata Plan depicts the upper basement level of Townhouse 1 as having an area of 30 square metres and the upper basement level of Townhouse 2 as having an area of 27 square metres. The marketing video from June 2017 (part exhibit R3) for the sale of Townhouse 2 also includes reference to this level which includes a bathroom and laundry, as well as a lift in that townhouse. 3. Accordingly, I am satisfied that whilst the Applicant did not issue the FOC until April 2021, that an additional level and a lift to the basement were in place for each of Townhouses 1 and 2, prior to the Applicant carrying out the final inspections of the Development on 12 February 2018 and 30 May 2018 and prior to the issue of IOC 4 on 12 February 2018 and the issue of the FOC on 21 April 2021. This is consistent with the Applicant's statement in his 2023 affidavit that the Development was constructed between "approximately mid-2014 and mid 2016". It follows that I find that the "mezzanine" referred to in the Applicant's written submissions was there at the time of the Applicant's final inspections of Townhouse 1 and Townhouse 2. 4. It was the Applicant's evidence that the first time that the Applicant was made aware of these additional levels was in a phone call with the owner of Townhouse 5, sometime after the Applicant issued the FOC on 21 April 2021. It was not contested that this owner (the Complainant), made a complaint to the Respondent, and this resulted in an investigation of the Applicant which led to the imposition of the disciplinary action that is the subject of this application for review. 5. The material provided by the Complainant to the Respondent includes email correspondence between the Complainant and the Applicant from around 9 March 2022 to 21 July 2022 (part exhibit R2). In an email from the Applicant to the Complainant dated 24 March 2022, the Applicant relevantly states, "the non-approved issues have not been seen by me and I can see they are substantial." 6. The parties did not appear to agree as to the total area of the additional levels in Townhouse 1 and Townhouse 2 and it was the Applicant's position that he had not seen these areas. The Applicant's Submissions to the Respondent indicate that at that time he had not been able to inspect the two areas and had only seen a "few" photographs. The Applicant understood that "each area is approximately 20sqm in area, has a floor to ceiling height of less than 2.4 m, has no windows, contains a toilet and laundry, is used for storage and is accessed by a single door from internal descending stairs which start just inside the front entrance of the unit (units 1 and 2)." 7. I have had regard to the material in the Supplementary s 58 documents referred to by counsel for the Respondent, particularly the material provided by the Complainant to the Respondent in an email dated 12 July 2022 that included an email headed "Upper Basement Area revelations", the Minutes of the Extraordinary General Meeting for the Strata on 15 February 2018, and a copy of an Upper Basement Plan for the Development. This indicates the area of the upper basement level for Townhouse 1 as 95 square metres and the area of the upper basement level for Townhouse 2 as 91 square metres. The plan has a number of handwritten notes on it. There is no evidence as to who made those notes. 8. Also relied upon by the Respondent was a document titled "Draft Expert Report" dated 20 June 2022 (Draft Expert Report) (part exhibit R2). A link to the draft Expert Report was provided to the Respondent by the Complainant in an email dated 7 July 2022 (part exhibit R2). The document indicates that it was prepared for a legal firm on behalf of the Owners of the Development. 9. Whilst not provided with access to Townhouse 1 or its garage space, the author of the Draft Expert Report indicated that he relied on a comparison of the CC drawings with the "most recent 'as-built' drawings provided by the Owners". The Draft Expert Report included a plan of the upper basement level of Townhouse 1 showing an area of 95 square metres. It appears from the Draft Expert Report that the author had access to Townhouse 2 and that the upper basement level of Townhouse 2 consisted of a furnished rumpus/bar, a storeroom, and a laundry with a powder room. A plan of the upper basement level for Townhouse 2 showed an area of 91 square metres. The Draft Expert Report included photographs of the upper basement level in Townhouse 2 and the Applicant was taken to Photograph 4 from that report in cross-examination before the Tribunal. 