Building Professionals Board v Duffy [2008] NSWADT 117

CITATION: Building Professionals Board v Duffy [2008] NSWADT 117

DIVISION: General Division

APPLICANT Building Professionals Board PARTIES: RESPONDENT Peter Duffy

FILE NUMBER: 073169, 073287

HEARING DATES: 11 December 2007

SUBMISSIONS CLOSED: 11 December 2007

DATE OF DECISION: 18 April 2008

BEFORE: O'Connor K - DCJ (President); Hayward P - Non Judicial Member

CATCHWORDS: Disciplinary Findings and Order

MATTER FOR DECISION: Principal matter

Building Professionals Act 2005 LEGISLATION CITED : Building Professionals Regulation 2007 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000

CASES CITED: Legal Services Commissioner v Tsolakis [2000] NSWADT 21 Building Professionals Board v Boulle [2008] NSWADT 80

APPLICANT A Grey, solicitor REPRESENTATION: RESPONDENT K Lovegrove, solicitor

1. The Tribunal finds the Respondent guilty of: ORDERS: (a) professional misconduct in respect of his failure to respond to notices served by the accreditation body; and (b) unsatisfactory professional conduct in respect of his failure to provide copies of certificates to Council 2. The Tribunal orders the Respondent not to re-apply for a certificate of accreditation within two years from the date of this order.

