Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Fitzgerald v Building Professionals Board [2013] NSWADT 299 Hearing dates: 8, 9 and 28 August 2013 Decision date: 24 December 2013 Before: Judge K P O'Connor, President P Hayward, Non-judicial Member Decision: 1. The Board's finding that the applicant engaged in professional misconduct in relation to his issuance of a construction certificate for the development the subject of Complaint No 01/12 (Waverton) is affirmed. 2. The Board's finding that the applicant engaged in unsatisfactory professional conduct in relation to the developments the subject of complaints Complaint No 16/12 (Bexley) and Complaint No 21/12 (Mosman) is affirmed. The finding in respect of Complaint No 116/11 (Chatswood) is set aside. 3. The Registrar is to fix a date for directions to be given in relation to hearing of the parties' submissions in relation to the Board's disciplinary order. Catchwords: PROFESSIONAL DISCIPLINE - accredited certifier - application for review of disciplinary decision - initial hearing confined to review of the disciplinary findings - Board findings of professional misconduct with respect to one project, affirmed with one qualification; Board findings of unsatisfactory professional conduct in respect of other three projects - set aside in respect of one project, otherwise affirmed. Further hearing to be held in relation to the disciplinary orders. Legislation Cited: Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154 Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 Moy v Warringah Council [2004] NSWCCA 77 Qiu v Building Professionals Board [2013] NSWADT 289 Category: Principal judgment Parties: Paul Fitzgerald (Applicant) Building Professionals Board (Respondent) Representation: Counsel T G Howard SC (Applicant) A Gough, Storey and Gough Lawyers (Applicant) A Grey, Building Professionals Board (Respondent) File Number(s): 133146 reasons for decision 1This is an application for review of disciplinary findings and orders made by the Building Professionals Board against the applicant, an accredited certifier, Mr Paul Fitzgerald, who conducts business as Fitzgerald Building Certifiers Pty Ltd at Thornleigh NSW. 2This decision deals with the first part of the application for review, the dispute as to the disciplinary findings. The Tribunal will reconvene after this decision is issued to hear submissions on the application as it relates to the disciplinary orders, taking into account these reasons. 3The Board derives its disciplinary authority over certifiers from the Building Professionals Act 2005 (the BP Act), see esp s 31. The certifier's right to apply for review is conferred by s 33. 4The Board investigated four complaints, each relating to a development for which Mr Fitzgerald was the accredited certifier and principal certifying authority: (1) Complaint No 116/11 - demolition of an existing single storey house together with the existing brick fence located on the front boundary, and the construction of a new two storey house and front fence, at 53 Centennial Avenue, Chatswood. (2) Complaint No 01/12 - alterations and additions to a large, multi-storey Federation building - at 116 Bay Road, Waverton. (3) Complaint No 16/12 refers to a residential development at 40 & 42 Kingsland Road, Bexley, comprising the construction of two multi-storey houses, with garages and basements on the lowest level. (4) Complaint No 21/12 refers to alterations involving the removal of a wall and the fit out of a small commercial/retail building at 565 Military Road, Mosman. 5On 3 May 2013 the Board notified Mr Fitzgerald that the Board's disciplinary committee had, on 15 March 2013, found him guilty of professional misconduct in respect of matter (2) and guilty of unsatisfactory professional conduct in respect of the other three complaints. It cancelled his accreditation, and imposed a fine of $36,000. 6The full terms of the Board's orders follow (point 1 not relevant): '2. In relation to complaints no 116/11, 16/12 and 21/12, the Committee determined that the conduct of Mr Fitzgerald constituted unsatisfactory professional conduct as defined under s 19 of the Building Professionals Act and, in relation to complaint 01/12, professional misconduct as defined under section 19 of the Building Professionals Act; 3. Mr Fitzgerald is reprimanded; 4. Fitzgerald [sic] is fined the amount of thirty six thousand dollars ($36,000) to be paid to the Board within in [sic] 28 days of receipt of the notice of decision on complaint; 5. The Certificate of Accreditation of Paul Fitzgerald is cancelled; 6. Mr Fitzgerald cannot re-apply for accreditation for a period of five (5) years; 7. The decision on penalty is an aggregation of complaint investigation determinations by the Disciplinary Committee on 15 March 2013 for complaints no 116/11, 01/12, 16/12 and 21/12; and 8. The Committee took into consideration previous disciplinary action taken against Mr Fitzgerald, having regard to the Board's Disciplinary Penalty Guidelines.' 7Mr Fitzgerald lodged his review application with the Tribunal on 10 May 2013. The Tribunal made consent orders on 28 May 2013 staying the operation of order 4 (the $36,000 fine) pending final decision of the Tribunal. Therefore Mr Fitzgerald has ceased practice. 8Administrative Review Function. The Tribunal's exercise of its administrative review jurisdiction is governed by the Administrative Decisions Tribunal Act 1997 (the ADT Act), the principal provision being s 63 which provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 9The BP Act divides professional conduct warranting disciplinary action into two categories: professional misconduct, and unsatisfactory professional conduct. They are defined as follows (s 19): professional misconduct, in relation to an accreditation holder, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accreditation holder's certificate of accreditation. unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission): (a) conduct occurring in connection with the exercise of the 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, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, (e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner, (f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority, (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, (h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation, (i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act, (j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5, (k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5, (l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier, (m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition. 10The Tribunal convened to hear the case on 8, 9 and 28 August. Mr T Howard SC appeared for Mr Fitzgerald; Mr A Grey for the Board. The Tribunal was constituted, as is usual in these matters, by a presidential member of the Tribunal and a non-judicial member with expertise in building practice and accredited certification, Mr Philip Hayward, a registered surveyor of standing. 11The Tribunal heard oral evidence from Board investigation staff, Ms Dorothy Kay Harlor, Senior Investigator and Ms Janina Veri, Senior Investigator. Ms Harlor undertook the investigations in relation to the Chatswood (1) and Waverton (2) matters, and Ms Veri undertook the investigations in relation to the Bexley (3) and Mosman (4) matters. They were cross-examined. Mr Fitzgerald gave evidence and was cross-examined. The Tribunal had before it the investigation reports, and a transcript of the Board's hearing on 13 December 2012, and the text of its determination made 13 March 2013. 12In his submissions Mr Howard criticised a number of aspects of the process followed by the Board disciplinary committee, and asserted that his client had been denied procedural fairness in certain respects. He noted that the recommendations under notice at its hearing on 13 December 2012 were for his client to be found guilty of unsatisfactory professional conduct in respect of all four complaints. He asserted that no notice had been given that the disciplinary committee might take a more serious view of the Waverton matter, and importantly that it was considering a more grave finding, that of professional misconduct. He asserted that his client was not given a fair opportunity to be heard on that matter. 13He also criticised the fairness of the Board's reasons for not having regard, in his submission, to the well-known observations of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 on the making of findings on the balance of probabilities that have serious consequences for a person, and for not explaining how it reached its conclusions in respect of penalty. 