Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raco v Building Professionals Board [2015] NSWCATOD 102 Hearing dates: 27 July 2015 Date of orders: 28 September 2015 Decision date: 28 September 2015 Jurisdiction: Occupational Division Before: N Hennessy LCM, Deputy President N Halstead, General Member Decision: The decision of the Building Professionals Board is affirmed. Catchwords: PROFESSIONAL DISCIPLINE –review of decision of Building Professionals Board to discipline an accredited certifier - unsatisfactory professional conduct – meaning of "not inconsistent" in Environmental Planning and Assessment Regulation 2000, cl 145(1)(a) Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63 Building Professionals Act 2005 (NSW), s 3 Environmental Planning and Assessment Act 1979 (NSW), s 96 Environmental Planning and Assessment Regulation 2000 (NSW), cl 145(1)(a) Cases Cited: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 Category: Principal judgment Parties: Tony Raco (Applicant) Building Professionals Board (Respondent) Representation: Applicant (in person) T Grey (Building Professionals Board) (Respondent) File Number(s): 1520076 Publication restriction: Nil REASON FOR DECISION Introduction 1. The Building Professionals Board found Mr Raco guilty of unsatisfactory professional conduct, reprimanded him, and fined him $5,000. 2. Mr Raco, an accredited certifier, has applied to the Tribunal to review that disciplinary finding. 3. The review is an administrative review of the disciplinary finding and of any action taken by the Board after making that finding. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it: Administrative Decisions Review Act 1997 (NSW), s 63. The Tribunal may affirm, vary or set aside the decision. 4. It is alleged that Mr Raco failed to ensure that a building was built in accordance with the development consent and the construction certificate that was issued in relation to that building. In our view that allegation has been substantiated and Mr Raco has engaged in unsatisfactory professional conduct. The Building Professionals Board has made the correct and preferable decision in reprimanding Mr Raco and fining him $5,000. Role of accredited certifiers 1. Accredited certifiers are accredited by the Building Professionals Board to do "certification work" which includes "the carrying out of the functions of a principal certifying authority under the Environmental Planning and Assessment Act 1979": Building Professional Act 2005 (NSW), s 3. 2. Accredited certifiers are given certain discretionary powers under the Environmental Planning and Assessment Act including determining whether relevant conditions of development consent have been met, interpreting and implementing conditions of consent and determining whether detailed plans are consistent with the approved development application plans and/or whether a modification of the development consent is or may be required. Under the Code of Conduct in the Building Professionals Accreditation Scheme, certifiers have a duty of care in relation to any advice given and any action taken when carrying out that role. Background 1. This matter relates to a development in Vaucluse, an eastern suburb of Sydney. The owners of the property lodged a development application with Woollahra Council in 2010. The application was refused and the owners appealed to the Land and Environment Court. On 31 August 2011 the Court granted development consent for the demolition of an existing house and swimming pool and the erection of a new dwelling. The Court described the site as having "iconic views" of Sydney harbour. 2. The development application plans showed the wall on the northern elevation as being stepped back from the mid-point onwards and as including an inaccessible ledge. The Land and Environment Court considered the impact of the construction on the view of neighbouring properties and imposed certain conditions. The condition which is critical to these proceedings is condition C.1(f): The inaccessible "ledge" located off the first floor master bedroom shall be deleted in its entirety together with the roof above it and the louvres on its western end. [Emphasis added.] 1. On 4 March 2013, the owners appointed Mr Raco as the principal certifying authority for the development. On the same day he issued a construction certificate for the development. As required by condition C.1(f), the plans did not depict the originally proposed inaccessible ledge outside the master bedroom or any roof above the position of the ledge. 2. On the 15 January 2014 the owners' architect, an employee of X. PACE Design Group, emailed Mr Bernie Cohen, a colleague of Mr Raco's, requesting that he assess and certify what he considered to be a "minor alteration." The proposed change was that instead of having a side wall with a step in its alignment (and with no ledge), the entire wall would be slanted inwards narrowing towards the harbour side of the property. This was apparently due to an engineering design imperative. Hi Bernie At (the Vaucluse property) it is a condition of consent that the non-trafficable "ledge" outside the level one master bedroom be 'deleted'. A specific amount of reduction or alignment was not stipulated within the condition. The principle behind C1.f is to improve the view from (the neighbouring property) past the NW corner of the building. The current proposal achieves this result to a greater extent than that indicated on the approved Construction Certificate drawings, as the building line is shifted 749 mm further south. This building edge alignment allows for the 'inaccessible ledge' to be 'deleted' whilst also further improving the view lines from (the neighbouring property) beyond the requirements of consent condition C.1(f), by removing additional building bulk. Therefore, the current proposal more than satisfies the condition and also maintains the integrity of the buildings appearance. As per the consent condition C .1 (f), the line of the building will be transferred to the roof edge above. A small difference in the position of the building edge can be seen between the current proposal and that approved in the construction certificate. The difference arose as the structural design was finalised and is in part due to the need to accommodate external sunscreens on level I, as required within the BASIX certificate. We trust you can assess and certify this minor alteration, as it directly responds to and satisfies a DA condition of consent. The building work on site is advanced and a section 96 application will cause extensive delay and cost. Please call if you require any further information or if you have any questions. Regards Shane. [Words in brackets added. Words in brackets in the original text deleted.] 