Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Freixas v Building Professionals Board (No 1) [2020] NSWCATOD 27 Hearing dates: 2, 3 and 4 March 2020 Date of orders: 20 March 2020 Decision date: 20 March 2020 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member N Halstead, General Member Decision: (1) The applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW). (2) The applicant is to file and serve within 14 days any further evidence, and submissions including whether an order should be made dispensing with a hearing, on the action to be taken against him. (3) The respondent is to file and serve within 14 days thereafter any further evidence, and submissions including whether an order should be made dispensing with a hearing, on the action to be taken against the applicant. (4) The applicant is to file and serve within 7 days thereafter any further evidence in reply, and submissions in reply, on the action to be taken against him. Catchwords: PROFESSIONAL DISCIPLINE – review of decision of Building Professionals Board to discipline an accredited certifier – unsatisfactory professional conduct Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Building Professionals Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Cases Cited: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 Dix v Building Professionals Board [2011] NSWSC 926 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Staldone Corporation Pty Ltd v Lane Cove Council [2016] NSWLEC 1261 Category: Principal judgment Parties: Maurice Freixas (Applicant) Building Professionals Board (Respondent) Representation: Counsel: P Tomasetti SC and J Mack (Applicant) M Fozzard (Respondent) Solicitors: Ristevski & Associates (Applicant) NSW Fair Trading (Respondent) File Number(s): 2019/00063604 Publication restriction: Nil REASONS FOR DECISION Introduction 1. The applicant, Maurice Freixas, seeks an administrative review pursuant to s 33 of the Building Professionals Act 2005 (NSW) (BP Act) of the decision of the respondent, the Building Professionals Board (the Board), made on 29 January 2019 taking action against the applicant under s 31(4) of that Act (the Decision). 2. We have decided: 1. that the applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act; 2. to make directions for the provision of any further evidence, and written submissions including on whether an oral hearing can be dispensed with, on the action to be taken against the applicant. Background 1. The applicant has been a category A1 accredited certifier under the BP Act since 28 October 2015. 2. In 2017 the respondent received a series of complaints against the applicant under s 21 of the BP Act which it investigated under s 27 of the BP Act. The Decision 1. On 29 January 2019, a delegate of the respondent in the Decision found that the applicant was guilty of unsatisfactory professional conduct in respect of the complaints relating to three properties, and decided to take the following actions under s 31(4) of the BP Act (bold text in the original): Disciplinary Action against the Accreditation Holder: 1. Pursuant to section 31(4)(a) of the Act, I reprimand the Accreditation Holder. 2. Pursuant to section 31(4)(f) of the Act, I order the Accreditation Holder to pay to the Board a fine in the amount of $30,000 within a period of 28 days from the date on which this Notice is deemed to be served on the Accreditation Holder. 3. Pursuant to section 31(4)(c) of the BP Act, I order the Accreditation Holder to complete (and provide documentary evidence suitable to the Board) within a period of six (6) months from the date on which this Notice is deemed to be served on the Accreditation Holder, the following educational course viz., the Advanced Building Regulation five-day professional development course (class 2-9 buildings) conducted by The University of Technology Sydney (UTS) Centre for Local Government. … The Decision takes effect immediately from the date of this Notice. 1. The reasons for the Decision are set out in the Schedule to the Decision (the Reasons). The Reasons are organised under the following sections: 1. the section entitled "Determination", under which is set out the complaints which are found to constitute unsatisfactory professional conduct; 2. the section entitled "Findings", under which is set out the findings on material questions of fact and the evidence or other material on which the findings are based in respect of the complaints. The respondent found that the evidence in respect of some of the complaints was not sufficient to support a finding of unsatisfactory professional conduct; 3. the section entitled "Reasons For The Decision", under which is set out the factors taken into account in the findings of unsatisfactory professional conduct; 4. the section entitled "Appropriate Disciplinary Action", under which is the factors taken into account in the actions taken by the respondent. 1. The Reasons indicate that adverse findings against the applicant have been made in respect of the following complaints relating to the following properties: 1. Complaint no 25/17 - Matter 1, Additional Matter A, Additional Matter B and Additional Matter C: 9 Regent Street, Putney; 2. Complaint no 43/17 - Matter 1 and Additional Matter A: 13-15 Bigge Street and 2 Lachlan Street, Liverpool; 3. Complaint no 66/17 - Matter 1: 21 Lamb Street, Glendenning. Procedural history 1. On 26 February 2019, the applicant commenced proceedings 2019/63604 in the Tribunal against the respondent by filing an application in which he states he is seeking a review of the Decision on the ground that it was not open to the respondent to find that he was guilty of unsatisfactory professional conduct. 2. The hearing was held on 2, 3 and 4 March 2020. 3. On 3 March 2020, we have decided to make findings on whether the applicant is guilty of unsatisfactory professional conduct before deciding, if appropriate, the appropriate action to be taken against the applicant. The hearing 1. The applicant tendered the following written evidence: 1. the statement of the applicant dated 4 July 2019 (ex A1) (the first Freixas statement); 2. the statement of the applicant dated 26 September 2019 which was limited to Complaint no 25/17 - Matter 1 (ex A2) (the second Freixas statement); 3. a folder described as "Ready Reference Folder" containing various documents in ex R1 printed on A3 paper size (ex A3); 4. BP Bulletin dated March 2009 (ex A4); 5. Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 (ex A5). 1. The respondent tendered the following written evidence: 1. section 58 materials (pages 1-1393) (ex R1); 2. code of conduct (ex R2); 3. the statement of the Michael Marks (Mr Marks) dated 20 August 2019 which was limited to Complaint no 25/17 - Matter 1 (ex R3) (the Marks statement); 4. the documents comprising tab 1 of Ex R3 printed on A3 paper size (ex R4); 5. page 604 of Ex A3 with yellow highlighting marked by the applicant (ex R5); 6. page 603 of Ex A3 with yellow highlighting marked by the applicant (ex R6); 7. page 1218 of Ex R1 with yellow highlighting marked by the applicant (ex R7); 8. disciplinary penalty guidelines (ex R8). 1. The parties tendered an agreed statement of facts (ex J1). 2. The applicant gave oral evidence, and in respect of each discrete issue cross-examination was followed by re-examination. Mr Marks gave oral evidence limited to Complaint no 25/17 - Matter 1 and Complaint no 25/17 - Additional Matter A. The submissions 1. The applicant provided written opening submissions dated 19 February 2020. 2. The respondent provided a written outline of its submissions dated 25 February 2020. 3. Counsel of each of the applicant and the respondent made extensive oral submissions. Generally applicable statutory provisions BP Act 1. Part 1 (ss 1-3) deals with preliminary matters. Section 3(1) contains definitions and relevantly provides: 3 Definitions (1) In this Act— accreditation holder means the holder of a certificate of accreditation. … Board means the Building Professionals Board constituted under section 75. 1. Part 2 (ss 4-18) deals with accreditation of certifiers. Section 4, which comprises Division 1, deals with an accreditation scheme and relevantly provides: 4 Accreditation scheme (1) The Board is to prepare an accreditation scheme for the purposes of this Act. (2) An accreditation scheme may make provision for or with respect to the following matters— (a) …, (b) a code of conduct for accreditation holders, (c) …, (d) …. 1. Part 3 (ss 19-44) deals with disciplinary proceedings. Section 19(1) contains definitions and relevantly provides: 19 Definitions (1) In this Part— complaint means a complaint about an accreditation holder made under section 21. disciplinary action means any of the following action— (a) any action taken by the Board under section 31 (4) or by the Tribunal under section 34(2) in respect of an accreditation holder, (b) …. disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct. professional misconduct, in relation to an accreditation holder, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accreditation holder's certificate of accreditation. unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission)— (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979 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, … (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, … (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, 1. Section 21 provides a procedure for a person to make a complaint to the respondent against an accreditation holder in respect of the accreditation holder's professional conduct. 2. Section 27 provides that the respondent must, subject to some exceptions, conduct an investigation into each complaint made to it and for its powers of investigation. 3. Section 31 deals with the decision after investigation of a complaint and relevantly provides: 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. (2) The Board may apply to the Tribunal for a disciplinary finding against an accreditation holder under Division 5 if it is satisfied that there is a reasonable likelihood that the accreditation holder will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct or it may instead exercise the functions conferred on it by subsection (4). … (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, … (c) order that the accreditation holder complete such educational courses as are 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, (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. … (5A) When considering what action should be taken under subsection (4) in relation to an accreditation holder, the Board is to take into consideration any previous disciplinary action taken against the accreditation holder. This subsection does not limit any other matter that the Board may take into consideration. 1. Section 33 deals with the administrative review of a disciplinary finding of the respondent and provides: 33 Person may apply to Tribunal for administrative review of disciplinary finding of Board 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 of that finding and any action taken by the Board under section 31 (4). 1. Part 7 (ss 75-81) deals with the constitution and management of the respondent, and relevantly provides that there is constituted by the BP Act a corporation with the corporate name of the Building Professionals Board (s 75(1)) and that its functions include the taking of disciplinary action against accreditation holders (s 77(d)). ADR Act 1. Chapter 2 (ss 7-9) deals with the administrative review jurisdiction of the Tribunal, and relevantly provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of any such decision (or class of decisions) made by the administrator in the exercise of functions conferred by the enabling legislation (s 9(1)(a)). 2. Section 63 deals with the determination of administrative review by the Tribunal and provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. EPA Act 1. Part 4 Division 3 (ss 84-87) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as it was in force at the time of the conduct constituting the Complaints dealt with special procedures for complying developments. Section 85A dealt with the process for obtaining complying development certificates and relevantly provided: 85A Process for obtaining complying development certificates … (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 … (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 EPA Regulation 1. Part 7 Division 2 (cll 130AA-136) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as it was in force at the time of the conduct constituting the Complaints dealt with the determination of applications and commencement of complying development. Clause 130 dealt with the procedure for determining application for complying development certificate and notification requirements and relevantly provided: 130 Procedure for determining application for complying development certificate and notification requirements (cf clause 77 of EP&A Regulation 1994) (1) A certifying authority must not issue a complying development certificate for building work unless the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the certificate was made). … (3) Evidence of the issue of a complying development certificate must be endorsed by the council or the accredited certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the accredited certifier in accordance with clause 126. 1. Clause 134 dealt with the form of complying development certificate and relevantly provided: 134 Form of complying development certificate (1) A complying development certificate must contain the following: … (e) a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by this regulation concerning the issue of the certificate, (f) if the development involves the erection of a building, the class of the building under the Building Code of Australia, (g) any conditions imposed on the development under this Regulation. … (2A) A complying development certificate for any development must include a copy of any relevant plans endorsed by the certifying authority. Code of conduct 1. The code of conduct for accredited certifiers made in accordance with s 4(2)(b) of the BP Act (the Code of Conduct) relevantly provides: Introduction The Building Professionals Board Code of Conduct for Accredited Certifiers (the Code) presents the principles to guide the behaviour of, and the standards of conduct and professionalism expected from, accredited certifiers when performing certification functions … The Code applies equally and to each person accredited by the Board as an accredited certifier Purpose of the Code The purpose of the Code is to • set standards of conduct and professionalism expected from accredited certifiers when performing their certification functions • inform the community of the standards of conduct and professionalism expected from accredited certifiers • provide consumer, regulatory government employment and professional bodies with a basis for making decisions regarding standards of conduct and professionalism expected from accredited certifiers and • assist accredited certifiers to - fulfil their statutory duties, and - act in a way that enhances public confidence in the process of the certification of development … Code of Conduct requirements When working as an accredited certifier and carrying out certification functions, an accredited certifier shall comply with requirements 1 to 13, inclusive, of the Code, which are the Code of Conduct Requirements Acting in the public interest 1 An accredited certifier shall carry out his or her functions and duties and exercise any discretionary powers, in ways that promote or preserve the public interest. … Duty of care 5 An accredited certifier shall exercise reasonable care and attention in carrying out his or her duties, and in the exercise of his or her powers. 