CITATION: Building Professionals Board v Waterson [2008] NSWADT 108 DIVISION: General Division APPLICANT Building Professionals Board PARTIES: RESPONDENT Laurie Waterson FILE NUMBER: 073171 HEARING DATES: 14 November 2007 SUBMISSIONS CLOSED: 14 November 2007 DATE OF DECISION: 9 April 2008 BEFORE: O'Connor K - DCJ (President); Hayward P - Non Judicial Member CATCHWORDS: Disciplinary Findings and Order (Accredited Certifier) 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: Building Professionals Board v Boulle [2008] NSWADT 80 Building Professionals Board v Johnson [2008] ADT 60 APPLICANT A Grey, solicitor REPRESENTATION: RESPONDENT In person ORDERS: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal orders that the Respondent be cautioned. REASONS FOR DECISION 1 The Building Professionals Board (the Board) has referred to the Tribunal by application filed 29 May 2007 certain conduct of the respondent, Mr Laurie Waterson, an accredited certifier. The application results from an investigation by the Board of a complaint made by the Blacktown City Council (the Council) against Mr Waterson about a construction certificate and a compliance certificate issued in respect of a development at 20-22 Carinya Street, Blacktown in 2003. The development involved the construction of eight town houses. 2 The Building Professionals Act 2005 (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 under the legislation 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 Like some other cases recently dealt with by the Tribunal, this matter has taken several years to reach this point. The complaint was received by the then accreditation body in December 2003. The administrative history of this matter between December 2003 and May 2007, when it was referred to the Tribunal, is the subject of the affidavit as to jurisdiction filed by the Board. Mr Waterson made oral submissions to the Complaints Review Committee in April 2005. At the meeting of the State Assessment Committee in August 2005 it considered the matter. It noted an additional possible breach (the formal adequacy of the compliance certificate) and invited submissions from Mr Waterson, which he supplied in December 2005. The State Assessment Committee recommended in February 2006 that an application be made to the Tribunal. The recommendation was not further considered until the Board commenced operation in March 2007. The Board determined to make an application to the Tribunal on 1 May 2007. 5 The material parts of the Board's application follow: Disciplinary finding/s sought: 1. (First disciplinary fmding 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 Laurie Waterson (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 Brian Malouf of Blacktown City Council to the Department of Infrastructure, Planning and Natural Resources on 4 December 2003 against the Respondent in relation to the inappropriate issue of a construction certificate, a compliance certificate and an occupation certificate in respect to a development at 20-22 Carinya Street, Blacktown. 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. 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. E. By issuing the construction certificate and the compliance certificate, 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 EP & A Act. PARTICULARS A. Issue of construction certificate (1) Relevant legislative provisions (a) Section 109F(1)(a) of the EP & A Act provides: 109F Restriction on issue of construction certificates A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that: (a) the requirements of the regulations referred to in section 85A(5) have been complied with. (b) Clause 145(1)(b) of the EP & A Regulation provides: 145 Compliance with development consent and Building Code of Australia (1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). (2) Particulars of Conduct (a) The Respondent issued Construction Certificate No. 03/02.130 on 14 March 2003 in respect of a development, namely, the construction of 8 town houses, at 20-22 Carinya Street, Blacktown (the development). (b) The construction certificate approved the plans and specifications described as: "Job No. 02-069 Draw No. CC-01-08 Dated 16 Jan 03" (the approved plans). (c) The proposed building depicted in the approved plans did not comply with the requirements of the Building Code of Australia (the BCA) as in force at the time that the application for the construction certificate was made. Particulars of non-compliance with BCA The approved plans do not comply with the Deemed to Satisfy requirements of Part 3.7.1.8 of the BCA as timber framed walls were indicated as breaching the masonry separating walls in various locations. (d) By issuing the Construction Certificate in respect to the development, 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. Issue of a compliance certificate (1) Relevant legislative provisions (a) Section 109(C)(1)(a) of the EP & A Act provides: 109C Part 4A certificates (1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part: (a) a compliance certificate, being a certificate to the effect that: (i) specified building work or subdivision work has been completed as specified in the certificate and complies with specified plans and specifications, or (ii) a condition with respect to specified building work or subdivision work (being a condition attached to a development consent or complying development certificate) has been duly complied with, or (iii) a specified building or proposed building has a specified classification identified in accordance with the Building Code of Australia, or (iv) any specified aspect of development complies with the requirements of any other provisions prescribed by the regulations, or (v) any specified aspect of development (including design of development) complies with standards or requirements specified in the certificate