Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Building Professionals Board [2017] NSWCATOD 59 Hearing dates: 6 October 2016 Date of orders: 20 April 2017 Decision date: 20 April 2017 Jurisdiction: Occupational Division Before: O Shub, Principal Member S Boyce, General Member Decision: The decision of the Building Professionals Board is affirmed, with the fine and conditions varied 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 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Hallal v Building Professionals Board [2016] NSWCATOD 78 Raco v Building Professionals Board [2015] NSWCAT OD 102 Briginshaw v Briginshaw [1938] HCA 34 Hans v Building Professionals Board [2008] NSWADT 285 Building Professionals Board v Cogo [2008] NSWADT 119 Building Professionals Board v Boulle [2008] NSWADT 80 Craig v The Medical Board of South Australia [2001] SASC 169 Law Society of NSW v McElvenny [2002] NSWADT 166 RE Cree [2003] 34 SR (WA) 169 Building Professionals Board v Johnson [2008] NSWADT 60 Building Professionals Board v Cogo [2009] NSWADT 10 Category: Principal judgment Parties: Gurdeep Singh ( Applicant) Building Professionals Board (Respondent) Representation: Counsel: J Cotton (Applicant) A Grey, Building Professionals Board (Respondent) File Number(s): 1620177 reasons for decision 1. This is an application for a review of a disciplinary decision of the Building Professionals Board ("the Board") against Mr Gurdeep Singh, an A2 accredited certifier. 2. An Application for Stay No 1620177 was issued by NSW Civil and Administrative Tribunal by Orders dated 21 July 2016. 3. On 30 June 2016, the Board determined, following an investigation by its investigative staff, that Mr Singh's conduct in relation to the matters before it constituted unsatisfactory professional conduct and that as a consequence he was reprimanded and fined $50,000. 4. Section 19 of the Building Professionals Act 2006 ("the BP Act") contains an extensive definition of unsatisfactory professional conduct. 5. 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 Singh 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. On 23 September 2016, Mr Singh submitted a review of the Decision of the Building Professionals Board on 2 grounds namely: 1. The finding of guilty (i.e. an adverse misconduct finding of unsatisfactory professional conduct) for at least some of the 11 allegations; and 2. The severity of the penalty given is considered disproportionate and unduly severe. This is particularly so in regards to the suspension of Mr Singh's ability to issue complying development certificates (CDC's) under the Affordable Housing SEPP for a period of at least 12 months, and the high amount of monetary fine which Mr Singh believes is excessive. 1. At the start of the Hearing both the applicant (on behalf of the applicant's Solicitor) and the Respondent made the following submission on the 11 Allegations the subject of the initial Disciplinary Decision: 1. 27 Rea Street, Greenacre 1. Allegation 1 – Contested 1. 40 Acron Road, St Ives 1. Allegation 1 – not Pressed 2. Allegation 2 – Not Contested – Conceded 3. Allegation 3 – Not Contested – Conceded 4. Allegation 4 – Not Contested – Conceded 5. Allegation 5 – Not Pressed 6. Additional Allegation A, B and C – Conceded – however with Mitigating Circumstances 7. Additional Allegation D – Contested 8. Additional Allegation E - Contested 1. 3 Animbo Street, Miranda 1. Allegation 1 – Contested 2. Additional Allegation A – Contested 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 three sites: 27 Rea Street Greenacre, 40 Acron Road St Ives and 3 Animbo Street, Miranda. 2. Mr Singh had issued 3 separate Complying Development Certificates ("CDCs") being a detached brick veneer granny flat with attached rumpus room and gymnasium at 27 Rea Street, Greenacre, a new brick veneer dwelling with attached secondary dwelling at 40 Acron Road, St Ives and a proposed secondary dwelling (granny flat) and rumpus at 8 Animbo Street, Miranda. These CDCs gave rise to 7 original allegations of unsatisfactory professional conduct and a further additional 6 allegations. There were an initial 7 allegations and a further 6 categorised by the Board as "additional allegations". 3. In its detailed reasons, the Board found that all 3 CDCs issued by Mr Singh were defective. Thus, all of the 7 principal allegations and further 6 additional allegations against Mr Singh were upheld. 4. The Board imposed a reprimand and $50,000.00 fine to Mr Singh and included the following conditions: 1. Mr Singh's certificate of accreditation is conditioned such that he is not permitted to issue any complying development certificates (CDC's) under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), and 2. After a period of no less than 12 months Mr Singh may apply to the Secretariat to remove the abovementioned condition, provided he demonstrates to the Secretariat's satisfaction his competence, documentation and procedures to properly assess and determine CDC applications for Affordable Housing SEPP proposals. 27 Rea Street, Greenacre – Complaint No 67/13 Allegation 1 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/031 dated 28 May 2013, for the erection of a granny flat with attached rumpus room and gymnasium at 27 Rea Street Greenacre, without adequate regard to Section 85A (3) of the Environmental Planning and Assessment Act. Specifically, a rumpus room and gymnasium are not development specified as complying development according to Clause 1.17 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 2. Clause 3.5(2) (d) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes Sepp) states that ancillary development is not permitted if it is attached to a secondary dwelling. The endorsed complying development certificate (CDC) drawings detail proposed 81m2 rumpus room / gymnasium attached to a proposed granny flat (secondary dwelling). 