Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hallal v Building Professionals Board [2016] NSWCATOD 78 Hearing dates: 11 May 2016 Date of orders: 21 June 2016 Decision date: 21 June 2016 Jurisdiction: Occupational Division Before: D Fairlie, Senior Member S Boyce, General Member Decision: The decision of the Building Professionals Board dated 26 November 2015 is affirmed Catchwords: Accredited Certifier – findings of unsatisfactory professional conduct in respect of multiple complying development certificates – appropriate penalty Legislation Cited: Administrative Decisions Review Act 1997 Building Professionals Act 2005 State Environmental Planning Policy ( Exempt and Complying Development Codes) 2008 Cases Cited: Department of Planning v Dallas [2006] NSW ADT 231 McGufficke v Building Professionals Board [2013] NSW ADT 296 MuGufficke v Building Professionals Board [2013] NSW ADT 307 Qiu v Building Professionals Board [2013] NSW ADT 289 Raco v Building Professionals Board [2015] NSWCAT OD 102 Category: Principal judgment Parties: Joseph Hallal (Applicant) Building Professionals Board (Respondent) Representation: Counsel: D Essey (Applicant) Solicitors: Essey Legal (Applicant) Building Professionals Board (Respondent in person) File Number(s): 1520267 REASONS FOR DECISION 1. This is an application for a review of a disciplinary decision of the Building Professionals Board ("the Board") against Mr Joseph Hallal, an accredited certifier. 2. On 26 November 2015 the Board determined, following an investigation by its investigative staff, that Mr Hallal's conduct in relation to the matters before it constituted unsatisfactory professional conduct and that as consequence he was reprimanded and fined $10,000. 3. Section 19 of the Building Professionals Act 2006 ("the BP Act") contains an extensive definition of unsatisfactory professional conduct. 4. The relevant subsections in s19, which the Board referred to in its decision were: (a) conduct….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 … the Environmental Planning and Assessment Act….by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, and (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in an accreditation scheme. 1. Mr Hallal has made an application to this Tribunal under s33 of the BP Act for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act") of the Board's disciplinary decision against him. Pursuant to s63 of the ADR Act, the Tribunal may affirm or vary the original decision, or set it aside and make its own decision, or set it aside and remit the matter to the Board. 2. In his Grounds for Review filed on 22 December 2015, Mr Hallal submitted that the Board had failed to consider all the relevant circumstances in making the findings of unsatisfactory professional conduct against him, and that the findings should be reviewed. He also submitted in the alternative, that the penalties imposed were too harsh and that the Board failed to consider or attach appropriate weight to certain factual matters which were put before to the Board. 3. Just before the hearing, a submission was filed by Mr Hallal's solicitor, in which Mr Hallal accepted the findings of unsatisfactory professional conduct made by the Board. Thus the only issue before us was the question of penalty. The Board's Decision 1. We first need to outline in general terms the decision of the Board under review. It concerned developments at the following seven sites: 17 Bangor Street, 6 Albert Street, 14 Robertson Street, 22 Berwick, 26 Arcadia Street, 37 Clyde Street and 33 Bangor Street. All but the Arcadia Street property were in the suburb of Guildford. The Arcadia Street property was located in the adjoining suburb of Merrylands. Each site had more than one building lot on it. 2. Mr Hallal had issued 17 Complying Development Certificates ("CDCs") for dwellings to be constructed at these sites. These CDCs gave rise to 27 separate allegations of unsatisfactory professional conduct. There were an initial 5 allegations and a further 22 categorised by the Board as "additional allegations". Furthermore, in all but 7 of the 27 allegations, there were multiple particulars provided, each of which was treated by the Board as a separate sub-allegation. 3. In its detailed reasons, the Board found that 16 of the 17 CDCs issued by Mr Hallal were defective. Only the allegation relating to the CDC issued for the Arcadia Street site was found not to be proven at least in part. Thus all but one of the 27 principal allegations against Mr Hallal were upheld, though not every sub-allegation. From what we have calculated to have been 79 separate sub-allegations, the Board upheld 52 and found the balance not proven. This calculation may not be completely accurate as the summary of the Board's findings, contained on page 40 of its decision, appears to have included Additional Matters 16(a) and (b), as both proven and not proven. We have taken them to be not proven. 