REASONS FOR DECISION 1 The Building Professionals Board has made two applications under the Building Professionals Act 2005 (BP Act) for disciplinary findings and orders relating to the conduct of Peter Duffy, who at the relevant times was an accredited certifier. 2 The BP Act regulates those who practise as accredited private certifiers, and has replaced earlier legislation which had been in force since 1998. The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Building Professionals Board is responsible for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal. 3 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct, it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1). 4 Mr Duffy allowed his accreditation to lapse in 2006. The Board has power to investigate and deal with a complaint against an accredited certifier after the certificate has lapsed. Section 20(2) provides: '(2) A complaint against an accredited certifier may be made and dealt with even though the relevant certificate of accreditation has been suspended or cancelled or has lapsed. For that purpose, a reference in this Part to an accredited certifier includes a reference to a person whose certificate of accreditation has been suspended or cancelled or has lapsed.' 5 The Board and the Tribunal may decline to deal with a complaint against a former certifier. Section 20 continues: '(3) Despite subsection (2), the Board may decide not to investigate or make a decision under section 31 on a complaint (or may decide to terminate an investigation or dismiss proceedings in relation to a complaint) if the person who is the subject of the complaint is no longer an accredited certifier. (4) Despite subsection (2), the Tribunal may decide not to determine an application for a disciplinary finding against an accredited certifier (or may decide to dismiss proceedings for such an application) if the person to whom the application relates is no longer an accredited certifier.' 6 In our view, this is clearly a case that warrants attention, and no submission was made to the contrary. 7 The first application was filed on 29 May 2007 (file no. 073169) and the second application (file no. 073287) was filed on 28 September 2007. 8 The first application results from a complaint lodged with the then accreditation body on 21 December 2004 on behalf of Baulkham Hills Shire Council. It alleges that Mr Duffy had inappropriately issued complying development certificates and had failed to forward copies of the Part 4A certificates to the Council. The application refers to the following developments: swimming pool at 13 Arabella Place, Bella Vista; swimming pool, 14 Ashburton Court, Kellyville; swimming pool, 12 Ashburton Court, Kellyville; swimming pool, 49 Terry Road, Box Hill; and additions to a dwelling, 1381 Wisemans Ferry Road, Maroota. 9 The second application results from the same complaint. It alleges that Mr Duffy failed to forward copies of Part 4A certificates and other notices to Council within the prescribed time. The application refers to the following developments: building construction, 1 Ferncreek Court, Kellyville; and building construction, 90A Baker Street, Carlingford. 10 It will be seen that his conduct in respect of seven developments is put in issue, and involve similar allegations. The applications were joined, and heard together on 11 December 2007. 11 In respect of all seven developments, Mr Duffy is alleged to have failed to forward required documents to Council. In the case of the fifth-mentioned development, 1381 Wisemans Ferry Road (addition to dwelling), Mr Duffy is alleged in addition to have failed to date an occupation certificate. 12 In respect of all seven investigations undertaken by the accreditation body, Mr Duffy is alleged to have failed to comply with a s 109X notice requiring him to furnish documents to the investigator. 13 Finally in respect of the first-mentioned development, 13 Arabella Place (swimming pool), it is alleged that the complying development certificate was inappropriately issued as the coping (the uppermost course of the wall) was in excess of the height limit prescribed by the relevant standards. It is alleged that the coping was set 600 mm about the natural ground level, when the maximum permitted is 300 mm. 14 Because of their length, the material parts of the applications are appended to this decision. 15 Mr Duffy's original Reply was replaced on the eve of the hearing, 10 December 2007, by amended Replies. The Board filed short written submissions responding to the amended Replies (Ex D in both files). 16 In support of the first application, the Board's evidence is provided in an affidavit sworn by Ken Ketheesuran, Departmental Investigator with the Board, sworn 11 September 2007. The affidavit has annexed a detailed exhibit, setting out the history of the investigation and internal proceedings in respect of the matters the subject of the application (Folder 1). In support of the second application, the Board's evidence is provided in an affidavit sworn by Frank Rupolo, Departmental Investigator with the Board, sworn 20 November 2007. That affidavit also has annexed a detailed exhibit, setting out the history of the investigation and internal proceedings in respect of the matter the subject of the application (Folder 2). 17 At hearing, Mr Lovegrove, solicitor, appeared on behalf of Mr Duffy. Mr Grey appeared for the Board. The relevant law is set out accurately in the two applications. 18 Non-forwarding of documents to Council. Mr Lovegrove for Mr Duffy said that his client's position was that to the best of his recollection he forwarded the required documents to Council, but for some reason they were never received, or possibly mislaid after receipt. Mr Duffy did not give any direct testimony on this matter. 19 Mr Grey for the Board called Mr Linton, Building Surveyor, Baulkham Hills Shire Council. Mr Linton explained the electronic document management system employed by the Council. He said that all hardcopy documents are scanned into the Council's document management system. 20 He had personally dealt with the complaints against Mr Duffy. He said that the Council had received complaints during 2004 from the swimming pool builder, Malibu Pools, and several owners that the Council did not have particular documents which they needed for other purposes. He said that he noticed that a common factor in these complaints was that Mr Duffy had been the certifier. 