10. Whilst issue was taken by counsel for the Applicant in relation to the Draft Expert Report, I am satisfied that when this report is considered together with all of the other evidence before the Tribunal, particularly the photographs and the marketing videos for Townhouse 2, that the total area of the additional level in Townhouse 1 is 95 square meters and the total area of the additional level of Townhouse 2 is 91 square metres. In any event, I am satisfied that each of the additional levels in these Townhouses is substantial. Assessing Harm 1. I am satisfied from the evidence that the Development is a strata development, and that the Complainant was the Secretary of the owners corporation for the Development (OC). The evidence before the Tribunal includes various correspondence in relation to the complaint made to the Respondent that indicates that it was copied to the Chairperson of the OC. Reference was made by the Complainant to the problems that he and the "strata" had with the Development and a request for further information was made by him to the Respondent to keep the other members of the "Strata" informed. 2. I am satisfied that a number of the townhouses in the Development have been sold, possibly more than once, with the marketing material indicating that Townhouse 2 has been marketed by different agents on at least two occasions. Having regard to the material from the Complainant referred to above, including the references to the OC and to the strata, I find that the Applicant's conduct, the subject of the disciplinary grounds, has impacted the past and current owners of the townhouses in the Development, and that it also has the potential to impact future owners and occupants of the Development. On this basis, I am satisfied that at least several consumers can be considered as impacted by the Applicant's behaviour. 3. On the issue of consumer detriment and damage, the Respondent relied on various matters, including a copy of a Summons in the Technology and Construction List of the Supreme Court of New South Wales relating to a building dispute that showed the OC as the Plaintiff in the proceedings, the builder as the Second Defendant, and his building company and development company as the First and Third Defendant, respectively (the Summons) (part exhibit R2). Whilst the copy of the Summons was not a sealed copy, it indicates that the OC was legally represented and that the Summons was signed by that legal representative on 14 June 2022. I am comfortably satisfied on the totality of the documentary evidence before the Tribunal that the Summons was filed with the Supreme Court and the proceedings subsequently listed for a directions hearing. 4. I am satisfied that whilst the Applicant was not a party to the Supreme Court proceedings, that Item 5.1 of Annexure A to the Technology and Construction List Statement (Scott Schedule) makes reference to the builder's failure to comply with the CC drawings and conditions of the DC, and that various comments are made in that Annexure that as a result, the OC may be subject to orders from Council which impedes their ability to obtain appropriate building insurance. Two options for the scope of work were listed, namely the obtaining of various approvals for the "as built" works or for the potential demolition of the existing building and reconstruction in accordance with the current BCA requirements, the approved CC drawings and conditions of the DC including any new conditions. I am satisfied that the content of Item 5.1 of the Scott Schedule is identical to that contained in the Draft Expert Report. 5. There was no evidence before the Tribunal as to the outcome of the Supreme Court proceedings or whether the various matters raised in the Summons were ever tested before the court or a determination made. As a consequence, I have had limited regard to the Summons and only to the extent that it indicates that the OC were legally represented in relation to the matter; obtained the Draft Expert Report; filed proceedings against the builder of the Development in the Supreme Court; and that at least in part, the claim related to the builder's significant departures from the approved CC drawings and the construction of the Development in breach of the conditions of the DC; the comments in the Scott Schedule in relation to the claimed defects; and proposed options for the Scope of Works. 6. I have had regard to the oral submissions from the parties which sought to place varying degrees of weight on portions of the documentary material, including the complaint made to the Respondent; the Summons; as well as to the Building Work Rectification Order (exhibit A3) in relation to the degree of harm, and in particular the level of consumer detriment and loss. Based on the totality of the evidence, including the complaint made by the Complainant to the Respondent, the Summons, and the Building Work Rectification Order which records that the OC made submissions in relation to it, I am satisfied that at least some consumer detriment has been caused by the Applicant's conduct and this has resulted in moderate damage/loss. It follows that I do not accept the Applicant's submission that the Applicant's conduct only resulted in some inconvenience to consumers. 