14These are objections of a kind that might be raised in a judicial review application. This Tribunal is engaged in a merits review process, so it starts afresh: see generally, Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154 at [8]. Our hearing is bound by the usual principles in relation to procedural fairness and adequacy of reasons. 15At hearing, the Board corrected an error in the text of the reasons delivered to Mr Fitzgerald in respect of the Mosman development (4). The text shows Allegation 6 as 'proven'. The words 'not proven' were substituted. Mr Grey advised that the Board committee had mistakenly recorded a determination that was contrary to the investigation report recommendation (the recommendation was 'not proven') and had meant to enter the investigation report recommendation. Consequently this Allegation did not fall for review. 16At hearing, the Board pressed a case for adoption of all the adverse findings made by the Board. 17In the case of the Waverton development (no (2) in the sequence), the issues related to Mr Fitzgerald's compliance with the requirements governing the issuance of construction certificates. In the case of the Chatswood development (1) and the Bexley development (3), the issues related to Mr Fitzgerald's compliance with complying development certificate requirements, while the Mosman development (4) raised issues of compliance with the requirements governing the issuance of complying development certificates and final occupation certificates. 18We will start with the case regarded as most serious by the disciplinary committee, the Waverton development (matter 2). (2) COMPLAINT 1/12: DEVELOPMENT ADDRESS: 116 BAY ROAD, WAVERTON 19The Nature of the Development. The approved development was for substantial alterations and additions to an existing building with basement car parking. The building subject to redevelopment was a dwelling first built in the early 1900s on a substantial block in an older area of Sydney close to the Harbour, internally configured as a two storey duplex. The dwelling is a single storey one to the street, but is on a rearward sloping block. It had two primary levels to the rear, with a lower basement area. The proposal as approved permitted the creation of an attic level and the raising of the ridge height, with the consequence that the two duplexes would be capped by a shared single ridge rather than the two lower individual ridges that previously existed. 20The duplexes sat to either side of a common wall, and as depicted, each had a basement level, a ground floor level, a first floor level and an attic level. They are described in the plans as Unit 1 and Unit 2. Unit 1 was to the left side viewed from the street, and Unit 2 to the right side. The levels were served by a lift well from the basement. The distribution of living spaces (bedrooms, in particular) varied as between the two units. At the ground floor level, the plans provided for sliding doors to the back yard, a yard which was stepped downwards. At the first floor level each had a rear balcony area enclosed by glass, and the plans showed a dining layout in the balcony area. At the attic level each had a deck flowing off a bedroom. These elements sought to maximise the outdoor amenity of the residence and the views towards the harbour and the Harbour Bridge. Internally, each duplex had staircases joining each of the ground, first and attic floors. 21Key terms of the Development Consent. The allegations that remain under notice refer to the following development consent conditions. [The conditions lettered 'C' had a common clause, which is omitted from the texts that follow, i.e. 'Details illustrating compliance with this condition shall be submitted to the Certifying Authority for approval prior to issue of a Construction Certificate.'] 22Set out below are the Conditions to which the Board refers in its allegations or Mr Fitzgerald raises in reply: A1. [identifies the drawings the subject of the approval, and specifies work to be in accordance with the plans except where amended by the following conditions] A3. [prohibits alterations to and demolition of the existing building beyond that documented on the plans] A5. No consent is given or implied to the erection of a new front fence on the Bay Road frontage of the property. Any new fencing along this boundary of the property that does not constitute exempt development pursuant to Schedule 6 of North Sydney Local Environmental Plan 2001 shall be the subject of a further development application. (Reason: To ensure that any new fence is of an appropriate style and height to the Conservation Area.) C2. The proposed first floor rear level balcony screens on the eastern elevation of Dwelling No 1 and western elevation of Dwelling No 2 shall be reduced to a maximum height of 1.6m above the finished floor level of these balconies. (Reason: To reduce the bulk of the development to the rear of the site.) C4. All fireplaces and chimneys shall be retained as existing. (Reason: To ensure the retention of the existing fabric of the contributory item.) C5. All existing timber joinery, including skirting boards, dado rails, trims, cornices and architraves shall be retained in the following rooms: - Dwelling No 1 - Bedroom 2, Dining Room and Sitting Room; and - Dwelling No 2 - Lounge. (Reason: To ensure the retention of the existing fabric of the contributory item.) C6. The existing windows located between the proposed ground floor sitting room and robe of Dwelling No 1 shall be retained. (Reason: To ensure the retention of the existing fabric of the contributory item.) C9. Unless noted for removal on the approved plans, all leadlight windows and doors, including internal windows and doors, shall be retained in-situ. (Reason: To ensure the retention of the existing fabric of the contributory item.) C11. The proposed garbage area shall be re-located to a location where it will not be visible from the street or impact on views of the dwelling from the street. (Reason: To minimise impact of the works on the contributory item and conservations area.) C12. All external and internal leadlight windows and doors as noted on the approved plans to be removed shall be re-used in the works, sold or given to specialist heritage building supply re-seller. [To ensure the retention and conservation of significant building elements.] E5. Should any portion of the existing building, trees or curtilage of the site which is indicated on the approved plans to be retained be damaged for whatever reason, all the works in the area of the damaged portion are to cease and written notification given to Council. No work is to resume until the written approval of Council is obtained. Failure to comply with the provisions of this condition will result in the Council taking further action including legal proceedings if necessary. (Reason: To ensure compliance with the terms of this development consent.) 23Issuance of Construction Certificate in respect of an approved development. The certifier's primary duty is found in cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), at cl 145: 145 Compliance with development consent and Building Code of Australia (cf clause 79G of EP&A Regulation 1994) (1) A certifying authority must not issue a construction certificate for building work unless: (a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and (a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and (b) 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) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. (3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4). 24In this case the focus is the requirement at cl 145(1)(a), and in particular whether particular matters were 'inconsistent' or 'not inconsistent' with the development consent. 25As noted in Moy v Warringah Council [2004] NSWCCA 77 at [80] per Sperling J (Sully, Simpson JJ agreeing): Clause 145 is proscriptive. It prohibits the issue of a construction certificate unless the certifier is satisfied of the matter specified. 26Pain J said in Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99: 32 ... [T]he possibility of some variation between the terms of a development consent and the design and construction of the building is contemplated by the legislation. ... 