21 Mr Linton said that he proceeded to contact Mr Duffy, first on 16 September 2004, to provide Council with the required documents. In reply to this and subsequent calls, Mr Duffy assured him that he did have the required documents. However, none were forthcoming. His failure to furnish the documents led to the lodgment of the complaint with the accreditation body on 4 December 2004. Mr Linton noted that some documents were sent to Council after the formal complaint was notified to Mr Linton. 22 The Council received documents in respect of 90A Baker Street (occupation certificate, a notice, a construction certificate, plan, received 10 December 2004), Wisemans Ferry Road (owner sent two documents, received 13 December 2004), Box Hill (complying development certificate dated 17 June 2003, occupation certificate dated 3 September 2004, application form dated 13 May 2003 and plans, received 16 December 2004). Mr Linton was not cross-examined. 23 Mr Lovegrove did not call Mr Duffy. Instead he made a statement from the bar table giving his client's version of what occurred. He said that Mr Duffy did have a system for lodging documents. He had brought files to the hearing which showed that the ticked off the boxes on the sheet where he records whether required documents have been dispatched to Council and to owners. He had brought his office files covering five of the seven properties. They were shown to Mr Grey. One sample file (for 12 Ashburton Court) was shown to the Tribunal. 24 The Tribunal can attach little weight to this explanation. The Council has given sworn evidence of non-receipt. The fact that some documents were provided after the formal complaint was lodged suggests that Mr Duffy made a belated attempt to get things in order. Mr Duffy has declined to give sworn evidence and be cross-examined on these matters. 25 The Tribunal finds proven the charges as they relate to failure to lodge required documents with Council in time or at all. 26 Non-response to s 109X notice from accreditation body. Section 109X, as in force at the relevant times, is set out in the applications. Mr Duffy admitted each of these allegations. The history of the accreditation body's correspondence is set out in Folder 1 and Folder 2. The Tribunal finds these allegations proven. 27 Inappropriate issue of a complying development certificate for swimming pool, 13 Arabella Place. As the application recites, the Environmental Planning and Assessment Act 1979 (EP & A Act) states that an environmental planning instrument may provide that a development that can be addressed by 'specified predetermined standards' is a complying development: s 76A(5). A complying development certificate is a certificate that states that a 'particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development': s 85(1)(a). Mr Duffy was entitled to issue complying development certificates, thus enabling the owner to bypass the more formal process of making a development consent application to the Council. 28 As the application recites, the relevant instrument, as in force at the time, the Baulkham Hills Development Control Plan, 6.2, allowed a complying development certificate to be issued for swimming pools built in association with dwelling houses subject to specified standards being met, one of which was: '5. The coping around the pool is to be no more than 300mm above the existing ground level.' 29 The key allegations in the application are: '(i) The plans prepared by John E Sanders, Consulting Engineer, dated 4 February 2003, which are attached to Complying Development Certificate No. 1002 determined by the Respondent on 12 May 2003 in respect to the above development, specify: - "Datum-top of coping level with patio at edge of rear door" (see – SITE PLAN) - That the top of the pool coping is between approximately 200 and 300 mm above the natural ground level (see – SECTION AA and SECTION BB) (ii) The natural ground levels of the property upon which the swimming pool was to be constructed were sloping and were not to the levels depicted in the above plans. (iii) The swimming pool has been constructed with the top of the coping approximately 650 mm above ground level along one side. (iv) The Respondent failed to take appropriate steps prior to determining the application for the issue of the complying development certificate to ascertain if the natural ground levels of the subject land were as depicted in the plans and as to whether the swimming pool could be built in conformity with the plans and with the requirements of 1(a)(iv) above.' 30 The Board's case proceeded on two bases. One, the plans were inadequate in relation to prescribing the coping height. Two, the certifier should have undertaken a site inspection before issuing the complying development certificate. 31 Mr Duffy gave sworn evidence on these matters. His opinion was that the plans showed that the coping height would at no point be greater than 200mm above the natural ground, and that therefore the plans were compliant. Mr Grey suggested to Mr Duffy in cross-examination that the 'plans' to which he was referring were no more than engineering details (see 043 and 044 of Folder 1). 32 Mr Grey suggested to Mr Duffy that the Site Plan (see 042 of Folder 1) was the relevant plan against which to make an assessment, and that plan failed to show the 'natural ground level' (NGL) which is the starting point for ascertaining coping heights. The site was a sloping site. Mr Grey also put questions to Mr Duffy regarding the need for a site inspection prior to issuing the complying development certificate. For example, he was asked what measuring apparatus he used to ascertain NGLs. It was suggested that he might have used a spirit level. Mr Duffy said that he did not have measuring apparatus of that kind. 33 Mr Duffy's position was that the appropriate time to check NGLs, and compliance with coping height requirements, is when the certifier is contacted to undertake the mandatory checks. He said that he would have done the coping height check at the structural steel stage, but he was not called back to do that. 34 We will first comment on the adequacy of the plans. The case as put by the Board was that the plans did not contain adequate denotations showing the relationship between the coping height and NGL (or to use the words of the Baulkham Hills DCP) the 'existing' ground level. (We accept that 'existing ground level' and 'natural ground level' are interpreted in the field to mean the same thing.) 