7. When assessing the degree of harm, the Guidelines provide that actual or potential harm may be considered. Whilst I accept that the evidence does not establish to the requisite standard that the Applicant's conduct caused an actual risk to public safety, I am satisfied that the established conduct had the potential to cause a high risk to public safety as well as the potential to cause significant consumer detriment resulting in extensive damage/loss. 8. In reaching this view I have had regard to all of Applicant's conduct, and particularly to his actions in issuing IOC's 1 to 3 when the final inspection had not been completed as required and in issuing IOC 4 and the FOC when Townhouse 1 and Townhouse 2 each included an additional level that the Applicant stated that he was not aware of. The additional levels each contained areas of more than 90 square metres which comprised laundry facilities, toilet, storeroom and a rumpus room as well as internal lift access to the basement, none of which were authorised. In circumstances where the Applicant did not undertake the final inspection before issuing IOCs 1 to 3; issued IOC 4 and subsequently the FOC without being aware of the existence of the substantial additional levels in Townhouses 1 and 2, there was a very real potential for other works to have been carried out without the Applicant's knowledge resulting in a high risk to public safety. 9. One of the objects of the BDC Act is to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest. I am satisfied that the Applicant's conduct undermines the statutory scheme and public confidence in such a scheme. In circumstances where the Applicant was empowered to carry out a public function, including reading plans, carrying out inspections and identifying any non-compliances, it is clear that he did not do so, and this is acknowledged by the Applicant's acceptance of the disciplinary grounds. I am comfortably satisfied that the Applicant's conduct in this matter has resulted in a high risk to the integrity of the certification licencing scheme, particularly when viewed from a consumer perspective. 10. The Guidelines provide that if more than one category of harm is selected from the assessing harm table, the highest level of harm applies. As a result of my findings above, I am comfortably satisfied that the harm caused by the Applicant's conduct is properly characterised as "Extensive". Assessing culpability 1. In assessing the level of negligence, recklessness or intention involved in the Applicant's conduct, I accept that there is no evidence that the Applicant attempted or intended to mislead or take advantage of consumers. 2. As referred to previously, the Applicant did not provide the Tribunal with a detailed explanation for his conduct, and it was submitted that this was largely due to the effluxion of time since the conduct. It was submitted on his behalf that "there are a number of plausible explanations which could be raised as to how the stair to the basement and mezzanine were not observed at the time of issue of IOC 4 and the FOC, particularly where [the Applicant] notes that he recalls last minute works like painting were being undertaken, which means there may have been an element of deception which cannot be proved some six years later." 3. It was further submitted on behalf of the Applicant that: "[The Applicant's] admissions reflect that he accepts that there was a lack of reasonable care and attention either to the construction certificate plans or his duty to undertake a critical stage inspection personally. Given the effluxion of time, it is impossible for the Delegate or [the Applicant] to say that the inspection for the occupation certificates lacked reasonable care and attention as it is not possible to recall what was actually seen at those inspections." 1. The Respondent submitted on this issue that significance should be placed on the Applicant's acknowledgment that he had failed to inspect the additional levels in the two townhouses. It was submitted that the Applicant had an obligation to carry out an independent inspection of the Development with the quality of "Sherlock Holmes", even if an attempt had been made to deceive him, and that he had not done so. Reference was made to the Applicant's responses in the Record of Interview, including the reference to the stairs which the Applicant knew were not authorised. It was submitted that the Applicant's failure to carry out further inspections in those circumstances was reckless. Consideration of final inspections carried out by the Applicant 1. The Applicant acknowledged in his Submission to the Respondent that his final inspections were insufficient as he missed inspecting the additional two levels. In an email response from the Applicant to the Complainant on 10 March 2022 (part exhibit R2), the Applicant stated that "As you know an IOC was issued on all units except for unit 1, as it was not ready at that stage. When I viewed the unit in 2020 I went to establish the unit's fitness for occupation and did not view the area or any areas you refer." 