34. It is difficult to precisely qualify the meaning of "inconsistent". Each case will need to be decided on its own facts. A single minor difference between the construction certificate plans and the development consent plans is likely to be acceptable. Where there are a number of minor differences then the collective impact of these differences will need to be assessed to determine whether they combine to result in unacceptable inconsistency. A major difference is likely to give rise to an inconsistency. Whether a difference is major or minor and whether, in the case of a number of minor differences, the cumulative effect is a major difference will depend on the circumstances. Consideration of whether or not a s 96 modification is warranted is not of great assistance, as that threshold addresses a different statutory context. It may be that there will be a finding of inconsistency under cl 145(1)(a) before the necessity for a s 96 modification arises. I consider that provided the development consent and construction certificate plans are largely similar so that they depict substantially the same development they are not inconsistent. 27In relation to this complaint, and especially the findings in connection with allegation 1, Mr Howard criticised the Board for having relied, as he saw it, on assertions of inconsistency made by council officers in their original complaint, without having its investigative staff do any separate inspection. He criticised the Board's reasons for having failed to explain why it regarded the alleged inconsistencies, as one, meeting that description and, secondly, as warranting the description 'significant'. As previously noted this is a merits review proceeding, and therefore any omissions of this kind ought not repeat themselves. 28We will consider separately each of the allegations, 1, 2 and 3. Consideration of Allegation 1 29The Board found Allegation 1 proven. ALLEGATION 1 Mr Fitzgerald determined construction certificate no. 2011-0422 on 2 May 2011 when the plans forming part of the construction certificate were inconsistent with development consent no. D234/10, determined by North Sydney Council on 29 November 2010. Mr Fitzgerald failed to comply with clause 145(1)(a) of the Environmental Planning and Assessment Regulation 2000, as the plans forming part of the approved construction certificate were inconsistent with development consent D234/10 in respect to the following: General 1. New concrete slab to replace existing timber floor structure to ground floor and first floor; 2. The DA was for the retention of the floors and structure, with new floors only to extension;* 3. Development consent conditions A1, A3, A5, C4, C5, C6, C9, C11 and C12 have not been satisfied.* Basement Level Plan 1. Additional excavation to side and front of basement and removal of existing footings;* 2. Inclusion of an additional stair; 3. Reconfiguration and enlargement of driveway and parking area; 4. Existing footings removed (approved DA was for their retention); 5. Increased size of lift. Ground Floor Plan Unit 1 1. Stair relocated;* 2. Eastern external wall to bedroom 1 relocated and new windows added;* 3. Approved bathroom replaced with laundry and walls reconfigured, including removal of original fabric; 4. Approved laundry deleted; 5. Wall between sitting room and bedroom 1 changed; 6. Approved robe replaced with ensuite;* 7. Windows to south façade changed.* Unit 2 1. Bathroom/robe area reconfigured; 2. Hallway reconfigured; 3. Western external wall to bedroom 2 changed and new window added; 4. Windows to south façade changed.* First Floor Unit 1 1. Stair relocated;* 2. Bathroom relocated;* 3. Store changed to WC; 4. Kitchen relocated; 5. Nib walls of existing walls removed (required to be retained in DA);* 6. Windows to balcony reconfigured.* Unit 2 1. Entry and corridor reconfigured;* 2. Stair reconfigured; 3. Kitchen reconfigured; 4. Windows to balcony reconfigured; 5. Attic floor added. Unit 1 1. Deck extended; 2. Roof access and concrete floor in roof added; 3. Stair relocated;* 4. Lift deleted; 5. Dressing room added. Unit 2 1. Deck extended; 2. Roof access and concrete floor in roof added. Roof Plan 1. Hot water solar panels added to northern pitch of rear dormer roofs.* South Elevation 1. Windows reconfigured ground and first floor;* 2. Rear extension widened;* 3. Glazed roof over balcony altered;* 4. Garage doors changed. North Elevation 1. Front fence added (contrary to Condition AS which states that any front fence should be the subject of a further DA);* 2. Bin store added in front setback (contrary to Condition C 11).* East Elevation 1. Side porch area walls and windows changed;* 2. Existing walls removed level 2 (adjacent to extension);* 3. Metal roof over extension changed to slate;* 4. Privacy screens deleted and replaced with glazing, walls and glass bricks;* 5. Approved windows to basement changed to glass brick.* West Elevation 1. Windows to dormers changed; 2. Metal roof over extension replaced with slate;* 3. Window added at ground floor level; 4. Walls to extension changed;* 5. Privacy screen removed; 6. Approved window replaced with glass brick.* Note: Items marked with an asterisk (*) refer to works that would be unlikely to be approved by Council. 30Fifty three inconsistencies are alleged, affecting all aspects of the built structure. Prior to hearing Mr Fitzgerald conceded only one as inconsistent to the extent contemplated by cl 145, i.e. item 1 under the heading 'North Elevation' - 'Front fence added (contrary to Condition A5 which states that any front fence should be the subject of a further DA)'. 31We will refer first to the note that accompanies the asterisked items. We have disregarded it, as we did not have any direct evidence from council officers as to this assertion, made in respect, on our count, of 27 of the 53 items. We are not sufficiently familiar with council practice in this area to reach any view of our own. 32The Board conceded in its closing submissions that item 1 of its allegations in respect of the attic area for both units ('deck extended') had not been proven; and no longer pressed these. Similarly, it noted that Mr Fitzgerald had now conceded his error in permitting the changes to the ground floor and first floor glazing. The Board did not continue to press the other matters alleged in respect of the South Elevation (i.e. items 1 and 4). The Board accepted Mr Fitzgerald's evidence in respect of Condition C2 and the window specifications on the plan, and did not continue to press the allegation about the deletion of privacy screening in the form of frosted glass louvres (item 4). The other matters were not the subject of cross-examination of Mr Fitzgerald. Similarly in the case of the equivalent item in respect of the Western Elevation (item 5) was not pressed. 33In the Tribunal's opinion, it was clearly demonstrated by the coloured plans to which Mr Grey for the Board referred, and upon which Mr Fitzgerald was cross-examined, that internally there were many changes from the development approval. In our view the changes itemised in the allegations (other than those that the Board has not continued to press) were proven. 34We note especially, as Mr Grey observed, that there was no cross-examination or evidence given by Mr Fitzgerald at the hearing as to the following matters: the effect on the fabric of the building of the removal of the timber floors and the related demolitions; the change in the size of the basement car spaces and related reconfigurations; the significant alterations to the ground levels of both units, and the changes to the rear glazing of the extension; the major changes of the internal lay out and configuration of the units at first floor level; the changes in the attic level other than as noted below; the changes affecting the roof level, especially the repositioning of the hot water collectors to a more conspicuous roof location; the north elevation issues; and the front fence issue. 35In these reasons we do not propose to engage in an itemised examination of each of them and the individual degree of change. We are satisfied, to adopt the words of Pain J in Lesnewski that, at the least, the 'collective impact' of these differences gave rise to 'unacceptable inconsistency'. 36In the case of the internal changes, the removal of the timber floors and their replacement with concrete floors was, we consider, a major breach. 37As Mr Grey noted in his written submissions, by specifying that a new concrete floor be installed in these areas it would have been necessary to demolish and remove existing timber floors between the two floors with consequent damage and probable removal of cornices. He noted that the timber flooring was tongue and groove and part of the existing fabric of the building. He referred to photographs of the way the work was carried out, with the sitting room gutted and nothing remaining of the floor, internal walls, or any other joinery or cornices. 