3. Evidence presented to the Tribunal on Mr Singh's interpretation on this matter was conflicting and appeared to change over time. On 14 May 2014 Mr Singh issued an email to the Building Professionals Board with the comment "The 'rumpus room' and 'gym' area is an enclosure of a specialised nature and is not occupied frequently or for extended periods hence is not a habitable room. The interpretations Clause 1.5 of SEPP (Exempt and Complying Developments) 2008 does not include an express definition of a 'rumpus room' or a 'gym'. However, the 'rumpus room' and 'gym' being habitable areas of a specialised nature are akin to the definitions of such rooms in Clause 1.5 under "Outbuilding (b) and (h)". 4. At the time of Mr Singh's correspondence to the Board dated 14 May 2014 there was no mention or further evidence that the rumpus room / gymnasium was ancillary to the principal dwelling existing on the site. 5. Further evidence presented to the Tribunal in the submission on behalf of the applicant Mr Singh changed his original view in that the rumpus room and gym were not regarded as an ancillary structure to the secondary dwelling at all and that the rumpus room / gym was seen by Mr Singh as being an approved alteration / addition to the principal dwelling. 6. Evidence presented to the Tribunal in an Experts Report prepared by Mr Brendan Bennett detailed that the provisions of Clause 3.5(2)(d) of the Codes SEPP did not apply to the CDC application as this clause was only introduced after the 22 February 2014 amendment, whereas the CDC application was lodged with Mr Singh on or about 17 May 2013. The Tribunal agrees with this historical application of Clause 3.5. 7. In the expert's report prepared by Mr Brendan Bennett, under paragraph 2.1.4, Mr Bennett states "It is my opinion that the BPB is correct in the view that a rumpus room / gymnasium is a form of development that is not included within the definition of ancillary development for the purposes of applying the Codes SEPP". – The Tribunal agrees with this view; thus, the approval of the Rumpus Room / Gymnasium cannot form part of a CDC approval process. 8. Based on the evidence presented to the Tribunal we are of the view that at the time of issue of the CDC on 28 May 2013 Mr Singh was of the view that the "rumpus room" and 'Gym" were assessed as "outbuildings" and subsequently ancillary development under Clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 9. Part Clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 states: "ancillary development" means any of the following that are not exempt development under this Policy: (a) access ramp, (b) awning, blind or canopy, (c) balcony, deck, patio, pergola, terrace or verandah that is attached to a dwelling house, (c1) basement, (d) carport that is attached to a dwelling house, (d1) detached studio, (e) driveway, hard stand space, pathway or paving, (f) fence or screen, (g) garage that is attached to a dwelling house, (h) outbuilding, (i) rainwater tank that is attached to a dwelling house, (j) retaining wall, (k) swimming pool or spa pool and child-resistant barrier. "outbuilding" means any of the following: (a) balcony, deck, patio, pergola, terrace or verandah that is detached from a dwelling house, (b) cabana, cubby house, fernery, garden shed, gazebo or greenhouse, (c) carport that is detached from a dwelling house, (d) farm building, (e) garage that is detached from a dwelling house, (f) rainwater tank (above ground) that is detached from a dwelling house, (g) shade structure that is detached from a dwelling house, (h) shed. 1. As a "rumpus room' or 'gym' are not specifically included in the definition of either ancillary development or Outbuilding as detailed above, they cannot be approved as ancillary development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 2. Based on the above the Tribunal agrees that allegation 1 is proven noting that Clause 3.5(2)(d) of the current State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 was not applicable at the time of the CDC application to Mr Singh. 40 Acron Road St Ives – Complaint No 49/15 Allegation 2 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" without having correctly classified the proposed development under the Building Code of Australia viz., the development was incorrectly classified as Class 1a while it should have been classified as Class 2 and Class 10a. 2. The classification of buildings under the Building Code of Australia is a fundamental function of an A2 Accredited Certifier. For Mr Singh to comment that he classified the building based on the provisions of the Affordable Rental Housing SEPP and in particular a note within the Affordable Rental Housing SEPP is of serious concern to the Tribunal. 3. It is noted that Mr Singh is limited in his A2 Accreditation by condition to "… issuing complying development certificates, construction certificates and occupation certificates for Class 1 and 10 buildings only". Based on this condition – if correctly classified – Mr Singh has approved a CDC outside his level of Accreditation and thus he should never have issued the CDC for this property. This was not put to Mr Singh or the Respondent during the Hearing. 