2. The Record of Interview includes questions in relation to the first of the final inspections that took place on 12 February 2018. The Applicant indicated that as the "first" Townhouse was not ready, and the others were, he issued IOC 4 for Townhouses 2 to 5. He stated that he could not remember "how" Townhouse 1 was not ready at that time. The Record of Interview includes the following responses by the Applicant to questions from the investigator for the Respondent in relation to Townhouse 1 on 12 February 2018: Q 187 Did you go in? A I don't think, I don't think, I think there might have been some scaffold and bits and pieces inside, they were painting and… Q 188 Yeah. A …bits and pieces, I think that was his, I think it's his, the builder, that is. … Q 190 When you did that, that inspection, did you go into [Townhouse] 1? Like actually physically go into [Townhouse] 1? A No, I think I went, I went past, and they were working so… Q 191 Yeah. A …we just moved out and went and did the other. Q192 Yeah. A From memory. 1. In relation to the inspection of Townhouse 2 on that day, the Applicant indicated that he "would've" gone into Townhouse 2 and when asked if he recalled seeing the "little basement level" in that townhouse, he said "no". When the Applicant was asked about the stairs going down, he responded "Well, I thought there were stairs down to the basement." The Applicant continued on to say "…don't worry, I've gone over this in my head many times and …I wondered how to be honest." The Applicant confirmed that the stairs were not on the CC plans. 2. The Applicant was then asked "If you did see the, so you walked in did the inspections, saw a, saw a stair case going downwards and you just said, you believe that they maybe going down to the basement. How did you issue a, why did you issue [an IOC] if you're aware that that, or if you were aware that the stair case should be on the plans?". The Applicant then responded, "Yeah, I don't know. I can't answer that…to be honest". 3. In response to the question "Would you say that issuing that final, issuing the [IOC 4], which related, which encompass unit 2, was incorrect, you shouldn't have issue that", the Applicant said, "Probably not, probably should have got a building, in hindsight building information certificate." 4. In response to question 214, "And that's because of, …and that would've in your mind at the time, that would've been because of those stairs that you saw going down that, I mean they should've been there?", the Applicant responded, "Well it's all of that, that's there, that's there now". 5. The Applicant confirmed in the Record of Interview that the second final inspection took place on 30 May 2018 but he thought that he may have done a further inspection in 2021 prior to issuing the FOC in April 2021 but he did not have a record of it. When these dates were put to the Applicant, he said in response to question 243, "Why did it [the FOC] happen 3 years later, very good question". In relation to questions about a frame inspection on 15 November 2015, the Applicant stated that "I had a lot of complaints during this job so, I actually went there quite a bit with neighbour complaints and bits and pieces…" 6. In relation to the final inspection on 30 May 2018, the Applicant stated that he would have only gone into Townhouse 1. When asked what he saw when he went in, he said "Well it would've, must've been the finished building and smoke alarms balustrades." The Applicant said that he did not go down into the basement from there, and when asked why not, he replied "I'm actually trying to work out, don't worry I've been over this many times as to whether and why, anyway." 7. When asked if he had seen a set of stairs going down for Townhouse 1, the Applicant said "Yes, I would've seen them when you walk in you see them straight away". When asked if he had seen the stairs going down to the basement, "why didn't [he] issue a [FOC] for the whole [Development], which did encompass that unit", the Applicant replied "Good question." 8. Whilst the FOC was issued in April 2021, the Record of Mandatory Inspections (part exhibit R1) refers to only two final inspections for the Development on 12 February 2018 and 30 May 2018. In the absence of any supporting documentary evidence, I am not satisfied that the Applicant carried out any further inspections of the Development, including in either 2020 or 2021. 9. The Applicant was unable to provide an explanation for his conduct, either for why he had not seen the additional levels in Townhouse 1 and Townhouse 2 or why he issued the FOC almost three years after the second final inspection on 30 May 2018. In his 2024 affidavit, he said that it was difficult for him to address the allegations as the events "were approximately 6-8 years ago and whilst I recall inspecting the property prior to issue of the occupation certificate I do not recall seeing the unauthorised works, save that I recall that some last minute works like painting were being undertaken". The Applicant also stated that he had "ruminated extensively" about his certification work for the Development. 