38It is plain from the conditions we have quoted that the Council wished to see preserved a range of joinery features. Clearly they lost much of their character once they were divorced from the timber flooring. A competent accredited certifier would have recognised the importance of not interfering with critical elements of the heritage fabric of the building. 39While many of the other internal changes viewed in isolation might have been approved had there been an amended application, the sheer scope and range of these changes raises concern as to the professional insight and understanding of Mr Fitzgerald as to the nature of the public office that a certifier is required to perform, one that is independent of the client and is concerned to ensure the public interest as reflected in the development consent is observed. 40In our view, these works eventually gave rise to a virtual, total reconstruction, especially as a result of the timber floors being replaced by concrete and roof structures altered. The extent of demolition attracted complaints from neighbours from an early date (the complaint letters are set out in the Board's material). 41The basement reconfigurations led to a substantial increase in the car park capacity from 4m width (scaled) to 4.8m width (scaled). There were deeper excavations permitted to the unit 1 parking area of 0.5m. 42In our view, a competent certifier faced with building alterations and deviations from the approved plans of this magnitude would have recommended that the developer activate the s 96 Environmental Planning and Assessment Act 1979 (EPA Act) modified consent procedure. 43The changes of the greatest concern, and with the widest public impact, were those to the external appearance of the building, changes which affected the character of the building. It is plain from the development consent conditions that the Council was concerned to ensure that the development preserved the heritage character of the building. In this regard preservation of the external appearance of the building is of fundamental importance. 44In relation to external changes, a certifier needs to be especially vigilant and in particular in cases like the present where heritage considerations were central to a number of the conditions of the development consent. 45The Tribunal's understanding of the development approval is that it included approval for a front fence. It was not clear at hearing whether the front fence deviated from the development approval in any material way. The development approval process would have given neighbours an opportunity to object. That process should have allowed for any heritage impact concerns to be addressed. 46We find Allegation 1 proven as set out above. Consideration of Allegation 2 47The Board found Allegation 2 proven. ALLEGATION 2 As the principal certifying authority for the development, Mr Fitzgerald failed to adequately ensure that building work proceeded generally in accordance with the construction certificate approved drawings and the development consent. Roofing material and its supporting timber roof structure was removed and interior joinery was removed contrary to Council's development consent conditions A3, C4, C5, C6, C9 and E5. Mr Fitzgerald's conduct as an accredited certifier fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent accredited certifier. 2.7 The allegation is proven. 48Mr Fitzgerald's submission is that the Board has failed to explain what the statutory duty is that Mr Fitzgerald breached. In our view this allegation is one about competence and refers to the responsibilities reasonably to be expected of certifiers. It is not necessary to reference a statutory duty. As noted in respect of Allegation 1, the variations were quite major and exceeded the works shown on CC and DA drawings. 49Mr Fitzgerald in his defence states that he attended the site on 27 June 2011 in response to a complaint by neighbours of excessive demolition and formed the view that it was justified. He exercised his power to issue a notice under s 109L giving a direction to the developer as a person to whom a formal notice under s 121B could be issued. He copied the s 109L notice to North Sydney Council. It received it on 29 June 2011. The Council by letter dated 1 July 2011 wrote to Mr Fitzgerald expressing concern over excessive demolition. The Council asked him to advise them within 7 days as to his investigation into the matter. He never responded. 50As Mr Grey noted in his submissions the s 109L notice did not in any case comply in its terms with the prescribed text of the order said to be being given, an 'Order No 15' form of order. Such an order should have stated 'the development consent is not being complied with', instead he wrote 'seek regulatory approval for the unauthorised demolition works'. 51Mr Fitzgerald should have ensured by critical stage inspections that the building was being constructed in accordance with the CC drawings. 52We find Allegation 2 proven. Consideration of Allegation 3 53The Board found Allegation 3 proven. ALLEGATION 3 Mr Fitzgerald determined construction certificate no. 2011-0422 on 2 May 2011 with an incorrect classification under the Building Code of Australia (BCA) of class 1a instead of classes 2, 5 and 7a. The incorrect classification has significant adverse impacts upon the fire separation and protection of opening requirements of the building. Mr Fitzgerald determined the construction certificate when the proposed building described in the plans accompanying the construction certificate did not comply with the requirements of the BCA: (a) The proposed fire separation between the two sole occupancy units did not comply with the requirements of specification C1.1, clause 3.1 and Table 3 of the BCA. (b) The proposed fire separation between the two sole occupancy units did not comply with the requirements of clause C3.11 of the BCA. (c) The fire protection of openings in the western external wall of the proposed building did not comply with the requirements of the BCA. Windows W5-WT1, 09-WE, 11-WE, W15-WT1 and W15-WT1 were not protected in accordance with clause C3.4(a)(ii) of the BCA. 54Mr Fitzgerald proceeded on the basis that he was dealing with a class 1a (residential) building. The relevant definition distinguishes between a 'detached house' and 'one or more of a group of two or more attached dwellings'. The BCA definition is: Class 1: one or more buildings which in association constitute - (a) Class 1a - a single dwelling being - (i) A detached house; or (ii) One or a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall including a row house, terrace house, town house or villa unit. 55The Board submitted that the plans do not show the necessary fire-resisting wall, especially in relation to the lift area and the way it opens. The Board referred to concessions in evidence by Mr Fitzgerald that there was nothing in the plans that addressed the fire rating for the lift. Mr Fitzgerald conceded that the plans did not depict or specify a fire resistant wall. The Board also referred to his acknowledgement in evidence that the fire separation must extend from bottom to top and include the roof cavity. The old structure with separate ridges meet that requirement but the new one with its integrated single ridge (related to the redevelopment of the attic area for residential use) did not. In closing submissions Mr Fitzgerald acknowledged that the fire protection wall did not extend to the roof line. 56The Board challenged his statement that a class 1(a) classification is acceptable if the lift is fire rated appropriately. Class 2 is 'a building containing 2 or more sole occupancy units each being a separate dwelling'. Class 5 is an 'office building used for professional or commercial purposes, excluding buildings of Class 6, 7, 8 or 9'. Class 7a, the other classification raised here, is a 'carpark' which means a building used for parking of motor vehicles than it is not a 'private garage'. As relevant to the dispute in this case, a 'private garage' is a storey with parking for less than three cars. 57There was considerable debate at hearing as to what the alternative classification might have been with the Board preferring car park. As to the latter, we do not accept that the car park as varied (4.8m wide versus 4.0m approved) now allowed for more than two cars to be parked (i.e. three) as there remained insufficient width to do so. 58While we accept the specific points made by the Board, we were left in some doubt as to whether a reasonably competent accredited certifier ought be regarded as having erred in the construction certificate classification. We find that aspect of the allegation not proven. 