1. In March 2007, the respondent issued Code of conduct: a guide which relevantly provides: Introduction This guide provides explanatory notes to the Code of Conduct for accredited certifiers (the Code) contained in Schedule 4 of the Building Professionals Board's accreditation scheme (the scheme). The notes do not form part of the scheme or the code. … The explanatory notes are intended to be used to clarify the meaning and scope of the Code and to provide guidance on how to comply with the requirements of the Code. The explanatory notes are not intended to be exhaustive of all situations that may give rise to a breach of the Code. These explanatory notes do not in any way limit the extent of the Code of Conduct Requirements. Acting in the public interest (Code of Conduct Requirement 1) … Accredited certifiers must carry out certification functions in the public interest and must not take action that would compromise the health, safety and amenity of any person or property. An accredited certifier shall take appropriate and prompt action in relation to complaints made by the public, councils or any other body in relation to building work or subdivision work for which the accredited certifier is carrying out certification functions. An accredited certifier shall take reasonable steps to promptly inform the complainant of the action he or she has taken in response to the complaint, including informing the complainant of a decision not to take any action in response to the complaint. … Duty of care (Code of Conduct Requirement 5) When appointed to carry out certification functions under the EP&A Act or strata legislation an accredited certifier has a duty of care in relation to any advice given and action taken (or not taken) in assuming the role. An accredited certifier is given certain discretionary powers under the EP&A Act such as: • determining whether relevant conditions of consent have been met, … The certifier will be subject to the ordinary principles of the law of negligence in carrying out those functions and must exercise a reasonable standard of care in making these types of decisions. Generally applicable legal principles 1. A condition precedent to exercise of statutory power under s 85A(3) of the EPA Act to issue a complying development certificate is that the certifier be satisfied that the proposed structures are a complying development. It is implied that the certifier's state of satisfaction be reasonable. If upon the application of an environmental planning instrument, 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: Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 at [12]-[23]. Jurisdiction 1. The Tribunal has jurisdiction to review the Decision under s 9 of the ADR Act when read with s 33 of the BP Act. The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The issues 1. The following issues arise for decision in undertaking an administrative review of the Decision: 1. whether Complaint no 25/17 - Matter 1 is established; 2. whether Complaint no 25/17 - Additional Matter A is established; 3. whether Complaint no 29/17 - Additional Matter B is established; 4. whether Complaint no 25/17 - Additional Matter C is established; 5. whether Complaint no 43/17 - Additional Matter A is established; 6. whether Complaint no 43/17 - Matter 1 is established; 7. whether Complaint no 66/17 - Matter 1 is established. 8. whether the conduct constituting the Complaints should be characterised as unsatisfactory professional conduct. 1. In considering the first seven of these issues we have set out the findings on material questions of fact and the reasons for decision from the Reasons and have only set out further material where this is relevant to our consideration. We have also used the same abbreviations as used in the Reasons. Whether Complaint no 25/17 - Matter 1 is established The Reasons 1. The Reasons contain the following findings (bold text, italics and underlining in the original): 1.0 MATTER 1 (Complaint no. 25/17) Mr Freixas' issuing of a complying development certificate (CDC) no. 16/0434-01 without compliance with/for privacy requirements for windows and balconies. FINDINGS ON MATERIAL QUESTIONS OF FACT 1.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. 1.2 The CDC was issued by Mr Freixas with a statement made pursuant to section 85(1 )(a) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and clause 134(e) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) i.e. a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a CDC (notwithstanding the wording of the statement used by Mr Freixas on the CDC erroneously corresponded with that required for a construction certificate i.e. clause 134(1)(e) of the EP&A Regulation). 1.3 To determine whether a CDC can be issued, section 85A(3) of the EP&A Act states the 'accredited certifier must consider the application and determine ... whether or not the proposed development complies with the relevant development standards'. 1.4 The development proposed by the application was assessed by Mr Freixas under the relevant development standards, being the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). 1.5 For the following reasons, Mr Freixas could not have properly determined under section 85A(3) of the EP&A Act that the proposed dwelling (as depicted in the plans and specifications accompanying the application) complied with the relevant development standards under the Codes SEPP as in force between 5 August 2016 to 13 July 2017: a) No privacy screens to bedrooms The windows to Bedroom 2 and Bedroom 5 on the dwelling's first floor do not satisfy clause 3.23(1)(a) as they do not have privacy screens. The window in Bedroom 5 faces no.7 Regent Street (the complainant's property). In each instance the window is required to have a privacy screen as: ■ it faces a side boundary, ■ is in a habitable room (bedroom) that has a finished floor level of more than 1 m above ground level, ■ has a sill height of less than 1.5m (being 1 m high by scaling), ■ has an area larger than an 2m2 (by scaling the plans Bedroom 2 is 2.59m2 and Bedroom 5 is 3.62m2), and ■ is less than 3m from the boundary (Bedroom 2 has 1123mm setback and Bedroom 5 has 1650mm setback). b) No privacy screens to terraces (balconies) The front and rear terraces of the dwelling do not satisfy clauses 3.23(3)(a) and 4(a) as they each have a floor area in excess of 3m2 and have no compliant privacy screens on the side facing no.11 Regent Street i.e. the south-west elevation. While the rear terrace has a wall on the south-western side, it does not extend above 600mm high. A screen of at least 1.7m is required. The front terrace has no privacy screen at all. c) Size of terraces exceeds maximum allowed The total floor area of the proposed terraces on the dwelling's first floor level (front and rear) within 6m of a side boundary was approximately 31m2, which exceeded the maximum 12m2 total floor area of all terraces permitted by clause 3.12(1). 1.6 The complainant's concerns in regard to the other windows in the north-east elevation and the lack of a privacy screen to the terrace's rear elevation are not supported as: a) None of the windows have a sill height below 1.5m high and therefore satisfy clause 3.23(1)(a) of the Codes SEPP. b) Per clauses 3.23(3) and (4) of the Codes SEPP the rear elevation of the terrace is not required to have a privacy screen i.e. the terrace is more than 6m from the rear boundary and the terrace elevation complained of does not face the side boundary. 1.7 Despite the proposed development not complying with the relevant development standards, Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 14 October 2016 he issued CDC no. 16/0434-01. 1. The Reasons contain the following reasons for decision (italics in the original): 11.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions Mr Freixas conceded that the windows required privacy screens. 11.2 Mr Freixas also stated that in regard to the windows he gave significant weight to the town planner's report, it has subsequently been found there was an error in that report, and the consequence of issuing the CDC without a privacy screen had minimal impact on the adjoining properties. As noted in the complaint investigation report (paragraph 1.8) this reasoning is not accepted. Section 85A(3) of the EP&A Act requires the certifier to consider the application and determine whether the proposed development meets the development standards. A certifier cannot abrogate their responsibility when determining a CDC to others, and cannot make discretionary planning judgements. While it is accepted that a certifier may utilise reports of other professionals to assist and inform them, these reports must not be accepted blindly and a certifier must make their own assessment of the relevant matters. It was well within the expected competence of Mr Freixas as an A1 accredited certifier that he could and would readily identify by assessment of the application's plans that the windows to Bedroom 2 and Bedroom 5 on the dwelling's first floor failed to meet clause 3.23(1)(a) of the Codes SEPP as they do not have privacy screens. Mr Freixas failed to identify these non-compliances and did not recognise that the CDC application and the town planner's report each considered a different set of plans. 11.3 The certifier's submissions are not accepted in regard to impact of his failure to include the privacy screens on the CDC plans i.e. being negated by the circumstances on the adjoining properties. Despite having the benefit of the complaint investigation report, which expressly commented on this issue in paragraph 1.8 d), Mr Freixas has demonstrated that he does not understand the role of a certifying authority assessing an application for complying development i.e. what a window overlooks on an adjacent property is immaterial to a proper assessment of whether a CDC application meets a development standard. 11.4 The certifier's submissions are not accepted in regard in regard to impact of the failure to include the privacy screens on the CDC being negated by the development complying at completion of the works. Mr Freixas' submission demonstrated that he does not understand the role of a certifying authority assessing an application for complying development under section 85A(3) of the EP&A Act i.e. ensuring the privacy screens are installed before completion of the development is immaterial to a proper assessment of whether a proposed development in a CDC application meets a development standard. 11.5 The legislation does not authorise a certifier to issue a CDC on the basis that the certifier is satisfied the requirements have been (or will be) met. Mr Freixas' explanation is contrary to what a CDC is per section 85(1) of the EP&A Act, and ignores that carrying out the work per the CDC endorsed plans would result in a development that did not meet the development standards for complying development. 11.6 Mr Freixas' submissions failed to provide any explanation in regard to requirements concerning the non-compliant terraces as detailed in paragraphs 1.4 b) and c) of the complaint investigation report. 11.7 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development complied with the relevant development standards. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. 11.8 Requirement 5 ('Duty of care. 5. An accredited certifier shall exercise reasonable care and attention in carrying out his or her duties, and in the exercise of his or her powers') of the Building Professionals Board's Code of Conduct for Accredited Certifiers (Code of Conduct) requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Given the serious consequences that can follow if an approval for a new two-storey dwelling is given by a CDC for a proposal that does not meet each of the relevant development standards, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 1.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including endorsed plans) forms part of the framework of public accountability within which accredited certifiers operate i.e. a copy is required to be given to the local council for their information/records and to make it available for public viewing, including by nearby residents and future owners. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Accordingly, Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.9 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act. Relevant further material 1. The planning report dated 2 September 2016 of Mr R J Graham (Mr Graham), a town planner from R J Graham & Associates Pty Ltd (the Graham report), relevantly states: This report provides an assessment of the development described below against the planning controls of (Codes SEPP) … … Applicable planning instruments … (Codes SEPP), Part 3 Division 1 Clauses 3.1, 3.2, (New dwellings) … Planning summary: … Development may be carried as complying development provided it ls undertaken in accordance with attached plans and documents and is compliant with conditions set out below. 1. The Graham report did not specify any relevant conditions. The attached Issue B Drawing No A-020 dated 18 August 2016 entitled "Elevations" included the North East Side Elevation which depicted two windows in bedroom 5. 2. CDC no. 16/0434-01 specified the following "Approved plans": "Architecture Design Studio Ply Ltd; Project No: Pn_0328; Drawing No's: A-000, 007/C, 009/C to 012/C, 020/C & 030/C." The attached Issue C Drawing No A-011 dated 31 August 2016 entitled "First Floor Plan" depicts the width of the window opening for bedroom 5 as 2600mm and the width of the window opening for bedroom 5 as 1800mm.The attached Issue C Drawing No A-020 dated 31 August 2016 entitled "Elevations" included the North East Side Elevation which depicted two windows in bedroom 5 which were approximately twice the height of the equivalent windows in the Issue B Drawing No A-020. The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly asserted that: 1. no privacy screens are required for the windows located in Bedroom 2 and Bedroom 5 for the following reasons: 1. the Bedroom 2 window has an area of approximately 1.08m2 (0.9m x 1.2m). Accordingly, subclause 3.23(l)(a) of the Codes SEPP does not apply to it; 2. each of the two Bedroom 5 windows has an area of approximately 1.35m2 (1.15m x 1.15m). Accordingly, subclause 3.23(1)(a) of the Codes SEPP does not apply to it; 1. the rear terrace adjacent to Bedroom 3 has a double brick wall that stands 1.2m high, parallel to the side boundary and running along the edge of the terrace. Above that wall is a fixed metal louvre privacy screen to a height of at least 1.7m but not more than 2.2m. The metal louvres are angled and fixed, precluding viewing across the boundary. On 30 May 2017, he jointly inspected the partly completed dwelling with the Board investigator, Mr Frank Rupolo (Mr Rupolo). He said to Mr Rupolo that the privacy screen comprising of fixed metal louvres would be inserted into the wall of the Bedroom 3 terrace before he would issue an occupation certificate. Mr Rupolo replied "I am satisfied with that"; 2. the terrace at the front of the dwelling does not have a privacy screen on the edge that is parallel to the side boundary as required by clause 3.23(3) and (4) of the Codes SEPP. Prior to issuing the CDC, he obtained the Graham report which he relied upon. The front terrace has no privacy impact upon the neighbouring property at 11 Regent Street because the development addressed the street; 3. the area of the (rear) Bedroom 3 terrace is approximately 11.41m2 (4.15m x 2.75m). The area of (rear) Bedroom 4 terrace is approximately 8.51m2 (3.095m x 2.75m). When he issued the CDC he relied on the Graham report. He applied the permitted floor area of 12m2 to each and every terrace, each being under the permitted 12m2. He did not interpret the provision of the Codes SEPP to apply to the combined floor area of the front terrace and the rear terraces. The second Freixas statement 1. In the second Freixas statement, Mr Freixas relevantly asserted that