4. Irrespective of the evidence provided in the Expert Report of Mr Brendan Bennett under paragraph 3.1.2 to 3.1.3 that the acoustic and fire separation provisions of what was approved as a Class 1a vs Class 2 were similar the classification of a building under the Building Code of Australia is paramount in establishing the required fire safety, health and amenity and other measures appropriate for a particular building. 5. The Tribunal agrees this allegation is proven. 1. Allegation 3 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" without including a Fire Safety Schedule as required by the Environmental Planning and Assessment Regulation 2000. 2. As Mr Singh is only accredited to issue CDC's, Construction and Occupation Certificates for Class 1 and 10 developments – he would not be aware of the provisions under Clause 168 of the Environmental Planning and Assessment Regulation 2000 that a class 2 building is required to contain a Fire Safety Schedule attached to the CDC approval. 3. Irrespective of the evidence provided in the Expert Report of Mr Brendan Bennett under paragraph 3.2.1 to 3.2.2 that the acoustic and fire separation provisions of what was approved as a Class 1a vs Class 2 were similar the legislative provisions for a Class 2 building differ from that of a Class 1a – being the inclusion under Clause 168 of the Environmental Planning and Assessment Regulation 2000 of a Fire Safety Schedule. 4. The statement under paragraph 33 of the "Submissions on behalf of the Applicant" that states" It is submitted that Mr Singh's thought process was not unreasonable and that it was not inconsistent with common industry understanding of the relevant planning instruments at the time" was not subsequently supported by any further evidence and it is in fact the Tribunals view that this is not common industry practice for A2 Accredited Certifiers. Classification of buildings is contained within the Building Code of Australia – not Planning Legislation. 5. The Tribunal agrees this allegation is proven. Allegation 4 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" without ensuring that the proposed development complied with the Building Code of Australia. 2. It is noted that in the Expert Report of Mr Brendan Bennett under paragraph 3.3.1, Mr Bennett agreed with the findings of the BPB that the approved plans and specifications were deficient in respect of adequate information to demonstrate acoustic compliance with the Building Code of Australia. 3. A review of the approved plans and specifications that formed the basis of the CDC approval contained no information on acoustic treatment between the dwellings. 4. In the Expert Report of Mr Brendan Bennett under paragraph 3.3.2, Mr Bennett did not agree with the findings of the BPB that the approved plans and specifications were deficient with information to address adequate fire separation between the two dwellings. 5. A review of the approved plans and specifications included in the CDC approval included inconsistencies in fire separation including the following: 1. The first-floor ceiling is noted as having 2 x 13mm Fyrecheck lining to all ceilings – as a single dwelling (Sole Occupancy Unit – SOU) occupies the entire first floor - such ceiling is not required by the BCA provisions to possess any fire rating. 2. The ground floor ceiling has no notation for a fire rated ceiling which is required by the provisions of the BCA to separate the two dwellings – although in evidence Mr Singh assumed the comment of 2 x 13mm Fyrecheck lining to all ceilings with an arrow pointing to the first floor ceiling to mean all ceilings including the ground floor ceilings – the plans do not support this interpretation. 3. There is no notation on the plans for the separating wall at ground floor between the two dwellings to possess a fire rating which is required by the BCA provisions. However, there is a notation in Section D that a first floor wall contains 1 x 16mm Gyprock Fyrecheck 60/60/60 – again noting the entire first floor is one dwelling (SOU) thus separation at this level is not required. 4. The Sections do not show the separating wall between the two dwellings (SOU's) at ground floor level extending fully down to the ground surface. 5. The Section D nominates the top of the first floor to be 1 x 19mm Scyon Flooring 120/120/120. This is inconsistent with achieving a fire rating when measured from below and in any case the ceiling at ground floor level is only required to possess a resistance to the incipient spread of fire of not less than 60 minutes. 1. Based on the above inconsistencies in the documentation that accompanied the CDC approval issued by Mr Singh, compliance with the relevant provisions of the Building Code of Australia has clearly not been met. 2. It is a fundamental role of an A2 Accredited Certifying Authority to ensure that any CDC or Construction Certificate approval has sufficient details and content to clearly evidence full BCA compliance. 