4. Mr Grey, appearing for the Board, said that the Tribunal should not make any new decision in respect to the matters found not proven, although he did add that with respect to 10 instances where an allegation was found not to be proven, he believed the finding to be incorrect and that the correct and proper finding should have been that the allegation had been proven. This included the not proven finding in relation to the CDC issued for the Arcadia Street site. 5. As we understood Mr Grey's submission in relation to those matters, he said that the Board had applied clause 3.16(5) (b) or (c) of the General Housing Code which forms part of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP")' when it should have applied clause 3.16(5)(a), because at the time the relevant CDC's were issued, the adjoining land was vacant. This matter was not fully argued before us so we do not intend to make any determination on this issue in these proceedings. 6. Mr Grey also informed us that there were 3 matters where the Board had found the allegation to have been proven, but, although Mr Hallal had now accepted the appropriateness of those findings, he did not press these matters before this Tribunal. Thus we have proceeded on the basis of findings of unsatisfactory professional conduct, which have been accepted by Mr Hallal, in respect of 49 allegations arising out of 16 of the 17 CDCs. Penalty 1. In his initial Application for Review, Mr Essey, for Mr Hallal, submitted that the following matters had not been considered or given appropriate weight by the Board when it imposed on him what he described as a penalty which was "extremely harsh": (a) The lack of any mala fides or intention on Mr Hallal's behalf in his alleged conduct; (b) All circumstances of the alleged conduct of Mr Hallal as submitted by him; (c) All attempts by him to rectify any error or mistake arising from his conduct; (d) All attempts by him to mitigate any loss or damage suffered by any party; (e) The exemplary co-operation displayed by him in co-operating fully with Board at all times; (f) His otherwise pristine record in operating as a certifier for the past 13 years; and (g) All actions undertaken by him and his company to ensure that the conduct cannot recur. 1. In his oral submission, Mr Essey did not follow this outline. Instead he directed our attention to the factors relevant to penalty which were considered by the Administrative Decisions Tribunal in Qiu v Building Professionals Board [2013] NSW ADT 289 (at paragraph 98). These factors generally cover the same ground as was set out in the Application for Review, and we will proceed using the Qiu headings. These are: (1) The nature width and extent of the contraventions. 1. This requires us first to set out in further detail the findings of the Board. A common allegation in relation to each of the 17 CDCs issued by Mr Hallal was that the walls for the two story townhouse dwellings proposed to be built on the lots in question exceeded the maximum height and the maximum width permitted under the relevant provisions in the Codes SEPP. 2. The maximum height permitted, where a building is to be built to the side boundaries and where the adjoining block is vacant, is 2.3 metres - clause 3.16 (5)(a) of the Codes SEPP. The maximum length is 16.77 metres. Mr Hallal's CDCs allowed for heights and widths well in excess of these allowable dimensions – for example in relation to lot 6 at 17 Bangor Street Guildford, the height proposed was 7.4 metres and the length 23.5 metres. The Board found those matters to have been proven for the majority of the CDCs. The instances where the allegations were not proven were, according to Mr Grey, instances where the Board had applied the incorrect provisions in the Codes SEPP. 3. A second allegation common to all the CDCs and found to be proven in each case, was that the CDCs incorrectly specified that the relevant land use area under the Holroyd Local Environmental Plan 2013, and that the correct land use area did not permit the construction of two story townhouses. Further proven allegations were that the CDCs for 2 of the sites did not address the fact that they were on flood control lots and/or within a flood planning area, and that in other cases Mr Hallal had failed to obtain the consent of Holroyd Council to construct driveways on the sites. 