Treble v Building Professionals Board [2019] NSWCATOD 34
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Treble v Building Professionals Board [2019] NSWCATOD 34
Hearing dates: 26 October 2018, 23 November 2018
Date of orders: 28 February 2019
Decision date: 28 February 2019
Jurisdiction: Occupational Division
Before: L Pearson, Principal Member
N Halstead, General Member
Decision: (1) The decision of the Building Professionals Board is varied to be:
(a) Pursuant to s 31(4)(a) of the Building Professionals Act 2005 the applicant is reprimanded;
(b) Pursuant to s 31(4)(f) of the Building Professionals Act 2005 the applicant is to pay to the Building Professionals Board a fine of $8,000 within 28 days of the date of this decision.
Catchwords: ADMINISTRATIVE REVIEW – accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders varied as to amount of fine
Legislation Cited: Administrative Decisions Review Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment Act 2017
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous and Affordable Housing) 2017
Cases Cited: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34
Hallal v Building Professionals Board [2016] NSWCATOD 78
Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190
Levick v Building Professionals Board [2018] NSWCATOD 125
Qiu v Building Professionals Board [2013] NSWADT 289
Raco v Building Professionals Board [2015] NSWCATOD 102
Trives v Hornsby Shire Council [2015] NSWCA 158
Texts Cited: Nil
Category: Principal judgment
Parties: Wayne Treble (Applicant)
Building Professionals Board (Respondent)
Representation: Solicitors:
Anchor Law (Applicant)
Department of Finance & Services (Respondent)
File Number(s): 2018/00067314
Publication restriction: Nil
REASONS FOR DECISION
1. Wayne Treble is an accredited certifier. He applied to the Tribunal on 18 February 2018 for administrative review of a decision made on 2 February 2018 by the Building Professionals Board (the Board) that he is guilty of unsatisfactory professional conduct, and to reprimand him and impose a fine of $12,000.
Background
1. On 18 September 2015 the applicant issued a Complying Development Certificate (CDC) number 15/2999-1 for construction of a secondary dwelling at 27 XX Street Doonside NSW (the Property).
2. On 1 October 2015 the Board received a complaint from the owner of the adjoining property, alleging that inadequate notice had been given of the issue of the CDC for construction of a second dwelling and of the commencement of construction, that there was already one main dwelling and a secondary dwelling on the lot, and that inadequate barriers had been installed to protect his property.
3. The Board investigated the complaint. A Complaint Investigation Report dated 31 August 2017 (the CIR) found the six allegations raised by the neighbour were not established, and that the evidence supported findings in relation to three additional matters in respect of which other complaints against the applicant could have been made. The report recommended that the available evidence supported a finding in respect of those matters of unsatisfactory professional conduct as defined in s 19(1)(a), (b), (d) and (g) of the Building Professionals Act 2005 (the BP Act).
4. The three additional matters were:
1. Additional Matter A: the applicant issued the CDC despite the application not fully and/or properly complying with cl 126(1)(a) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation);
2. Additional Matter B: the applicant issued the CDC for a development that he could not have reasonably determined to be complying development under s 85A(3) of the Environmental Planning and Assessment Act 1979 (the EPA Act), namely the proposed room/space depicted on the CDC application plans as 'GARAGE' is: (1) not reasonably characterised as a garage and (2) is not capable of being complying development;
3. Additional Matter C: the applicant issued the CDC for a development that he could not reasonably have determined to be complying development under s 85A(3) of the EPA Act, namely he did not have sufficient information to affirm that at the completion of the proposed work the lot will have only one principal dwelling and one secondary dwelling.
1. The applicant's then solicitors provided written submissions responding to the CIR dated 13 October 2017.
2. On 2 February 2018 the Acting Director of the Board determined that in respect of each of the three additional matters that the applicant's conduct constituted unsatisfactory professional conduct as defined in s 19(1)(a), (b), (d) and (g) of the BP Act, and that the appropriate action under s 31(4) of the BP Act was to reprimand the applicant and order him to pay a fine of $12,000.
3. In his application for review the applicant contended that the findings and reasons in respect of Additional Matters B and C were incorrect or not open to the delegate and no finding of unsatisfactory professional conduct should be made; and that if the findings in relation to Additional Matters B and C were affirmed the fine should be reduced.
4. The following background facts, based on the documentary evidence, are not in dispute:
1. The applicant was appointed Principal Certifying Authority (PCA) by the owners of the Property on 22 August 2015 (ex R1, p 124);
2. The plans accompanying the application for the CDC were Architectural Drawings No 15-063-1, 15-063-2, 15-063-3, and 15-063-4 (Rev B) prepared by Dezcon Group dated 28 August 2015;
3. The site analysis plan (15-063-1) shows the principal dwelling (single storey fibro), a fibro shed with patio, two aluminium sheds, and the proposed secondary dwelling at the rear of the Property with a driveway leading from the street;
4. CDC 15/2999-1 issued on 18 September 2015 described the development as "Construction of a Secondary Dwelling", proposed BCA classification "1a", made under "Complying & Exempt Development DCP; SEPP; LEP; SEPP (Affordable Rental Housing) 2009" (ex R1, p 58);
5. The Property is zoned R2 Low Density Residential under the Blacktown Local Environmental Plan 2015 (ex R1, p 72);
6. On 14 April 2016 the applicant issued a complying development certificate, CDC 15/2999-2. The "Description of Modification" was "Typographical Error. Construction of a Secondary Dwelling and attached garage." The BCA classification was "1a & 10a". That complying development certificate referred to Architectural Drawings No 15-063-1, 15-063-2, 15-063-3, and 15-063-4, dated 19 September 2015 (ex A2, annexure WT1);
7. On 26 April 2016 the Council issued an Order under s 121B (Orders Nos 1 and 2) of the EPA Act to the owners of the Property to cause the use of the shed for human habitation to cease within 90 days, and for removal and disconnection of water and other services to the shed within 120 days, and to demolish internal non-loadbearing walls within 120 days (ex R1, p 194);
8. On 1 September 2016 the Council issued a Penalty Notice for $3,000 under s 119M(1) of the EPA Act to the applicant for failure to comply with the requirement of an investigation officer, being failure to provide information to the Council relating to the development approved by the CDC (ex R1, p 301). The applicant contested that notice, and on 21 February 2017 was found guilty (ex R1, p 302);
9. On 22 September 2016 the applicant gave notice as PCA to the owners of the Property of intention to issue an Order under s 121B (Order 15) of the EPA Act requiring rectification so that the works comply with "Complying Development Certificate No 15/2999-2, as specified in condition 8 dated 14 April 2016 and the approved plans", specifically that the current garage floor level is not conducive to the use of an approved garage and vehicle access is to be provided (ex A3);
10. On 12 May 2017 the Council issued a Building Certificate under s 149A of the EPA Act for a "Class 1a- Secondary Dwelling", based on complying development certificate "15-1665" and a site inspection on 12 May 2017 (ex R1, p 404); and
11. On 1 June 2017 the applicant issued a final occupation certificate (OC) under ss 109C(1)(c) and 109H of the EPA Act describing the use as "Residential", BCA classification "1a", and referring to CDC 15/2999-1 (ex R4).