with respect to the development, (b) Clause 138 of the EP & A Regulation provides: 138 Compliance certificates (1) A compliance certificate must contain the following information: (a) the identity of the certifying authority by which it is granted, (b) if the certifying authority is an accredited certifier: (i) his or her accreditation number, (ii) the name of the accreditation body by which he or she is accredited; (c) a description of the development being carried out, (d) the registered number and date of issue of any relevant development consent or complying development certificate, (e) the address, and formal particulars of title, of the land on which the development is being carried out, (f) the date of the certificate, (g) a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected, (h) a statement, signed by or on behalf of the certifying authority, as to the matters in respect of which the certificate is given. Note: Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given. (2) A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given. (3) A copy of each compliance certificate relied on in issuing an occupation certificate must be forwarded to the consent authority and the council when a certifying authority notifies them of the issue of an occupation certificate. (2) Particulars of Conduct (a) The Respondent issued Compliance Certificate dated 20 July 2003 in respect to the completed framework of the development. (b) The Compliance Certificate provided: "I, Laurie Waterson certify that: The above described building work has been completed and complies with the plans and specifications The proposed building designed constructed or adapted for use for the purpose of an addition The above described aspect of the development complies with the prescribed requirement referred to above" (c) The framework completed at the time that the Compliance Certificate was issued did not comply with the requirements of the BCA as particularised in A. 2. (c) above. (d) By issuing the Compliance Certificate in respect to the development, 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. 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. 6 The relevant law is referred to accurately in the application. 7 It will be seen that the first charge refers to the construction certificate (issued 14 March 2003), and alleges that the plans did not comply with the deemed-to-satisfy provisions of the Building Code of Australia (BCA) concerning fire safety, in particular Part 3.7.1.8. Timber framed walls were indicated, thereby breaching the masonry separating walls in various locations. 8 The second charge relates to the issuance of the compliance certificate. There are two allegations. One is that the compliance certificate repeated the error that affected the construction certificate, in approving plans that were non-compliant in respect of fire safety. The second goes to a separate matter – the adequacy of the contents of the compliance certificate. It is alleged that they did not meet the requirements set out in cl 138 of the EP & A Regulation. 9 In his Reply filed 7 August 2007, Mr Waterson admitted the particulars as to the fire safety matter, and indicated that he accepted that he was guilty of unsatisfactory professional conduct. We understand his point to be that he does not regard the matters as so serious as to justify a finding of professional misconduct. He questioned the charge relating to fulfilling the formal requirements governing the issuance of compliance certificates, challenging the suggestion that he had not sent the plans with the certificate to the Council. Mr Waterson filed a further statement on 5 November 2007 ahead of the hearing. He admitted the errors, and said they were not wilful. We will refer to his statement and the submissions made at hearing later in these reasons. 10 In support of its application, the Board relied on the affidavit of Mr Matthew Wunsch, Team Leader, Complaints, Building Professionals Board sworn 25 September 2007 and the attached exhibit (the Folder). 11 Fire Safety Omission. Mr Craig Winn, Departmental Auditor, was principally responsible for investigation of the complaint. Part 3.7.1.8 of the BCA, 'Separating Walls', provides relevantly: '(a) A wall that separates Class 1 dwellings must have an FRL [Fire Resistance Level] of not less than 60/60/60 and – (i) commence at the footings or ground slab; and (ii) extend – if the building has a non-combustible roof covering, to the underside of the roof covering. (c ) A separating wall complying with (a)(ii)(A) – (iii) must not be crossed by timber or other combustible building elements except for roof battens with dimensions of 75 x 50 mm or less, or roof sarking; and (iv) must have any gap between the top of the wall and the underside of the roof covering packed with mineral fibre or other suitable fire resisting material.' 12 The Tribunal accepts the record of Mr Winn's observations set out in the Folder. 13 The Tribunal has inspected the plans against which Mr Waterson issued the two certificates. The plans show, particularly at points where solid dividing walls meet front and rear brick veneer walls, that the solid masonry is not to continue through to and tie into the front and rear masonry. The consequence is that the open spaces left by not having them filled by solid masonry provide a passage for fire to pass from one dwelling to another by way of the timber framing. The separating walls so affected are those between town houses 1 and 2, 3 and 4, 6 and 7, and 7 and 8. 