3. The Tribunal agrees this allegation is proven. Additional Allegation A 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" as well as Complying Development Certificate No CDC2013/022/A for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling " without ensuring that there was sufficient rear setback as required by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 viz., the rear setback for those parts of the development above 4.5 was 10m only. 2. It is noted that Mr Singh issued CDC/2013/022 on 21 June 2013 and modified CDC/2013/022/A on 2 June 2015. The modified CDC endorsed a revised floor plan which no longer included the secondary dwelling on the ground floor – thus the entire development was now a Single Class 1a Dwelling. The rear setback of the buildings as depicted on the endorsed CDC plans were the same for the original CDC and Modified CDC. 3. The non-compliance with the setback from the rear boundary existed for Modified CDC which should have been 12.0m, however was in fact 10.08 and 10.05m. 4. In the "Submissions on behalf of the Applicant" under paragraph 51 (i) "The amended CDC (i.e. CDC 2013/022/A) was issued when the foundations, footings, slabs and wall and floor frame etc. (being permanent Structures) had already been constructed and it was not possible that the rear, side or front setbacks could be altered without causing an extremely heavy financial burden on a member of the public (i.e. the Owner)". In this instance – as the Modified CDC application did not comply with the rear setbacks under the Codes SEPP, Mr Singh should have refused the amended CDC application and advised the owner to approach Council with a view to lodging a Development Consent Application for the changes. 5. In the "Submissions on behalf of the Applicant" under paragraph 52 and 53 "Mr Singh claims there is only a small deviation from the actual setback versus the mandated distance and being an east facing block of land, Mr Singh submits that the basic purpose of a setback to the rear boundary is to mitigate any overshadowing of the neighbouring property adjacent to that boundary. 6. The CDC approval process relies on mandated distances and dimensions to be achieved – once outside any of these dimensional criteria – the application is no longer a CDC approval process and the applicant should have been advised of this and that a formal Development Application should have been lodged to Council. The intent of the Codes SEPP and Affordable Rental Housing SEPP is that planning decisions or interpretation are not made by the Accredited Certifier – the issues of overshadowing and the like are not under review by the Accredited Certifier to make determinations on. The intent of the CDC Planning Approval process is to yield predictable and uniform outcomes. 7. In evidence Mr Singh agreed that the setback dimensions to the rear boundary were outside the CDC defined criteria. 8. The amended CDC did not comply with the Codes SEPP criteria thus should not have been issued. 9. The Tribunal agrees this allegation is proven. Additional Allegation B 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" without ensuring that there was sufficient rear setback as required by State Environmental Planning Policy (Affordable Rental Housing) 2009 viz., the rear setback for those parts of the building above 3.8m. 2. The non-compliance with the setback from the rear boundary existed for Modified CDC which should have been 12.0m, however was in fact 10.08 and 10.05m. 3. In the "Submissions on behalf of the Applicant" under paragraph 52 and 53 "Mr Singh claims there is only a small deviation from the actual setback versus the mandated distance and being an east facing block of land, Mr Singh submits that the basic purpose of a setback to the rear boundary is to mitigate any overshadowing of the neighbouring property adjacent to that boundary. 4. The CDC approval process relies on mandated distances and dimensions to be achieved – once outside any of these dimensional criteria – the application is no longer a CDC approval process and the applicant should have been advised of this and that a formal Development Application should have been lodged to Council. The intent of the Codes SEPP and Affordable Rental Housing SEPP is that planning decisions or interpretation are not made by the Accredited Certifier – the issues of overshadowing and the like are not under review by the Accredited Certifier to make determinations on. The intent of the CDC Planning Approval process is to yield predictable and uniform outcomes. 5. In evidence Mr Singh agreed that the setback dimensions to the rear boundary were outside the CDC defined criteria. 6. The amended CDC did not comply with the Affordable Rental Housing SEPP criteria thus should not have been issued in the first instance. 7. The Tribunal agrees this allegation is proven. Additional Allegation C 1. Mr Singh, issued a Complying Development Certificate No CDC/2013/022 for the development "demolish existing brick veneer dwelling and construct a new brick veneer dwelling with attached secondary dwelling" without ensuring that the floor area of the secondary dwelling complied with the State Environmental Planning Policy (Affordable Rental Housing) 2009 viz., the floor area of the secondary dwelling was greater than 60m2. 2. In the "Submissions on behalf of the Applicant" under paragraph 563 "Mr Singh does not wish to contest Additional Matter C, however he notes that if the Boards system of measurement is to be accepted, the floor area only exceeds the maximum by a small margin". This small margin is some 5m2 over the 60m2 criteria or circa 8.3%. 3. The statement under paragraph 58 of the "Submissions on behalf of the Applicant" being, "….It is a genuine error made in good faith, based on reasoning that was not clearly inconsistent with professional understanding in the industry at the time", was not subsequently supported by any further evidence and it is in fact the Tribunals view that this is not common industry practice for A2 Accredited Certifiers. Determining the floor area of a secondary dwelling not exceeding 60m2 is a fundamental role of an A2 Accredited Certifying Authority in issuing CDC's for secondary dwellings under the State Environmental Planning Policy (Affordable Rental Housing) 2009. 