The applicable legislation
Accreditation and disciplinary proceedings
1. The accreditation scheme for accreditation of certifiers is established under the BP Act. Part 3 of the BP Act provides for disciplinary proceedings against accredited certifiers, including investigation of complaints. Section 27 of the BP Act provides that the Board must conduct an investigation into a complaint made to it, and under s 27(3), may, if during an investigation of any one or more complaints it appears that there is a matter in respect of which another complaint could have been made against the accreditation holder concerned, deal with that matter.
2. Section 31(4) specifies the actions that may be taken following an investigation:
31 Decision after investigation of complaint
(1) After the Board has completed an investigation into a complaint against an accreditation holder, the complaint is to be dealt with in accordance with this section.
…
(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 term "unsatisfactory professional conduct" is defined in s 19(1) of the BP Act:
unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission):
(a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier,
(b) a contravention of this Act, the Environmental Planning and Assessment Act 1979 or the Strata Schemes Development Act 2015, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention,
(c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention,
(d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation,
(e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner,
(f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority,
(g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme,
(h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation,
(i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act,
(j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5,
(k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5,
(l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier,
(m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition.
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Complying development
1. CDC 15/2999-1 was issued before the amendments to the EPA Act made by the Environmental Planning and Assessment Amendment Act 2017, which commenced on 1 March 2018. As at the date of issue of the CDC, the relevant provisions for complying development were in Part 4 Div 3 of the EPA Act.
2. "Complying development" was defined in s 4 as "development for which provision is made as referred to in section 76A (5)". Section 76A provided:
76A Development that needs consent
(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
(2) For the purposes of subsection (1), development consent may be obtained:
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
(3), (4) (Repealed)
(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
1. Section 84A relevantly provided:
84A Carrying out of complying development
(1) A person may carry out complying development on land if:
(a) the person has been issued with a complying development certificate for the development, and
(b) the development is carried out in accordance with:
(i) the complying development certificate, and
(ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.
(2) An application for a complying development certificate may be made:
(a) by the owner of the land on which the development is proposed to be carried out, or
(b) by any other person, with the consent of the owner of that land.
(3) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
(4) (Repealed)
(5) Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.
1. Section 85 provided:
85 What is a "complying development certificate"?
(1) Terms of complying development certificate
A complying development certificate is a certificate:
(a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.
1. Section 85A provided:
85A Process for obtaining complying development certificates
(1) Application
An applicant may, in accordance with the regulations, apply to:
(a) the council, or
(b) an accredited certifier,
for a complying development certificate.
(2) (Repealed)
(3) Evaluation
The council or accredited certifier must consider the application and determine:
(a) whether or not the proposed development is complying development, and
(b) whether or not the proposed development complies with the relevant development standards, and
(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Determination
The council or an accredited certifier may determine an application:
(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b) by refusing to issue a complying development certificate.
(7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
1. Part 7 of the EPA Regulation provides procedures relating to complying development certificates. Div 1 Applications for Complying Development Certificates includes:
126 How must an application for a complying development certificate be made? (cf clause 75A of EP&A Regulation 1994)
(1) An application for a complying development certificate:
(a) must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1, and
(b) if the certifying authority so requires, must be in the form approved by that authority, and
(c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the council or the accredited certifier, but may not be sent by facsimile transmission.
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127 Council or accredited certifier may require additional information (cf clause 76 of EP&A Regulation 1994)
(1) A council or accredited certifier may require the applicant for a complying development certificate to give the council or accredited certifier any additional information concerning the proposed development that is essential to the council's or accredited certifier's proper consideration of the application.
(1A) A council or an accredited certifier may require that the additional information under subclause (1) be obtained by or on behalf of the applicant from a properly qualified person.
(2) Nothing in this clause affects the council's or accredited certifier's duty to determine an application for a complying development certificate.
1. A certifying authority must not issue a complying development certificate for development unless a council or an accredited certifier has carried out an inspection of the site of the development: cl 129B(1).
State Environmental Planning Policy (Affordable Rental Housing) 2009
1. CDC 15/2999-1 was issued to authorise construction of a secondary dwelling, pursuant to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP ARH). Part 2 Div 2 of the SEPP ARH deals with secondary dwellings, the relevant definition being:
19 Definition
In this Division:
development for the purposes of a secondary dwelling includes the following:
(a) the erection of, or alterations or additions to, a secondary dwelling,
(b) alterations or additions to a principal dwelling for the purposes of a secondary dwelling.
Note.
The standard instrument defines secondary dwelling as follows:
secondary dwelling means a self-contained dwelling that:
(a) is established in conjunction with another dwelling (the principal dwelling), and
(b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and
(c) is located within, or is attached to, or is separate from, the principal dwelling.
1. The reference in cl 19 to "the standard instrument" is to the standard instrument set out at the end of the Standard Instrument (Local Environmental Plans) Order 2006.
2. Clause 22 of SEPP ARH provides:
22 Development may be carried out with consent
(1) Development to which this Division applies may be carried out with consent.
(2) A consent authority must not consent to development to which this Division applies if there is on the land, or if the development would result in there being on the land, any dwelling other than the principal dwelling and the secondary dwelling.
(3) A consent authority must not consent to development to which this Division applies unless:
(a) the total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house on the land under another environmental planning instrument, and
(b) the total floor area of the secondary dwelling is no more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area.
(4) A consent authority must not refuse consent to development to which this Division applies on either of the following grounds:
(a) site area
if:
(i) the secondary dwelling is located within, or is attached to, the principal dwelling, or
(ii) the site area is at least 450 square metres,
(b) parking
if no additional parking is to be provided on the site.
(5) A consent authority may consent to development to which this Division applies whether or not the development complies with the standards set out in subclause (4).
1. Clause 23 specifies the requirements for development for the purposes of a secondary dwelling to be complying development. Those requirements include in cl 23(1)(g) that it satisfies the development standards in Sch 1. The relevant development standards are:
2 Lot requirements
(1) Development for the purposes of a secondary dwelling may only be carried out on a lot that:
(a) at the completion of the development will have only one principal dwelling and one secondary dwelling, and
…
4 Maximum floor area for principal and secondary dwelling
(1) The floor area of a secondary dwelling must not be more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area.