14 At hearing, Mr Waterson accepted the implications of his omission (affecting both the construction certificate and the compliance certificate); and that any breach of the masonry requirements increased the fire risk, and therefore impacted on the safety of occupants. He said that he was aware of the construction requirements for walls separating town houses, and these errors were, he felt, out of character. Mr Waterson noted, as he has throughout the history of this matter, that the Council had drawn the errors to his attention on or about 8 September 2003 when it was checking the compliance certificate against the development consent drawings. The Board accepted Mr Waterson's statement that he immediately took action to have the problem rectified. The problem was rectified, and the framework was brought into compliance with the BCA. Mr Waterson issued a further compliance certificate on 20 May 2004 after those works were completed. 15 Mr Grey for the Board noted that the BCA breach was systemic to the plan, being repeated in similar locations across most of the town houses. Had it been acted upon by the builder, it would have given rise to an unacceptable increased fire risk for all occupants. The Board regarded the omission, involving as it did fire safety, as very serious. It did not seek action against Mr Waterson's accreditation. It did seek a fine not so much to serve the purpose of individual deterrence but to serve the end of general deterrence. The Board accepted that Mr Waterson had at all stages been co-operative with the investigation and complaint assessment process. 16 Contents of Compliance Certificate. The contents are recited in the application. It will be seen that the certificate refers to the identity of the certifier (item (a) of cl 138(1)) and the date of the certificate (item (f)). Otherwise, global general language is used. As to identity, the certificate does not refer in addition to Mr Waterson's accreditation number or the identity of the accreditation body (item (b)). 17 The following matters do not appear in the basic text of the certificate, i.e.: description of the development being carried out (item (c)), the registered number and date of issue of any relevant development consent or complying development certificate (item (d)), the address, and formal particulars of title (item (e)), description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected (item (g)), and a statement, signed by or on behalf of the certifying authority, as to the matters in respect of which the certificate is given (item (h)). The certificate is, perhaps, best described as a 'short form' certificate relying presumably for these details on the associated drawings and documents. There is no allowance for this approach in cl 138. 18 Mr Waterson said that he had, until these criticisms were made, routinely expressed his compliance certificates in the same terms as the certificate under notice. He stated that he used the standard form for compliance certificates that was in circulation at that time. He believes that he followed the 'industry standard'. 19 As to the allegation that he did not attach the plans to the certificate, he said that his file record was that he had submitted the plans to Council. Mr Waterson produced no corroborating evidence of these statements. We accept the Council statement recorded in the Folder that it received a certificate without plans attached. He said that he now ensured that his accreditation number is shown, and the name of the accreditation body. Disciplinary Finding 20 We are satisfied that the particulars in support of each of the charges have been proven. 21 The question therefore is whether the standard of professional competence set by the legislation has been transgressed. 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.' 22 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.' 23 In his statement filed 5 November 2007 and at hearing, Mr Waterson expressed his concern that were serious misconduct to be found, and an order of suspension or cancellation of his registration made, he would lose his livelihood, with significant economic effects on him and his family. As the purpose of the accreditation system and the disciplinary provisions is the protection of the public, the Tribunal's focus at this point of its inquiry must be the objective gravity of the conduct. See further, Building Professionals Board v Boulle [2008] NSWADT 80 ( BPB v Boulle ) at [57]. 24 Fire Safety Issue. The oddity here is that two treatments are shown at the affected points, a masonry treatment to the front and a timber framing treatment to the rear. Along the rest of the affected walls, the treatment is entirely a masonry one. There does not seem to be any obvious cost or design justification for a minor variation of this kind being incorporated into the plans by their author. The result is that the predominant treatment for the affected areas viewed as a whole was a masonry one, and therefore compliant. Nonetheless the difference is obvious, and should have been noticed. The most likely explanation for the lapse, in light of what Mr Waterson has told us about his business situation at that time, is that he rushed his inspection of the plans at the construction certificate stage, and may not have engaged in a close inspection at the compliance certificate stage. 25 Contents of Compliance Certificate. This matter was identified by the Complaints Review Committee. Strict compliance with requirements such as those contained in cl 138 is an important element of the accountability framework regulating the activities of private certifiers. While it may have been the case, as Mr Waterson suggested, that he had been meeting what he saw as the 'industry standard', in our view it is clearly the case that he did not issue a certificate that fulfilled the requirements of cl 138. All that was needed was a form that repeated the cl 138 headings and filled them in appropriately. Adherence to provisions of this kind is helpful to councils in ascertaining whether development approval conditions have been met, and to the interested public. This is a matter going to the level of diligence expected of an accredited certifier. 