4. The CDC approval process relies on mandated distances and dimensions to be achieved – once outside any of these dimensional criteria – the application is no longer a CDC approval process and the applicant should have been advised of this and that a formal Development Application should have been lodged to Council for the entire development. The intent of the Codes SEPP and Affordable Rental Housing SEPP is that planning decisions or interpretation are not made by the Accredited Certifier. The intent of the CDC Planning Approval process is to yield predictable and uniform outcomes. 5. The original CDC in relation to floor area of the secondary dwelling did not comply with the State Environmental Planning Policy (Affordable Rental Housing) 2009 criteria thus should not have been issued. 6. The Tribunal agrees this allegation is proven. Additional Allegation D 1. Mr Singh, as principal certifying authority for the building work approved under CDC/2013/022 failed to ensure that the principal contractor for the building work was covered by the appropriate insurance required by the Home Building Act 1989 before work commenced on site in accordance with section 109E (3) of the Environmental Planning and Assessment Act 1979. 2. In evidence submitted to the Tribunal it would appear that Mr Singh failed to ensure there was evidence of Home Owners Warranty Insurance in place prior to work commencing. 3. The Notice of Commencement of Building Work under the question "Are you an Owner – Builder?" – was ticked as 'No' with the Builder being Steven Galcsik Contractor Licence Number 83155L. 4. The Notice of Commencement of Building Work under the question "Is the reasonable estimated cost of work more than $12,000.00" it was ticked 'Yes'. However, there was no evidence that the licenced builder was insured to undertake residential building work (Home Owners Warranty Insurance required under the Home Building Act 1989). 5. When questioned in evidence – Mr Grey advised that to date no evidence of insurance has been located or taken out for the subject development. Thus, to this day the development contains no Home Owner Warranty Insurance. 6. In evidence Mr Singh accepts there should have been a more thorough check made by him. 7. The provisions of Home Owners Warranty Insurance under the Home Building Act 1989 is a critical safety net for current and future owners of the subject property and verifying suitable insurance is in place prior to works commencing is the sole responsibility of the Accredited Certifying Authority. 8. The Tribunal agrees this allegation is proven. Additional Allegation E 1. Mr Singh, issued complying development certificates No CDC/2013/022 and No CDC/2013/22/A which did not include a prescribed condition under Division 2A of the Environmental Planning and Assessment Regulation 2000. Mr Singh also included conditions when he was not authorised to do so. 2. In particular, the conditions in Schedule 2 of Mr Singh's CDC's do not include the condition prescribed in clause 136D of the EP & A Regulation, which relates to the fulfilment of BASIX requirements. The subject development is BASIX affected and this condition was applicable to the development. 3. A question was raised by the Tribunal during the hearing as to why there was only one BASIX Certificate yet there were two dwellings contained within the original development – the question remains unanswered. 4. A review of the conditions contained within the CDC/2013/022 has found that there are inconsistencies between the conditions within the CDC and those contained within Schedule 6 that are applicable as a prescribed condition under Part 3 of Division 3 of the Codes SEPP. 5. There is also no prescribed condition under clause 136D of the EP & A Regulation 2000 on the fulfilment of the BASIX commitments contained within Schedule 2 of Mr Singh's CDC approvals. 6. The tribunal agrees that the prescribed conditions contained in Part 3 of Division 3 of the Codes SEPP and those within the ARH SEPP must be included in all CDC's issued under this statutory legislation. Furthermore, there is no legislative option for Accredited Certifiers to include additional conditions in the Certificate. 7. The Tribunal agrees this allegation is proven. 8 Animbo Street, Miranda – Complaint No 92/15 Allegation 1 1. Mr Singh issued complying development certificate No CDC/2015/18 dated 24 February 2015 for the construction of a secondary dwelling (granny flat) and rumpus at 8 Animbo Street, Miranda, despite the proposed building not being complying development as it did not meet the prescribed development standards. 2. Clause 3.5(2) (d) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes Sepp) states that ancillary development is not permitted if it is attached to a secondary dwelling. The endorsed complying development certificate (CDC) drawings detail proposed 49.1m2 rumpus room attached to a proposed granny flat (secondary dwelling). 3. Evidence presented to the Tribunal on Mr Singh's interpretation on this matter was again conflicting and appeared to change over time. On 8 October 2015 Mr Singh issued an email to the Building Professionals Board with the comment "The nomenclature of the class 10 building in this case is 'rumpus' simply to identify this enclosure as a distinctly separate building from the secondary dwelling and this area is akin to an outbuilding on the block and is permitted under the SEPP (Exempt and Complying Development) 2008……The rumpus attached to the secondary dwelling and appropriately classified as class 10 and separated by a compliant separating wall fully meets the criteria laid down in clause 3.5.2(d)" 4. At the time of Mr Singh's correspondence to the Board dated 8 October 2015 there was no mention or further evidence that the rumpus was ancillary to the principal dwelling existing on the site. 5. Further evidence presented to the Tribunal in the submission on behalf of the applicant Mr Singh changed his original view in that the rumpus was not regarded as an ancillary structure to the secondary dwelling at all and that the rumpus was seen by Mr Singh as being an approved alteration / addition to the principal dwelling. 