35 In the top left hand corner of the Site Plan (042) there is a boxed notation which states 'Dimensions shown thus on the plan of the pool represent the level of top of pool above (+) or below (-) natural ground.' The plan clearly shows the pool to be level with NGL at the south east and south west corners and +100 at the north eastern corner and +200 at the north western corner. The plans at 043 and 044 show no dimensions. However 044 indicated diagrammatically that the coping was in fact proposed to be set slightly above NGL. 36 Our conclusion is that the plans were sufficiently detailed to satisfy a competent certifier that they were compliant in respect of coping height. The problem in the case, as we see it, is that the building was not done according to plan. Had Mr Duffy been requested to issue an occupation certificate he would have had to refuse it as it was not built according to plan. 37 In our view, and in the absence of any expert evidence on this matter from the Board, it seems to follow from the nature of a complying development certificate that it will be issued at the pre-works stage. It follows therefore that we do not regard it as necessary for a competent certifier to undertake a site inspection in a project of the present kind at the complying development certificate stage. Were the plan non-compliant, the certifier would have been obliged to refuse to issue a certificate. 38 This charge is dismissed. Assessment 39 The matters that have been proven relate to misconduct by Mr Duffy in the handling of his responsibilities in respect of communication with relevant authorities. 40 As this is a pre-March 2007 case, the standards are those found in the definitions in s 109R of the EP & A Act: ' professional misconduct , in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier's accreditation as an accredited certifier or the withdrawal of the accredited certifier's accreditation.' 41 What is 'unsatisfactory professional conduct' is defined as follows: ' unsatisfactory professional conduct includes conduct (whether consisting of an act or omission): (a) occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, or (b) by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or (c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or (d) by which an accredited certifier fails to comply with: (i) any relevant code of conduct established by the accreditation body by which he or she is accredited, or (ii) any other Act or law prescribed by the regulations, or (e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.' 42 In this case a further provision is relevant, s 109X(5), which provides that an accredited certifier who 'without reasonable excuse' fails to comply with 'such a requirement' is guilty of professional misconduct. 43 There were 12 letters sent by the Board and 9 notices sent by the Department (the previous accreditation body), none of which received a response from Mr Duffy. 44 Mr Lovegrove submitted that Mr Duffy had a 'reasonable excuse' for his conduct. He referred to various circumstances that had affected Mr Duffy, who is now aged 40 years, during the past seven years in his business life, his domestic circumstances and his personal health. It is not necessary to recite publicly the details. Mr Lovegrove said that Mr Duffy believes that the trauma surrounding these events led to him being careless in respect of paperwork. As already noted, he took the decision in 2006 not to seek renewal of his accreditation, and it has now lapsed. 45 The establishment of a 'reasonable excuse' falls to the respondent. None of the matters raised by Mr Lovegrove were the subject of direct evidence from Mr Duffy or corroborating evidence. In the absence of any evidence of this kind (for example, reports from health professionals), the onus is not discharged. As Mr Duffy's case based on 'reasonable excuse' fails at the first hurdle, we will not consider the question of whether circumstances of these kinds should be treated as a 'reasonable excuse'. The exception or defence of 'reasonable excuse' is found in many liability provisions. These are words with no special meaning. In this Tribunal, some discussion of this defence in a professional disciplinary context (the legal profession) is to be found in Legal Services Commissioner v Tsolakis [2000] NSWADT 21. 46 Mr Lovegrove raised the question of what the term 'such a requirement' might mean. This term is to be understood, we consider, by reference to sub-s (4) and sub-s (1). At the least, a 'requirement' is to be understood as a reference to any of the directions listed in paragraphs (a), (b) and (c) of sub-s (1). Of these, the broadest requirement is that found in para (c) – 'to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner'. 47 In this instance Mr Duffy failed, to a lamentable degree, in his duties as an accredited professional, to respond and assist disciplinary inquiries. As the Tribunal noted in Building Professionals Board v Boulle [2008] NSWADT 80 at [50]: 'The disciplinary system imposes on [accredited certifiers] standards of performance of a kind typical of regulation of professions. It is vital that members of professions respond actively to enquiries made of them by their regulators, and in particular to formal notices in connection with complaints or disciplinary investigations.' 48 This is not a case where a trivial or isolated incident of non-compliance with a requirement has been drawn to attention. In our view, Mr Duffy's conduct transgressed the general standard laid down in the primary definition of professional misconduct. It was conduct that amounted to unsatisfactory professional conduct of such a degree as to warrant a finding of professional misconduct. It also, obviously, transgressed the particular standard set down in s 109X(5). 49 At the least, the several failures to lodge required documents with the Council amounts to unsatisfactory professional conduct. At hearing the Board indicated that it did not press for a finding of professional misconduct as to these matters. 50 The number of failures to report to the Council identified in this case falls at the margin of professional misconduct. 51 We will accede to the Board's submission on this occasion, and treat the non-compliances as unsatisfactory professional conduct. It should not be assumed that if non-compliances of similar degree were identified in a future case that we would necessarily adopt the same view. 52 It is vital that accredited certifiers are punctilious in observing their obligations to lodge certificates and related documents promptly and in accordance with time lines. They are vital in assuring responsible authorities and the community more generally that developments are proceeding in accordance with the law. They are material documents for steps owners may have to take with respect to insurance, reselling and other activities. 