…
1. The definition of "ancillary development' in cl 1 of Sch 1 is:
(1) In this Schedule:
ancillary development means any of the following that are not exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008:
…
(g) a garage that is attached to a principal or secondary dwelling,
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The review proceedings
1. Section 33 of the BP Act provides that a person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of that finding and any action taken by the Board under s 31(4).
2. The Tribunal has jurisdiction to determine this application for review under s 33 of the BP Act and s 63 of the ADR Act. The Tribunal is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the administrator.
3. On 9 March 2018, by consent, an order was made by the Tribunal to stay the decision to impose a fine.
4. The Board provided documents as required by s 58 of the ADR Act on 23 April 2018. Those documents (ex R1) include:
1. the correspondence between the original complainant and the Board, the Board and the applicant, and the Board and Blacktown City Council (the Council);
2. correspondence between the Council and the owners of the Property;
3. submissions provided by the applicant and his previous solicitors to the Board;
4. CDC 15/2999-1 and the plans provided with the application; and
5. the CIR.
1. The following photographs of the Property and the development are in evidence:
1. Seven photographs provided by the complainant to the Board and the Council by email dated 16 February 2016;
2. Nine photographs taken by the Board's Senior Investigator on 29 February 2016, as Attachment 10 to the CIR (ex R1, pp 270-273); and
3. Two photographs of the shed, annexures WT 2 and WT3 to the applicant's affidavit of 2 November 2018, stated to have been taken by "my office" in December 2015, and "substantially how the shed looked" at the time of the site inspection in August 2015.
1. The applicant provided an affidavit affirmed on 2 November 2018, and gave oral evidence at the Tribunal hearing.
2. Both parties provided written submissions, the applicant on 16 October 2018 and the respondent on 31 October 2018 with reply submissions on 13 November 2018.
Issues
1. The first issue for the Tribunal was to clarify whether, as indicated in the application for review, the applicant is contesting the findings as to Additional Matters B and C only, and not Additional Matter A. The applicant's previous solicitor had conceded in the submissions provided to the Board on 13 October 2017 (ex R1, pp415-421) that there were errors anomalies and omissions in the documents, that the plans could have led to confusion and errors, and accepted that it was the applicant's responsibility to ensure that the information included in the CDC was correct and not misleading, and that he should have called for amended plans. However, in the written submissions provided on 16 October 2018 the applicant took issue with some of the findings made in the decision of 2 February 2018, and submitted that the anomalies identified in Additional Matter A are minor infringements. At the hearing the applicant's representative stated that in relation to Additional Matter A, the contest is about the penalty only.
2. In view of the way in which the applicant's representative put his case at the hearing, the Tribunal considers that the issues requiring determination are:
1. Whether the correct and preferable decision is that the applicant is guilty of unsatisfactory professional conduct as defined in s 19 of the BP Act in relation to each of Additional Matters A, B and C; and
2. If so, what is the appropriate action to take under s 31(4) of the BP Act.
Additional Matter A
1. The Complaint Investigation Report dated 31 August 2017 (the CIR) identifies in paragraph 8.2 as errors, anomalies and omissions in the CDC application plans:
(a) the plans referred to a wrong development address, viz, 38 XX Street instead of 27 XX Street;
(b) the site plan showed two north points of the land, which were inconsistent with each other;
(c) the elevations were named incorrectly;
(d) the floor plan and elevations were inconsistent with the site plan. On the floor plan and elevations, the 'Garage' is located on the eastern end of the building and the entry patio area is under the main roof, whereas on the site plan the 'Garage' is at the western end and the entry patio area is open to the sky;
(e) the plans did not contain a section drawing showing the proposed form of construction (slab/frame/walls/roof) and the internal and external heights of the proposed building;
(f) a section drawing was necessary to indicate specific features, such as the overall height of the building and whether there is a step down in the slab between living areas and the attached 'Garage', and between the tiled area in front of the entry to the dwelling and the 'Garage';
(g) the height of the building was not readily apparent and it could only be derived from the RLs;
(h) the structural drawings show that the extent of the proposed raft slab is larger than the footprint of the building on the architectural plans.
1. During the course of the Board's investigation the applicant provided a number of different responses to those concerns:
1. In a letter to the Board on 14 April 2016 (ex R1, p 369), responding to the discrepancies in (a), (d) and (e), the applicant stated that the incorrect address was a typographical error; the inconsistency between the floor plan and elevations and the site plan was a drafting error, and when it became apparent the owner was requested to submit amended plans to Council for a building certificate; and the elevation plans provided detailed RLs confirming the height and proposed external finishes;
2. In a letter to the Board on 11 January 2017 (ex R1, p 375) responding to the discrepancies in (a), (d) and (e), the applicant stated that
The approved drawings comply with the SEPP. The design of the single storey secondary dwelling had an error on the elevation with the positioning of the openings and room allocations. The single storey secondary dwelling still complied with the SEPP. The errors are regretted and the company is committed to quality assurance moving forward and have created a new position to ensure errors do not happen again.
1. In a letter to the Board dated 25 August 2017 (ex R1, p 316), in response to the discrepancies in (a), (b), (d), (e), (f) and (g), the applicant stated that the architectural drawings had errors that could have caused confusion, and repeated the assurance that the single storey secondary dwelling still complied with the SEPP;
2. The submissions provided to the Board on 13 October 2017 on behalf of the applicant (ex R1, p 415) stated:
The Certifier accepts the errors, anomalies and omissions identified in paragraph 8.2 of the CIR.
The Certifier accepts that the plans could have led to confusion and errors and accepts that it was his responsibility to ensure that the information included in the CDC was correct, completed and not misleading. He accepts he should have called for amended plans.
1. Notwithstanding what appears to have been acceptance of the errors identified in the CIR, the applicant's written submissions to the Tribunal take issue with the findings, including a submission that reliance should be placed on the north points on the plan rather than the sundial emblem; the elevations are correctly named; the inconsistency between the floor plans and the site plan was due to an inversion error in the CAD software; no section was required as the elevation shows internal and external detail and the ridge line; and no step down was required for BCA part 3.1.2.2 and a section drawing was not required for BCA part 3.1.2.3. The applicant submits that in sum the anomalies fall within the category of minor infringements; a subsequent CDC was issued and both the address and inverted diagrams were corrected in that CDC; and ultimately the buildings were compliant.