1. On 17 January 2014 Mr Raco replied by email: Shane, All good to go as per our conversation today. S 96 appears is not applicable for this proposal as detailed below. Kind regards, Tony. 1. The owners' architect emailed Mr Raco directly on 23 January 2014 as follows: Hi Tony Do we need to send you updated/revised drawings and have the Construction Certificate updated and stamped? Regards Shane 1. Mr Raco's reply dated 24 January 2014 was as follows: Shane, amended C C does not appear necessary for this one particular item. We'll look into an amended CC further into the building process on what additional changes may be required. Regards, Tony. Complaint by neighbour and further Land and Environment Court proceedings 1. On 12 June 2014 the Building Professionals Board received a complaint from a neighbouring property owner concerned that the dwelling was not being erected in accordance with condition C.1(f) of the development consent and that Mr Raco was not taking any action to enforce the development consent. 2. The Board conducted a preliminary assessment and wrote to Woollahra Municipal Council on 8 August 2014 stating that it appeared the building may not have been erected in accordance with the development consent. On 2 September 2014 the Council wrote to the Board stating that it had inspected the development and issued a notice of intention to give an order pursuant to s 121H of the Environmental Planning and Assessment Act. On 29 September 2014 the Council issued a notice requiring demolition of certain parts of the building and rebuilding in accordance with the plans approved by the construction certificate. 3. The three reasons the Council gave for making that order were firstly, that the section of the concrete first floor (referred to as the inaccessible ledge) in condition C.1(f) of the development consent, does not comply with the architectural plan; secondly, the roof has been constructed over the 'inaccessible ledge' which was required to be deleted by condition C.1(f) of the development consent and thirdly, the construction has detrimentally impacted on the view access of neighbouring properties. 4. The owners subsequently lodged an application with the Land and Environment Court to delete condition C.1(f) of the development consent so that the new configuration of the wall would be approved. On 19 March 2015, following a conciliation conference, consent orders were made effectively approving the new wall position and configuration. Allegation 1. The allegation against Mr Raco is that: Mr Raco in his role as a principal certifying authority failed to ensure the floor slab and north side external wall of the first floor level were being erected in compliance with development consent No 171/2010 issued on 31 August 2011 and construction certificate No CC2012-01263 issued on 4 March 2013. Legislative scheme 1. The Building Professionals Act establishes a regime for the accreditation and discipline of certifiers. The Supreme Court described the accreditation process in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 (27 November 2014) at [40] – [41]: 40. A person may apply to the Building Professionals Board (BP Board) for a certificate of accreditation as an accredited certifier: ss 5(1), 5A(1). The Board may refuse an application on a variety of grounds, for example, if it is not satisfied that an individual applicant has the requisite qualifications, skill, knowledge and experience, or has failed to comply with a statutory or other duty relating to the functions of a person as an accredited certifier: s 7(1). 41.The Board may suspend or cancel a person's certificate of individual accreditation on a number of grounds, for example where it forms the opinion that the certifier is not a fit and proper person to hold a certificate of accreditation: s 8(2). In addition, Part 3 of the BP Act establishes procedures for the making of complaints about the "professional conduct" of an accreditation holder: ss 19(1) (definitions), 21(1). 42.The Board is required to investigate complaints against accreditation holders, although it may decide to take no action in respect of a particular complaint: s 22. If the Board is satisfied following its investigation that the accreditation holder is guilty of "unsatisfactory professional conduct" or "professional misconduct", the Board may impose sanctions: ss 27, 31. These include, in the most serious cases, cancellation of the certifier's certificate of accreditation: s 31(4)(i). The Board must publicise disciplinary action taken against an accreditation holder and, to this end, must maintain a public register of disciplinary action taken: ss 39(1), 40(1). 