the methodology applied by Mr Marks in calculating the estimated dimensions and area of the Bedroom 2 and Bedroom 5 windows contained the following four flaws: 1. not applying any margin for error; 2. applying inconsistent measurements and rounding up; 3. not applying dimensions of window frame or glazing, instead using "brick opening" measurements; and 4. not applying dimensions of window frame or glazing in context. The oral evidence 1. In his oral evidence, Mr Freixas was relevantly cross-examined and then re-examined about his calculations of the area of the Bedroom 2 and Bedroom 5 windows. The evidence of Mr Marks The Mr Marks statement 1. In the Marks statement, Mr Marks relevantly set out his calculations of the area of the Bedroom 2 and Bedroom 5 windows. The oral evidence 1. In his oral evidence, Mr Marks was relevantly cross-examined about his calculations of the area of the Bedroom 2 and Bedroom 5 windows. The submissions of the applicant Written submissions 1. The applicant made the following written submissions: 1. as to privacy screens to Bedrooms 2 and 5, no privacy screens were required as clause 3.23(1)(a) of the Codes SEPP does not apply; 2. as to a privacy screen for the rear terrace adjacent to Bedroom 3, a privacy screen would be inserted into the wall prior to issuing of an occupation certificate. Mr Rupolo was "satisfied with that" during the joint inspection on 30 May 2017; 3. as to the area of the (rear) Bedroom 3 and Bedroom 4 terraces, cl 3.12(1) of Codes SEPP applies. The applicant interpreted the permitted area as applying to each terrace. The total area of two terraces within 6m of the side boundary is 19.92m2. The non-compliance is 7.92m2 over two terraces, not 19m2. The applicant relied upon the Graham report. Oral submissions 1. The applicant made the following oral submissions: 1. as to privacy screens to Bedrooms 2 and 5, a window for the purpose of 3.23(1)(a) of the Codes SEPP is the glazing of each window and not the window frames, and the area of each window is less than 2m2 on the basis that 100mm is allowed for the frame and the mullion between the two Bedroom 5 windows; 2. as to a privacy screen for the rear terrace adjacent to Bedroom 3, he accepted that there should have been a privacy screen in the architectural plan; 3. as to the area of the (rear) Bedroom 3 and Bedroom 4 terraces, cl 3.12(1) of Codes SEPP was not breached because "all" is to be construed as meaning "each" and so each terrace which is to be considered separately did not have an area exceeding 12m2. The submissions of the respondent Concessions 1. The respondent made the following concessions: 1. as to a privacy screen for the rear terrace adjacent to Bedroom 4, there was no breach of clause 3.23(1)(a) of the Codes SEPP; 2. as to the area of the (front) Master Bedroom terrace, clause 13.12 of the Codes SEPP does not apply. Written submissions 1. The respondent made the following written submissions: 1. as to privacy screens to Bedrooms 2 and 5, the Tribunal should not accept the calculation or reasoning of the applicant; 2. as to a privacy screen for the rear terrace adjacent to Bedroom 3, that the built work ultimately is made to comply does not address whether the assessing and issuing or the CDC was in accordance with the development standards of the Codes SEPP; 3. as to the area of the (rear) Bedroom 3 and Bedroom 4 terraces, The rear terraces are dimensioned on plan A-011 (4.15 x 2.75 = 11.4m2 and 4.35 x 2.75 =12m2. Total = 23.4m2). Hence the rear terraces exceed the requirement by 11.4m2. Oral submissions 1. The respondent made oral submissions which substantially repeated its written submissions. Applicable statutory provisions Codes SEPP 1. Part 1 Division 1 (cll 1.1-1.14) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as it was in force at the time of the conduct constituting the Complaint dealt with preliminary matters. Clause 1.5 dealt with general matters of interpretation. There was no definition of window. The definition of "privacy screen" includes "a window, the whole of which has translucent glass and is fixed and not able to be opened". 2. Part 3 Division 2 Subdivision 2 (cll 3.8-3.12) as it was in force at the time of the conduct constituting the Complaint dealt with site requirements. Clause 3.12 dealt with setbacks and maximum floor area for balconies, decks, patios, terraces and verandahs, and relevantly provided: 3.12 Setbacks and maximum floor area for balconies, decks, patios, terraces and verandahs (1) The total floor area of all balconies, decks, patios, terraces and verandahs on a lot must not be more than 12m2 if: (a) any part of the structure is within 6m from a side or the rear boundary, and (b) the structure has any point of its finished floor level more than 2m above ground level (existing). 1. Part 3 Division 2 Subdivision 3 (cll 3.13-3.23) as it was in force at the time of the conduct constituting the Complaint dealt with site requirements. Clause 3.23 dealt with building heights and setbacks, and relevantly provided: 3.23 Privacy (1) A window in a new dwelling house, or a new window in any alteration or addition to an existing dwelling house, must have a privacy screen for any part of the window that is less than 1.5m above floor level if: (a) the window: (i) is in a habitable room that has a finished floor level of more than 1m above ground level (existing), and (ii) has a sill height of less than 1.5m above that floor level, and (iii) faces a side or rear boundary and is less than 3m from that boundary, or … (2) Subclause (1) does not apply to a window located in a bedroom where the window has an area of not more than 2m2. (3) A new balcony, deck, patio, terrace or verandah and any alteration to an existing balcony, deck, patio, terrace or verandah that has a floor area of more than 3m2 must have a privacy screen if the balcony, deck, patio, terrace or verandah is: (a) within 3m of a side or rear boundary and has a floor level more than 1m above ground level (existing), or … (4) Any privacy screen required under subclause (3) must be installed: (a) to a height of at least 1.7m, but not more than 2.2m, above the finished floor level of the balcony, deck, patio, terrace or verandah, and Consideration No privacy screens for Bedrooms 2 and 5 1. We are satisfied that the word "window" in cl 3.23 of the Codes SEPP refers to any window opening so as to encompass any frame and the glass. If a window in the definition of the expression "privacy screen" did not include the frame, then there would not be a privacy screen if there was a window with a frame containing translucent glass. 2. We are also satisfied that the word "window" also encompasses the situation where there is a single window opening with more than one frame and glass. 3. We are not satisfied that the calculation of Mr Marks of the area of the Bedroom 2 window is correct. The area is less than 2m2. 4. We are satisfied that the calculations of Mr Marks of the area of the Bedroom 5 windows are correct. We do not accept that the methodology applied by Mr Marks in calculating the estimated dimensions and area of the Bedroom 5 windows contained four flaws. In particular, we reject the assertion of the applicant that "standard engineering practice requires that a minimum margin for error of 25 percent (25%) be applied to any calculation." No privacy screen for the rear terrace adjacent to Bedroom 3 1. We are satisfied that the rear terrace adjacent to Bedroom 3 was required by the operation of cl 3.23(3)(a) of the Codes SEPP to have a privacy screen. It is no answer to the requirement of cl 134(e) of the EP&A Regulation for an accredited certifier to say that a privacy screen was built for the rear terrace adjacent to Bedroom 3. Size of rear terraces exceeds maximum allowed 1. We are satisfied that cl 3.12(1) of the Codes SEPP on its proper construction requires the total floor area of all applicable terraces to be calculated where the conditions of the clause are satisfied. There is no warrant for construing the word "all' to mean "each". 2. We are satisfied that the total floor area of the rear terraces exceeds maximum allowed cl 3.12(1) of the Codes SEPP. The total floor area of the rear terraces is exceeded by 11.4m2 as contended by the respondent and not 7.92m2 as contended by the applicant. Conclusion 1. We find that Complaint no 25/17 - Matter 1: 1. is established by reason that the applicant issued the CDC without compliance with the privacy requirements for the windows in Bedroom 5 and the rear balcony adjacent to Bedroom 3, and the size requirements for the rear terraces; 2. is not established with respect to the privacy requirements for the windows in Bedroom 2 and the rear balcony adjacent to Bedroom 4. Whether Complaint no 25/17 - Additional Matter A is established The Reasons 1. The Reasons contain the following findings (bold text, italics and underlining in the original): 3.0 ADDITIONAL MATTER A (Complaint no. 25/17) Mr Freixas issued a CDC (no. 16/0424-01 dated 14 October 2016) in contravention of the relevant legislation viz., a certifying authority must not issue a CDC for building work unless the proposed building will comply with the relevant requirements of the Building Code of Australia. FINDINGS ON MATERIAL QUESTIONS OF FACT 3.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. The CDC authorised the erection of a dwelling, decks and a pool as complying development: a) The CDC's architectural plans (the site, floor, elevations and section plans) all show connected to the rear of the dwelling proposed split-level timber decks, stairs and pool. b) The CDC's structural engineer's drawings (i.e. per the CDC's 'Other Documentation Relied Upon' and submitted to the council with the CDC) show and detail that the proposed dwelling, decks and decks are an integrated structure. For the reasons set out in paragraph 4.8 of the complaint investigation report, the Board does not accept Mr Freixas' contention that the CDC did not approve/include the pool. 3.2 The CDC included a statement above Mr Freixas' signature verifying that the 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 CDC (noting that the actual wording used by Mr Freixas on the CDC erroneously corresponds with that required for a construction certificate i.e. clause 134(1 )(e) of the EP&A Regulation). 3.3 Under clause 130(1) of the EP&A Regulation a 'certifying authority must not issue a complying development certificate for building work' unless the proposed building will comply with the relevant requirements of the BCA. Clause 1.18(1) of the Codes SEPP also requires that for a development to be complying development it 'must' meet the relevant provisions of the BCA. Clause 126(1)(a) and Clause 4 of Schedule 1 of the EP&A Regulation require that an application for a CDC must be accompanied by appropriate building work plans and specifications. 3.4 To enable an accredited certifier to determine that a proposal will comply with the BCA, the applicant must provide sufficient information to demonstrate the intent to comply. The proposed building, as depicted in the CDC's endorsed plans and specifications, did not demonstrate that it will comply with the relevant requirements of the BCA as: a) Smoke Alarms / Part 3.7.2 of the BCA. The CDC endorsed drawing no. A-000 includes a specification referencing 'Part 3.7.2 Smoke Alarms', however this statement alone lacks sufficient detail to properly address the intended method of BCA compliance i.e. the type, location and installation method. The CDC endorsed floor plans depict a 'smoke detector' on the ground floor and one on the first floor. Part 3.7.2.2 requires a Class 1a building to be provided with 'smoke alarms' i.e. not smoke detectors. There is also no indication on the plans that they are intended to be hardwired or interconnected. b) Balustrades & Barriers / Part 3.9.2 of the BCA. The CDC endorsed drawing no. A-000 includes a specification referencing 'Part 3.9.2 Balustrades', however this statement alone lacks sufficient detail to properly address the intended method of BCA compliance. The CDC plans depict the rear terrace serving Bedroom 3 as having no proposed barrier along its north-eastern side (i.e. adjacent to the void outside the bathroom) and its south-western side only depicts a 600mm high wall (i.e. less than the required minimum 1 metre height). The CDC plans are unclear as to whether a barrier is proposed in the first floor family/living space adjacent to the void. There is no information as to the structural design of the barriers, nor any information how the glass barriers would comply with Part 3.6 of the BCA. c) Pool Safety Barrier / Part 3.9.3 of the BCA. There is no reference to the intended method of compliance with Part 3.9.3 in any of the CDC application documents and there is no proposed swimming pool safety barrier (location, heights and materials) depicted on the CDC endorsed plans to restrict access to the pool from the dwelling, neighbouring properties and the street. d) General BCA compliance. The endorsed CDC documents include limited details and information as to how the building would comply with the provisions of the BCA, including but not limited to: a. Part 3.1.3 - termite risk management b. Part 3.3 - unreinforced masonry and weatherproofing c. Part 3.4.3/3.11 - timber framing d. Part 3.5 - roof cladding and gutters and downpipes e. Part 3.6 - glazing and windows f. Part 3.9 - stair handrails and slip resistance As a result, the application did not have sufficient information for Mr Freixas to have reasonably determined that the proposed building will comply with the relevant requirements of the BCA. Given the CDC application as made, Mr Freixas did not have sufficient basis to have determined that his issuing of the CDC would not be in contravention of clause 130(1) of the EP&A Regulation. 3.5 Despite the proposed development not complying with the development standards and the EP&A Regulation (as set out in paragraphs 3.3 and 3.4 of this Statement), Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 14 October 2016 he issued CDC no. 16/0434-01. 1. The Reasons contain the following reasons for decision (italics in the original): 11.10 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions Mr Freixas advised that the reference on the CDC to 'Other Documentation Relied Upon' includes the stormwater and structural engineer's drawings and design statements that were forwarded to the Council with the CDC. Mr Freixas' explanation is accepted, notwithstanding that the plans were not endorsed (stamped) by him when he issued the CDC. 11.11 Mr Freixas submitted that the smoke alarm details were sufficient as CDC architectural plans do not include electrical engineering details, that in any case he ensures compliance at the final inspection and obtain an electrician's certificate. Mr Freixas' submission demonstrated that he does not understand the role of a certifying authority assessing a CDC application i.e. ensuring the smoke alarms are appropriately installed at completion of the development is immaterial to a proper assessment of whether a CDC application meets clause 1.18(1)(c) of the Codes SEPP and clause 130(1) of the EP&A Regulation in regard to the BCA. Clauses 4(1)(d)(ii) and 5(a)(iv) of Schedule 1, and clause 126(1)(a) of the EP&A Regulation, also require the CDC application's plans and specifications to show the provision for fire safety. Under clause 130(1) of the EP&A Regulation the certifier is required to make an objective test that calls for a finding of fact as to whether the building proposed by the CDC application (plans and specifications) will comply with the relevant requirements of the BCA. For the reasons detailed in paragraph 4.5 b) of the complaint investigation report, the CDC plans and specifications endorsed by Mr Freixas were unacceptable. Despite having the benefit of the report, Mr Freixas failed to address at all that the CDC plans show proposed smoke detectors (instead of smoke alarms) and make no reference to hardwiring/interconnected requirements. 