4. Mr Essey submitted that in respect of these matters, Mr Hallal's certification errors arose from a misapprehension of the relevant legislation. Furthermore before issuing the CDCs for 17 Bangor Road, 6 Albert Street, 14 Robertson Street and 22 Berwick Street, he said that he first consulted with a Ms Lim from the Department of Planning and Environment who informed him that he could proceed in the manner that he did. In relation to 14 Robertson Street Guildford he also sought advice from Mr Jonathan Wood of Think Partners, and in relation to obtaining Holroyd Council's consent for the proposed driveways, he said that he had verbal advice from Council that such consent should be applied for after the CDCs had been issued. 5. Mr Essey said that there was material before the Board in relation to these matters, but it was not given any, or at the least, insufficient weight. We have considered the evidence before the Board. In his letter dated 30 January 2015, Mr Hallal referred to his contacting Ms Lim and Mr Wood. However, there was no file note or other document attached setting out the actual advice or confirmation that Mr Hallal said he had received. There was no independent evidence from Ms Lim or Mr Wood as to what Mr Hallal may have said to them and what they said to him. There was also no evidence provided of conversations between Mr Hallal and Council officers regarding when Council's consent for the proposed driveways was required. 6. Mr Grey submitted that at the least, not keeping any note of this advice was unprofessional. In the circumstances we are not comfortably satisfied any external advice that Mr Hallal may have received in relation to these CDCs supported his position, and we do not give any weight to these matters in relation to determining the appropriate penalty. (2) The loss or damage and prejudice in consequence of the contraventions. 1. The Tribunal was informed and it was not challenged by Mr Grey, that in respect of some of the sites, Mr Hallal approached Holroyd Council to request that they issue "stop work" orders after he became aware that the CDCs were noncompliant and before construction had commenced. In a subsequent submission from Mr Grey dated 18 May 2016, we were informed that for 4 of the 7 sites, there had been a substantial redesign of each dwelling and modified CDCs had been issued subsequently by Mr Hallal . In each case he submitted that the development would have been delayed by about 5 months and the redesign and delay is likely to have caused significant financial detriment to the owners. There had been no building work at 26 Arcadia Street or 37 Clyde Street, and both original properties are in a derelict state of repair. The building at 22 Berwick Street Guildford, appears to have been completed in accordance with the CDCs issued by Mr Hallal. (3) The circumstances in which the contraventions took place. 1. It was submitted that all the noncompliant CDC's were issued within a relatively short period of time between August and December 2013. (4) Whether the Certifier was seen to have had engaged in any similar conduct. 1. None was alleged, and no further CDCs of a similar nature were issued by Mr Hallal after Council had issued its first "stop work" order on 13 February 2014. (5) The presence of fraudulent or dishonest intent and deliberation on the part of the Certifier. 1. None was alleged. (6) The extent of carelessness or wilfulness of the conduct. 1. It was submitted the conduct was careless but not wilful. (7) The efforts made to correct the situation. 1. Mr Hallal had issued modified CDCs to correct the errors in the earlier consents to a number of the properties. (8) What consciousness the Certifier had and displayed of his obligations under the relevant statutes, and (9) The effect on the Certifier 1. It was submitted that at all times Mr Hallal intended to comply with his obligations and as the Board had noted, he had provided "appropriate" assistance during the course of the Board's investigation. (10) Antecedents 1. The Tribunal was informed that Mr Hallal had been an accredited certifier for 18 years and this was the first adverse finding against him. (11) Attitude, building history and future compliance. 1. Mr Essey made no specific submission in respect of factor, except to repeat his earlier comments and to note that in its decision, the Board had said that Mr Hallal had displayed a reasonable attitude to dealing with the complaints. In his initial correspondence with the Board Mr Hallal's general attitude appeared to have been that he had done nothing wrong and he rejected many of the individual allegations against him. Before us he had changed his position and had accepted that his conduct amounted to unsatisfactory professional conduct. We are prepared to infer from this change of position that will now show a greater consciousness of the need to be more vigilant and to take more care when assessing similar developments, (adopting the Tribunal's language in Liu at paragraph 99). Mr Hallal was not present during the proceedings before us. (12) The penalty range. 