1. Under cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000, an accredited certifier must not issue a construction certificate unless the design and construction of the building plans are "not inconsistent" with the Development Consent: (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. [Emphasis added] 1. In Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 (27 November 2014) at [147] to [148] the Supreme Court discussed the meaning of the term "not inconsistent": 147.The ordinary meaning of "inconsistent" includes "lacking in harmony between different parts or elements" or "self-contradictory" (Macquarie Dictionary); "discrepancy" or "incongruity" (Shorter Oxford English Dictionary). There is no reason to think that the expression "not inconsistent" is used in anything other than its ordinary meaning: see Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 at 331 (Kirby P) (construing s 36 of the EPA Act which concerns "inconsistency" between environmental planning instruments). On this basis, his Honour should have directed attention to whether the two sets of specifications were inconsistent, in the sense of lacking harmony between different elements or lacking congruity. 148.No doubt this is not a straightforward task. Not every difference between the DA and the plans and specifications furnished to the certifying authority and approved in the CCs amounts to an inconsistency in the relevant sense. As Lloyd J observed in El Cheikh v Hurstville City Council [2001] NSWLEC 175; 115 LGERA 425 at [74], albeit in another context, a difference does not necessarily constitute an inconsistency. Some adjustment to approved plans and specifications, as the primary Judge suggested, may be inevitable in a large and complex project. (See also the observations of Sperling J (Sully and Simpson JJ agreeing) in Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49 at [59]- [82]). 1. In the context of that case, the Supreme Court held at [149] – [150] that when determining inconsistency, the following matters were irrelevant: whether the person concerned "thought he had aesthetic or other reasons for changing the approved plans and specifications"; "whether the variations could reasonably be regarded as improving the external appearance of the building" and whether the person concerned had not "deliberately ignored the question of whether his changes might, in some cases, warrant the making of a modification application". 2. If the design and construction is inconsistent with the Development Consent an application under s 96 of the Environmental Planning and Assessment Act is required. To assist practitioners to resolve some of the issues that arise in development and certification, the Department of Urban Affairs and Planning has issued a series of Practice Notes. Relevant to this application is the Practice Note titled "When is a section 96 modification required?" At p 1 the following advice is given: You will need to modify the consent where you change your plans so that: the external envelope of the building is changed – where windows are moved, heights are changed or plant rooms are added Rooms are moved or enlarged A specific requirement of the condition of consent has not been met. 1. Practice Notes are not legally binding but they provide guidance to practitioners. Consideration 1. Mr Raco criticised the Board's processes but acknowledged that the Tribunal's role is not to review the fairness of the process before the Board. Rather, the Tribunal stands in the shoes of the Board and determines whether, on the basis of any relevant factual material and any applicable written or unwritten law, the decision it made was the correct and preferable decision: Administrative Decisions Review Act, s 63. 2. "Unsatisfactory professional conduct" is defined in s 19 of the Building Professionals Act. The Board relies on s 19(a): … "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, … 1. The basis for the Board's finding that Mr Raco was guilty of unsatisfactory professional conduct was that he failed to ensure the floor slab and north side external wall of the first floor level were being erected in compliance with development consent and construction certificate. In order to determine whether that conduct amounts to unsatisfactory professional conduct we must make findings as to the nature and extent of the variations to the approved plans and specifications and then make a judgment as to whether the variations were "not inconsistent" with the development consent. 2. The Woollahra Municipal Council gave reasons for issuing a notice requiring demolition of certain parts of the building and rebuilding in accordance with the plans approved by the construction certificate. Two of those reasons were that the inaccessible ledge and the roof constructed over that ledge do not comply with the architectural plans. There was no dispute as to those findings. 3. Mr Raco said that, in his opinion, a s 96 application to modify the development consent was not required because he has a level of discretion as an accredited certifier. We accept, as the Supreme Court said in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 at [148], that not every difference between the development consent and the way a building is constructed amounts to an inconsistency in the relevant sense. It is a matter of judgment as to whether that is the case. But, contrary to Mr Raco's submission, there is no rule of thumb that in circumstances where less than 1% of the building is affected, there is no inconsistency. 4. Mr Raco made two submissions which we consider to be irrelevant to a determination of this matter. This first was that the owner's and the neighbour's architect agreed with him that there was no need to apply for a modification to the development consent. Mr Raco needed to come to his own view as to that matter and the fact that others agreed with him is not the point. The second submission was that in his opinion the change to the plans did not compromise the neighbour's views and nor did the building lose any articulation. The issue is not whether the objective of condition C.1(f) was met, but whether the variations were "not inconsistent" with the development consent. 