10. On the evidence before the Tribunal, I accept that the Applicant did not inspect the additional levels in either Townhouse 1 or Townhouse 2 and that he was unaware of these additional levels when he issued the IOC and the FOC. However, whilst the Applicant said it had been difficult to address the allegations as the events were approximately "6 – 8 years ago", the Applicant had been involved with the Development from 2014 up until the issue of the FOC in 2021 and had carried out mandatory inspections during that period. As referred to above, when responding to a question in the Record of Interview about the frame inspection on 15 November 2015, the Applicant said that due to neighbour complaints during the job and bits and pieces, he actually went to the Development "quite a bit". 11. I accept that Townhouse 1 was not ready when the Applicant conducted the Final Inspection on 12 February 2018 and that his recollection was that there might have been scaffolding and that they were painting unit 1. I accept that the Applicant attended for the second final inspection on 30 May 2018 and on that occasion, he inspected Townhouse 1 only. The Applicant makes no reference in the Record of Interview to seeing any painting or building work when he attended for the second final inspection. 12. Whilst the Applicant states in his 2024 affidavit that he recalls inspecting the Development prior to the issue of the occupation certificate and that some works "like painting" were being undertaken, he does not refer to specific townhouses within the Development or when these works took place. I accept that whilst the Applicant does not have a detailed recollection of the final two inspections, he does have some recollection of them. 13. I am satisfied from the Applicant's responses in the Record of Interview that took place over a year before the date of the Applicant's 2024 affidavit, that it is more likely that Townhouse 1 was being painted on 12 February 2018 and not at the time of the second final inspection on 30 May 2018. This is consistent with the Applicant not issuing an FOC on 12 February 2018 and not including Townhouse 1 in IOC 4. 14. The Applicant did not give evidence of any specific recollection that he had in relation to work being undertaken in Townhouse 2 at the time of his final inspection. No other evidence was adduced relating to any deliberate attempts to deceive the Applicant or to attempts to hide the additional levels in Townhouse 1 or Townhouse 2 from him. Having regard to all the evidence, I am not satisfied to the requisite standard that there were any such attempts. 15. Even if I had been satisfied of such matters, it is clear from the Reasons and from his role as PCA for the Development between 2014 and 2021, that the Applicant's inspections should have been sufficient for him to be aware of the additional levels in both townhouses and the works contained within them, notwithstanding any attempt to deceive him, or hide the areas from him. 16. It would appear from the submission on behalf of the Applicant referring to the Applicant's reluctant acceptance in the Record of Interview, that "if" the mezzanine was there, and I have previously found that it was there at the time of the final inspections and had been since at least 14 March 2016, then it "should have been apparent" to the Applicant. I agree that it should have been apparent to him. 17. This is also reflected in the Applicant's 2024 affidavit, in which he acknowledged that he had "missed the very obvious issues of the lack of laundries on the CC plans and the construction of the additional levels for units 1 and 2". I agree that these issues were "very" obvious. Consequently, I am satisfied that the Applicant's actions demonstrated a severe disregard to the regular duties of an inspector of work, and that his conduct amounts to reckless carelessness: Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14 at [130]. 18. Accordingly, for the purpose of the Guidelines, I am satisfied that when viewed in totality, the Applicant's conduct amounts to reckless behaviour. Even if I am wrong in reaching this conclusion, I am satisfied that the Applicant's breaches are at the very least negligent, and that the Applicant has failed to take the necessary steps to avoid the relevant outcomes. 19. It is evident that at the very least, the Applicant's conduct fell short of the standards expected by members of the public, and in my view the Applicant's admitted conduct is such that it establishes that he displayed a high level of disregard for the standards expected by members of the public. In reaching this view, I have had particular regard to the Applicant's actions in issuing IOC's 1 to 3 when the final inspection had not been completed as required, and in issuing IOC 4 and the FOC in the circumstances previously referred to. 20. In assessing the Applicant's conduct, I have regard to the totality of the disciplinary grounds that were set out in the Reasons, and which have not been disturbed by the Applicant in these proceedings. Whilst I am satisfied that Applicant's conduct in not personally carrying out the critical stage inspection is of itself towards the lower end of the spectrum, I find that the Applicant's remaining conduct is so serious that this assessment does not change the overall severity of his conduct. 