Director, Building Professionals Branch, Department of Planning v Dallas [2006] NSWADT 231

CITATION: Director, Building Professionals Branch, Department of Planning v Dallas [2006] NSWADT 231

DIVISION: General Division

APPLICANT PARTIES: Director, Building Professionals Branch, Department of Planning RESPONDENT Jennifer Eve Dallas

FILE NUMBER: 053421 and 063126

HEARING DATES: 22/06/2006

SUBMISSIONS CLOSED: 06/22/2006

EXTEMPORE DECISION DATE: 06/22/2006

DATE OF DECISION: 08/07/2006

BEFORE: O'Connor K - DCJ (President); Wren G - Non Judicial Member

CATCHWORDS: Disciplinary Findings and Order (Accredited Certifier)

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Environmental Planning and Assessment Act 1979

APPLICANT A Grey, solicitor REPRESENTATION: RESPONDENT In person

ORDERS: 1. The Respondent be reprimanded; 2. The Respondent pay a fine of $15,000. The fine is to be paid by an initial instalment of $1,000 and seven instalments of $2,000 paid monthly. The first instalment is to be paid on or before 14 July 2006 and thereafter on or before the fourteenth day of each month.

ORAL REASONS FOR DECISION (REVISED) 1 This is a revised version of the oral reasons delivered at the conclusion of the hearing on 22 June 2006 when final orders disposing of the matter were made. 2 The Tribunal has before it two applications made under the disciplinary provisions of the Environmental Planning and Assessment Act 1979 (the Act) relating to accredited certifiers. The applicant, the Director, Building Professionals Branch in the Department, is a duly authorised administrator of the disciplinary scheme, and the proceedings are brought against an accredited certifier, Ms Jennifer Dallas. The matters are numbered 053421 and 063126. The Tribunal comprises two members, the non-judicial member being a registered surveyor of standing. 3 The material text of the applications is set out in the Appendix to these reasons. 4 This morning, Mr Grey, for the Director, has outlined the items of conduct which are the subject of two applications for disciplinary findings. The two applications were joined. 5 Yesterday the parties placed before the Tribunal draft consent orders. The respondent, Ms Dallas, has appeared here in person today but for some time in the course of these proceedings she has had legal representation and various documents were filed relating to the matter. Proposed Orders 6 The proposed orders are that the respondent be reprimanded, and that the respondent pay a fine of $15,000 and there are certain provisions as to payment by instalments. 7 As noted, the two applications have been joined. The disciplinary orders that are proposed are intended to dispose of both matters. 8 We are of the view that the consent orders should be adopted by the Tribunal. Outline of Circumstances 9 First Application: This application relates to the respondent's conduct in respect of one property at Norah Head, a two storey house plus garage. The respondent issued a complying development certificate. The first application concerns conduct which post-dates the events the subject of the second application. Two storey developments in the Norah Head area are not permitted to be the subject of complying development certificates. The applicant advised that the principal reason for that situation is because it is a built up residential area on the sea side. Although two storey residential dwellings can be the subject of complying development certificates, they are only in particular precincts. Those precincts are on the periphery of the council area in what, at the time, were considered to be development green field sites. The applicant advised the Tribunal that Norah Head, being on the sea side, has different considerations and it is important to preserve through the lodgement of a development application (DA) the ability of neighbours to be able to comment about views being interfered with and the like. 10 The applicant noted that the application raised two other matters in respect of the respondent's conduct as it related to this development. One, the owner of the land proposed to remove trees. This disqualifies it from being a complying development. Two, there were issues to do with finished floor levels that disqualified it from being a complying development. 11 Second Application: This application covers ten properties. The contraventions in the first nine cases relate, again, to the wrongful issuance of complying development certificates. The tenth property involved a contravention relating to a DA. The only issue there was a breach of the BSCP Code of Conduct in the way of a conflict of interest arising from the respondent signing the DA as applicant. 12 As to the nine complaints that relate to complying development certificates, the applicant contends, for the various reasons which are set out briefly in the application, that, in each instance, the complying development certificate should not have been issued because the developments proposed were not complying developments. In summary, the factor or factors that disqualified one or more of the properties from being treated as a complying development included: being in bush fire prone area (2 properties), being in flood prone areas (4 properties), presence of acid sulphate soils (1 property), being within 50 metres of beach, being affected by coastal process studies (2 properties) or failure to meet building standards such as height and set back requirements (4 properties). 13 These errors all related to complying development certificates issued in the period April 2001 to October 2002. 14 Degree of Gravity of Breaches. The applicant informed the Tribunal that the errors were detected following an audit of the respondent. The applicant noted that in most cases the Council was satisfied following consideration that the items of non-compliance were not such as to warrant any remedial action. 15 In the case the subject of the first application, the applicant referred to an affidavit from Mr Gary Lyon, Regional Team Co-ordinator, Region Team North, Wyong Council. In this instance, neighbours of the subject land first became aware that some redevelopment was proposed when excavators arrived on site and began digging and moving soil around. A neighbour contacted the Council. The Council then contacted the builder to stop the works. The respondent had issued a complying development certificate; and the builder had proceeded on that basis. As it transpired, later a DA was lodged and, with some minor alterations to the plans that had been the subject of the complying development certificate, were approved. One of the changes was to shift the garage from one side of the block to the other so it did not interfere with trees. 