2. In evidence to the Tribunal the applicant maintained the position that while there were minor errors on the plans, they were not serious. In hindsight he should have called for amended plans. He did not pick up that the elevations did not match the site plans. While relying in his affidavit on what he described as correction of the errors by the issue of a subsequent CDC, in oral evidence the applicant conceded that the building was complete by 29 February 2016 when photographs were taken, and that he could not properly have issued a CDC after the building was built. He needed to issue the second CDC to fix up typographical errors before he could issue an occupation certificate. The applicant conceded that the plans provided with the second CDC issued on 14 April 2016, No 15/2999-2 (ex A3), had not been amended as he could not get amended plans from the builder. The applicant stated that a builder would have realised that the plans had reversed the elevations.
Discussion and findings
1. The requirements for the documents to accompany an application for a complying development certificate in cl 4 of Part 2 of Sch 1 to the EPA Regulation are detailed, and extensive. That is important because, as noted in Qiu v Building Professionals Board [2013] NSWADT 289 at [20], a CDC combines the functions of a development consent and a construction certificate.
2. Clause 4(1)(a) requires a site plan which, as amplified in cl 4(2), must indicate (a) the location, boundary dimensions, site area and north point of the land, and (c) the location and uses of existing buildings on the land. Clause 4(1)(d) requires a detailed description of the development, and appropriate building work plans and specifications. The latter is amplified in cl 4(5), to require (a) detailed plans that show a plan of each floor sections and each elevation, levels, and the height, design and construction, and (b) specifications for the development that inter alia describe the construction and materials.
3. On our consideration of the plans as approved (ex R1, pp 381-387) each of the errors and discrepancies identified in paragraph 8.2 of the CIR are established. The Tribunal is satisfied that the documents accompanying the application for the CDC, and which were accordingly the basis on which the applicant issued the CDC, do not comply with the requirements of cl 4(1)(a) or (d) of Part 2 of Sch 1 to the EPA Regulation.
4. The Tribunal accepts that some matters, for example the discrepancy between the north point shown (twice) on the plans and that in the block would be readily clarified by a person on the site. Other errors, including the reversal of the elevations, could potentially have a more significant impact on the construction of the building. Others, for example failure to show the height of the building, are relevant to a proper assessment of compliance with applicable development standards and controls.
5. The applicant relies on CDC 15/2999-2 issued on 14 April 2016 to correct the errors. However, we do not consider that this assists the applicant, for the following reasons. The only changes are to the description of the development to include reference to "attached garage" and BCA "10a"; the plans approved in that CDC have the correct street address, but are otherwise unchanged. The applicant conceded that that CDC was issued after completion of the building work. The power conferred by s 87 of the EPA Act to modify the development the subject of an application for a complying development certificate or a certificate applies to modification of "the development", and not the complying development certificate itself: Bankstown City Council v Ramahi [2016] NSWLEC 34 at [25]. It is doubtful that it would extend to amendment of details in plans that do not comply with the Sch 1 requirements. In any event, only one of the eight non-compliances was rectified, and CDC 15/2999-2 was issued after completion of the building work.
6. The applicant accepts in his affidavit evidence that in order to discharge his obligations as PCA he was required to determine whether the proposed development was complying development, and that required him to review the application and attached documents, inspect the site, and consider the relevant planning instruments. In issuing the CDC the applicant certified:
I certify that the proposed development is complying development, and if carried out in this certificate will comply with all development standards applicable to the development and with the requirements prescribed by the Environmental Planning and Assessment Regulation 2000 concerning the issue of this certificate.
1. The documents forming part of the application for the CDC did not comply with the requirements of the EPA Regulation. The plans contained information that the applicant conceded could lead to confusion and errors. A cursory reading of those plans, with the benefit of the site inspection required by cl 129B(1) of the EPA Regulation, would have identified the errors anomalies and omissions. In those circumstances, the applicant could not have satisfied himself of the required matters without at the least requesting further information and amended plans, as he was entitled to do under cl 127 of the EPA Regulation. His failure to do so was a failure to comply with cl 5 of the Code of Conduct for Accredited Certifiers that he exercise reasonable care and attention in carrying out his duties, and cl 6 that he take all reasonable steps to obtain all relevant facts. That failure was conduct that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, and was accordingly unsatisfactory professional conduct as defined in s 19(1)(a) and (g) of the BP Act.
Additional Matter B
1. The Ground Floor Plan (15-063-2) shows the proposed secondary dwelling includes an attached 'Garage'. It was not in dispute that the total floor area of the building including the 'Garage', is 74.3m2.
2. The applicant's position has consistently been that the proposed development complies with the requirement that the total floor area of the secondary dwelling be no more than 60m2, as the floor area of the attached 'Garage' is excluded.
3. The Board does not dispute that under the SEPP ARH a proposed garage attached to a proposed secondary dwelling is excluded from the 60m2 floor area limitation, however its position is that the part of the building labelled 'Garage' could not reasonably have been considered by a certifying authority to be a garage, rather than a habitable room. The reasons for that position are summarised in paragraph 9.6 of the CIR:
1. The South Elevation and Ground Floor plans depict a pair of glazed side hung doors where a roller shutter door would be expected;
2. The 'Garage' is below the dimensions typically required for carparking. The 2100mm width of the entry doors opening is impractical for use by even a small car, instead of a minimum 2400mm. The available space in the room to park a car is approximately 4830mm x 2645mm, instead of garage design guidelines typical minimum of 5400mm x 3000mm;
3. On the elevations and floor plan the area immediately in front of the side hung doors is depicted as a patio entry porch providing access at the same floor level between the front door of the dwelling and the 'Garage';
4. The site plan shows the driveway ending at the front of the tiled patio entry porch area and not at the entry doors of the 'Garage';
5. There is no driveway entry ramp leading into the 'Garage' or a possibility to drive a car into it;
6. The internal walls are constructed and finished the same as the other walls, namely plasterboard wall sheeting;
7. The floor is on the same continuous floor slab and floor level as the secondary dwelling living rooms and is under the same continuous roof, and there is no step down in the slab between the dwelling and the 'Garage' as would be required to satisfy the BCA and expected for a garage floor;
8. The application for the CDC described the proposal as a "Granny Flat" and does not mention a proposed garage;
9. The room's design, features, dimensions and floor height are such that a reasonable assessment of the plans by any certifier would have immediately concluded that the 'Garage' notation was so misconceived and inappropriate it must be a drafting error;
10. Properly classified under the BCA the 'Garage' habitable room is class 1a; and
11. The CDC describes the approved work as "Construction of a Secondary Dwelling", makes no reference to inclusion of a garage, and states the BCA classification as class 1a (a dwelling only), and does not include a classification for a class 10a (garage) despite its floor area being more than 10% of the area of the building.