1. Mr Essey submitted that the circumstances justified a penalty at the lower end of the range. He said that a caution rather than a reprimand would be more appropriate and that he should not be fined, or at least a significantly decreased fine should be imposed on him. 2. Mr Grey referred us to a number of prior decisions of this Tribunal and the ADT, in addition to Qiu, in which there had been findings of unsatisfactory professional conduct against accredited certifiers in relation to CDCs issued by them. These were Department of Planning v Dallas [2006] NSW ADT 231, McGufficke v Building Professionals Board [2013] NSW ADT 296, McGufficke v Building Professionals Board [2013] NSW ADT 307 and Raco v Building Professionals Board [2015] NSWCATOD 102. 3. In each case the certifier was reprimanded and fined. Whilst each case must turn on its own individual circumstances, we note that the fines ranged between $5,000 and $20,000. In all but one instance, the Tribunal affirmed the original decision of the Board. The Guidelines 1. Mr Grey also tendered a Board publication entitled Disciplinary Penalty Guidelines - December 2012 ("the Guidelines"). The first paragraph stated: The Guidelines reflect the policy of the Board on the range of disciplinary decisions that are appropriate to address the current level of justified complaints being received by the Board, and in particular the issue of repeated infringements by accredited certifiers. The Guidelines are to assist delegates (ie the Director or the Disciplinary Committee in the exercise of their discretion). 1. Raco was the only case cited to us which was decided after the publication of the Guidelines. At paragraph 37, the Tribunal observed that the Board had applied the Guidelines in every decision since December 2012. The Tribunal also confirmed the Board's penalty in Raco which had been assessed according to the Guidelines. 2. The Guidelines divide infringements into six categories They range from Category A – Dismissal or no further action, to Category F – Major Matters, where the penalty range provides for fines of between $50,000 -$110,000 and for other disciplinary action including cancellation of the certifier's accreditation and disqualification from re-applying for accreditation. 3. Mr Grey submitted that the Board's categorisation of Mr Hallal's conduct as coming within the second most serious category - Category E, was correct. Category E infringements are described in the Guidelines as Significant infringements involving unsatisfactory professional conduct or professional misconduct. The penalty range in this category is for fines between $20,000 and $50,000 and for other disciplinary action ranging from a caution to a cancellation of accreditation. Mr Essey submitted that the conduct should be categorised as Category C, being minor matters that are unsatisfactory conduct. 4. Mr Grey pointed out that the number and the nature of the adverse findings meant that Mr Hallal could not be dealt with under the minor matter category The errors arose not from matters of interpretation where there may have been differing views, but from a failure to have regard to the basic documents. By way of example he referred to the Holroyd Local Environment Plan, published in April 2013 which expressly prohibited two story townhouse development of the kind certified by him on the relevant lots. It should have also been readily apparent from a consideration of the relevant s149 Certificates that some of the sites were on flood control lots. He said that generally speaking, there was no evidence of any care and rigour being applied by Mr Hallal in his work. 5. He added that the Board had already taken into account Mr Hallal's prior record and the other matters in his favour which we have referred to above, when imposing a fine of only $10,000, below the usual range for Category E - Significant Matters. Our Findings and Orders 1. In the circumstances we have come to the view that the imposition of a reprimand and a fine of $10,000 by the Board was appropriate, and we do not intend to vary the Board's decision in the matter. 2. As the Board recognised in its decision, the BP Act is designed to protect the public and accredited certifiers must ensure that their certification work meets acceptable standards. Statements to the same effect can be found in Raco and the other decisions to which we have referred above. Certifiers have a duty of care in relation to the performance of their role. 3. 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: 21 June 2016