6. Based on the evidence presented to the Tribunal we are of the view that at the time of issue of the CDC on 24 February 2015 Mr Singh was of the view that the "rumpus" was assessed as an "outbuilding" and subsequently ancillary development under Clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 7. Part Clause 1.5 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 states: "ancillary development" means any of the following that are not exempt development under this Policy: (a) access ramp, (b) awning, blind or canopy, (c) balcony, deck, patio, pergola, terrace or verandah that is attached to a dwelling house, (c1) basement, (d) carport that is attached to a dwelling house, (d1) detached studio, (e) driveway, hard stand space, pathway or paving, (f) fence or screen, (g) garage that is attached to a dwelling house, (h) outbuilding, (i) rainwater tank that is attached to a dwelling house, (j) retaining wall, (k) swimming pool or spa pool and child-resistant barrier. "outbuilding" means any of the following: (a) balcony, deck, patio, pergola, terrace or verandah that is detached from a dwelling house, (b) cabana, cubby house, fernery, garden shed, gazebo or greenhouse, (c) carport that is detached from a dwelling house, (d) farm building, (e) garage that is detached from a dwelling house, (f) rainwater tank (above ground) that is detached from a dwelling house, (g) shade structure that is detached from a dwelling house, (h) shed. 1. Clause 3.5 of the Codes SEPP states: 3.5 Ancillary development (1) The erection of new ancillary development, or alterations or additions to existing ancillary development, is development specified for this code if the development is ancillary to a dwelling house. (2) Subclause (1) does not include: (a) development specified in the Housing Alterations Code, and (b) development that is a balcony, deck, patio, pergola, terrace or verandah that is, or will be, attached to a dwelling house on a lot that has an area of less than 300m2 and a width, measured at the building line, of 10m or less, unless the development is to the primary road frontage of the lot, and (c) development for the purposes of a basement that will have an area of more than: (i) if the lot that has a width, measured at the building line, of a least 6m, but not more than 10m-25m2, or (ii) if the lot that has a width, measured at the building line, of more than 10m-45m2, and (d) development that is attached to a secondary dwelling or a group home. 1. As Mr Singh originally deemed the "rumpus' as an outbuilding which is included in the definition of ancillary development as detailed above, such building portion cannot be approved as ancillary development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 2. On the contrary the term "rumpus" does not specifically appear in the above definitions of ancillary development or outbuilding, thus a rumpus that is appurtenant to the principle dwelling can be assessed as Complying Development subject to the building being attached to the pertinent dwelling or detached. 3. Based on the above the Tribunal agrees the allegation 1 is proven noting that Clause 3.5(2)(d) of the current State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 was applicable at the time of the CDC application to Mr Singh thus the rumpus attached to a secondary dwelling is prohibited under the Codes SEPP. Additional Allegation A 1. Mr Singh, issued complying development certificates No CDC/2015/18 dated 24 February 2015 for the construction of a secondary dwelling (granny flat) and rumpus at 8 Animbo Street, Miranda which did not correctly identify the classification of the building in accordance with the Building Code of Australia. 2. Evidence presented to the Tribunal on Mr Singh's interpretation on this matter was again conflicting and appeared to change over time. On 8 October 2015 Mr Singh issued an email to the Building Professionals Board with the comment "The nomenclature of the class 10 building in this case is 'rumpus' simply to identify this enclosure as a distinctly separate building from the secondary dwelling and this area is akin to an outbuilding on the block and is permitted under the SEPP (Exempt and Complying Development) 2008……The rumpus attached to the secondary dwelling and appropriately classified as class 10 and separate by a compliant separating wall fully meets the criteria laid down in clause 3.5.2(d)" 3. Evidence presented in the expert's report issued by Mr Brendan Bennett under paragraph 4.2.1 states "It is noted that the CDC identifies class 1a and class 10, but is silent as to what parts of the application have been classified. It is my understanding that Mr Singh is in agreement that the rumpus room is a habitable room" and does not fall within a class 10 classification. I am advised the class 10 on the CDC relates to the rain water tank and stormwater system that was part of the development". 4. This evidence presented by Mr Bennett is in direct conflict with the email evidence dated 8 October 2015 issued by Mr Singh to the Board. 