59We are satisfied however that, in any event, the fire resistant wall should have reached the underside of the roof joist. In our view this was a very serious omission, and gave rise to the very real risk of easy spread of fire endangering human life. We uphold the allegation to that extent. (1) COMPLAINT 116/11: DEVELOPMENT ADDRESS: 53 CENTENNIAL AVENUE, CHATSWOOD 60Nature of Development. The development involved the demolition of an existing single storey house together with the existing brick fence located on the front boundary, and the construction of a new two storey house and front fence. Only one of the three allegations considered by the Board remained alive, Allegation 1. Originally this allegation referred to two trees, which we will call by their common names - a jacaranda and a (weeping) lilly pilly. The law gives special protection to trees, and requires their removal or pruning to be the subject of specific authorisation ahead of any complying development certificate issuing. 61Power to give a Complying Development Consent. A certifier is entitled to issue a complying development certificate (or 'CDC') in respect of specified developments. A developer applicant consequently need not go to the council or other planning authority for a development approval. 62The process for obtaining a CDC is set out in s 85A of the EPA Act: 85A Process for obtaining complying development certificates (1) Application An applicant may, in accordance with the regulations, apply to: (a) the council, or (b) an accredited certifier, for a complying development certificate. (2) (Repealed) (3) Evaluation 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. (4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Determination The council or an accredited certifier may determine an application: (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. (7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate. (8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application. (9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development. (10) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier. (10A) Payment of long service levy Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid. (11) Post-determination notification On the determination of an application for the issue of a complying development certificate: (a) the council or accredited certifier must notify the applicant of the determination, and (b) the accredited certifier must notify the council of the determination, and (c) if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations. (12) For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument. 63It will be seen that the accredited certifier's duty is set out in sub-section (3). It will be seen that wide authority is given to the certifier. Consideration of Allegation 1 64The Board found Allegation 1 proven. ALLEGATION 1 Mr Fitzgerald issued complying development certificate no. J2011/071 dated 31 May 2011, when no permit or development consent for the removal or pruning of trees on the development site had been obtained, as required by clause 1.18(1)(h) of the State Environmental Planning Policy (Exempt and Complying Development codes) 2008 (SEPP). Mr Fitzgerald issued the complying development certificate when the development was not complying development in accordance with Section 85A(3) of the Environmental Planning and Assessment Act 1979, as the provisions of clause 1.18(1)(h) of the SEPP had not been complied with prior to the issue of the complying development certificate. 65The allegation referred to the following provisions: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP), cl 1.18(1)(h) [subject - removal or pruning of trees] 1.18 General requirements for complying development for this Policy (1) To be complying development for the purposes of this Policy, the development must: ... (h) if it involves the removal or pruning of a tree or other vegetation that requires a permit or development consent to which clause 3.6A or 3A.7 does not apply, before the complying development certificate is issued, have a permit or development consent for that removal or pruning. Note. A permit for the removal or pruning of a tree or other vegetation may be granted under a local environmental plan. A development consent for the removal of native vegetation may be granted under the Native Vegetation Act 2003. Paragraph (h) may not apply to certain trees or vegetation near complying development under Part 3 (see clauses 3.6A and 3A.7). Environmental Planning and Assessment Regulation 2000, cl 4(2)(b) of Schedule 1 of the [subject - indications on site plan as to vegetation and trees] 4 Documents to accompany application for complying development certificate (2) The site plan referred to in subclause (1)(a) must indicate the following matters: (b) existing vegetation and trees on the land, 66The Board's reasons for decision include the following statements: 1.3 Mr Fitzgerald failed to ensure that a permit was obtained for the removal or pruning of the Jacaranda tree in accordance with clause 1.18(1)(h) of the Codes SEPP. 1.4 Mr Fitzgerald failed to ensure that all trees were indicated on the site plan in accordance with Clause 4(2)(b) of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 1.5 The allegation is proven in part. [The Tribunal adds, i.e. as to the jacaranda but not the lilly pilly.] 2. The Board is satisfied, based on its findings on the material facts in relation to part Allegation 1, that the conduct of Mr Fitzgerald constitutes unsatisfactory professional conduct as defined by section 19 of the BP Act in that it was conduct: - Occurring in connection with the exercise of the 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. - Contravened section 85A(3) of the Environmental Planning and Assessment Act 1979, or the regulations under either of those Acts whether or not he or she is prosecuted or convicted for the contravention. - Contravened Clause 18(1)(h) of the Codes SEPP. Consideration of Allegation 1 67Great attention was given at hearing to this case, and several site photographs showing the demolition works and the new dwelling works at different points of time were tendered. 68Mr Fitzgerald issued the CDC on 31 May 2011. The project involved substantial demolition and excavation works. There was a real issue as to the potential impact of those works on established trees on the property. An aborist's report had been obtained, dated 21 May 2011. The report made recommendations as to the limit of the boundary of an excavation so as to avoid any interference with the lilly pilly tree and its roots. A Council tree officer made an inspection on 26 October 2011 and found that the excavation had caused damage to the roots of two trees, the lilly pilly and the jacaranda. The Council also considered that the two trees had not been shown on the approved CDC plans; and considered this was contrary to cl 4(2)(b) of Sch 1 of the EPA Reg that requires the site plan to indicate the existing vegetation and trees on the land. 69The criticisms of Mr Fitzgerald are that he failed to ensure that all trees were indicated on the site plan, he failed to undertake a pre-CDC inspection and ensure that the jacaranda was indicated, he failed to ensure that the excavation works did not proceed in such a way that the tree was destroyed, and that he should have seen that the construction of the new front fence would have resulted in the need for the jacaranda tree to be removed, and therefore a pre-CDC authorisation was required. 70There is no dispute that there was a jacaranda tree near the front of the property to the right side as viewed from the street, and that it was destroyed at some point. The question is the culpability or otherwise of the certifier, Mr Fitzgerald in that regard. 71We were not satisfied from the material placed before us by the Board and the evidence that there was any intention to excavate inside the front fence and remove the jacaranda, as ultimately happened. The front fence/wall and the tree had obviously lived together for many decades which would cause the roots of the tree to be contained by the wall. The bulk brick footing plan described by the BPB was almost certainly in existence and would probably have supported a new wall. (We note also that the survey plan was deficient in that trees were shown by dots for trunks and irregular lines for canopies with no description of tree type.) 72We find this allegation not proven. (3) COMPLAINT 16/12: DEVELOPMENT ADDRESS: NO. 40 KINGSLAND ROAD, BEXLEY, AND NO. 42 KINGSLAND ROAD, BEXLEY 73Nature of Development. This development comprised the construction of two multi-storey houses, with garages and basements on the lowest level. The buildings have similar designs though mirrored. There is an allegation in relation to each property, involving a common issue, the depth of excavation below the buildings. 