21. In light of the findings that I have made, I do not accept the Applicant's submissions that his conduct is of "Moderate Severity" and instead find that the Applicant's conduct is properly characterised under the Guidelines as being of "Major Severity". Propose a Disciplinary Action 1. Having regard to the Guidelines and Schedule 1 as it relates to the BDC Act, I accept that the disciplinary action referred to at paragraph 93 of the Reasons, namely to cancel the Applicant's registration and to disqualify him from being registered for a period of six years, to be the appropriate disciplinary action to be taken against the Applicant before considering the relevant subjective factors. Subjective Factors 1. I have previously made reference to a number of the subjective factors in this matter and give appropriate weight to all subjective factors in reaching my decision, and in particular to the matters set out below. 2. I accept the submission that the disciplinary grounds involve conduct that relates only to the one Development. However, this submission is counter balanced by the consideration that the Applicant's conduct spanned the period from 1 July 2014 when the Applicant issued the CC until 21 April 2021 when he issued the FOC and includes a number of discrete actions by the Applicant during this period. 3. I accept that the Applicant has a prior disciplinary history which is contained in Attachments 2 to 4 (inclusive) of the Reasons. As summarised in the Reasons, the Applicant was the subject of nine previous disciplinary actions taken between 25 July 2005 and 30 April 2015 and these are set out in Attachment 2 of the Reasons. No further information was provided in relation to four of the disciplinary actions and accordingly, I give them no further weight in my consideration of this matter. 4. It was conceded by the Respondent that the conduct the subject of the disciplinary action taken against the Applicant on 3 December 2009, together with the Penalty Notice issued to the Applicant on 5 March 2020 could be distinguished from the current matter. I accept this to be the case and give no further weight to them. 5. The Applicant's remaining disciplinary history set out in Attachment 2 can be summarised as follows: * On 25 July 2005, the Applicant was cautioned for issuing a CC which did not comply with the DC. * On 28 September 2007, the Applicant was reprimanded for issuing a CC without first ensuring that a condition of the DC had been satisfied. * On 18 February 2010, the Applicant was cautioned for endorsing structural engineering drawings that were inconsistent with the DC and CC as they indicated construction work outside the DC. * On 30 April 2015, the Applicant was reprimanded and fined $7,500 for issuing CCs and occupation certificates for a development that did not comply with the BCA. The Applicant issued an occupation certificate when a fire safety certificate had not been issued for a building. 1. Attachment 3 to the Reasons refers to a complaint made about the Applicant that was closed by the Respondent in September 2019 without further action. The Applicant was advised at that time of legislative requirements relating to documenting critical stage inspections. 2. In his 2023 affidavit, the Applicant disputed the extent of any aggravating effect of his previous disciplinary matters and in his 2024 affidavit, he said that he was unable to remember the specific details of each matter. It was submitted on his behalf, that the Tribunal would give his disciplinary history little or no weight in these circumstances. 3. I accept that the Applicant's disciplinary history dates from July 2005 to September 2019 and that limited information is before the Tribunal about the five specific matters referred to above. However, whilst the Applicant may not be able to recall the details of each matter, I accept that he was aware that these disciplinary findings had been made, and I am satisfied that they are relevant to my consideration of the appropriate disciplinary action to be taken. In my view, the primary relevance of the Applicant's disciplinary history is to establish that there have been other instances of non-compliance by the Applicant with the certification legislation and that the Applicant does not have an unblemished disciplinary history. Accordingly, I find that the Applicant's disciplinary history should be viewed as an aggravating factor in my consideration of this matter, but not to a significant extent. 4. I accept the contrition expressed by the Applicant and the effects of any disciplinary action on him, both personally and professionally, and that due to his age, that it may put an end to his career as a registered certifier. I accept that this is likely to also have consequences for his business, business colleagues and clients. However, in light of the protective nature of any disciplinary action imposed in this matter, I do not consider that the consequences of the disciplinary action on the Applicant are matters which should be given much weight in determining the appropriate action under s 48 of the BDC Act; Freixas at [37]; Building Professionals Board v Boulle [2008] NSWADT 80 at [57]. 