16 The most serious case related to a beach front property at Pearl Beach, item number one in the second application. The respondent issued a complying development certificate allowing for a large deck. It was constructed. A neighbour complained. The council took action in the Land and Environment Court to have the deck removed. The Court declared the complying development certificate to be invalid and the development to be illegal. Subsequently, there were consent orders for the partial demolition of the subject deck. There were orders that the owner, the respondent in those proceedings, pay the Council's costs. 17 The applicant noted that this matter involved not only litigation but considerable expense to the owner, which the Court described as involving no fault of his own. 18 Mr Grey acknowledged that it was often not an easy matter for a certifier to ascertain with precision whether a development fell within or outside the facility of the complying development certificate. Mr Grey said that in preparing this matter he had to obtain Local Environmental Plans, Development Control Plans, Council Maps and the like. He accepted, to some degree, the difficulties that face certifiers because of the complexities involved in deciding whether a development can be directly approved by the certifier (through the complying development certificate) or must be submitted to the DA process. He accepted that they may have fell into error inadvertently. 19 On the other hand, he observed – an observation with which the Tribunal agrees – that alarm bells should have sounded in the mind of the respondent in the case of some of the properties for which she was asked to issue complying development certificates, for example the beach front property and those within 50 m of the coast. 20 He then referred to item number 3 in the second application, the property at Kariong (in-ground pool). It is a bush fire prone property, and that possibility should, he felt, have been reasonably obvious to the respondent. He referred to an aerial photograph of the property, showing it to be in a rural area, heavily bushed, and looking like virgin country. 21 Finally, he referred to item number 5 in the second application, the property at Albany Road, Umina (construction of an awning on flood prone land). The respondent should have been alert, in his submission, to the possibility of flood affectation. He referred to an exhibit to one of the affidavits showing a watercourse, the local creek at the back of the property. He noted that it was more than a mere flood plain area. The actual water course abutted the property. 22 Concluding, Mr Grey stated that it was in the public interest that there be a competent reliable certification system. In this case the conduct appears to have been, in his submission, systemic, involving a number of properties and a repetition of similar mistakes. 23 In relation to mitigation, he noted that the misconduct identified all relates to conduct last occurring in late 2002, so some years have past. He advised that the Department had not received any further complaint. 24 He referred to steps which the respondent had taken to improve her understanding of her responsibilities. She had taken on more staff which had enabled more resources to be put into making the necessary checks and enquiries as to the development approval requirements applying to particular properties. She has also employed another accredited certifier. She has provided the Department with evidence of having undertaken a number of training courses through the University of Technology Sydney including in 2003 and 2005, in these instances, significant courses of four and five days respectively. 25 Recent Audit. Mr Grey informed the Tribunal that a few days ago Mr Lee Miller, team leader of Audits with the Building Professionals Branch, attended by arrangement at Ms Dallas' business premises and conducted an audit. His particular focus was on the issuance of complying development certificates. 26 Mr Grey advised that he had received Mr Miller's oral report, and the written report was still being finalised. Mr Miller found that, generally, the practices of Ms Dallas are satisfactory. Some issues requiring further attention were identified and they will be taken up with the respondent. Mr Grey expected that there would be a further review in some months time to see if those issues, in fact, have been satisfactorily addressed. 27 Respondent's Information. The respondent replied from the Bar table to the information and submissions provided by Mr Grey. She said that in every one of these instances, Council was contacted and asked if there were any restrictions on the properties so far as the giving of complying development certificates was concerned. She said she was advised that there was not. In the case of the beach front one, she did consider that strange and attended the Council. She asked to have a look at the maps. She said that they did not show any coastal study lines at all. She acknowledged that much later the Council did produce maps which showed the lines. Our understanding of what the respondent said was that this was after she had issued the certificate. 28 She also said that the owner at Pearl Beach built the deck twice the size shown in the plans she approved. She said that previously there had been a deck there which was being replaced and the new deck was only supposed to be a metre wider than the existing deck, but the owner took it right down to the beach front. 29 The Tribunal asked the respondent about the size of her practice. Including herself, there were four staff, two accredited certifiers and two clerical staff. The practice covered the area from Hornsby up to Newcastle. 30 Prior to becoming an accredited certifier, she had worked for about 16 years in councils and four years in private practice. Her qualifications included a Bachelor of Applied Science degree in environmental health (Hawkesbury Agriculture College which is now the University of Western Sydney). The degree included an Attainment in Building. 31 She said that she had worked at the following councils: Fairfield, Concord, Parramatta, Shoalhaven, as well as short terms at Moree, Inverell, Lane Cove, Manly and Gosford. 