53 Mr Lovegrove made the submission that there was no manifest harm to anyone in this case – these were 'paperwork vices'. For the reasons already explained, we do not accept that the transgressions of standards identified by this case can be put to one side so easily. The standards form part of the framework of public accountability within which accredited certifiers operate. Appropriate Order 54 The BP Act s 34(2) provides: '(2) If the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions: (a) caution or reprimand the accredited certifier, (b) direct that such conditions as it considers appropriate be imposed on the accredited certifier's certificate of accreditation, (c) order that the accredited certifier complete such educational courses as are specified by the Tribunal, (d) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Tribunal, (e) order the accredited certifier to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order, (f) order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct, (g) suspend the accredited certifier's certificate of accreditation for such period as the Tribunal thinks fit, (h) cancel the accredited certifier's certificate of accreditation, (i) order that the accredited certifier cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal. (4) The Tribunal may not make an order under subsection (2) (f) without the consent of the complainant and the making of any such order does not affect any right of the complainant to bring an action to seek additional compensation.' 55 In this instance the Board sought an order under s 34(2)(i) that Mr Duffy can not re-apply for a certificate for two years. 56 We have referred already to some aspects of Mr Duffy's personal history. Mr Duffy holds a Bachelor of Applied Science (Building) degree and also did three years of an Engineering degree. He worked for ten years in local government, before going into private practice when the private certifier scheme was established in 1999. He closed his private business around 2003. Subsequently he became an employee of another private certification business (McKenzie and Associates), and was terminated a year later. He has little financial means. He indicated, through Mr Lovegrove, that he would not apply for reaccreditation until he is satisfied that his health has recovered. 57 Mr Grey questioned some aspects of Mr Lovegrove's account of his client's circumstances. He noted that the Board's records showed that he worked as an accredited certifier until September 2006. Mr Lovegrove responded by amending his previous submission, by acknowledging that his client had continued to do a small amount of work after leaving McKenzie and Associates. 58 In our view, it is desirable to stand Mr Duffy down for a period of two years, as suggested by the Board. If and when Mr Duffy reapplies, the Board will need to consider at that time whether he is fit for re-entry into the profession. The one factor that stands in Mr Duffy's favour is that none of the matters that have resulted in adverse findings went to his professional competence in the technical aspects of certification. Order 1. The Tribunal finds the Respondent guilty of: (a) professional misconduct in respect of his failure to respond to notices served by the accreditation body; and (b) unsatisfactory professional conduct in respect of his failure to provide copies of certificates to Council. 2. The Tribunal orders the Respondent not to re-apply for a certificate of accreditation within two years from the date of this order. APPENDIX First Application (073169) Disciplinary finding/s sought: 1. (First disciplinary finding sought) Pursuant to sections 31(2) and (3) of the Building Professionals Act 2005 (the BP Act) the Building Professionals Board (the Applicant) makes application for a disciplinary finding against Mr Peter Duffy (the Respondent), being a finding of professional misconduct, or in the alternative of unsatisfactory professional conduct, in respect of the matters set out below. General description of conduct: A. A complaint was made pursuant to s.109V of the Environmental Planning and Assessment Act 1979 (the EP & A Act) by Mr Bruce Linton of Baulkham Hills Shire Council to the Department of Infrastructure, Planning and Natural Resources on 21 December 2004 against Mr Peter Duffy (the Respondent) in relation to the inappropriate issue of certain complying development certificates and to his failure to forward copies of Part 4A certificates to Council. B. The Respondent was at all material times accredited as an accredited certifier and principal certifying authority pursuant to s.109T of the EP & A Act. The Respondent was accredited under the Building Surveyors & Allied Professions Accreditation Scheme (the BSAP Scheme) and Neil Cocks, Director, Building Professionals Branch, Department of Planning had been appointed by the Minister under Clause 199(3)(a) of the Environmental Planning and Assessment Regulation 2000 (the EP & A Regulation) to administer the BSAP Scheme. C. The complaint has been investigated pursuant to section 109W of the EP & A Act by officers of the Department of Planning on behalf of Mr Cocks. D. In the course of the investigation, the Department's officers served notices on the Respondent under s.109X of the EP & A Act requiring the Respondent to produce certain documents to the Department's officers. The Respondent failed, without reasonable cause, to comply with these notices. E. The authority of Mr Cocks expired with the commencement of the Building Professionals Act 2005 (the BP Act) on 1 March 2007. Pursuant to Clause 3(1), Schedule 2 of the BP Act, the Applicant is required to continue to deal with the complaint as a complaint under Part 3 of the BP Act. F. By issuing the complying development certificates, failing to provide copies of certificates to the Council and by not complying with the notices issued to him under s.109X of the EP & A Act, the Respondent has engaged in conduct; (a) occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or (b) by which he contravened the Act. PARTICULARS 1. DEVELOPMENT AT NO. 13 ARABELLA PLACE, BELLA VISTA – SWIMMING POOL (a) Relevant legislative provisions (i) Section 76A(5) of the EP & A Act provides: An environmental planning instrument may provide that local development that can be addressed by specified predetermined development standards is complying development. (ii) Sections 85A(1) and (3) of the EP & A Act provide: (1) An applicant may, in accordance with the regulations, apply to: (a) the council, or (b) an accredited certifier, for a complying development certificate. (3) The council or accredited certifier must consider the application and determine: (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. (iii) Clause 9B of the Baulkham Hills Local Environmental Plan 1991 (Baulkham Hills LEP) (which is an environmental planning instrument under the Act) relevantly provides: (1) Development identified as complying development in