5. I accept that the Applicant assisted with the investigation, participated in the Record of Interview, and has limited his application for review before the Tribunal. I also accept that once the Applicant was informed of the various issues after issuing the FOC, he attempted to resolve the concerns of the owners by engaging with the builder to encourage regularisation of the works through Council. 6. Whilst these factors have a mitigating effect, consideration must also be had to the Applicant's role as the PCA for the Development. It was the Applicant who issued the CC, the IOCs and the FOC, in circumstances where there were inconsistencies between the plans and the approvals, and where the Development was not compliant, and in some instances not lawful. Whilst I accept that the Applicant attempted to resolve the various issues with the builder and the Complainant, including 'pushing' the builder and the owner of Townhouse 2 to lodge an application for a building certificate with Council to regularise the works in Townhouse 1 and Townhouse 2, this occurred only after the Applicant became aware of the additional levels in those townhouses. 7. It is apparent that had these issues been identified by the Applicant during his inspections of the Development prior to the issue of the occupation certificates, these issues could have been addressed by him at that time. In my view, this is an aggravating factor. 8. Whilst the Applicant did provide an explanation in relation to the 'missed' critical stage inspection and some limited justification in respect of the water tanks, the latter was incomplete, and he provided no reasons or details to explain his remaining conduct. In his 2024 affidavit the Applicant stated that despite how he had acted in this matter he was very aware of his duties and obligations as a certifier and that he did know how to properly carry out certification work. After requesting that he not be disqualified and that conditions be imposed on his registration, the Applicant indicated that whilst "all certification work is important to get right," he believed that limiting his work would mean that he is limited to less complicated assessments. 9. In my view, the conduct that has been acknowledged by the Applicant in the Reasons relates to the primary functions of a registered certifier, and as the Applicant has acknowledged, he missed the "very obvious" issues of the lack of laundries on the CC plans and the construction of the additional levels in the two townhouses, as well as the other matters. In my view, the Applicant's inability to provide an explanation for his conduct in this matter must be given considerable weight in the consideration of the appropriate disciplinary action. 10. The failure by the Applicant to adduce any evidence that he has undertaken any further training or courses to prevent such conduct in the future, strengthens this view. It follows that I do not accept the Applicant's submission that the fact that he is unable to properly respond should be taken into account on penalty and in my view, this is not a mitigating factor. 11. Submissions were made to the Tribunal about the lack of action against other parties, including disciplinary action against the builder, but no evidence was adduced on this issue. In any event, whilst there may be circumstances where it will be relevant for the decision maker to take into account the disciplinary action imposed on others, I am satisfied that it is not relevant to my consideration of this matter. Conclusion 1. I accept the views of Senior Member Lucy in Orfali [at 160] as follows: As the Tribunal has previously observed in the context of the Building Professionals Act, "[t]he system of accreditation and discipline under the [Building Professionals Act] has been established to protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers. The orders to be made in the event of an adverse disciplinary finding must serve those objectives" (Boyce v Building Professionals Board (No 2) [2020] NSWCATOD 14 at [152]). The same observation applies to the Building and Development Certifiers Act. 1. Taking into account all relevant evidence and subjective factors, I am not satisfied that it is in the public interest to allow the Applicant to continue to practice as a certifier, even subject to conditions. In my view, a lengthy period of disqualification is required. I am satisfied that the proposed disciplinary action is appropriate, and no adjustment is required. 2. I find that the correct and preferable decisions are those decisions made by the Respondent as set out in the Decision, namely cancellation of the Applicant's registration and disqualification for a period of six years. Order The decisions under review are affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2025