5. The Tribunal is not satisfied that the Class 10 classification applied to the rainwater tank and stormwater drainage system as at the time of issue of the CDC. Mr Singh's email dated 8 October 2015 clearly defines the rumpus as being class 10. 6. The tribunal is not satisfied that it is industry practice to separately classify rainwater tanks and stormwater systems when they form part of an overall development. 7. The Tribunal agrees this allegation is proven in so far as the incorrect classification was identified for the subject development at the time of issue of the CDC. Assessment of Penalty Imposed 1. When assessing the penalty imposed the Board makes reference to a document titled "Disciplinary Penalty Guidelines" dated December 2012 that is issued under section 31 (4) of the Building Professionals Act 2005. This guideline document has been used to assess the suitability of the Penalty imposed by the Board. 2. The Tribunal has been advised that Mr Singh completed the Mandatory Complying Development Course on 2 September 2016 with evidence of completion provided. 3. In assessing the Penalty imposed – The tribunal has followed the headings contained within pages 19 to 21 of the Disciplinary Action No 431 document dated 3 May 2016: (1) The nature width and extent of the contraventions. 1. This has been documented under paragraphs 16 to 99 above. (2) The loss or damage and prejudice in consequence of the contraventions. 1. The Tribunal agrees with the Boards comments that any certificate that is issued that does not comply with the legislative provisions: 1. Potentially compromises the carrying out of development in accordance with acceptable standards, 2. Exposes the certificate to challenge or declaration of invalidity, which may delay, or jeopardize the development being carried out, 3. May expose persons to potentially unsafe conditions 1. The Tribunal was advised that the development at 8 Animbo Street Miranda and 27 Rea Street Greenacre have been completed whilst the development at 40 Acorn Road, St Ives was still under construction. (3) The circumstances in which the contraventions took place. 1. This has been documented under paragraphs 16 to 99 above. (4) Whether the Certifier was seen to have engaged in any similar conduct. 1. Reference is also made to 4 previous disciplinary findings against Mr Singh as referred to in paragraph 86 of the Submission on Behalf of the Applicant document. In summary, these previous findings include: 1. Disciplinary Action No 234 – Mr Singh failed to obtain the consent of one of the owners of the land in the application for a Construction Certificate - Caution issued 2. Disciplinary Action No 318 – Mr Singh issued a CDC that did not comply with the Codes SEPP and approved plans that were deficient - Reprimanded and fined $2,500.00 3. Disciplinary Action No 374 – Mr Singh issued a CDC that did not comply with the Codes SEPP - Reprimanded and fined $8,000.00 4. Disciplinary Action No 415 – Mr Singh issued a CDC for dwellings that did not comply with the Codes SEPP – Finding of Unsatisfactory Professional Conduct, Reprimanded and fined $5,000.00. (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. The Tribunal agrees the evidence provided showed a fundamental lack of basic knowledge of the complying development framework and the broader regulatory system in issuing CDC's (7) The efforts made to correct the situation. 1. Mr Singh made an effort to correct the CDC situation as a result of Ku-ring-gai Council's Order to Cease works dated 28 April 2015 by issuing an additional CDC No CDC/2013/022/A that reverted the attached dwelling back to a single dwelling. As detailed in paragraphs 28 to 81 this additional CDC was also found to be issued in error. 2. Mr Singh has also complied with the conditions of the Interim Stay dated 21 July 2016 to engage 2 separate planning consultants to "peer review" applications before the issue of all future CDC's that relate to secondary dwellings. 3. Mr Singh is also prepared to offer a commitment to approve no further CDC's for secondary dwellings with attached rumpus rooms. (8) What consciousness the Certifier had and displayed of his obligations under the relevant statutes, and 1. As confirmed by the Board, Mr Singh provided appropriate assistance and responses to the requests made by the Board's investigators during the Complaints investigation process. (10) Antecedents 1. The Tribunal was informed that Mr Singh had been an accredited certifier for approximately 11 years and has had four previous disciplinary findings for unsatisfactory professional conduct made against him. (11) Attitude, building history and future compliance. 1. Despite the Board making an initial statement that Mr Singh had not displayed any willingness to accept that he made errors in assessing and issuing CDC's – during the Hearing process evidence submitted showed Mr Singh was now aware of his errors in issuing the CDC's as detailed in the allegations and assessment in paragraphs 16 to 99. Post Hearing – Mr Singh through his legal Representation Mr Cotton under correspondence dated 10 and 11 October has provided a CDC checklists. The Tribunal has reviewed these checklists and is of the opinion they need significant further work to ensure all aspects of the provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 and State Environmental Planning Policy (Affordable Rental Housing) 2009 are covered in a detailed assessment for each and every CDC assessed and issued by Mr Singh. (12) The penalty range. 