5. We find that the variations were inconsistent with the plans and specifications in the development consent. The envelope of the building changed significantly as a result of the amendments to the plans. A two-storey wall was reconfigured from being stepped to straight, and from being squared to be angled. The roofline also changed. The external changes have impacted on the internal shape and dimensions of rooms. Condition C.1(f) stated that the ledge and the roof above "shall be deleted in its entirety". That was not done. 6. By approving those changes Mr Raco engaged in conduct which 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. Actions 1. The options the Board has after making a finding of unsatisfactory professional conduct are set out in s 31(4) of the Building Professionals Act: (4) If the Board is satisfied that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, the Board may take any one or more of the following actions: (a) caution or reprimand the accreditation holder, (b) by order impose such conditions as it considers appropriate on the accreditation holder's certificate of accreditation, (c) order that the accreditation holder complete such educational courses as are specified by the Board, (d) in the case of an accredited body corporate, order an accredited certifier who is a director or employee of the body corporate to complete such educational courses as are specified by the Board within the time specified by the Board, (e) order that the accreditation holder report on his, her or its practice as an accredited certifier or building professional at the times, in the manner and to the persons specified by the Board, (f) order the accreditation holder to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order, (g) order the accreditation holder to pay to the complainant such amount (not exceeding $20,000) as the Board considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct, (h) suspend the accreditation holder's certificate of accreditation for such period as the Board thinks fit, (i) cancel the accreditation holder's certificate of accreditation, (j) disqualify the accreditation holder from being an accredited certifier director of, or otherwise being involved in the management of, an accredited body corporate or a specified accredited body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, (k) in the case of an accredited body corporate, disqualify an accredited certifier director of the body corporate from being an accredited certifier director of, or otherwise involved in the management of, the body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, but only during any period when the body corporate holds a certificate of corporate accreditation, (l) order that the accreditation holder 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 Board, (m) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accreditation holder is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accreditation holder. 1. The penalty the Board imposed was a reprimand and a fine of $5,000. 2. Mr Raco has been an accredited certifier since 2004. In that time he says he has issued 3097 construction certificates and complying development certificates. While he has been the subject of complaints to the Board none has resulted in a disciplinary finding against him until now. He is proud of his unblemished record and wishes to retain it. 3. He says he now understands that when words such as "deleted in its entirety" appear in a condition to development consent, he has to take that into account. He says he understands that he "used too much discretion" and says he has learnt from this experience. Mr Raco added that in hindsight he would not make the same decision today because he would not want to put himself through the disciplinary process again. While he could "live with" a caution, he submits that a fine of $5000 is excessive. 4. In December 2012, the Board published "Disciplinary Penalty Guidelines" and has applied those guidelines in every case since that time. Those guidelines divide infringements into six categories: 1. complaints that satisfy the requirements of s 22 of the Building Professions Act for taking no further action or s 23 for dismissal; 2. minor infringements identified in legislation as capable of being dealt with by the issue of a Penalty Infringement Notice (PIN); 3. minor infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of up to $5,000 is appropriate; 4. moderate infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of between $5,000 and $20,000 is appropriate; and 5. significant infringements that are unsatisfactory professional conduct or professional misconduct where a caution, reprimand or the imposition of conditions and a fine of between $5,000 and $50,000 is appropriate; 6. major infringements involving unsatisfactory professional conduct or professional misconduct where a caution, reprimand, the imposition of conditions, suspension, cancellation or disqualification are appropriate together with a fine of $50,000 to $110,000. 1. The Board assessed Mr Raco's infringement as being in the third or fourth category and imposed a reprimand (which is more serious than a caution) and a fine of $5,000. 2. Mr Raco should have known that compliance with condition C.1(f) required more than ensuring that the neighbour's view was not affected. The condition explicitly required the ledge and the roof above to be "deleted in its entirety". Using the Board's classification we regard Mr Raco's conduct as constituting a moderate infringement. 3. The consequences of his conduct were that the Council issued a demolition notice and the owners had to apply to the Land and Environment Court for a s 96 modification. Had Mr Raco insisted on a s 96 application when the plans were changed, the construction would have been delayed considerably. But, by not taking that step, the owners and the neighbours have incurred significant further costs and delays. 4. In our view, the imposition of a reprimand and a $5,000 fine is appropriate. Mr Raco's conduct amounts to unsatisfactory professional conduct and a penalty at the lower end of the range is appropriate because Mr Raco has had no previous disciplinary findings made against him. Orders The decision of the Building Professionals Board is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 28 September 2015