1. In the decision of 2 February 2018 the delegate found that CDC 15/2999-1 was issued for a proposal that was not complying development, and in certifying that it was the applicant contravened s 85(1) of the BP Act and failed to comply with clauses 1, 3 and 5 of the Code of Conduct, and was guilty of unsatisfactory professional conduct as defined in s 19(1)(a), (b), (d) and (g) of the BP Act.
2. The applicant's affidavit evidence was that the garage appeared on the plans as a garage, the plans showed a driveway leading from the street to the entrance, and the plans showed it had a wide ingress. He gave consideration to the characterisation of the garage and was satisfied it was a garage. The SEPP ARH floorspace requirements were met and there was no access between the proposed living area and the proposed garage. Before he issued the OC he ensured that changes were made to the garage ingress, to remove doubt as to what the use was for. A ramp was finalised and the garage door width was widened slightly.
3. In oral evidence the applicant said that there was no definition of "garage" and he placed weight on the description as 'Garage' on the plans, and accepted it was intended to be a garage.
4. The Board submits that the issue is whether the applicant could reasonably have determined that the proposed development was complying development under the SEPP ARH. The proposed development was not capable of being complying development because the total floor area was 74.3m2, and did not comply with cl 4(1) of Sch 1 to the SEPP ARH, and because the habitable 'Garage' room (analogous to a rumpus room) was not capable of being "ancillary development". In those circumstances the applicant's determination that the development met the requirements under the SEPP ARH was unreasonable.
5. In response to the contention that the 'Garage' could not reasonably have been characterised as a garage, the applicant submits that he made a determination open to him on the facts and materials available to him. He relies on the submissions made on his behalf on 13 October 2017, which were:
1. There being no definition of "garage" in the SEPP ARH or the Standard Instrument, that word would have its ordinary meaning as a place where a motor vehicle can be kept or placed;
2. The dimensions of the garage are sufficient to house a motor vehicle. Many if not most vehicles would fit the entrance (2.1m) and then into the garage which has a width of 2.890m and length of 5.310m, noting that the dimensions for the 85th percentile car as used in AS2890 is 1870w x 4910l;
3. The fact that the doors are not standard roller or automatic doors and the finish and construction of the internal walls do not prevent a car from entering the garage, and the tiles in front do not prevent a car from entering;
4. Having been approved by the CDC as a garage if the area was used other than as a garage, the Council could take enforcement proceedings;
5. This type of determination by a certifier involves an extensive degree of discretion, and while the garage dimensions are not the usual dimensions it cannot be disputed that cars can enter the garage and be housed and sheltered in the space so it operates as a garage; and
6. The Board could not conclude that the certifier's exercise of discretion was so unreasonable as to make his decision to approve the garage area as a garage unreasonable.
1. In response to the Board's finding that the 'Garage' is not capable of being compliant, the applicant submits that the Board's reference in the CIR to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP), in particular cll 1.17(1) and 3.5(2)(d) under which "ancillary development" is prohibited from being attached to a secondary dwelling, is misplaced. The notation on the CDC makes it clear that the decision was made under the SEPP ARH.
2. The applicant submits that the Department of Planning has advised that attached garages are permissible complying development as ancillary development, and if there is no access between the garage and the secondary dwelling the garage should not be included in the maximum floor area allowed for in cl 4(1) of Sch 1 to the SEPP ARH. Clause 4(1) allows for 60sqm for a secondary dwelling and cl 4(2) allows for a different maximum floor area for a secondary dwelling and garage: and the controlling clause in the circumstances is cl 4(2).
3. The applicant submits that cl 4(1) as applicable in 2015 should be construed in line with the amendment made in 2017 to expressly exclude ancillary development from the 60sqm allowed floor space. Clause 4(1) as amended by the State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous and Affordable Housing) 2017 now provides:
(1) The floor area of a secondary dwelling (excluding any ancillary development) must not be more than 60 square metres or, if a greater floor area is permitted in respect of a secondary dwelling on the land under another environmental planning instrument, that greater floor area.
1. The Board submits that the nominated 'Garage' does not fall within the definition of "ancillary development" in the SEPP ARH as it amounts to a rumpus room. The Board relies on the findings in the CIR as to why it could not have been considered by a certifying authority as a garage, including that:
1. it does not possess the elementary features that would enable it to be characterised and used as a garage, that is the entry is not sufficient unrestricted door width, it has no graded access over the tiled porch, the driveway does not extend beyond the front of the porch, and the room is not wide enough for practical use for housing and accessing a motor vehicle ; and
2. the plans approved by the applicant did not satisfy cl 5.4 of AS2890 which requires for a single garage to achieve minimum dimensions of 3.0m wide, 5.4m length and an entrance door opening of 2.4m; and
3. the photos taken on 29 February 2016, as built, show that the room has no appropriate access for a vehicle and is in fact a habitable room.
Discussion and Findings
1. A complying development certificate certifies that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate: s 85(1)(a) EPA Act. A CDC authorises the carrying out of the development: s 84A(1) of the EPA Act. A PCA must be satisfied for building work to be carried out on a site that a construction certificate or complying development certificate has been issued for such of the building work as requires development consent and over which the principal certifying authority has control, before the work commences on the site: s 109E(3)(a) of the EPA Act.
2. A prerequisite to the exercise of the power to issue a CDC is that the certifier must be satisfied that the proposed development is properly characterised as complying development. In Trives v Hornsby Shire Council [2015] NSWCA 158 Basten JA (with whom Macfarlan and Meagher JJA agreed) held at [14] that in reaching the required state of satisfaction a certifier must act according to the law, and must act rationally and not unreasonably. In Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190, on remittal from the Court of Appeal, Biscoe J held that the state of satisfaction must be one formed by a reasonable person who correctly understands the meaning of the law under which he operates. The opinion that it is complying development must be formed reasonably. As Biscoe J concluded at [22]:
In the present case, if upon the application of the SEPP and the LEP, correctly construed, to the clear facts the decision is plainly unreasonable, the Court should infer that the decision-maker misinterpreted, failed to address or overlooked the requirements of those instruments or that in some other way there has been a failure to properly form the prerequisite state of satisfaction.
1. The concept of "unreasonableness" is not limited to an irrational decision, but encompasses a decision that lacks an evident and plausible justification: Trives at [19]; Ramahi at [149]-[153].
2. The task of the Tribunal is to determine whether in issuing the CDC the applicant failed properly to comply with the duty imposed by s 85A(3) of the EPA Act, and failed to exercise his functions as a certifier to the standard of competence and diligence expected of a reasonably competent certifier. That requires the Tribunal to consider whether in stating that he had formed the opinion that the proposed development was complying development as defined in cl 23 of the SEPP ARH and complied with applicable development standards, the applicant had properly formed the required state of satisfaction.