the Table to clause 9 is "complying development", but only if: (a) it is local development (and, consequently is not State significant development), and (b) it is not an existing use, as defined in section 106 of the Act, (c) it is carried out in a zone for which it is identified as complying development by the Table to clause 9, (d) it complies with the development standards and other requirements applied to the development by the Councils four development control plans for residential, employment, business and rural development, respectively, as approved by Council on 2 May 2000, and (e) it meets the other requirements made for complying development by the Act and this clause except as provided by subclauses (2) and (3). (iv) Section 6.2 of the Baulkham Hills Shire Council Development Control Plan for Residential Complying Development dated May 2000 lists the development standards for swimming pools and provides: "5. The coping around the pool is to be no more than 300 mm above the existing ground level." (v) Clause 130(4) of the EP & A Regulation provides: (4) For the purposes of section 85A(11)(b) of the Act, the accredited certifier must cause notice of his or her determination of an application for a complying development certificate to be given to the council by forwarding to it, within 2 days after the date of the determination, copies of: (a) the determination, together with the application to which it relates, and (b) any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and (c) any complying development certificate issued as a result of the determination, together with any associated fire safety schedule or fire link conversion schedule. (vi) Section 109X EP & A Act provides: 109X Powers of accreditation body in investigation of complaint (1) For the purpose of investigating any complaint, the relevant accreditation body may, by notice served on any person accredited by it as an accredited certifier, require the person to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (2) The accreditation body may inspect any document produced before the accreditation body under this section and may retain it for such period as the accreditation body thinks necessary for the purposes of an investigation in relation to which it was produced. The accreditation body may make copies of the document or any part of the document. (3) If the accredited certifier against whom any complaint is made (or taken to be made) claims a lien over documents relating to the matter the subject of the complaint, the accreditation body may require the accredited certifier to waive the lien if satisfied it is necessary for the orderly transaction of the complainant's business. (4) A requirement under this section is to be notified in writing to the accredited certifier and is to specify a reasonable time for compliance. (5) An accredited certifier who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. (6) An accredited certifier must not mislead or obstruct an accreditation body in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct. (b) Particulars of Conduct Inappropriate issue of complying development certificate (i) The plans prepared by John E Sanders, Consulting Engineer, dated 4 February 2003, which are attached to Complying Development Certificate No. 1002 determined by the Respondent on 12 May 2003 in respect to the above development, specify: - "Datum-top of coping level with patio at edge of rear door" (see – SITE PLAN) - That the top of the pool coping is between approximately 200 and 300 mm above the natural ground level (see – SECTION AA and SECTION BB) (ii) The natural ground levels of the property upon which the swimming pool was to be constructed were sloping and were not to the levels depicted in the above plans. (iii) The swimming pool has been constructed with the top of the coping approximately 650 mm above ground level along one side. (iv) The Respondent failed to take appropriate steps prior to determining the application for the issue of the complying development certificate to ascertain if the natural ground levels of the subject land were as depicted in the plans and as to whether the swimming pool could be built in conformity with the plans and with the requirements of 1(a)(iv) above. (v) By issuing the complying development certificate the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Failure to give copies of documents to council (vi) The Respondent did not forward to the council a copy of the complying development certificate or the other documents required to be given to council under Clause 130(4) EP & A Regulation. (vii) By not forwarding the documents to council as referred to in (vi), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Non-compliance with s.109X notice (viii) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 12 April 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 11 May 2006. (ix) The Respondent did not comply with the s.109X notice referred to in (viii). (x) By not complying with the s.109X notice, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. 2. DEVELOPMENT AT NO. 14 ASHBURTON COURT, KELLYVILLE – SWIMMING POOL (a) Relevant legislative provisions (i) Clause 142(2) EP & A Regulation provides: (2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of: (a) the determination, together with the application to which it relates, and (b) any construction certificate issued as a result of the determination, and (c) any plans and specifications in relation to which such a construction certificate has been issued, and (d) any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and (e) any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140. (ii) Section 109X EP & A Act. See – 1(a)(vi) above (b) Particulars of conduct Failure to give copies of documents to council (i) The Respondent issued Construction Certificate No. 1321 dated 14 July 2004 in respect of the above development. (ii) The Respondent did not forward to the council a copy of the construction certificate or the other documents required to be given to council under Clause 142(2) EP & A Regulation. (iii) By not forwarding the documents to council as referred to in (ii), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Non-compliance with s.109X notice (iv) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 24 February 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 24 March 2006. (v) The Respondent did not comply with the s.109X notice referred to in (iv). (vi) By not complying with the s.109X notice, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. 