11.12 Mr Freixas' submissions that the 'BCA Compliance Specification' on the CDC plans is sufficient in regard to demonstrating BCA compliance, including the matters in paragraphs 4.5 b) - e) of the complaint investigation report, are not accepted. The purported specification lacks sufficient detail to properly address the intended method of BCA compliance in regard to each of these matters. 11.13 Mr Freixas' submissions provide no specific explanation in regard to the absent or inadequately detailed balustrades and barriers, despite these being crucial safety features of a residential dwelling. 11.14 Mr Freixas' submissions contending that he did not approve a pool under the CDC are not accepted viz., for the reasons detailed in paragraphs 4.8 a) - m) of the complaint investigation report. It is also noted that the structural engineer's drawings and certificate that Mr Freixas advised in his Submissions were part of the CDC documents (refer to paragraph 11.10 of this Statement), depict the proposed concrete pool, decks and stairs as being integrated within the construction of the dwelling structure viz., in particular drawings S5 and S6. It is not accepted that Mr Freixas could, in assessing the CDC application, simply ignore (or not realise) the fact that the CDC plans depicted a pool. It is evident from Mr Freixas' submissions during the investigation that he made no enquiries with the applicant about the pool before he issued the CDC, despite it being on the plans and being integrated within the decks and dwelling structure, and there being no pool barrier depicted. This is a vital life safety matter for a certifying authority, being a public official, to properly consider and make enquiries about with the applicant. Whereas Mr Freixas had initially advised the Board that the pool was existing, his submissions after the complaint investigation report advise that 'At the time of my inspection there was preparatory work underway on what I now know is a pool.... The pool was in early stage of construction...'. Mr Freixas' statements are difficult to reconcile given the CDC application plans the certifier was reviewing at that site inspection unequivocally showed proposed decks around a pool in the location that Mr Freixas contends at the time of the inspection he did not know was a pool. It also conflicts with Mr Freixas' inspection record in which he records that no work had commenced and that he had met the builder on site. 11.15 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development would comply with the BCA. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards i.e. clause 1.18(1) of the Codes SEPP. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined that the requirements of clauses 126(1)(a) and 130(1) of the EP&A Regulation had been met. Given the CDC application as made, Mr Freixas did not have sufficient basis to have determined that his issuing of the CDC would not be in contravention of clause 130(1) of the EP&A Regulation. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. 11.16 Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Requirement 1 ('Acting in the public interest') of the Code of Conduct requires that certifiers are to carry out their functions and duties, and exercise any discretionary powers, in ways that promote or preserve the public interest. This includes not authorising the commencement of the construction of buildings that if built in accordance with the CDC plans and specifications will not comply with the life safety and fire protection requirements of the BCA. Given the serious life safety and fire protection consequences (for the subject site and potentially neighbouring properties) that can follow if an approval is given by a CDC for a proposal that does not demonstrate how it will comply with the BCA, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 3.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work, and any person subsequently occupying or visiting the property, in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Accordingly, Mr Freixas failed to comply Requirements 1 and 5 of the Code of Conduct. 11.17 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had been contravened and/or not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act. Relevant further material 1. The application for the CDC dated 5 September 2016 described the proposed development as "Demolition of all structures & erection of a new 2 storey residential house" and did not refer to a pool. The application included the structural design certificate dated 5 September 2016 of Consulting Design & Inspection Engineers Pty Ltd attached structural drawings (the CDIE documents). 2. The Graham report did not refer to the pool. 3. The structural drawings comprising the CDIE documents included reference to the pool. 4. CDC no. 16/0434-01 specified the following "Approved plans": "Architecture Design Studio Ply Ltd; Project No: Pn_0328; Drawing No's: A-000, 007/C, 009/C to 012/C, 020/C & 030/C." and "Attachments" which included "Other documentation relied upon". 5. The attached Drawing No A-000 relevantly included the following "Building Specifications": BCA Compliance Specification Comply with the relevant BCA Housing Provisions nominated below: … Part 3.1.3 Termite Risk Management Part 3.3 Masonry Part 3.3.4 Weatherproofing of Masonry Part 3.4 Framing Part 3.5 Roof &Wall Cladding Part 3.6 Glazing Part 3.7.2 Smoke Alarms Part 3.9.2 Balustrades 1. The attached Drawing Nos A-000, A-009, A-010 and A-030 which each contain the stamped endorsement "Complying Development Certificate Approved" each refer to or depict a pool. The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly asserted that: 1. the CDC did not include a pool. The BCA classification for a new 2 storey dwelling is Class 1a. The BCA classification for a swimming pool is Class 10a. When he issued the CDC, he did not approve the pool and did not intend to; 2. Part 3.7.2 of the BCA with respect to smoke alarms is satisfied by the architectural plans. In his experience, a "smoke detector" is a commonly used term in the building and construction industry for the BCA term "smoke alarm" and the terms are commonly used interchangeably; 3. Part 3.9.2 of the BCA with respect to balustrades is satisfied by Drawing No A-020 of the architectural plans and by referencing Part 3.9.2 in the Building Specification on the Drawing No A-000 and by reading the General Notes in each of the Drawings, particularly Drawing No A-011; 4. Part 3.9.3 of the BCA with respect to a pool safety barrier was not required to be satisfied because the CDC did not extend to a pool; 5. the provisions under the heading "General BCA compliance" are required to be complied with as specified in Drawing No A-000. It is for the CDC applicant, with the applicant's builder, to ensure compliance. The oral evidence 1. In his oral evidence, Mr Freixas was relevantly cross-examined and then re-examined about the requirements for balustrades and his BCA classification in Class 1a in the CDC. He identified the pool on the structural plans. The evidence of Mr Marks The oral evidence 1. In his oral evidence, Mr Marks was relevantly cross-examined about whether the architectural plans depicted balustrades. The submissions of the applicant Written submissions 1. The applicant made the following written submissions: 1. as to the BCA classification, the CDC application and the CDC did not relate to or include a pool; 2. as to smoke alarms, the plans satisfy the requirements of Part 3.7.2 of the BCA. A "smoke detector'' is a commonly used term for, and is commonly used interchangeably with, the term ''smoke alarm" in the BCA.·The plans show that the location of smoke detectors is satisfactory. The smoke detectors are required to be connected to mains power; 3. as to balustrades, the CDC complies with BCA Parts 3.9.2 (relating to balustrades) and 3.6 (relating to glazing). The CDC did not inadequately detail the balustrades and barriers. The plans and specifications were not unclear; 4. as to a pool safety barrier, the CDC application and the CDC did not relate to or include a pool; 5. as to general BCA compliance, it is for the CDC applicant, with the applicant's builder, to ensure compliance. Oral submissions 1. The applicant made the following oral submissions: 1. as to the BCA classification, the architectural plans were not incorporated as part of the CDC; 2. as to smoke alarms, the architectural plans depict smoke detectors in the correct location; 3. as to balustrades, they are depicted on the architectural plans. The submissions of the respondent Written submissions 1. The respondent made the following written submissions: 1. as to the BCA classification, on its proper construction the pool was included in the CDC; 2. as to smoke alarms, the architectural plans included a misdescription which showed a lack of reasonable care and attention and standard of competency in the assessment and acceptance; 3. as to balustrades, the plans do not demonstrate compliance, and were inadequate and unclear; 4. as to a pool safety barrier, the CDC on its proper construction included the pool; 5. as to general BCA compliance, it is for this applicant to carry out the assessment. Assessment of compliance is the task of the applicant, while actual compliance is the responsibility of the applicant for the certificate. Oral submissions 1. The respondent made the following oral submissions: 1. as to the BCA classification, when the CDC and the architectural plans, or alternatively the CDC, the architectural plans and the structural drawings, were considered together, the CDC included the pool; 2. as to general BCA compliance, it is not enough to list the applicable provisions of the BCA. Applicable statutory provisions Codes SEPP 1. Part 1 Division 2 (cll 1.15-1.20) as it was in force at the time of the conduct constituting the Complaint dealt with exempt and complying development. Clause 1.18 dealt with the general requirements for complying development for the Codes SEPP, and relevantly provided: 1.18 General requirements for complying development for this Policy (1) To be complying development for the purposes of this Policy, the development must: … (c) meet the relevant provisions of the Building Code of Australia, and BCA 1. Part 3.7.2 dealt with smoke alarms. Clause 3.7.2.2 relevantly provided: 3.7.2.2 Requirements for smoke alarms (a) Smoke alarms must— (i) be located in— (A) Class 1a building …in accordance with 3.7.2.3; and … (ii) comply with AS 3786, …; and (iii) be connected to the consumer mains power where consumer power is supplied to the building; and (iv) be interconnected where there is more than one alarm. 1. Part 3.9.2 dealt with barriers and handrails. Clause 3.9.2.2 relevantly provided: 3.9.2.2 Barriers to prevent falls (a) A continuous barrier must be provided along the side of— … (iii) a floor, corridor, hallway, balcony, deck, verandah, mezzanine, access bridge or the like; and … if the trafficable surface is 1 m or more above the surface beneath … Applicable legal principles 1. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction. As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Plans and other documents may be incorporated in a development consent expressly or by necessary implication. A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [39], [44], [46]. Consideration BCA classification 1. We are satisfied that the CDC included the pool. The architectural plans and the structural drawings were incorporated in the CDC. Having regard to these documents, the CDC clearly included the pool. The CDC should have specified Classes 1a and 10a as the BCA classification. The specification of Class 1a in the BCA classification was an error. Smoke alarms 1. We are satisfied that the location of smoke alarms was depicted on the architectural plan by the encircled letters "SD" which was an abbreviation of "smoke detector" in locations required by Part 3.7.2.2 of the BCA. The reference to smoke detector was a sufficient reference to a smoke alarm. However, the requirement in Drawing A-000 to comply with Part 3.7.2.2 of the BCA was not sufficient for the applicant to be reasonably satisfied that the proposed building would comply with that Part of the BCA as to the necessity to comply with AS 3786, to be connected to mains power, and to be interconnected. Accordingly, we are satisfied that the applicant issued the CDC without requiring compliance with Part 3.7.2 of the BCA with respect to smoke alarms. Balustrades 1. We are satisfied that Drawing No A-011 depicts a balustrade by two parallel lines: 1. on the side of the terrace adjacent to the first floor bedroom 4 which faces the void; 2. on the side of the terrace adjacent to the first floor family living room which faces the void. 1. We are not satisfied that Drawing No A-011 depicts a balustrade on the side of the terrace adjacent to the first floor bedroom 3 which faces the void. Accordingly, we are satisfied that the applicant issued the CDC without requiring compliance with Part 3.9.3 of the BCA with respect to balustrades. Pool safety barrier 1. We are satisfied that the applicant issued the CDC without requiring compliance with Part 3.9.3 of the BCA with respect to a pool safety barrier. General BCA compliance 1. The requirement in Drawing A-000 to comply with Parts 3.1.3, 3.3, 3.3.4, 3.4, 3.5, and 3.6 of the BCA was not sufficient for the applicant to be reasonably satisfied that the proposed building would comply with those Parts of the BCA. There was no requirement in Drawing A-000 to comply with Part 3.11 of the BCA. Accordingly, we are satisfied that the applicant issued the CDC without requiring compliance with these Parts of the BCA. Conclusion 1. We find that Complaint no 25/17 - Additional Matter A: 1. is established by reason that the applicant issued the CDC without being reasonably satisfied that the proposed building will comply with the relevant requirements of the BCA; 2. is not established with respect to smoke alarms. Whether Complaint no 25/17 - Additional Matter B is established The Reasons 1. The Reasons contain the following findings (bold text and italics in the original): 4.0 Additional Matter B (Complaint no. 102/17) Mr Freixas issued a CDC (no. 16/0424-01 dated 14 October 2016) that did not contain on it the information required by the Environmental Planning and Assessment Regulation 2000. FINDINGS ON MATERIAL QUESTIONS OF FACT 4.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. 4.2 The CDC's structural engineer's drawings and stormwater plans were not endorsed (stamped). Mr Freixas failed to comply with his statutory duty under clause 134(2A) of the EP&A Regulation i.e. a CDC must include a copy of any relevant plans endorsed by the certifying authority. 4.3 As set out in paragraph 3.1 of this Statement, the CDC and its plans authorised the erection of a dwelling, decks and a pool. The CDC lists the BCA classification/s as 'Class 1a'. The CDC document did not include the BCA classes for the pool (class 10b) and decks (class 10a). Mr Freixas failed to comply with his statutory duty under clause 134(1)(f) of the EP&A Regulation. 4.4 As set out in paragraphs 1.2 and 3.2 of this Statement, the statement made on the CDC by Mr Freixas for the purposes of clause 134(1)(e) of the EP&A Regulation was incorrectly worded i.e. Mr Freixas included the wording required for a construction certificate under clause 147(1)(e) of the EP&A Regulation. Mr Freixas failed to comply with his statutory duty under clause 134(1)(e) of the EP&A Regulation. 4.5 Despite the statutory requirements of clause 134 ('Form of complying development certificate') of the EP&A Regulation not being complied with (as set out in paragraphs 4.2, 4.3 and 4.4 of this Statement), on 14 October 2016 Mr Freixas issued CDC no. 16/0434-01. 