3. While not immediately apparent from the terms of the document itself, which referred to both "SEPP" and "SEPP (Affordable Rental Housing) 2009" as the "Environmental planning instrument decision made under", by the time of the hearing it was not in dispute that CDC 15/2999-1 was issued by the applicant pursuant to the provisions of the SEPP ARH. In order to be complying development under cl 23 of the SEPP ARH, the proposed development had to comply with the requirements of the SEPP ARH, relevantly the development standards applicable to a secondary dwelling in Sch 1. If the part of the proposed development identified as 'Garage' was a garage attached to the secondary dwelling, it was "ancillary development' as defined in cl 1 of Sch 1. If it was not, the secondary dwelling, having a floor area more than 60m2, did not comply with the development standard in cl 4(1) of Sch 1.
4. The determination as to whether proposed development is complying development and meets the relevant development standards is made at the time the certifier is considering the application for a CDC. It follows that the photographs of 29 February 2016, which show the final built form including the step up to the paved area and then up to the floor level, and access to the 'Garage' by two side hung doors, are not relevant. The applicant's assessment was based, according to his evidence, on the plans that accompanied the application for the CDC. Those plans show a driveway leading from the street to the proposed secondary dwelling, and they show the 'Garage' as attached to, but not accessible from, the living and dining areas of the dwelling. On 15-063-2 the floor of the 'Garage' is at RL 40.30, and the paved area outside the entry is at RL 35.00. The opening is 2.1m wide, and the internal dimensions are 2.89 wide x 5.07m long. The South Elevation on 15-063-3 shows the external opening to be "Selected aluminium frame powdercoated window" at RL 40.30, above the ground level.
5. As was common ground, there is no definition of "garage" in the SEPP ARH or the Standard Instrument. The Macquarie Dictionary (online edition) defines "garage" as "a building for sheltering a motor vehicle or vehicles".
6. We agree with the assessment of the Board's investigator that what is depicted on the plans part of the application could not reasonably be regarded as a "garage". That is primarily because of the difference in levels, with no apparent means of access for a vehicle such as a ramp, and the narrowness and configuration of the opening. There is a driveway depicted on the plans, and it might be physically possible to house a small vehicle in the space, notwithstanding that it does not meet the minimum dimensions specified in AS 2890. However, in the absence of any means of putting the vehicle into that space, the opinion that it is a "garage" could not reasonably be formed. The form in which the CDC was issued, referring only to construction of a secondary dwelling with a BCA classification of 1a, and with no reference to a garage, or BCA classification 10a, confirms that it is doubtful whether the applicant properly considered the issue. At the very least, the absence of feasible means of access should have prompted questions and requests for clarification.
7. The applicant did not provide any authority for the proposition that it would be open to the Tribunal to read cl 4(1) of Sch 1 in light of its current provision after the 2017 amendment. In any event, even if that were an available interpretation, we are not satisfied that the 'Garage' could be reasonably regarded as being a garage and thus "ancillary development" as defined in the SEPP ARH.
8. We note that the absence of any reference to "garage" or BCA classification "10a" in CDC 15/2999-1 continued in the OC issued by the applicant on 1 June 2017.
9. We are not satisfied that as depicted on the plans the 'Garage' could be reasonably regarded as being a garage. Accordingly the proposed development had a floor area of more than 60 m2, and did not comply with the development standard in cl 4(1) of Sch 1 to the SEPP ARH. We are satisfied that in failing properly to determine whether or not the proposed development was complying development and whether it complied with the relevant development standards, the applicant failed to comply with the requirements of s 85A(3) of the EPA Act. His conduct was accordingly unsatisfactory professional conduct as defined in s 19(1)(b) and (d) of the BP Act. His failure properly to consider what was depicted on the plans and at least seek clarification and amendment, was a failure to comply with cl 5 of the Code of Conduct for Accredited Certifiers that he exercise reasonable care and attention in carrying out his duties, and cl 6 that he take all reasonable steps to obtain all relevant facts, and that failure was unsatisfactory professional conduct as defined in s 19(1)(g) of the BP Act. The applicant's conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, and was accordingly unsatisfactory professional conduct as defined in s 19(1)(a) of the BP Act.
Additional Matter C
1. At issue in Additional Matter C is whether the applicant could properly have formed the opinion that the proposed development complied with the development standard in cl 2(1)(a) of Sch 1 to the SEPP ARH, that at the completion of the development the lot "will have only one principal dwelling and one secondary dwelling".
2. The delegate of the Board found that the CDC application and the site inspection did not provide sufficient information to affirm that cl 2(1)(a) of Sch 1 to the SEPP ARH would be complied with, and accordingly the applicant could not certify that the proposed development was complying development and would comply with all applicable development standards.
3. The site plan shows the principal dwelling close to the street; the proposed secondary dwelling at the rear of the Property, accessed by a driveway along the side boundary; and in between a "fibro shed" with "patio", and two aluminium sheds.
4. The record of inspection dated 26 August 2015 prepared and signed by the applicant stated that the plans and specifications "adequately and accurately" depicted the existing site conditions, and that there were no features of the site, or of any building on the site, that would result in the proposed development either not being complying development or not complying with the BCA (ex R1, p 127).
5. Section 10.5 of the CIR states that the following matters would have been readily noticeable and relevant to an experienced A1 certifier carrying out a site inspection for a proposed secondary dwelling and ascertaining if the development standard requirements of cl 2(1)(a) of Sch 1 of the SEPP ARH would be met:
1. Two letter boxes at the front boundary of the Property which displayed the numbers "27" and "27A";
2. A large fibro shed in the rear yard with the following externally visible features:
1. A front porch and large openable windows;
2. Wired antenna located at the side of the building;
3. Running water tap attached to the side of the buildings;
4. Electricity meter attached to the side of the building;
5. An air-conditioning unit attached to the side wall;
1. The site plan did not indicate the use of the existing shed building, and did not indicate any intention to demolish the shed in conjunction with the proposed development works.
1. The applicant's position in response to notice of the neighbour's complaint that there was already a secondary dwelling on the Property, as communicated to the Board in a letter received 4 January 2016 (ex R1, p 113), was that a pre-commencement site inspection was carried out on 26 August 2015 and there was no secondary dwelling on the lot; the plans detailed a fibro shed, and what was on the site was not a habitable dwelling but a storage shed. The applicant provided two photographs of the shed. He stated that "the owners did not disclose that the shed was an unauthorised dwelling and had occupants occupying it for rent". He stated in an email on 4 August 2017, responding to questions from the Board, that at the time of his inspection the building appeared to be a shed in accordance with the plan, therefore he had no reason to investigate further; and that on 8 October 2015 the project manager in his office made inquiries of the owners by phone after they were made aware of the neighbour's complaint. In a letter dated 25 August 2017 the applicant stated that at the completion of the works there could only have been one legally approved principal dwelling and one secondary dwelling complying with the legislation, and the shed was never approved as a dwelling. At the completion of development there was only one approved principal dwelling and one approved secondary dwelling.