74We have set out earlier the general provisions relating to the issuance of complying development consents. Consideration of Allegations 1 and 2 75The Board found the following allegations proven. ALLEGATION 1 In relation to 40 Kingsland Road, Bexley Mr Fitzgerald issued complying development certificate (CDC) 2011/1433 on 28 September 2011 for the construction of a dwelling house when the proposed development could not be undertaken as complying development. The proposed development required excavation to a depth of greater than one metre. Mr Fitzgerald issued the complying development certificate when the development was not complying development in accordance with section 85A(3) of the Environmental Planning and Assessment Act 1979, as the provisions of clause 3.29 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 [Codes SEPP] had not been complied with. 1.7 The allegation is proven. ALLEGATION 2 In relation to 42 Kingsland Road, Bexley Mr Fitzgerald issued complying development certificate (CDC) 2011/1434 on 29 September 2011 for the construction of a dwelling house when the proposed development could not be undertaken as complying development. The proposed development required excavation to a depth of greater than one metre. Mr Fitzgerald issued the complying development certificate when the development was not complying development in accordance with section 85A(3) of the Environmental Planning and Assessment Act 1979, as the provisions of clause 3.29 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 had not been complied with. 2.6 The allegation is proven. REASONS FOR THE DECISION - Complaint No. 16/12 1. The Board is satisfied, based on its findings on the material facts in relation to Allegations 1 and 2, that the conduct of Mr Paul Fitzgerald constitutes unsatisfactory professional conduct as defined by section 19 of the BP Act in that it was conduct: Occurring in connection with the exercise of the 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. 76Both allegations raise the same concern in respect of the adjacent works. 77As to the scope of the material relevant to the complaint, the Board accepted submissions for Mr Fitzgerald to bring closure to the case that the recitals in the allegation should be strictly adhered to, and therefore it was not permissible to have regard to the amended CDCs issued in respect of each site (2011/1433A and 2011/1434A both dated 13 December 2011) in making the case against Mr Fitzgerald. 78The applicant concedes that the depth of excavations were 2.7m from the floor level of the garage to the ground floor level. 79The Board's allegation refers to Clause 3.29 of the Codes SEPP which provides: 3.29 Excavation of sloping sites (1) Excavation associated with the erection of, or alterations or additions to, a dwelling house or ancillary development (other than a swimming pool) must: (a) be not more than 1m below ground level (existing), and (b) be constructed using a retaining wall or unprotected embankment that meets the standards of subclause (2) or (3), respectively. (2) A retaining wall: (a) must not redirect the flow of surface water onto adjoining property, and (b) must not extend more than 2m horizontally from any external wall of the dwelling house or ancillary development. (3) An unprotected embankment must not extend more than 2m horizontally beyond the external wall of the dwelling house or ancillary development. (4) Excavation associated with the erection of, or alterations or additions to, a swimming pool must be not more than the depth required for the pool structure. 80The Board's case refers to sub-cl (1)(a) and (b). Mr Fitzgerald raises as part of his defence Codes SEPP cl 3.4: 3.4 Basements and roof terraces excluded (1) The erection of a basement, either as part of a new dwelling house or as an addition or alteration to an existing dwelling house, is not development specified for this code if: (a) on a lot that has a width, measured at the building line, of at least 10m-the basement has an area greater than 45m2, or (b) on a lot that has a width, measured at the building line, of at least 6m, but less than 10m-the basement has an area greater than 25m2. (2) The erection of a roof terrace on the topmost roof of: (a) an existing or a new dwelling house, or (b) an existing or a new outbuilding that is detached from a dwelling house, is not development specified for this code. 81He also refers to the definition of 'basement' in the Standard Instrument - Principal Local Environmental Plan: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing). 82Mr Fitzgerald's submission is that a basement (provided it does not exceed the area limits specified in cl 3.4) can be part of a complying development, and the subject of cl 3.29 is the special situation of 'sloping sites'. He submitted that a guide issued by the Department of Planning depicts a basement towards the rear of a sloping site which shows a space with a height greater than 1m. The submission further is that cl 3.29 should be construed as applying to excavations external to the building footprint. It is said that any other interpretation would prevent the construction of footings, drainage or below ground water tanks to a depth greater than 1m and would be entirely inconsistent with cl 3.4. 83We have dealt with similar submissions in our recently published decision in Qiu v Building Professionals Board [2013] NSWADT 289 and said: 50 In relation to Mr Bennett's opinion, we consider that the rule in cl 3.29 is a general rule that is applicable, as it is expressed, to any 'excavation associated with the erection of ... a dwelling house'. This accords with the view expressed in the 2010 discussion paper. 51 Cl 3.29 appears in Subdivision 6 of Division 2 of Part 3. Part 3 is headed 'General Housing Code'. Division 2 is headed 'Development standards for this code'. The building issues the subject of this division are covered in Subdivisions 2-7, and they are headed 'Site requirements', 'Building heights and setbacks', 'Landscaping', 'Car parking and access', 'Earthworks and drainage' (Subdivision 6 where cl 3.29 appears), 'Ancillary development', 'Outbuildings' and 'Development standards for particular land' (such as bushfire prone land). 52 This strict provision needs to be understood in the overall framework of the policy aims of the Codes SEPP. The instrument provides for a streamlined process, enabling the 'fast tracking' of various aspects of residential building works. In our view it is understandable that some caution would be shown in relation to allowing fast tracking of more substantial excavation works. The instrument as it is presently framed means that more substantial footings excavation can not be the subject of a CDC. 53 We accept that the construction of a basement that is at or near the upper end of the area limits specified would often normally require more than 1.0m depth excavation; and that as a practical matter many basements are built in a way that allows someone to stand up in them, and therefore would ordinarily be at least 2.0m in height. Nonetheless, cl 3.4 is entirely silent on this matter, and we are not able to draw the inference that Mr Bennett does. 54 Consequently, we agree with Mr Oslan's and the Board's interpretation of the rules. 84Like Qiu's case, we are dealing here also with a sloping site. The result therefore is that any excavation work is constrained as to its depth, and deeper excavation cannot be authorised by a CDC. 85The allegation is proven. 86However, we acknowledge that the application of these provisions to sloping sites is affected by difficulty. The distinction between a sub 1 metre excavation and one that exceeds that limit can be hard to define in a sloping site situation. The measurements specified by the Codes SEPP only work easily within flat sites. Further we regard an excavation that occurs within the building fabric as usually a less significant issue than one that occurs on open land or near the boundary of the land. 87Allegation 2: This allegation raises the same issue as Allegation 1 in relation to the neighbouring building. The same finding is entered, subject to the same reservations. (4) COMPLAINT 21/12: DEVELOPMENT ADDRESS: 565 MILITARY ROAD, MOSMAN NSW 2088 88This case relates to the issuance of both a CDC (4 June 2010) and an occupation certificate (17 January 2011) in relation to the fit out of the rear part of 565 Military Road Mosman. 