1. The Reasons contain the following reasons for decision (italics in the original): 11.18 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions he states the CDC was only issued for a dwelling and therefore class 1a only is included on the CDC. For the reasons in paragraph 11.14 of this Statement, Mr Freixas' explanation is not accepted. 11.19 Mr Freixas' submissions provide no explanation or comment in regard to why (irrespective of the pool) the BCA class for decks (10a) is not stated on the CDC, why the structural engineer's drawings and stormwater details were not endorsed (stamped), nor why the CDC included the statutory statement applicable to a CC. 11.20 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to issue the CDC in form required by the legislation. Mr Freixas' submissions do not provide a reasonable explanation for these errors and omissions. The statutory requirements of clause 134 ('Form of complying development certificate') of the EP&A Regulation are not difficult for a competent A1 accredited certifier to apply. Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. This includes ensuring that the information included in any CDC they issue is complete, correct and is not likely to mislead or confuse i.e. that they would not issue a CDC that contained an erroneous statement, without each of the relevant BCA classes and without endorsing all of the relevant plans. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including endorsed plans) forms part of the framework of public accountability within which accredited certifiers operate i.e. a copy is required to be given to the local council for their information/records and to make it available for public viewing, including by nearby residents and future owners. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.21 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act. The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly asserted: 1. as to the endorsing of drawings, as part of the CDC process, he examined structural engineer's drawings and obtained a structural design certificate to satisfy himself the drawings complied with relevant structural provisions of the BCA. He also examined the storm water plans and obtained a storm water design certificate to satisfy himself that the plans would comply with the relevant drainage provisions of the BCA. He is unaware of a legislative requirement that required me to endorse the structural engineer's drawings and stormwater plans; 2. as to BCA classes for the pool and decks, the CDC did not include the pool. He considered the decks as part of the dwelling; 3. as to the form of the CDC, he considered the CDC complied with cl 134(1)(e) of the EPA Regulation. The CDC was prepared from a template which included the reference to s 85A(5) of the EPA Act. The oral evidence 1. In his oral evidence, Mr Freixas was relevantly cross-examined and then re-examined about the applicable BCA classification in Class 1a. The submissions of the applicant Written submissions 1. The applicant made the following written submissions: 1. as to the endorsing of drawings, the CDC and related structural engineer's drawings and stormwater plans complied with cl 134(2A) of the EPA Regulation; 2. as to BCA classes for the pool and decks, the CDC did not include the BCA class for a pool (class 10a) as the CDC did not approve or include a pool. The decks were considered as part of the dwelling (class 1a); 3. as to the form of the CDC, the statement on the CDC sufficiently complied with cl 134(1)(e) of the EPA Regulation as the statement need only be "to the effect". Oral submissions 1. The applicant made the following oral submissions: 1. as to the endorsing of drawings, the expression "relevant plans" in cl 134(2A) of the EPA Regulation meant those plans which the accredited certifier considered relevant; 2. as to BCA classes for the pool and decks, the CDC did not approve or include a pool; 3. as to the form of the CDC, he agreed that the reference to s 85A(5) of the EPA Act was an incorrect reference. The submissions of the respondent Written submissions 1. The respondent made the following written submissions: 1. as to the endorsing of drawings, despite cl 134(2A) of the EPA Regulation, cl 130(3) of the EPA Regulation applies; 2. as to BCA classes for the pool and decks, a swimming pool is a class 10b; 3. as to the form of the CDC, the statement does not and could not satisfy cl 134(1)(e) of the EPA Regulation. Consideration Endorsing of drawings 1. We are satisfied that the applicant failed to comply with cl 130(3) of the EPA Regulation on its proper construction by endorsing structural engineer's drawings and stormwater plans. The obligation to comply with cl 130(3) of the EPA Regulation was in addition to the obligation to comply with cl 134(2A) of the EPA Regulation. BCA classification 1. We are satisfied that the applicant failed to comply with cl 134(1)(f) of the EPA Regulation on its proper construction by failing to specify classes 1a and 10a as the BCA classification on the CDC. The form of the CDC 1. The CDC did not contain a statement in terms of cl 134(1)(e) of the EPA Regulation. However, taking into account that the reference to the reference to s 85A(5) of the EPA Act was an obvious incorrect reference, the certificate with the CDC was a statement within cl 134(1)(e) of the EPA Regulation. Conclusion 1. We find that Complaint no 25/17 - Additional Matter B: 1. is established by reason that the applicant issued the CDC without containing the information required by the EPA Regulation; 2. is not established with respect to the form of the CDC. Whether Complaint no 25/17 - Additional Matter C is established The Reasons 1. The Reasons contain the following findings (bold text and italics in the original): 5.0 Additional Matter C (Complaint no. 25/17) Mr Freixas issued a CDC (No. 16/0434-01 dated 14 October 2016), without it being made subject to the conditions specified under Division 2A of the Environmental Planning and Assessment Regulation 2000. Mr Freixas also included a condition when he was not authorised to do so. FINDINGS ON MATERIAL QUESTIONS OF FACT 5.1 Mr Freixas issued CDC no. 16/0434-01 dated 14 October 2016. Attached to the CDC were five pages of conditions. 5.2 Section 85A(6)(a) of the EP&A Act provides that a certifier may issue a CDC 'unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions'. In issuing a CDC a certifier has no authority to omit or alter any of the prescribed conditions, nor can they add further conditions. 5.3 Clause 134(1)(g) of the EP&A Regulation states that a CDC must contain any conditions imposed on the development under the regulation. Clause 1.18(3) of the Codes SEPP states that a CDC under that policy is subject to the conditions specified in respect of the development. 5.4 The CDC was required to be issued with conditions prescribed in Division 2A of the EP&A Regulation and clause 3.37 of the Codes SEPP i.e. Schedule 6. The CDC's conditions did not comply with the statutory requirements as: • The condition required by clause 136H of the EP&A Regulation has not been included (shoring and adequacy of adjoining property). • The condition required by clause 136M of the EP&A Regulation has not been included (payment of security). • Condition (f) on page 1 is not a prescribed condition found under Division 2Aof the EP&A Regulation. • Condition (g) on page 1 failed to include that the written notification to neighbours of the commencement of work must be given at least 7 days beforehand viz., clause 136AB(1) of the EP&A Regulation. • Condition (h) on page 1 requires compliance with conditions contained in a nominated planner's report. There is no authority to impose this condition. Condition 3 in the planner's report contradicts the issuing of the CDC for complying development as it contends the total area of required landscaping is deficient. • The asbestos related condition on page 5 does not comply with clause 136E of the EP&A Regulation as it does not include the requirements of clause 136(1)(d). In regard to clause 136(1)(a) the condition erroneously references the Occupational Health and Safety Regulation 2001 (repealed 1 January 2012) instead of the Work Health and Safety Regulation 2011. 5.5 Despite the statutory requirements relevant to a certifier's duty to issue a CDC subject to specific conditions not being complied with (as set out in paragraphs 5.2, 5.3 and 5.4 of this Statement), on 14 October 2016 Mr Freixas issued CDC no. 16/0434-01. 1. The Reasons contain the following reasons for decision (italics in the original): 11.22 Mr Freixas made a written submission to the Board in response to complaint investigation, however the submissions fail to clarify why the CDC was issued with conditions in the manner that does not accord with the legislation. 11.23 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to issue the CDC in form required by the legislation. Mr Freixas' submissions do not provide a reasonable explanation for these errors and omissions. The statutory requirements in regard to applying conditions to a CDC are not difficult for a competent A1 accredited certifier to apply. Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. This includes ensuring that the information included in any CDC they issue is complete, correct and is not likely to mislead or confuse i.e. that they would not issue a CDC with conditions that were not in accordance with the statutory requirements. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including endorsed plans) forms part of the framework of public accountability within which accredited certifiers operate i.e. a copy is required to be given to the local council for their information/records and to make it available for public viewing, including by nearby residents and future owners. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.24 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act. Relevant further material 1. CDC no. 16/0434-01 specified "Attachments" which included "Prescribed conditions" and the Graham report. 2. The attached "Prescribed conditions": 1. relevantly provided: Prescribed Conditions of Complying Development Certificate This Complying Development Certificate has been issued subject to compliance with the following conditions which are required to be complied with under Division 2A of the Environmental Planning & Assessment Regulation 2000. … f) Construction or demolition works may only be carried out between 7.00am and 5.00pm on Monday to Saturday and no construction is permitted on a Sunday or Public Holidays. g) Written notice to be provided to the adjoining property owners within 20m radius for Residential work in accordance with the EP & A Regulations 2000. h) Compliance with conditions specified in Planning Report prepared by R.J. Graham & Associates Pty Ltd dated 02109/2016. 1. relevantly included the text of cl 136E of the EPA Regulation; 2. set out the text of Schedule 6 of the Codes SEPP as it was in force at the time of the conduct constituting the Complaint which dealt with conditions applying to complying development certificates under the General Housing Code and the Rural Housing Code. 1. The Graham report relevantly provided: Conditions applicable to this development … 3 An additional 25m2 of landscaped space is to be provided at the rear of the dwelling. This space is not to be covered with impermeable surfaces such as concrete, decking or other paving materials. The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly asserted that: 1. section 85A(6)(a) of the EPA Act does not preclude an accredited certifier from adding further conditions to the extent required by the EPA Regulation, the EPA Act, an environmental planning instrument or a development control plan; 2. the condition in cl 136H of the EPA Regulation relating to shoring and adequacy of adjoining property was not included in the CDC as the development did not involve an excavation that extended below the level of the base of the footings of a building, structure or work on adjoining land; 3. the condition in cl 136M of the EPA Regulation relating to payment of security was omitted by over sight; 4. the failure to fully set out the text of cl 136AB of the EPA Regulation was an oversight; 5. condition (h) of the prescribed conditions was necessary to ensure the development met the minimum landscaped area requirement; 6. the failure to fully set out the text of cl 136E of the EPA Regulation and the incorrect reference to the Occupational Health and Safety Regulation 2001 was an error. The oral evidence 1. In his oral evidence, Mr Freixas was relevantly cross-examined and then re-examined about the retaining wall depicted on the structural drawings. He said that retaining wall was constructed along the north east boundary of the property. The submissions of the applicant Written submissions 1. The applicant made the following written submissions: 1. as to the condition in cl 136AB of the EPA Regulation, part of this condition in paragraph (g) of the prescribed conditions was omitted by oversight; 2. as to the condition in cl 136E of the EPA Regulation, part of this condition was omitted by oversight and the incorrect reference to cl 318 the Occupational Health and Safety Regulation 2001 was of no consequence as the current cl 458 of the Work Health and Safety Regulation 2011 is in almost identical terms; 3. as to the condition in cl 136H of the EPA Regulation, this condition was not included in the CDC as the development did not involve the relevant type of excavation; 4. as to the condition in cl 136M of the EPA Regulation, this condition was omitted by oversight; 5. as to paragraph (f) of the prescribed conditions, this paragraph reflects condition 7 of Schedule 6 of the Codes SEPP, which is a prescribed condition; 6. as to paragraph (h) of the prescribed conditions, this paragraph incorporated condition 3 of the Graham report which ensured the development would comply with the relevant development standard/s relating to the landscaped area. Section 85A(6)(a) of the EPA Act does not preclude an accredited certifier from adding further conditions to the extent required by the EPA Regulation, the EPA Act, an environmental planning instrument or a development control plan. Oral submissions 1. The applicant made the following oral submissions: 1. as to the condition in cl 136AB of the EPA Regulation, paragraph (g) of the prescribed conditions substantially complied with this condition; 2. as to the condition in cl 136E of the EPA Regulation, cl 318 the Occupational Health and Safety Regulation 2001 is in identical terms to cl 458 of the Work Health and Safety Regulation 2011; 3. as to the condition in cl 136H of the EPA Regulation, the Reasons contain the following finding: 2.2 A site visit carried out by a Board officer on 30 May 2017 found there was no excavation over 1 metre high, no new boundary fence erected and that the site was secured from the street by a metal fence and gate. 1. as to the condition in cl 136M of the EPA Regulation, this condition was omitted by oversight; 2. as to paragraph (f) of the prescribed conditions, this paragraph reflects condition 7 of Schedule 6 of the Codes SEPP, which is a prescribed condition; 3. as to paragraph (h) of the prescribed conditions, this was necessary to ensure compliance with cl 3.24 of the Codes SEPP. The applicant had power to impose this condition. The submissions of the respondent Written submissions 1. The respondent made the following written submissions: 1. as to the condition in cl 136AB of the EPA Regulation, the applicant did not exercise reasonable care, attention and standard of competency in omitting part of this condition in paragraph (g) of the prescribed conditions; 2. as to the condition in cl 136E of the EPA Regulation, the applicant did not exercise reasonable care, attention and standard of competency in omitting part of this condition and by incorrectly referring