1. Section 31(4) of the Building Professionals Act sets out a wide range of actions that may be taken, ranging from no further action, cautions through to cancellation of accreditation. Monetary penalties of up to $110,000.00 may also be imposed. 2. Mr Grey tendered a Board publication entitled Disciplinary Penalty Guidelines - December 2012 ("the Guidelines"). The first paragraph stated: 1. 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 (i.e. the Director or the Disciplinary Committee in the exercise of their discretion. 1. 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. 2. Mr Grey submitted that the Board's categorisation of Mr Singh'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 Cotton in evidence and submission did not disagree the Category infringement should not be Category E, however did object to the additional condition imposed by the Board in their disciplinary letter dated 30 June 2016 imposing an immediate ban on Mr Singh's ability to issue any further CDC's under the Affordable Housing SEPP. 3. Mr Grey pointed out that the Guidelines provide a non-exhaustive list of examples of conduct which may fall within the various categories. In reviewing this document the Tribunal notes that under Category E – Significant infringements examples given include 'CDC doesn't comply with the BCA, CDC doesn't comply, with planning instrument (SEPP)' both of which were found to be proven as detailed in paragraphs 16 to 99 above. The Tribunal agrees the issues assessed as per this Hearing fall within Category E of the Boards Disciplinary Penalty Guidelines document dated December 2012. Our Findings and Orders 1. In the circumstances, we have come to the view that the imposition of a reprimand and a fine of $50,000 by the Board was excessive, and we vary the Board's decision in the matter by the imposition of a reprimand and a fine of $40,000. 2. The Tribunal notes that under the initial Disciplinary Decision dated 30 June 2016 the Board only sought to limit the type of CDC's issued by Mr Singh. The Tribunal accepts from this that the Board is satisfied with all other aspects of Mr Singh's performance as an A2 Accredited Certifier in issuing CDC's under the Codes SEPP as well as CC's and OC's for Class 1 and 10 buildings and his relevant BCA and Planning legislation knowledge. 3. At the Stay Hearing held on 19 July 2016, the following decision was made: 1. The Stay is granted until further Order of the Tribunal subject to the agreed conditions: 1. Before determining any application for a complying development certificate under the State Environmental Planning Policy (Affordable Rental Housing) 2009, Mr Singh must obtain and consider a written report from a Town Planner (acceptable to the Building Professionals Board from time to time) which assesses whether the application complies with the requirements of the relevant environmental planning instrument. 2. In the event that Mr Singh issues a complying development certificate which is not supported by the assessment report of the Town Planner, Mr Singh must provide the Building Professionals Board with the reasons for doing so within 2 working days of issuing the complying development certificate. 3. Mr Singh is to provide the Building Professional Board with a list of projects for which he has issued complying development certificates every three months, with the first to be provided on 1 August 2016. 1. In making this determination, the Tribunal is replacing the Boards following conditions as detailed in the letter of Disciplinary action dated 30 June 2016: 1. Mr Singh's certificate of accreditation is conditioned such that he is not permitted to issue any complying development certificates (CDC's) under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), and 2. After a period of no less than 12 months Mr Singh may apply to the Secretariat to remove the abovementioned condition, provided he demonstrates to the Secretariat's satisfaction his competence, documentation and procedures to properly assess and determine CDC applications for Affordable Housing SEPP proposals. 3. With the following conditions: 4. Before determining any application for a complying development certificate under the State Environmental Planning Policy (Affordable Rental Housing) 2009, Mr Singh must obtain and consider a written report from an A1 or A2 Accredited Certifier or a Town Planner (acceptable to the Building Professionals Board from time to time) which assesses whether the application complies with the requirements of the relevant environmental planning instrument, 5. In the event that Mr Singh issues a complying development certificate which is not supported by the assessment report of the A1 or A2 Accredited Certifier or Town Planner, Mr Singh must provide the Building Professionals Board with the reasons for doing so within 2 working days of issuing the complying development certificate, 6. Mr Singh is to provide the Building Professional Board with a list of projects for which he has issued complying development certificates every three months, with the first which was provided on 1 August 2016, and 7. After a period of no less than 12 months Mr Singh may apply to the Secretariat to remove the abovementioned conditions, provided he demonstrates to the Secretariat's satisfaction his competence, documentation and procedures to properly assess and determine CDC applications for Affordable Housing SEPP proposals 1. 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. 2. The decision of the Building Professionals Board is affirmed as amended above. ********** 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: 20 April 2017