2. The applicant's evidence to the Tribunal was that he determined eligibility based on the listing of the structure on the plans as a shed, confirmed by his site inspection. He was not informed that the shed was in use as a dwelling and the structure as he saw it on 26 August 2015 did not look habitable, its appearance was such that it justified the description as "shed" and there was no feature which warranted further investigation. Once he was made aware of the shed's use as a dwelling he took action to ensure that the development was in compliance by issuing a notice to the owners.
3. In cross examination the applicant could not recall seeing the two letterboxes. He walked past the shed and it was derelict and falling down and he could not get near it because of the rubbish. He did not make inquiry of the owners because the plan said "shed" and he was happy to accept it was a shed. He found out through the Council that the shed was occupied.
4. The applicant submits that at the time of the issue of the CDC the proposed development and the circumstances as they were known to him indicated compliance. The existing structure was a metal or fibro shed, it did not comply with BCA requirements for habitable space, and no approval was ever issued for the use of the shed as a secondary dwelling or habitable space. At the time of issue there was an existing primary dwelling at the front of the Property and the CDC approved a secondary dwelling at the rear; and at the completion of the development there was only one principal dwelling and one secondary dwelling. The fibro shed was decommissioned as a residence before the completion or occupation of the secondary dwelling approved in the CDC. An existing structure being used as an unauthorised secondary dwelling is a Council compliance issue and the applicant was unaware of the unauthorised use at the time the CDC was issued. The CDC did not approve the shed as a dwelling or habitable space, and therefore mandated that that structure be used as a shed, consistent with the requirement that there be only one principal dwelling and a secondary dwelling at the completion of the development.
5. In response to the matters identified in section 10.5 of the CIR as indicating that the applicant should have made inquiries of the owner, the applicant submits that that was in the territory of the discretion being exercised by a certifier in the assessment of the application. While those matters might give rise to some vague suspicion that the shed was being used as a dwelling, the photographs showed it to be a very old and almost decrepit fibro structure. The existence of windows, a patio, an aerial, airconditioning and separate metering does not detract from a conclusion that it was no more than a shed with additional comforts. The presence of two letterboxes does not necessarily indicate that there were two dwellings, as they could relate to previous uses.
6. The Board submits that the items at section 10.5 of the CIR would have served as alarm signals to an experienced A1 accredited certifier to conduct further investigation. The applicant did not carry out an inspection inside the shed to make the necessary inquiries at or following the site inspection on 26 August 2015, and did not himself make inquiries or communicate directly with the owners.
Discussion and findings
1. The Tribunal finds, based on the record of conversation between an officer of the Council and the owner dated 29 February 2016, that at the time the CDC was issued there was a tenant residing in the shed. The owner stated during that conversation that when he purchased the Property in 2013 a person was living in the rear shed; and the shed contained a kitchen, shower and toilet. The owner confirmed that he did not speak to the applicant (ex R1, pp 159-160). The Tribunal finds, based on the owners' letter dated 29 September 2016 to the applicant's firm (ex A1 tab 3), that by that time (which was before the issue of the OC) the fibro shed had been made uninhabitable.
2. The applicant states that once he was made aware of the shed's use as a dwelling he took action to ensure the development was in compliance by issuing a notice to the owners. No such notice is in evidence. The Notice of Intention to issue an Order under s 121B of the EPA Act in evidence (ex A3) given by the applicant relates to the building work for the secondary dwelling including the rainwater absorption trench, and not the use of the shed. The Council issued an Order requiring the cessation of that use, on 26 April 2016 (ex R1, p 194).
3. The Tribunal is satisfied that the applicant inspected the site on 26 August 2015, and accepts that the photographs provided with his letter of 4 January 2016 accurately depict the shed at that time. The photographs confirm the presence of an antenna, an electricity meter box, an airconditioner, and water. The photograph taken by the Board's investigator on 29 February 2016 (ex R1, p 270) confirms, and the applicant did not dispute, that there were two letterboxes at the front of the Property. Those photographs also confirm that the shed was run down, and there was an accumulation of household items in front of the shed.
4. The Tribunal accepts that there may be circumstances, depending on the activities conducted by the residents, in which it is appropriate for a large backyard shed to be equipped with power and water. However, the presence of a television antenna on the shed and the existence of a second letterbox could raise a question as to what the actual use of the shed was. The Tribunal finds based on his evidence that the applicant did not inspect the shed, and that he made no inquiries of the owners or anyone else as to the use of the shed.
5. As noted above, the applicant was required by s 85A(3) of the EPA Act to be satisfied, at the time he issued the CDC, that the proposed development was complying development and that it complied with the relevant development standards. The proposed development was the erection of a secondary dwelling, and the applicant had to be satisfied that the proposed development complied with the development standard in cl 2(1) of Sch 1, that at the completion of the development the Property would have only one principal dwelling and one secondary dwelling. In order for a certifier to reach the state of satisfaction as to the situation at the time of completion of the proposed development, in the terms held by Biscoe J in Trives, the certifier would have to consider at the time of his or her evaluation what structures were on the site and their use, and whether there was anything to suggest that the circumstances would change by the time the proposed development was completed.
6. The definition of "development for the purposes of a secondary dwelling" refers to a dwelling, and is not qualified by a requirement that either the principal dwelling or any other dwelling on the site be lawfully used as a dwelling. A CDC could not retrospectively approve the use of the shed as a dwelling or habitable space associated with the principal dwelling. However, in determining whether the proposed development could be approved as "development for the purposes of a secondary dwelling", the applicant had at the minimum to assure himself that he had reason to be confident that at the completion of the development the Property would have only one principal dwelling and one secondary dwelling. The Tribunal agrees with the Board that there were indicators readily observable on the site inspection that the shed may have been used as a dwelling at that time. In those circumstances we are satisfied that the applicant was required to make inquiries as to the actual use of the shed, and its status, and if that use was unauthorised, whether any steps were being taken to regularise it or for it to cease. Section 85A(6) would permit the certifier to consider whether to issue a CDC subject to conditions, or to refuse to issue a CDC. The applicant made no inquiries, and simply relied on the description on the plans as "shed".