to cl 318 the Occupational Health and Safety Regulation 2001; 3. as to the condition in cl 136H of the EPA Regulation, the proximity of building work to the boundary and the type of building works should have alerted the applicant to include the condition; 4. as to the condition in cl 136M of the EPA Regulation, the applicant did not exercise reasonable care, attention and standard of competency in omitting this condition; 5. as to paragraph (f) of the prescribed conditions, this paragraph reflects condition 7 of Schedule 6 of the Codes SEPP, which is a prescribed condition, the heading of the prescribed conditions relied upon Part 7 Division 2A of the EPA Regulation and not the Codes SEPP; 6. as to paragraph (h) of the prescribed conditions, this condition was not authorised under s 85A(6)(a) of the EPA Act. Oral submissions 1. The respondent made oral submissions which substantially repeated its written submissions. Applicable statutory provisions EPA Regulation 1. Part 7 Division 2A (cll 136A-136N) as it was in force at the time of the conduct constituting the Complaint dealt with the conditions of a complying development certificate. Clause 136AB dealt with notice to neighbours and relevantly provided: 136AB Notice to neighbours (1) A complying development certificate for development on land that is in a category 1 local government area and that is not in a residential release area and that involves: (a) a new building, or … must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days' notice in writing of the person's intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out. 1. Clause 136E dealt with a development involving bonded asbestos material and friable asbestos material, and relevantly provided: 136E Development involving bonded asbestos material and friable asbestos material (1) A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions: (a) work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 458 of the Work Health and Safety Regulation 2011, … (d) if the contract indicates that bonded asbestos material or friable asbestos material will be removed to a specified landfill site, the person having the benefit of the complying development certificate must give the principal certifying authority a copy of a receipt from the operator of the landfill site stating that all the asbestos material referred to in the contract has been received by the operator. 1. Clause 136H dealt with a condition relating to shoring and adequacy of adjoining property, and relevantly provided: 136H Condition relating to shoring and adequacy of adjoining property (1) A complying development certificate for development must be issued subject to a condition that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the certificate must at the person's own expense: (a) protect and support the building, structure or work from possible damage from the excavation, and (b) where necessary, underpin the building, structure or work to prevent any such damage. 1. Clause 136M dealt with a condition relating to payment of security. Codes SEPP 1. Part 1 Division 2 (cll 1.15-1.20) as it was in force at the time of the conduct constituting the Complaint dealt with exempt and complying development. Clause 1.18 dealt with the general requirements for complying development for the Codes SEPP, and relevantly provided: 1.18 General requirements for complying development for this Policy … (3) A complying development certificate for complying development under this Policy is subject to the conditions specified in this Policy in respect of that development. 1. Part 3 Division 2 Subdivision 4 (cll 3.24-3.25) as it was in force at the time of the conduct constituting the Complaint dealt with development standards relating to landscaping. Clause 3.24 dealt with the percentage of the area of the lot that must have a landscaped area. 2. Part 3 Division 3 (cll 3.37-3.38) as it was in force at the time of the conduct constituting the Complaint dealt with conditions applying to complying development certificates. Clause 3.37 dealt with the application of the conditions specified in Schedule 6, and provided: 3.37 Conditions specified in Schedule 6 apply A complying development certificate for development specified under this code must be issued subject to the conditions specified in Schedule 6. 1. Schedule 6 set out the conditions applying to complying development certificates under the General Housing Code and the Rural Housing Code, and relevantly provided: 7 Hours for construction Construction may only be carried out between 7.00 am and 5.00 pm on Monday to Saturday and no construction is to be carried out at any time on a Sunday or a public holiday. Consideration The condition in cl 136AB of the EPA Regulation 1. We are satisfied that the applicant failed to include the condition required by cl 136AB of the EPA Regulation. The failure to specify that at least 7 days' notice was required was a material omission that had the potential to cause detriment to affected neighbours. The condition in cl 136E of the EPA Regulation 1. We are satisfied that the applicant failed to include the condition required by cl 136E of the EPA Regulation. The failure to include the substance of cl 136E(1)(d) of the EPA Regulation was a material omission. In view of the similarity to cl 458 of the Work Health and Safety Regulation 2011, we are not satisfied that the incorrect reference to cl 318 the Occupational Health and Safety Regulation 2001 was a material error. The condition in cl 136H of the EPA Regulation 1. We are not satisfied that the applicant failed to include the condition required by cl 136H of the EPA Regulation as the architectural drawings did not indicate that the development involved an excavation that extended below the level of the base of the footings of a building, structure or work on the adjoining land. The condition in cl 136M of the EPA Regulation 1. We are satisfied that the applicant failed to include the condition required by cl 136M of the EPA Regulation. The condition in cl 7 of Sch 6 of the Codes SEPP 1. We are satisfied that the applicant included the condition specified in cl 7 of Sch 6 of the Codes SEPP through paragraph (f) of the prescribed conditions. The failure to reference cl 1.18 of the Codes SEPP as a provision mandating relevant conditions was a material omission. The incorporated condition 3 of the Graham report 1. We are not satisfied that the applicant was authorised to include this condition. Section 85A(6)(a) of the EPA Act on its proper construction only empowers an accredited certifier to issue a complying development certificate subject to conditions an conditions to the extent required by the EPA Regulation, the EPA Act, an environmental planning instrument or a development control plan. Clause 3.24 of the Codes SEPP is a development standard relating to landscaping, and not a condition required by the Codes SEPP. Conclusion 1. We find that Complaint no 25/17 - Additional Matter C is established by reason that the applicant issued the CDC without it being made subject to the conditions specified under Division 2A of the of the EPA Regulation, and with it including an unauthorised condition. Whether Complaint no 43/17 - Additional Matter A is established The Reasons 1. The Reasons contain the following findings (bold text and italics in the original): 6.0 ADDITIONAL MATTER A (Complaint no. 43/17) Construction certificate (CC) no. 15/0578-01 dated 1 July 2016 and the related application viz., the certifier's conduct related to 'not inconsistent with the development consent' per clause 145(1)(a) of the EP&A Regulation and issuing the CC. FINDINGS ON MATERIAL QUESTIONS OF FACT 6.1 On 28 September 2005 the Land and Environment Court issued development consent (DA) for a proposed part 8-storey and part 11-storey residential flat building (RFB) at 13-15 Bigge Street and 2 Lachlan Street, Liverpool. On 13 May 2016 a s.96 modified DA was issued by Liverpool City Council 6.2 On 1 July 2016, Mr Freixas issued CC no. 15/0578-01. Under the CC's 'Description of Building Works' Mr Freixas stated: Erection of a part eight storey and part fourteen storey residential flat building containing 123 units and basement carparking for 156 car spaces. - CC1: Bulk excavation, shoring, piling, & structural building works up to and including roof slab. 6.3 Under clause 145(1)(a) of the EP&A Regulation a 'certifying authority must not issue a construction certificate for building work' unless the design and construction of the building (as depicted in the plans and specifications) is 'not inconsistent with the DA. 6.4 The modified DA's plans showed the RFB having a setback of approximately 6 metres between its western external wall and the western boundary. Apart from the basement vehicle driveway entry and adjacent low level garden walls, there was no structure proposed to be built within the 6m side setback area. In variation to the modified DA's plans described above, on the CC plans a columns and ring beam structure had been added to the side of the building within the 6m open setback space and over the driveway entry. The structure is at least 3.6m high, 10m long and extends to within 1.2m from the western boundary. The supporting columns are approximately 960mm wide. 6.5 The modified DA's conditions did not require, contemplate nor authorise the addition of the columns and ring beam structure to the building's design in the CC plans i.e. per clause 146(c) of the EP&A Regulation or otherwise. Condition 1 of the modified DA stated that the development 'must be carried out strictly in accordance with' the listed plans. Condition 24 is a general statement requiring the development to comply with the BCA. Condition 99 is a general planning outcome requirement for the development to maintain specified minimum floor to ceiling heights. The conditions do not refer to the CC application and are not pre conditions of the kind referred to in clause 146(c) of the EP&A Regulation. Clause 145(1)(a) does not provide that a certifier may issue a CC if they are satisfied the requirements have been met. Amendments made in 2007 removed from clause 145(1)(a) a certifier's subjective assessment in determining CC applications and issuing CCs. The amendments ensure that certifiers are subject to an objective standard in issuing certificates. 6.6 The Board and the Department of Planning and Environment (DPE) have issued extensive advice to certifiers extending over a long period of years in regard to their assessment of CC applications and what variations to an DA approved building would be regarded as being inconsistent for the purposes clause 145(1)(a) of the EP&A Regulation. That advice has remained available to certifiers on the Board's website, including: a) The BPBulletin issue 8 - December 2006 provided under the title "The meaning of 'not inconsistent with' the development consent" that altering the external envelope would be considered to be changes inconsistent with the DA. The same Bulletin also advised certifiers that changes to address the BCA were generally only acceptable when within the building i.e. 'additional details to show compliance with the BCA, generally within the external envelope of the building'. b) The BPBulletin issue 4 - December 2005 brought to the attention of certifiers, in regard to their assessment of CC applications and clause 145(1)(a) of the EP&A Regulation, that they could be found guilty of unsatisfactory professional conduct or professional misconduct despite there being no specific breach of the EP&A Act viz., subsection (a) of the definition of 'unsatisfactory professional conduct' under section 19(1) of the BP Act. 6.7 The addition of the columns and ring beam structure altered the appearance of the external envelope of the proposed RFB within the open setback space between the subject RFB and the RFB on the adjoining property. The structure is visible to the occupants of the units of the adjacent RFB and from the footpath and roadway of the street. At pedestrian level the structure adds bulk to the appearance of the building and is above head height. The variation was readily discernible to a competent A1 accredited certifier carrying out an assessment of the application and falls within the examples given by the Board of what would be considered to be changes inconsistent with the DA and condition 1 of the subject DA. 1. The Reasons contain the following reasons for decision (italics in the original): 12.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. 12.2 Mr Freixas' submission that the Board has erroneously sought to impose an objective standard with respect to the subjective exercise of discretion of an accredited certifier assessing a CC application is not accepted. Whether the certifier was satisfied in their own mind that there was no inconsistency is not a requirement of clause 145(1)(a) and has never been a requirement during the time that Mr Freixas has been an accredited certifier i.e. the clause was amended on 20 July 2007 to delete the words 'unless it is satisfied' (i.e. 'it' being the certifier) in regard to the issuing of a CC. The same change was also made to section 109F(1)(a) of the EP&A Act. These amendments replaced the certifier's making of a subjective assessment. 12.3 Mr Freixas' submissions that the subject variations to the building were made 'to meet an otherwise flawed engineering design and to avoid the alternate option which was to increase the height of the building' are on their face accepted. 12.4 Mr Freixas' submissions that he made an assessment of the columns and beam structure as to BCA (structural design) compliance and whether the proposed building work was not inconsistent with the DA are on their face accepted. 12.5 Mr Freixas' submission is not accepted that as a consequence of the structural design and construction safety considerations, together with ensuring the height of the building was not increased and compliance with the BCA was met, as an accredited certifier assessing the CC application he could put aside the requirements of condition 1 of the DA and that he was acting within the EP&A Regulation and the Board's advice (which both recognise that variations in the CC plans may occur). It is not disputed that the CC application plans must comply with the BCA, but this does not mean that design changes made to address BCA compliance can be accepted without regard to the DA and the legislation i.e. any design changes made to the building to resolve the structural design difficulties contained in the DA approved building and its plans continue to need to fit within the limitations of condition 1 of the DA and clause 145(1)(a) of the EP&A Regulation. An obligation for an applicant to comply with clause 145(1 )(b) of the EP&A Regulation does not give the designer and/or certifier free latitude to put aside the requirements of clause 145(1)(a). Mr Freixas' statutory role as a certifying authority assessing the application was to determine if compliance with clause 145(1)(a) of the EP&A Regulation had been met or not. Any failure realised in the structural design of the building that necessitates changes to the proposed building approved by the DA cannot be construed as an authority to vary or negate the need for the CC to comply with condition 1 and clause 145(1)(a) of the EP&A Regulation. It is also not accepted that the variations fall within the DA under conditions 24 and/or 99 (as detailed in paragraph 2.5 of the complaint investigation report). That the proposed building could not evidently be constructed 'strictly' in accordance with the DA does not mean the certifier can put aside that condition 1 could not be complied with. When Council imposed the condition, it assumed that any certifier assessing a CC application would have due regard to the requirements of the condition, as well as the requirements under the EP&A Regulation for a CC application to be not inconsistent with the DA. A proposed building that does not comply with the specifically stated terms of a DA condition concerning the design of the building is self-evidently inconsistent with the DA. 12.6 Having regard to the Statement's 'Findings on Material Questions of Fact' for this matter, the published advice by the Board and DPE to certifiers (paragraph 6.6 of this Statement), DA condition 1, clause 145(1)(a) of the EP&A Regulation and the nature, extent and location of the concrete structure addition included in the CC plans (i.e. within the side setback and outside of the external envelope of proposed building), it is not considered that it was reasonable for Mr Freixas to have determined that the proposed building was not inconsistent with the DA. 12.7 The EP&A Act explicitly allows for anomalies or errors or contradictions within a DA and its approved plans to be rectified through a modification of the DA under section 96 of that Act. It is not the certifier's role as a public official to sanction the resolution of a DA approved building's structural design difficulties by approving a CC that depicts a significant addition to the external envelope of the building directly adjacent to the street frontage and the neighbouring property and contrary to DA condition 1 i.e. as it is not consistent with the DA. It is also noted that the DA in this matter was considered and determined by the Land and Environment Court. 