3. DEVELOPMENT AT NO. 12 ASHBURTON COURT, KELLYVILLE – SWIMMING POOL (a) Relevant legislative provisions (i) Clause 142(2) EP & A – See at 2(a)(i) above. (ii) Section 109X EP & A Act. See – 1(a)(vi) above. (b) Particulars of conduct Failure to give copies of documents to council (i) The Respondent issued Construction Certificate No. 1331 dated 14 June 2004 in respect of the above development. (ii) The Respondent did not forward to the council a copy of the construction certificate or the other documents required to be given to council under Clause 142(2) EP & A Regulation. (iii) By not forwarding the documents to council as referred to in (ii), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Non-compliance with s.109X notice (vi) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 30 March 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 27 April 2006. (v) The Respondent did not comply with the s.109X notice referred to in (viii). (vi) By not complying with the s.109X notice, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. 4. DEVELOPMENT AT NO. 49 TERRY ROAD, BOX HILL – SWIMMING POOL (a) Relevant legislative provisions (i) Clause 130(4) EP & A – See at 1(a)(v) above. (ii) Clause 151(2) EP & A Regulation provides: (2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination: (a) a copy of the determination, (b) copies of any documents that were lodged with the application for the certificate, (c) if an occupation certificate was issued, a copy of the certificate, (d) a copy of the record required to be made of each of the following: (i) all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E(3)(d) of the Act, (ii) any inspection carried out under clause 162A(4A)(a), (iii) any missed inspection to which clause 162C applies, (e) a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate. (iii) Section 109X EP & A Act. See – 1(a)(vi) above. (b) Particulars of conduct Failure to give copies of documents to council (i) The Respondent issued Complying Development Certificate No. 1116 dated 17 June 2003 in respect of the above development. (ii) The Respondent did not forward to the council within 2 days of determining the application a copy of the complying development certificate or the other documents required to be given to council under Clause 130(4) EP & A Regulation. (iii) By not forwarding the documents to council as referred to in (ii), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. (iv) The Respondent issued Occupation Certificate No.1116 dated 3 September 2004 in respect to the above development. (v) The Respondent did not forward to the council within 2 days of determining the application a copy of the occupation certificate or the other documents required to be given to council under Clause 151(2) EP & A Regulation. (vi) By not forwarding the documents to council as referred to in (v), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Non-compliance with s.109X notice (vii) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 19 April 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 17 May 2006. (viii) The Respondent did not comply with the s.109X notice referred to in (vii). (ix) By not complying with the s.109X notice, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. 5. DEVELOPMENT AT NO. 1381 WISEMANS FERRY ROAD, MAROOTA – ADDITIONS TO A DWELLING (a) Relevant legislative provisions (i) Clause 142(2) EP & A – See at 2(a)(i) above. (ii) Clause 155(1)(c) EP & A Regulation provides: (1) An occupation certificate must contain the following information: (c) the date of the certificate (iii) Clause 151(2) EP & A – See at 4(a)(ii) above. (iv) Section 109X EP & A Act. See – 1(a)(vi) above. (b) Particulars of conduct Failure to give copies of documents to council (i) The Respondent issued Construction Certificate No. 1031 dated 11 March 2003 in respect of the above development. (ii) The Respondent did not forward to the council within 2 days of determining the application a copy of the construction certificate or the other documents required to be given to council under Clause 142(2) EP & A Regulation. (iii) By not forwarding the documents to council as referred to in (ii), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Failure to date certificate (iv) The Respondent issued Occupation Certificate No. 1031 in respect to the above development. (v) The occupation certificate was not dated. (vi) By not dating the occupation certificate the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Failure to give copies of documents to council (vii) The Respondent did not forward to the council within 2 days of determining the application a copy of the occupation certificate or the other documents required to be given to council under Clause 151(2) EP & A Regulation. (viii) By not forwarding the documents to council as referred to in (vii), the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. Non-compliance with s.109X notice (ix) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 19 April 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 17 May 2006. (x) The Respondent did not comply with the s.109X notice referred to in (ix). (xi) By not complying with the s.109X notice, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. 7. Orders sought The Applicant seeks the following orders: That the Tribunal makes a finding that the Respondent has been guilty of professional misconduct, or in the alternative, of unsatisfactory professional conduct, and make a decision under s.34 BP Act. Second Application (073287) General description of conduct: A. A complaint was made pursuant to s.109V of the Environmental Planning and Assessment Act 1979 (the EP & A Act) by Mr Bruce Linton of Baulkham Hills Shire Council to the Department of Infrastructure, Planning and Natural Resources on 21 December 2004 against Mr Peter Duffy (the Respondent) in relation to his failure to forward copies of Part 4A certificates and other notices to Council within the prescribed times. B. The Respondent was at all material times accredited as an accredited certifier and principal certifying authority pursuant to s.109T of the EP & A Act. The Respondent was accredited under the Building Surveyors & Allied Professions Accreditation Scheme (the BSAP Scheme) and the Minister appointed the Director-General of the Department of Planning and other Departmental Officers, including Neil Cocks, Director, Building Professionals Branch (the Ministers appointees) under Clause 199(3)(a) of the Environmental Planning and Assessment Regulation 2000 (the EP & A Regulation) to administer the BSAP Scheme. C. The complaint has been investigated pursuant to section 109W of the EP & A Act by officers of the Department of Planning on behalf of the Ministers appointees. D. In the course of the investigation, the Department's officers served notices on the Respondent