26 Assessment. It is its connection to fire safety that makes the failure to notice the non-compliant use of timber framing at certain points in the plans more than ordinarily serious. Were the oversights connected to a less significant issue, a disciplinary finding may well not be warranted. Standing alone, Mr Waterson's practice in relation to the setting out of his compliance certificates may well have been dealt with internally with a warning, with no further action if he changed his practice. In our view, a single instance of a failure of this kind is not something that ordinarily should be brought forward as part of a disciplinary application. On this occasion, it appears to have fallen under notice as an aspect of the totality of Mr Waterson's conduct in respect of this particular development. 27 In our view, primarily because of the failure to be diligent in respect of the fire safety issue, we conclude that Mr Waterson's conduct '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' (paragraph (a) of the definition). There is also a contravention to which paragraph (e) of the definition of unsatisfactory professional conduct is nominally applicable. As recently noted in BPB v Boulle at [39]: 'Part (d) and part (e) of the definition are expressed in such a way that any failure, however minor, in complying with any Act or law prescribed by the regulations or any contravention of a penal provision might give rise to a finding of unsatisfactory professional conduct. In our view, a tempered view should always be taken, not an absolutist one, when making findings based on parts (d) and (e), cognisant that the finding is a disciplinary one going to the reputation and standing of a practitioner.' 28 The next question is whether the misconduct is sufficiently serious to warrant the making of a finding of professional misconduct. In making this assessment, as was noted in Boulle , we think the focus must be the conduct itself, and not the steps taken afterwards to ameliorate its consequences, the latter bearing on penalty. 29 The fire safety omission under notice in this case was an error that occurred at the construction certificate stage, and continued into the compliance certificate stage. It was, as the Board submitted, a systemic error, in the sense that it occurred across the plans as a whole, affecting several building points. Nonetheless in our view, the conduct is not so objectively grave as to justify a finding of professional misconduct. Appropriate Order 30 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.' 31 Mr Waterson made detailed submissions referring to his long experience. He had obtained the relevant qualifications in 1972, and worked in local government as an inspector between 1973 and 1990. He had then gone into private practice, returning to local government from 1997 to 1999, working at Blacktown Council. When the private certifier scheme was introduced, he returned to private practice. 32 He said the events giving rise to the Board's application had occurred at a time when he had a very heavy workload, for example in the 2004 year he had dealt with 891 projects, and in 2005, 676 projects. For the 2007 year he expected to handle 200 projects. The major reason for the change was the loss of a client who had a large number of small works projects (awnings, carports and the like). He said that the risk of him making the same kind of mistake that this case had revealed was now much less likely. He referred in some detail to the work practices he now followed when checking plans for compliance with the relevant requirements. 33 Mr Waterson has dealt with the investigation and complaints process in a co-operative way, and was forthcoming as to his failures in his presentation to the Tribunal. 34 He also moved quickly to ensure that the project as built was compliant. While we accept that there was a risk that the works might have proceeded in a non-compliant way, we think that that was very unlikely in the present set of circumstances. Our non-judicial member, Mr Hayward, a registered surveyor of standing, considers that it would have been very difficult to build the dwellings in accordance with the plans. It would be much simpler to build the dividing walls from front to rear and butt the brick veneer construction to either side of the dividing wall. It is highly unlikely, he considers, that a builder would have allowed timber intrusions into a dividing wall in a multi-unit development. 35 Mr Waterson's current annual accreditation is 'A 2 – Accredited Certifier – Building Surveying Grade 2', expiring 23 April 2008. He has been accredited for several years. He has no previous disciplinary history. The conduct under notice occurred several years ago. 36 Mr Grey sought imposition of a fine reflecting the significance of the errors identified in this case, and for general deterrence. We do not think that a fine is necessary in this case. The Tribunal has given an indication of its thinking on the kind of cases to which a fine might be appropriate in Building Professionals Board v Johnson [2008] ADT 60 at [62]. Another factor which complicates the approach that might be taken in determining the appropriate order is the sheer length of time it has taken for the matter to reach the Tribunal. In our view, Mr Waterson has been subjected to a degree of stress simply by the length of time this matter has taken to reach finality. 37 We think that the objective of public protection is sufficiently served in this case by imposition of a caution. The entry of a Tribunal finding of guilt of unsatisfactory professional conduct is itself a significant punishment. Order 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal orders that the Respondent be cautioned. 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.