89Nature of Development. The building within which the development in issue took place is one of a row of shops in a busy shopping area. At ground level the building was the subject of two retail tenancies, one for the front facing the street (a shop), the other for the rear facing a courtyard and back street known as Myahgah Mews (the tenancy of relevance to this case). Upstairs was occupied as a residence. The lessee of the back rooms at ground level proposed to run a shop selling chocolates ('Coco Chocolates') with an associated small café area. The lessor agreed to redesign the rooms in the rear area to create a café. Works went ahead that included removal of the internal masonry wall. 90In her evidence, Ms Veri, the Board investigator inspected the premises on 17 August 2012. The internal masonry wall had been removed. The ceiling lining had been replaced in all the rooms. A four bowl vanity unit had been installed. There was a new plumbing and electrical fit out. There was a surface finish and painting. The entry area from the rear had been altered. 91Issuance of CDCs. We have set out earlier the general provisions relating to CDCs. The Board's case refers to the following additional provisions: EPA Reg, Sch 1, cl 4: 4 Documents to accompany application for complying development certificate (1) An application for a complying development certificate must be accompanied by the following documents: (a) a site plan of the land, ... (d) if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house): (ii) appropriate building work plans and specifications, ... (2) The site plan referred to in subclause (1) (a) must indicate the following matters: (a) the location, boundary dimensions, site area and north point of the land, ... (d) existing levels of the land in relation to buildings and roads, ... (5) Appropriate building work plans and specifications referred to in subclause (1) (d) (ii) include the following: (a) detailed plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show: (i) a plan of each floor section, and (ii) a plan of each elevation of the building, and (iii) the levels of the lowest floor and of any yard or unbuilt on area belonging to that floor and the levels of the adjacent ground, and (iv) the height, design, construction and provision for fire safety and fire resistance (if any), ... Clause 134(1)(f) of the EPA Reg: (1) A complying development certificate must contain the following: (f) a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by this regulation concerning the issue of this certificate. Consideration of Allegation 1 (Concerning the Complying Development Certificate) 92The Board found Allegation 1 proven. ALLEGATION 1 Mr Fitzgerald issued complying development certificate no. 2010/309, dated 4 June 2010, which did not indicate that the proposed building work was to include the removal of a wall, nor was the proposed removal of the wall indicated in the endorsed plans or specifications accompanying the complying development certificate. The removal of the wall was specified in the description of work on the application form for the complying development certificate. Mr Fitzgerald's conduct as an accredited certifier 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. 93The application is on a form that bears the masthead of Mr Fitzgerald's business. The formal applicant was the lessor (Paul Lotz). It describes the works as 'wall removal and café area (seating 8)', with estimated cost of works at $10,000. Mr Fitzgerald's CDC states that the application was received on 3 June 2010 and was approved on 4 June 2010. The approved plans are listed as 'I sheet' and the person who prepared them is marked as 'not nominated', and the fire safety schedule is listed as '1 sheet'. 94The single page plan covers the ground floor and the (residential) first floor (see p 36 of the s 58 materials) and is similar in style to a real estate agent's basic plan used in sales advertising. The ground floor depiction shows the front and rear areas of the shop premises. The 'front' is the shop; and the rear shows four room spaces adjoined to the front by a doorway. The rear area is the area of the second tenancy, and the source of these proceedings. 95The four spaces divide into a small area (5.94 sq m), divided by a part wall from an 'office' area (12.05 sq m) that shows a fireplace cavity in the corner, with the whole area separated by a solid wall from another area marked 'office' (8.08 sq m) adjacent to which through a doorway in a solid wall is an area marked 'WC' (3.69 sq m). It is the unbroken solid wall between the two 'offices' that is in issue. As we understand the intention, the seating area for the café was to be created by having the wall removed with the result that two office areas would become one with an overall space of about 20 sq m, and the WC would be at the back. The photographs presented to the Tribunal showed an entrance to the café from the rear courtyard. 96The Board's material noted the terms of the lease where the issue of proposed removal of the wall was addressed. The lease terms included requirements that the work be done in a workmanlike manner and under the supervision of a structural engineer. 97Mr Fitzgerald stated to the Board that he had contacted the tenant (Ms Rebecca Kerswell) prior to issue of the CDC and was told by her that the purpose of the application was for shop fit out for a chocolate shop called 'Coco Chocolates' which would sell chocolates produced off-site, supported by a café area, and the fit out would consist of shelving and the like. Ms Kerswell supplied him with a letter dated 1 April 2010 from John Bagnall & Associates Pty Ltd, Consulting Civil & Structural Engineers, headed 'rear 565 Military Road Mosman', and confirming its advice that 'that internal wall with the fireplace could be demolished, but not until part of the ceiling has been removed to reveal the means of support of the existing brick wall in the residence above.' The letter went on to say 'It may be necessary to install a steel beam depending on what is revealed. In any case some brickwork will have to be built back at the fireplace location to support the chimney structure above.' It continued 'The inner wall of the WC and the Mews entry foyer is loadbearing and it would be somewhat more involved (though not impossible) to remove this also.' 98In reply to the Board's investigation, Mr Fitzgerald asserted that this letter amounted to an engineer's certificate. The Board's investigator correctly responded that this document was merely advisory and did not constitute a certificate of any kind. This assertion by Mr Fitzgerald points to a lack of acuity that must be of concern in terms of the standard of professional conduct reasonably to be expected of a certifier. 99The Board's investigation report noted numerous matters it regarded as deficiencies in the actions of Mr Fitzgerald. The site plan did not, in its opinion, comply with cl 4(1)(a), 4(2)(a) and 4(2)(d), the plans did not show the matters required by cl 4(5)(a)(ii) or (iii) or (iv) or the matters required by cl 4(1)(d)(i) or (ii). We agree the site plan did not have the linear or spatial detail required by these provisions. 100It is no answer as Mr Fitzgerald submits that the CDC's failure to depict the removal of the internal wall cannot be a problem if the endorsed plan did not itself show the removal of the internal wall. We do not regard the statements of Pepper J in MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 at [104] about the construction of consents and the relevance or otherwise of the contents of application forms as bearing on this case. Her Honour was not dealing in that case with a question of adequacy of professional conduct. The nub of the allegation here is that Mr Fitzgerald ought reasonably to have known what was being requested, but he allowed a CDC to issue which made no reference to the core structural matter, and did not see to it that the terms of the CDC and the endorsed plan addressed the issue. This is a case about a fundamental omission. 