under s.109X of the EP & A Act requiring the Respondent to produce certain documents to the Department's officers. The Respondent failed, without reasonable cause, to comply with these notices. E. The authority of the Minister's appointees expired with the commencement of the Building Professionals Act 2005 (the BP Act) on 1 March 2007. Pursuant to Clause 3(1), Schedule 2 of the BP Act, the Building Professionals Board (the Applicant) is required to continue to deal with the complaint as a complaint under Part 3 of the BP Act. F. By failing to provide copies of certificates and notices to the Council and by not complying with the notices issued to him under s.109X of the EP & A Act, the Respondent has engaged in conduct; (a) occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or (b) by which he contravened the Act. PARTICULARS OF ALLEGATIONS A. DEVELOPMENT AT NO. 1 FERNCREEK COURT, KELLYVILLE (1) Relevant legislative provisions Section 109X Environmental Planning and Assessment Act 1979 (the EP & A Act) provides: 109X Powers of accreditation body in investigation of complaint (1) For the purpose of investigating any complaint, the relevant accreditation body may, by notice served on any person accredited by it as an accredited certifier, require the person to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (2) The accreditation body may inspect any document produced before the accreditation body under this section and may retain it for such period as the accreditation body thinks necessary for the purposes of an investigation in relation to which it was produced. The accreditation body may make copies of the document or any part of the document. (3) If the accredited certifier against whom any complaint is made (or taken to be made) claims a lien over documents relating to the matter the subject of the complaint, the accreditation body may require the accredited certifier to waive the lien if satisfied it is necessary for the orderly transaction of the complainant's business. (4) A requirement under this section is to be notified in writing to the accredited certifier and is to specify a reasonable time for compliance. (5) An accredited certifier who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. (6) An accredited certifier must not mislead or obstruct an accreditation body in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct. (2) Particulars of Conduct Non-compliance with s.109X notice (a) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 5 April 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 3 May 2006. (b) An authorised officer of the Department of Planning issued and served upon the Respondent a further notice under s.109X of the EP & A Act dated 16 November 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 8 December 2006. (c) The Respondent did not comply with the s.109X notices referred to in (i) and (ii) above [sic]. (d) By not complying with the s.109X notices, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. B. DEVELOPMENT AT 90A BAKER STREET, CARLINGFORD (1) Relevant legislative provisions (a) Clause 142(2) Environmental Planning and Assessment Regulation 2000 (the EP & A Regulation) provides: (2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of: (a) the determination, together with the application to which it relates, and (b) any construction certificate issued as a result of the determination, and (c) any plans and specifications in relation to which such a construction certificate has been issued, and (d) any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and (e) any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140. (b) Clause 151(2) EP & A Regulation provides: (2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination: (a) a copy of the determination, (b) copies of any documents that were lodged with the application for the certificate, (c) if an occupation certificate was issued, a copy of the certificate, (d) a copy of the record required to be made of each of the following: (i) all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E(3)(d) of the Act, (ii) any inspection carried out under clause 162A(4A)(a), (iii) any missed inspection to which clause 162C applies, (e) a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate. (c) Section 81A(2)(b1) of the EP & A Act provides: (2) The erection of a building in accordance with a development consent must not be commenced until: (b1) the principal certifying authority has, no later than 2 days before the building work commences: (i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and (2) Particulars of Conduct (a) Failure to forward copy of notice of commencement of work and appointment as PCA to council in time (i) On or before 20 November 2003 the Respondent signed a Notice of Commencement of Building Work and Appointment of Principal Certifying Authority form (the Notice) in respect of the above development. (ii) The Notice advised that work was to commence on 20 November 2003. (iii) A copy of the Notice was not received by Baulkham Hills Council until 10 December 2004. (b) Failure to forward copy of construction certificate to council in time (i) The Respondent issued construction certificate No. 1268CC dated 1 November 2003 in respect of the above development. (ii) A copy of the construction certificate was not received by Baulkham Hills Council until 10 December 2004. (c) Failure to forward copy of occupation certificate to council in time (i) The Respondent issued occupation certificate No. 1268CC dated 7 November 2004 in respect to the above development. (ii) A copy of the occupation certificate was not received by Baulkham Hills Council until 10 December 2004. (d) By not forwarding the documents to council as referred to in (a), (b) and (c) above the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act. (e) Non-compliance with s.109X notices (i) An authorised officer of the Department of Planning issued and served upon the Respondent a notice under s.109X of the EP & A Act dated 1 May 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 30 May 2006. (ii) An authorised officer of the Department of Planning issued and served upon the Respondent a further notice under s.109X of the EP & A Act dated 16 November 2006. The Notice required the Respondent to produce certain specified documents to the authorised officer by 8 December 2006. (iii) The Respondent did not comply with the s.109X notices referred to in (i) and (ii) above. (iv) By not complying with the s.109X notices, the Respondent has engaged in conduct: - occurring in connection with the exercise of an accredited certifier's functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or - by which he contravened the Act.