32 She was asked how she now ensures that she gets the accurate Council information. She advised that when making telephone enquiries, the name of the responding officer is always recorded along with the details of the advice. She said that now she and her staff ask specific questions. She said that previously they used to ask a general question such as was this property able to be treated as a complying development for an awning or swimming pool. She said that now her practice is to ask about special matters such as possible bush fire and flood control requirements. She said that her office has acquired a complete set of acid sulphate maps. She noted that some councils are now putting property information on the internet, and it is possible to download current information. She noted that all the relevant material is in most instances able to be retrieved in that way. 33 She referred to one of the cases. She said that she had obtained what she had thought to be reliable information from the Council's flood mitigation officer, but it turned out not to be correct. She felt that council information practices had improved. She noted that now she checks personally everything that goes out of the office. She now spends less time in the field, leaving the field side of the work more to the employed certifier. She referred to the check lists her office had developed. 34 In response to a question from the Tribunal, she advised that the Land and Environment Court proceedings had resulted in her having to pay $75,000, which she said was by way of contribution to the costs of the owner in respect of the lost work and legal costs. Observations of the Tribunal at Hearing 35 In approving the proposed consent orders, we have had regard to the following matters. 36 The conduct in issue appears to belong, in our assessment at least, to the 2001 and 2002 period. This is a relatively short time span. It belongs to the early history of this new method (use of privately practising certifiers) for dealing with the grant of various kinds of building certificates. 37 We were impressed at the information which Ms Dallas gave us this morning as to the practices that she is now implementing to avoid a repetition of similar problems in future. The practices seem on their face to minimise and hopefully to eliminate any possible problems of the kind identified in the two applications in the future. 38 We were also impressed by the fact that Mr Miller from the Department has undertaken an audit in recent days and is generally satisfied with the operation of Ms Dallas' firm. 39 We are pleased to note that the Department has indicated this morning that there have been no further complaints since this period. 40 The matters, of course, that are raised by the complaints itemised in the two applications, are matters of significance from a public viewpoint. The public depends on the integrity and competence of this new system of certification to assure it that the rules laid down by councils and other planning authorities are observed. 41 This case involved a number of proposed developments in a very busy coastal region of Australia. The balance that has to be struck between compliance with building standards and other interests such as protection of the environment is often a difficult one. 42 We accept that Ms Dallas realises the implications of her omissions during 2001 and 2002. We also note that in many of the instances where she thought wrongly that she could issue a complying development certificate it turned out later that following submission to council the developments were approved often without any substantial variation from the approval she had wrongly given. Viewed in that way many of the breaches were relatively minor. 43 There was one major case – the case where she approved the building of a non-compliant deck (the Pearl Beach case, item 1 in the second application). 44 We have heard details of the way that case ultimately was dealt with and the financial costs that Ms Dallas incurred as a result of the rulings of the Land and Environment Court made in proceedings between the council and her client. 45 We are of the view that it is not appropriate to place a restriction on her practice – a condition preventing her from issuing complying development certificates – a matter that the Director did consider. 46 The imposition of such a condition would be a significant intervention. We think it is not warranted given what we have heard about her conduct in the period since 2002. 47 In our view the reprimand and the fine proposed is an appropriate way of meeting the public interest in disapproving of her conduct. These sanctions are proportionate to the conduct revealed. They are adequate in the circumstances in providing an indication or signal to accredited certifiers generally as to what is expected. The sanctions also serve the purpose of providing a general deterrent to the regulated group. 48 The fine seems to us in an amount that serves those ends. We recognise in that regard that Ms Dallas' practice is a small one. A fine of this order will no doubt have some impact that is felt in the running of the practice. 49 There were aspects to the new system of accreditation and the facility of the complying development certificate with which Ms Dallas had not, it would seem, become familiar during her long career working in councils prior to becoming a private certifier. We note that the councils that she worked at in the past lay outside the Central Coast region where she is now working. She has since taken a number of steps to improve her knowledge of what is required. 50 We commend the parties for the efforts that they have made to try to reduce the scope of these proceedings and bring forward orders that appropriately reflect the various interests that the Tribunal is bound to address when looking to see the public interest is protected by proposed orders. With those observations we are happy to endorse the orders as they have been presented to the Tribunal. We will issue final orders to that effect. 51 We find proven the matters alleged against the respondent in the two applications. We find under s 109ZA of the Act, that the applicant's conduct constitutes unsatisfactory professional conduct (see s 109R). We make the following disciplinary orders. Orders 1. The Respondent be reprimanded. 2. The Respondent pay a fine of $15,000. The fine is to be paid by an initial instalment of $1,000 and seven instalments of $2,000 paid monthly. The first instalment is to be paid on or before 14 July 2006 and thereafter on or before the fourteenth day of each month.