101We are satisfied that the application itself in its terms, and Mr Fitzgerald's contact with the tenant, placed Mr Fitzgerald on notice of an intention to undertake work that may have major structural implications. The application was deficient. Allegation 1 is proven. Consideration of Allegations 3 and 4 (concerning the Occupation Certificate) 102Issuance of Occupation Certificates. In relation to the issuance of the occupation certificate (or 'OC'), the Board's case referred to the following provisions: EPA Act s 109H(6): 109H Restrictions on issue of occupation certificates (6) A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless: (a) a development consent or complying development certificate is in force with respect to the change of building use, and (b) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (c) such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. EPA Reg, cl 132(2): 132 Development standards for building work involving the alteration, enlargement or extension of an existing building (1) This clause applies to development for which a complying development certificate is sought involving the alteration, enlargement or extension of an existing building, otherwise than in connection with a change of building use of an existing building. (2) The development standards applicable to such development include the requirement that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced. (3) That requirement assumes that the building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject. 103The Board found Allegation 3 proven. ALLEGATION 3 Mr Fitzgerald issued final occupation certificate no. 2011/058 on 17 January 2011 for a building that was not suitable for occupation or use in accordance with its classification under the Building Code of Australia. Mr Fitzgerald failed to ensure that the integrity of the fire protective covering, situated between the retail and residential level above was not compromised by penetrations caused by the installation of light fittings. Mr Fitzgerald has breached section 109H(6) of the Environmental Planning and Assessment Act 1979. Mr Fitzgerald's conduct as an accredited certifier 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. 104The final occupation certificate (see p 38 of the s 58 documents) had attached a fire safety certificate signed by the landlord (see pp 39-40). The wall had been removed and there was a new ceiling. Therefore Mr Fitzgerald needed to satisfy himself as to its compliance with the CDC, its general compliance and address properly particular matters, in this instance the matter of significance being the conditions relevant to issuance of the fire safety certificate. 105Mr Fitzgerald stated that prior to issuing the occupation certificate he obtained a statement from the installer of the new ceiling, Mr Sharp, (see p 65) which stated: This is to certify that CSR 13mm Fire Check gyprock 13mm (CSR 805 system) Fire Resistance Level FRL of 30/30/30 was installed at Coco Chocolates, Rear 565 Military Road, Mosman. 106The Board's investigator, Ms Veri, accepted that type of ceiling material recorded in Mr Sharp's certificate was generally compliant. 107The installation of lighting in the ceiling and the creation of penetrations meant that care needed to be shown to ensure adherence to relevant fire safety standards, especially in circumstances where there was a residence above. 108In her report Ms Veri referred to her site inspection on 17 August 2012 which revealed numerous unprotected penetrations in the ceiling of the coffee shop. The penetrations were for the electrical fit-out. The floor of the residential unit can be seen by looking through the light fittings of the area below. She said that the café could not reasonably operate without adequate lighting and the certifier should have ensured appropriate lighting was properly in place prior to the issue of the final occupation certificate. She said it was evident that the penetrations compromised the fire protective covering to the first floor. 109We accept Ms Veri's evidence that the penetrations were visible to the naked eye (supported by her photographs that were tendered), and agree with her view that at his final inspection Mr Fitzgerald should have identified this problem. 110We are satisfied from the material tendered and after considering the evidence of the Board's investigator, Ms Veri, and the evidence of Mr Fitzgerald that there were failings in the fire protection offered by the gyprock ceiling due to unsealed down light penetrations. 111We find Allegation 3 proven. 112We regard this as a very serious omission on Mr Fitzgerald's part, and one that clearly falls below the standard that a reasonably informed and fair minded member of the public might expect of an accredited certifier. 113The Board found Allegation 4 proven. ALLEGATION 4 Mr Fitzgerald issued final occupation certificate no. 2011/058 on 17 January 2011 for a building that was not suitable for occupation or use in accordance with its classification under the Building Code of Australia. Mr Fitzgerald failed to ensure the building was structurally adequate following the removal of an internal wall. Mr Fitzgerald has breached the requirements of clause 132(2) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and section 109H(6) of the Environmental Planning and Assessment Act 1979. Mr Fitzgerald's conduct as an accredited certifier 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. 114We agree with the Board's investigator that Mr Fitzgerald needed to provide a certificate as to the structural adequacy of the building following removal of the wall. It was not acceptable as he sought to do in his reply to the Board's investigation to seek to justify this omission by referring to the engineer's letter of 1 April 2010 sent to the tenant. As we have already noted, this letter contained qualifications and could not have been relied upon to confirm the structural adequacy of the finished building. 115We find Allegation 4 proven. Assessment of the Conduct found Proven 116We have upheld the Board's findings in respect of the Waverton development in respect of Allegations 1 and 2, and in a specific aspect in relation to Allegation 3, an aspect that we regard as very serious. We have upheld the Board's findings in respect of the allegations relating to the Mosman development that remained in contest, Allegations 1, 3 and 4. We have upheld the Board's findings that remained in contest in respect of the Bexley development, but have indicated some reservations about the practicality of the relevant provisions. We have not found proven the remaining allegation under notice in respect of the Chatswood development, Allegation 1. 117We set out earlier in these reasons the provisions relating to the meaning of professional misconduct and unsatisfactory professional conduct. 118A mere error of professional judgement would not ordinarily give rise to an adverse disciplinary finding. The error or errors must be of an order that a disinterested member of the public, who is fair minded and reasonably informed about the practice of accredited certification, would regard as falling short of the standard of competence, diligence and integrity that is reasonably to be expected of a reasonably competent accredited certifier (see para (a) of the definition of 'unsatisfactory professional conduct'.) To enter a finding of 'professional misconduct' the unsatisfactory professional conduct must be 'of a sufficiently serious nature to justify suspension or cancellation' of the holder's certificate of accreditation. 119In our view, the Board was correct in assessing Mr Fitzgerald's level of culpability in relation to the Waverton development as warranting a finding of professional misconduct. We would add that, in our view, his culpability in relation to the fire safety issues (Allegation 3) connected with the issuance of the occupation certificate in respect of the Mosman development was high, and might well have warranted a finding of professional misconduct. However, we will not vary the Board's determination in that regard. 120Accordingly we affirm the disciplinary findings of the Board. Order 1. The Board's finding that the applicant engaged in professional misconduct in relation to his issuance of a construction certificate for the development the subject of Complaint No 01/12 (Waverton) is affirmed. 2. The Board's finding that the applicant engaged in unsatisfactory professional conduct in relation to the developments the subject of complaints Complaint No 16/12 (Bexley) and Complaint No 21/12 (Mosman) is affirmed. The finding in respect of Complaint No 116/11 (Chatswood) is set aside. 3. The Registrar is to fix a date for directions to be given in relation to hearing of the parties' submissions in relation to the Board's disciplinary order. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2014