12.8 Mr Freixas' submission that the Council's purported subsequent acceptance of the variation in the CC is a relevant consideration or a justification for his conduct is not accepted. The investigation of the complaint relates to the certifier's conduct at the time of issuing the CC. A council deciding to raise no issue or take no action after a CC has been issued and the subject work has been largely built is not evidence of how it may have viewed the same matter beforehand. The Council's action or acceptance of the matter does not ameliorate Mr Freixas' conduct in assessing the CC application that is the subject of the complaint (and additional matter). 12.9 The proposed development involved was significant, being a $34,940,000 multi-storey residential building. Mr Freixas' submissions in effect demonstrate that rather than carrying out the public official role which required him to make an objective test of the application's plans and specifications, which should have resulted in his not issuing the CC, he instead made a subjective assessment that facilitated the goals of the developer by deciding the DA, the EP&A Regulation and the Board's advice was to be read in a way that it allowed the issuing of the CC with a significant addition to the external envelope of the building. By issuing the CC the Council (its officers and councillors), the neighbouring property owners and (potentially) the Land and Environment Court were not given an opportunity to consider the proposed modifications to the building's design. 12.10 The benchmark in the BP Act for the acceptable standard of professional conduct is the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under clause 145(1)(a) of the EP&A Regulation that the design and construction of the building (as depicted in the plans and specifications) was not inconsistent with the DA. It is not considered that an informed member of the public, cognisant of the public official role held by certifiers, would conclude that Mr Freixas' submitted rationale for issuing the CC was an understandable and appropriate alternative view of the DA, the statutory requirements and the Board's advice to certifiers. An accredited certifier who exercises a discretionary power (i.e. to issue a CC) in the circumstances detailed in the Statement's 'Findings on Material Questions of Fact for this matter, and paragraphs 12.2 to 12.9 of this Statement, is contrary to Requirement 1 ('Acting in the public interest') of the Code of Conduct viz., 'An accredited certifier shall carry out his or her functions and duties, and exercise any discretionary powers, in ways that promote or preserve the public interest'. Accordingly, Mr Freixas failed to comply Requirement 1 of the Code of Conduct. 12.11 A member of the public is entitled to expect an accredited certifier would not have issued the CC in the circumstances (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier and with the Code of Conduct, falls within 'unsatisfactory professional conduct as defined in subsections (a) and (g) of section 19(1) of the BP Act. Relevant further material 1. The modified DA included the following conditions: Conditions of development consent … A OPERATIONAL MATTERS … 1. Development the subject of this determination notice must be carried out strictly in accordance with the accompanying plans and documents as follows: … … Except where modified by the undermentioned conditions. DESIGN OF THE DEVELOPMENT 11. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans. 12. Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by this consent and any ancillary works necessary to make [the} construction effective. … BUILDING WORKS AND BUILDING DESIGN 24 All aspects of construction shall comply with the applicable Performance Requirements of the Building Code of Australia…. … GENERAL 99. The development shall maintain a 2.7m floor to ceiling height for all residential units throughout the development and 3.6m for ground floor units. The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly gave an explanation as the circumstances of the addition of the columns and ring beam structure to the building. The oral evidence 1. In his oral evidence, Mr Freixas in cross-examination said he could determine the ceiling heights by reference to the RL (Relative Level) shown on the architectural plans. The submissions of the applicant Written submissions 1. The applicant made the written submission that the design and construction of the building (as depicted in the plans and specifications of the First CC application) were not inconsistent with the Modified DA. Oral submissions 1. The applicant made detailed oral submissions by reference to features depicted in the architectural drawings that the addition of the columns and ring beam structure to the building was not inconsistent with the Modified DA. These features included the addition of two columns to a building which has 35 columns, the limited visibility of the structure, the consistency between the colour of the structure and part of the external façade of the building, the structural reasons for the addition of the structure, and the set back of the structure from the street. The submissions of the respondent Written submissions 1. The respondent made the written submission that It was not reasonable for the applicant to determine that the proposed building was not inconsistent with the Modified DA. The addition of the columns and ring beam structure to the building changed the development. Oral submissions 1. The respondent made oral submissions which substantially repeated its written submissions. The respondent did not respond to our invitation to address the features depicted in the architectural drawings which the applicant submitted demonstrated that the addition of the columns and ring beam structure was not inconsistent with the Modified DA. Applicable statutory provisions EPA Act 1. Part 4 Division 2 (ss 77-83) as it was in force at the time of the conduct constituting the Complaint dealt with the procedures for a development that needs consent. Section 81A dealt with the effects of development consents and commencement of development, and relevantly provided: 81A Effects of development consents and commencement of development … (5) Regulations may provide for the issue of certificates The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land. 1. Part 4A Division 1 (ss 109C-109Q) as it was in force at the time of the conduct constituting the Complaint dealt with certification of work and other matters. Section 109F dealt with restriction on issue of construction certificates, and relevantly provided: 109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A (5) have been complied with, and EPA Regulation 1. Part 8 Division 2 (cll 139-148) of the EPA Regulation as it was in force at the time of the conduct constituting the Complaint dealt with construction certificates. Clause 145 dealt with compliance with development consent and Building Code of Australia, and relevantly provided: 145 Compliance with development consent and Building Code of Australia (cf clause 79G of EP&A Regulation 1994) (1) A certifying authority must not issue a construction certificate for building work unless: … (a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and Applicable legal principles 1. In Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 at [147]-[148] Sackville AJA (McColl JA at [1] and Barrett JA at [2] agreeing) relevantly made the following observations with respect to the constructions and application of cl 145(1)(a) of the EPA Regulation: 147 The ordinary meaning of "inconsistent" includes "lacking in harmony between different parts or elements" or "self-contradictory" (Macquarie Dictionary); "discrepancy" or "incongruity" (Shorter Oxford English Dictionary). There is no reason to think that the expression "not inconsistent" is used in anything other than its ordinary meaning …. On this basis, his Honour should have directed attention to whether the two sets of specifications were inconsistent, in the sense of lacking harmony between different elements or lacking congruity. 148 No doubt this is not a straightforward task. Not every difference between the DA and the plans and specifications furnished to the certifying authority and approved in the CCs amounts to an 4 in the relevant sense. … a difference does not necessarily constitute an inconsistency. Some adjustment to approved plans and specifications … may be inevitable in a large and complex project…. 1. A proposed condition of a development modification "That the development be strictly in accordance with the following drawing numbers …." was held to be inconsistent with the flexibility conferred by cl 145 of the EPA Regulation, under which final construction drawings commonly introduce minor changes to approved DA plans which have no impacts on the critical aspects of the approved development: Staldone Corporation Pty Ltd v Lane Cove Council [2016] NSWLEC 1261 at [23]-[26]. Consideration Whether there is inconsistency between the Modified DA and the design and construction of the building 1. We are satisfied that there is no inconsistency within cl 145(1)(a) between the design and construction of the building and the Modified DA. The addition of the columns and ring beam structure did not result in a lack harmony between that structure and other elements of the building or the building as a whole lacking congruity. This additional structure was relatively small in comparison to the building as a whole, consistent with the design of the building, and not all that obvious from the street. 2. There was no such inconsistency occasioned by the terms of condition 1 of the Modified DA. This condition when interpreted against the background EPA Act and cl 145(1)(a) of the EPA Regulation and the terms of condition 11 which required generally consistency (in terms of site layout, site levels, building location, size, external configuration and appearance) between any construction certificate and the Modified DA should not be construed as prohibiting any change of design, but rather as requiring consistency in any change of design. 3. It follows that we disagree with the reasoning of the respondent in cl 12.5 of the Reasons which is based on a misinterpretation of both condition 1 of the Modified DA and cl 145(1)(a) of the EPA Regulation. Conclusion 1. We find that the applicant in issuing the CC did not fail to comply with his statutory duty under cl 145(1)(a) of the EPA Regulation, and accordingly that Complaint no 43/17 - Additional Matter A is not established. Whether Complaint no 43/17 - Matter 1 is established The Reasons 1. The Reasons contain the following findings (bold text and italics in the original): 7.0 MATTER 1 (Complaint no. 43/17) Mr Freixas issued construction certificate no. 15/0578-02 dated 24 March 2017 with plans that were inconsistent with the development consent viz., columns and beam structure added to the western side of the building over the basement carpark entry/exit driveway. FINDINGS ON MATERIAL QUESTIONS OF FACT 7.1 CC no. 15/0578-02 dated 24 March 2017 was issued by Mr Freixas for 'CC2: Remainder of building works' for a proposed RFB. The CC plans (floor plans and elevations) endorsed by Mr Freixas under CC no. 15/0578-02 depict the columns and beam structure that was authorised under CC no. 15/0578-01 i.e. refer to Additional Matter A of this Statement. 7.2 The 'Findings On Material Questions Of Fact' in regard to Additional Matter A are also applicable to Matter 1. 1. The Reasons contain the following reasons for decision (italics in the original): 12.12 Comments (reasons) above in regard to Additional Matter A are also applicable to Matter 1. 12.13 A member of the public is entitled to expect an accredited certifier would not have issued the CC in the circumstances (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a) and (g) of section 19(1) of the BP Act. Consideration 1. We find that Complaint no 43/17 - Matter 1 is substantially the same complaint as Complaint no 43/17 - Additional Matter A, and for the same reasons as that Complaint is not established. Whether Complaint no 66/17 - Matter 1 is established The Reasons 1. The Reasons contain the following findings (bold text, underlining and italics in the original): 8.0 MATTER 1 (Complaint no. 66/17) Mr Freixas' issuing of complying development certificate (CDC) no. 16/0627-01 for building work without adequate plans and specifications in regard to the Building Code of Australia (BCA). FINDINGS ON MATERIAL QUESTIONS OF FACT 8.1 On 10 February 2017, Mr Freixas issued CDC no. 16/0627-01 for the proposed 'Erection of new industrial building (warehouse) and associate parking' at 21 Lamb Street, Glendenning. The classifications under the Building Code of Australia (BCA) stated on the CC were 'Class 5&7'. The plans (comprising six sheets) endorsed by Mr Freixas with the CDC depict a proposed industrial warehouse building and associated office. The warehouse part is single storey and the office part two storeys connected by a stair and lift. The total floor area of the building is approximately 1750m2 and the overall height is approximately 9.6m. 8.2 The CDC included a statement above Mr Freixas' signature verifying that the 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 CDC (noting that the actual wording used by Mr Freixas on the CDC erroneously corresponds with that required for a construction certificate i.e. clause 134(1)(e) of the EP&A Regulation). 8.3 Under clause 130(1) of the EP&A Regulation a 'certifying authority must not issue a complying development certificate for building work' unless the proposed building will comply with the relevant requirements of the BCA. Clause 1.18(1) of the Codes SEPP also requires that for a development to be complying development it 'must' meet the relevant provisions of the BCA. Clause 126(1)(a) and Clause 4 of Schedule 1 of the EP&A Regulation require that an application for a CDC must be accompanied by appropriate building work plans and specifications. 