7. We are not satisfied that in those circumstances, having relied on the description of the use on the plans and without further inquiry as to the matters observable on the site inspection, it can be said that the applicant's conclusion was reasonably based. The applicant failed properly to determine whether or not the proposed development was complying development and whether it complied with the relevant development standards, as required by s 85A(3) of the EPA Act. His conduct was accordingly unsatisfactory professional conduct as defined in s 19(1)(b) and (d) of the BP Act. His failure properly to check the accuracy of the description of "shed" on the plan and at least seek clarification, was a failure to comply with cl 5 of the Code of Conduct for Accredited Certifiers that he exercise reasonable care and attention in carrying out his duties, and cl 6 that he take all reasonable steps to obtain all relevant facts, and his conduct was unsatisfactory professional conduct as defined in s 19(1)(g) of the BP Act. The applicant's conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, and was accordingly unsatisfactory professional conduct as defined in s 19(1)(a) of the BP Act.
Penalty
1. For the reasons above, the Tribunal is satisfied that the applicant is guilty of unsatisfactory professional conduct as defined in s 19(1)(a) and (g) in relation to Additional Matters A, B and C, and as defined in s 19(1)(b) and (d) in relation to Additional Matters B and C. Accordingly, we may take any one or more of the actions specified in s 31(4) of the BP Act.
2. The reasons for decision do not state the reasons for the Board's determination to reprimand the applicant and impose a fine of $12,000. The submissions to the Tribunal state that the breaches fall within Category E of the Board's Disciplinary Penalty Guidelines – "significant infringements" ($20,000-$50,000), however as the applicant had no previous disciplinary findings against him the penalty was reduced to $12,000 in the "moderate" category. Those Guidelines were provided to the Tribunal, and are routinely referred to in disciplinary proceedings in the Tribunal.
3. The Board submits that the Tribunal should affirm the disciplinary orders, submitting that the conduct of the applicant was serious. By reference to the 12 matters identified in Qiu at [98], the Board submits that the breaches caused impacts on the neighbours, resulting in a secondary dwelling larger than the specified 60sqm, and required the issue of a building certificate and a s121B Order by the Council; the applicant did not act diligently; and he has shown no remorse or insight into his conduct.
4. The applicant submits that the fine of $12,000 is excessive, both with regard to the conduct and with regard to his history of 14 years experience as an accredited certifier with no disciplinary history outside of this matter. The applicant submits that the applicant has no previous disciplinary history, and in comparison with Qiu the conduct is less serious. The applicant tried to correct his mistakes, and while there was some prejudice caused it was not great. The applicant submits that if all three Additional Matters are established, the appropriate penalty is a caution and a fine, of $5,000.
Discussion and findings
1. As noted above, both parties referred to the factors identified in Qiu at [98], drawing on the earlier decision in Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3:
98. That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant:
(a) the nature, width and extent of the contraventions
(b) the loss or damage and prejudice in consequence of the contraventions
(c) the circumstances in which the contraventions took place
(d) whether the licensee has been seen to have engaged in any similar conduct
(e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee
(f) the extent of carelessness or wilfulness of the conduct
(g) the efforts made to correct the situation and what measures have been taken by the licensee
(h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners
(i) the effect upon the licensee
(j) antecedents
(k) attitude, building history and future compliance
(l) the penalty range.
1. The applicant states that he has been a building certifier for 43 years including 14 years as a private certifier. He estimates he has performed between 3,000 and 4,000 certifications during his career, and aside from the matters in these proceedings has no other disciplinary findings against him.
2. The Tribunal regards the contraventions as found for Additional Matters B and C as serious: the applicant granted the only approval needed for the construction of the secondary dwelling, without properly considering whether it complied with the core requirements under the planning legislation. The applicant has attempted to minimise the seriousness of the errors relating to Additional Matter A, however even he acknowledges that the errors and omissions in the plans could have led to confusion and errors; further, those errors could have been avoided had he requested amended plans.
3. The conduct of the applicant in issuing the CDC caused prejudice in the form of the construction of a building larger than permitted under the SEPP ARH. While a building certificate has been issued, the built form remains. The regulatory intervention of the Council, in the form of orders under s 121B of the EPA Act, was required to ensure that the development standard in cl 2(1)(a) of Sch 1 to the SEPP ARH was satisfied.
4. However, there is no suggestion that the applicant's conduct led to a potential or actual risk to the safety of persons or the integrity of the building. There is no evidence of fraudulent or dishonest intent, rather a failure properly to consider the plans, carry out the site inspection, and ask the questions required of a reasonably competent certifier.
5. The conduct of the applicant was careless in the extreme, and there was no acknowledgment of that in either his affidavit or in oral evidence. The Board's file documents indicate that the applicant was slow in responding to requests for information and clarification. While the applicant stated that he took steps to correct the situation, he did not obtain amended plans, and there is no evidence to support his contention that he was involved in the process of having the unauthorised use of the shed cease. He states that before he issued the OC he ensured that changes were made to the garage ingress, however the evidence before the Tribunal does not confirm how that was achieved.
6. A factor in favour of the applicant is that there is no record of previous disciplinary action.
7. The Board's Disciplinary Penalty Guidelines reflect the Board's policy on the range of appropriate disciplinary sanctions. The Guidelines have been applied by the Tribunal and its predecessor, for example in Raco v Building Professionals Board [2015] NSWCATOD 102, Hallal v Building Professionals Board [2016] NSWCATOD 78, and Levick v Building Professionals Board [2018] NSWCATOD 125. The Guidelines categorise infringements as A (Dismissal or no further action) through to F (Major infringements).
8. We consider that the applicant's conduct falls within Category E – Significant infringements of the Board's Guidelines, which involve unsatisfactory professional conduct or professional misconduct, including where a CDC does not comply with relevant planning instruments. The range of fines for such conduct is $20,000-$50,000, to be determined having regard to a certifier's history of disciplinary decisions, and other possible disciplinary decisions include a caution or reprimand. As a grade A1 certifier the applicant should not have made the errors he did, and the public would have a reasonable expectation that he would perform his duties diligently and with care: Levick. We consider that a reprimand signals to the profession and to the community the significance of those errors and the extent of the applicant's failure to ensure that his certification work meets acceptable standards, and we agree with the Board's decision to reprimand the applicant. We agree with the Board that in determining an appropriate fine to impose the applicant's history, with no previous disciplinary decisions, is relevant. We consider that a fine at the lower end of the range in Category D – Moderate infringements is appropriate, and we vary the amount of the fine to $8,000.
Orders
1. The Orders of the Tribunal are:
1. The decision of the Building Professionals Board is varied to be:
1. Pursuant to s 31(4)(a) of the Building Professionals Act 2005 the applicant is reprimanded;
2. Pursuant to s 31(4)(f) of the Building Professionals Act 2005 the applicant is to pay to the Building Professionals Board a fine of $8,000 within 28 days of the date of this decision.
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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
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Decision last updated: 28 February 2019