James v Building Professionals Board [2010] NSWADT 154

CITATION: James v Building Professionals Board [2010] NSWADT 154

DIVISION: General Division

APPLICANT Raymond Wallace James PARTIES: RESPONDENT Building Professionals Board

FILE NUMBER: 093267

HEARING DATES: 26 February 2010

SUBMISSIONS CLOSED: 26 February 2010

DATE OF DECISION: 21 June 2010

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

CATCHWORDS: Accredited Certifier – Renewal of Accreditation subject to conditions – Application for review – Renewal decision affirmed

Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ombudsman Act 1974

APPLICANT In person REPRESENTATION: RESPONDENT A Grey, legal officer

ORDERS: Decision under review affirmed

REASONS FOR DECISION 1 The Building Professionals Board is established by the Building Professionals Act 2005 (BP Act). It deals with the accreditation and discipline of private certifiers. By original decision made 11 August 2009, and affirmed after internal review on 9 September 2009, the Board renewed Mr James' accreditation for the year 2009-2010 – building surveying grade 1 (A1), and made it subject to the same 5 conditions that had been imposed on his previous accreditation. 2 Mr James now applies under s 18 for review of that decision, with a view to the Tribunal setting aside the Board's decision and substituting a decision that he be granted an unconditional accreditation. The Board opposes the application. 3 He has held accreditation as a private certifier since 2002, at the grade 2 level under the old scheme, and at the A1 level with conditions since the new scheme commenced in 2007. 4 Condition 1 restricts his area of practice. It prevents him from certifying alternative solutions involving fire safety in relation to class 2 to 9 buildings. These classes cover all buildings except simple dwellings (class 1) and ancillary structures (such as sheds, pergolas etc, class 10). 5 Conditions 2 to 5 go to integrity concerns, and have as their background a disciplinary order made against Mr James some years ago. See further the last part of these reasons. 6 The terms of the five conditions are: 1. The accredited certifier must not issue certificates for class 2 to 9 buildings where an alternative solution involving fire safety is proposed to achieve compliance with the relevant performance requirements of the Building Code of Australia. 2. Certifiers accredited under Building Professionals Act 2005 (BP Act) must at all times adhere to the requirements and principles outlined in: (a) Sections 66, 67, 68, 69 and 70 of the BP Act. (b) The Independent Commission Against Corruption Act 1988, particularly in relation to the definition and roles of public officials. (c) The Ombudsman Act 1974 particularly in relation to the definition and roles of public authorities. (d) Practice Note "When is There a Conflict of Interest for an Accredited Certifier" (DIPNR, August 2001). (e) "Strategies for Preventing Corruption in Government Regulatory Functions" (ICAC, March 1999). (f) "Public Sector Agencies Fact Sheet No 3 – Conflict of Interest" (NSW Ombudsman, July 2003). 3. Only be appointed to act as the principal certifying authority (PCA) by the land owner/s or the person/s with the benefit of the development consent. 4. When acting as a PCA or accredited certifier for a particular development, in relation to that development, only: (a) Determine applications for Part 4A Certificates; (b) Determine applications for complying development certificates; (c) Accept appointment as the PCA; (d) Carry out inspections, including mandatory critical inspections; (e) Issue notices requiring work to be carried out; and (f) Liaise with the consent authority, the local council and the public on matters pertaining to the development. (g) Carry out any further functions as required, to fulfil his statutory obligations as an accredited certifier or PCA for the particular development. For the purpose of this document, (a) & (g) above are referred to as "certification work". 5. Not provide additional advice or services ("consultancy work") in relation to a particular development for which he is the PCA or is acting in the capacity of an accredited certifier. This includes: (a) Administrative assistance such as: (i) Designing and/or preparing plans or specifications; (ii) Signing or preparing the application for Development, Construction or Occupation certificates; and (iii) Collecting and/or paying development application fees and long service levy payments. (b) Design of solutions for particular non-compliance issues with respect to the Building Code of Australia, the development consent, construction certificate and/or applicable regulations. Application for Review 7 Mr James applied to the Tribunal for review on 14 October 2009. In the application Mr James criticised the Board's decision in these respects: - Not adequately addressing his experience. - Not taking a holistic view of his recent practical experience in relation to administrative solutions involving fire safety. In particular it does not acknowledge the methodology and approach to fire upgrading assessment of buildings and its relationship to performance based solutions. - Not acknowledging the purpose and value of 'continuing professional development'. - Not acknowledging the current minimum industry standard for years of experience in assessment of fire-engineered alternative solutions and is thereby needlessly discriminatory. - Failing to deal with the need for or purpose of imposing conditions 2, 3, 4 and 5.