8.4 To enable an accredited certifier to determine that a proposal will comply with the BCA, the applicant must provide sufficient information to demonstrate the intent to comply. The proposed building, as depicted in the CDC's endorsed plans and specifications, did not demonstrate that it will comply with the relevant requirements of the BCA as: a) Structural Design / Section B of the BCA. There are no details or other information on the CDC plans regarding the design, materials or intended method of compliance for the structural elements of the proposed building. The CDC 'Attachments' do not identify any structural engineer's drawings, nor any design certificate or other evidence relied upon to assess whether the structural provisions of the BCA would be met. b) Emergency egress / D1.4 of the BCA. The first floor plan indicates a travel distance on the first floor office area greater than 20m to the single exit, being the internal stairway. In the absence of a specified travel distance on the plans, the travel distance from the south east corner of the first floor office to the nearest part of the stair riser scales to approximately 27m, in contravention of the maximum 20m permitted by D1.4. There is no concession in D1.4 for the first floor level of a class 5 building. c) Access for people with a disability / Part D3 of the BCA. There are no details or information as to how access for people with a disability will be provided to and within all areas of the building normally used by the occupants, such as a lack of details, design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities. That the plans depict a lift serving the first floor does not in itself demonstrate the intended means of compliance with the full requirements of Part D3 of the BCA. d) Fire fighting eguipment & emergency lighting / Section E of the BCA. The CDC plans do not indicate any fire safety systems for the proposed building. The building at minimum requires: (i) a fire hydrant system, (ii) fire hose reel system, (iii) portable fire extinguishers, and (iv) emergency lighting and exit signs. e) Energy efficiency / Section J of the BCA. There are no details or other information on the CDC plans regarding the design, materials and/or features to be implemented to satisfy the energy efficiency provisions of the BCA. f) General BCA compliance. There is no specification or other documents included with the CDC that describes the construction and materials of which the building is to be built. The CDC plans include only limited information regarding some of the proposed building materials. As a result, the application did not have sufficient information for Mr Freixas to have determined that the proposed building will comply with the relevant requirements of the BCA. Moreover, the CDC application's plans included such limited information that no reasonable determination the proposed building would comply with the BCA could be made i.e. how the building will comply with the health, safety, amenity and fire safety aspects of the BCA. 8.5 Despite the proposed development not complying with the development standards and the EP&A Regulation (as set out in paragraphs 8.3 and 8.4 of this Statement), Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 10 February 2017 he issued CDC no. 16/0627-01. By issuing the CDC, Mr Freixas contravened clause 130(1) of the EP&A Regulation. By issuing the CDC with a false and misleading statement Mr Freixas also contravened section 85(1)(b) of the BP Act. 1. The Reasons contain the following reasons for decision (italics in the original): 13.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. 13.2 Mr Freixas in his submissions stated that the building is 'Class 5 & Class 7'. On the CDC he stated the BCA classes were 'Class 5 & 7'. His submissions are contrary to the BCA i.e. under 'A3.2 Classifications' of the BCA there is no provision to give a classification of 'class 7'. A building must be either class 7a and/or class 7b. 13.3 Mr Freixas in his submissions contended that the CDC plans did comply with the BCA. In support he provided an assessment report, stated that he possesses a structural engineer's design statement, stated that the EP&A Act does not require a specification for an industrial building, that he issued a fire safety schedule and advised that 'The building is not a warehouse but a hardstand for trucks'. These submissions by Mr Freixas are not accepted as: (i) He has not in his response sufficiently established how the CDC plans properly addressed each of the BCA compliance requirements in paragraphs 1.6 a) - f) of the complaint investigation report. (ii) That he prepared an assessment report and a fire safety schedule does not resolve the omissions and errors in the CDC plans. (iii) The CDC does not reference or include an engineer's design statement, nor has he provided the Board with a copy of the statement. (iv) His submissions contradict the description of works that he stated on the CDC i.e. the 'Erection of new industrial building (warehouse)...' The CDC plans depict a building that could be properly characterised as a warehouse. His submissions elsewhere describe the proposal as an 'industrial building'. (v) Clauses 4(1)(d)(ii) and 5(b) of Schedule 1, and clause 126(1)(a) of the EP&A Regulation require an application for a CDC to include specifications for a proposed building. (vi) The CDC plans failed to include any details of the proposed means of compliance with the fire safety systems for the proposed building. The building at minimum requires under the BCA a fire hydrant system, fire hose reel system, portable fire extinguishers, emergency lighting and exit signs. These are each independently and collectively vital life safety measures required to be assessed by the certifier to ensure the CDC application includes the required level of information to demonstrate compliance with the BCA. (vii) His contention that the items in (v) above were addressed by his preparation of a fire safety schedule is not accepted. The Board published advice to certifiers in May 2016 that 'Certifiers are responsible for preparing the fire safety schedule but can't use it as evidence to determine a CC (or CDC). Preparing the schedule is a separate task to determining the application.' http://bpb.nsw.gov.au/case-studies/fire-safety-schedule-isnt-evidence-determine-cc-or-cdc (viii) The travel distance concession in D1.4 of the BCA only applies to a Class 5 or 6 building at the level of the road or open space i.e. the first floor of the subject building does not benefit from this concession. (ix) His submissions claim that the provision of a lift between the building's two floor levels is sufficient to address the BCA requirements of Part D3 of the BCA. The presence of a lift on a plan does not give details or information as to how access for people with a disability will be provided to and within all areas of the building normally used by the occupants i.e. design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities. (x) His submissions in regard to the requirements of Section J of the BCA extend no further than identifying the part of the proposed building it is relevant to. No evidence has been provided to show how the CDC demonstrated the building complied with Section J. (xi) His submissions state that he had not provided comments about the BCA matters as he had not been provided with a copy of the complaint investigation report on 21 August 2017. The is illogical as it is the date that the Board provided Mr Friexas with a copy of the complaint and invited him to make submissions. It is clear in items 3, 4 and 5 of the statutory declaration accompanying the complaint that it concerned particular BCA non-compliance issues. Mr Freixas subsequently made no submissions in regard to these matters. (xii) Mr Freixas stated in his submissions that 'It is of my opinion that the 1.18(1) of the Codes SEPP because it does comply with the requirements of the NCC' (BCA). This is not accepted as they do not correspond with his statutory duty given the related requirements for CDCs and the BCA under clause 130(1) of the EP&A Regulation. Whether the certifier's opinion was that the CDC plans and specifications comply with the requirements of clause 130(1) of the EP&A Regulation has never been a requirement during the time that Mr Freixas has been an accredited certifier i.e. the clause was amended on 20 July 2007 to delete the words 'unless it is satisfied' (i.e. 'it' being the certifier) in regard to the issuing of a CDC. This amendment replaced certifiers making of a subjective assessment with an objective test that calls for a finding of fact as to whether the building proposed by the CDC application will comply with the relevant requirements of the BCA. (xiii) His submissions fail to provide any coherent explanation in regard to his including on the CDC a statement related to construction certificates instead of that required for a CDC by clause 134(1)(e) of the EP&A Regulation i.e. verifying that the 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 CDC. 13.4 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development would comply with the BCA. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards i.e. clause 1.18(1) of the Codes SEPP. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined that the requirements of clauses 126(1 )(a) and 130(1) of the EP&A Regulation had been met. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. The proposed development involved was a $400,000 industrial building with a total floor area of approximately 1750m2, and the overall height is approximately 9.6m, with the warehouse part single storey and the office part two storeys connected by a stair and lift. The CDC was issued without details demonstrating that and how the applicant intended to provide the BCA required fire hydrant system, fire hose reel system, portable fire extinguishers, emergency lighting and exit signs. Mr Freixas' submissions in effect demonstrate that rather than carrying out the public official role which required him to make an objective test of the application's plans and specifications for compliance with the BCA, which should have resulted in his not issuing the CDC, he instead made a subjective assessment of what at best were rudimentary plans. That the CDC was surrendered by the applicant does not mitigate the certifier's conduct in issuing the CDC. Moreover, it serves to illustrate the inconvenience and harm that the certifier's actions have caused to their client and the Council. Any certificate that is issued that does not comply with legislative provisions exposes the certificate to challenge or declaration of invalidity, which may delay or jeopardise the development or use being carried out, or it may expose persons to potentially unsafe situations. 13.5 Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Requirement 1 ('Acting in the public interest') of the Code of Conduct requires that certifiers are to carry out their functions and duties, and exercise any discretionary powers, in ways that promote or preserve the public interest. This includes not authorising the commencement of the construction of buildings that if built in accordance with the CDC plans and specifications will not comply with the life safety and fire protection requirements of the BCA. Given the serious life safety and fire protection consequences (for the subject site and potentially neighbouring properties) that can follow if an approval is given by a CDC for a proposal that does not demonstrate how it will comply with the BCA, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 3.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work, and any person subsequently occupying or visiting the property, in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Accordingly, Mr Freixas failed to comply Requirements 1 and 5 of the Code of Conduct. 13.6 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had been contravened and/or not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a contravention of the BP Act and/or the EP&A Act (and the regulations thereunder), a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (b), (d) and (g) of section 19(1) of the BP Act. Relevant further material 1. CDC No. 16/0627-01 specified "Attachments" which included "Other documentation relied upon" and "Fire Safety Schedule". 2. The Fire Safety Schedule referred to cl 168 of the EPA Regulation, and relevantly provided: The following essential fire safety measures shall be implemented in the whole of the building premises and each of fire safety measures must satisfy the standard of performance listed in the schedule which, for the purposes of Clause 168 of the Environmental Planning and Assessment Regulation 2000, is deemed to be the current fire safety schedule for the building. 1. The schedule listed the following fire safety measures and applicable standard of performance: "Automatic Fire Detection and Alarm System"; "Emergency Lighting"; "Exit Signs"; "Fire Hydrant Systems"; "Fire Seals (protecting openings in fire resisting components of the building"; "Hose Reel System"; "Openings in Fire-isolated Lift Shafts"; "Portable Fire Extinguishers". 2. In a letter dated 8 February 2017 addressed "To whom it may concern" Boulos Haykal, a consultant engineer, certified he had designed the development to comply with Australian standards to "concrete, reinforced field, reinforced masonry to all of the Australian Standards" (the Haykal structural design certificate). 3. The applicant prepared a BCA Deemed-To-Satisfy Assessment dated 9 February 2017 which relevantly set out which sections of the BCA were applicable to the building (the BCA assessment). The evidence of the applicant The first Freixas statement 1. In the first Freixas statement, Mr Freixas relevantly: 1. asserted that the CDC complied with cl 134 of the EPA Regulation; 2. disputed the findings of the respondent that: 1. the CDC application did not have sufficient information for him to have determined that the proposed building would comply with the relevant requirements of the BCA; 2. the CDC application's plans included such limited information that no reasonable determination the proposed building would comply with the BCA could be made; 1. as to structural design, asserted that the other documentation relied upon included the Haykal structural design certificate, and that he understood that the EPA Regulation did not require the CDC to identify any structural engineer's drawings, design certificate or other evidence relied upon to assess whether the structural provisions of the BCA would be met; 2. as to emergency egress, accepted that the exit travel distance for the first-floor office exceeded the 20 metres permitted by Section D1.4 of the BCA, and asserted that this was to be solved by means of an alternative solution to be coordinated at a later stage as part of the services coordination for the proposed building; 3. as to access for people with a disability, accepted that some detail and information is not provided within the CDC documentation in respect of compliance with Section D3 of the BCA, and asserted that he was assured by the developer that compliant sanitary facilities would be installed; 4. as to fire-fighting equipment and emergency lighting, asserted that he issued the Fire Safety Schedule specifying the fire safety measures that should be implemented in the building, and that there is no requirement in the EPA Act or the EPA Regulation that requires the CDC endorsed plans to indicate the fire safety systems; 5. as to energy efficiency, accepted that that the CDC plans do not of themselves indicate the design, materials and/or features to be implemented to satisfy Section J of the BCA, and asserted that those provisions were assessed in the BCA assessment that formed part of the CDC. He was satisfied there would be compliance on the basis of discussions with the architect and the builder of which he had no written record; 6. as to general BCA compliance, asserted that the endorsed CDC plans clearly show that the building is to be built with concrete floors, concrete tilt up (wall) panels, concrete roof over office part, colorbond metal roof over the warehouse, aluminium framed windows, and 2H fire rated (internal) walls. The oral evidence 1. Mr Freixas gave no oral evidence in relation to this Complaint. The submissions of the applicant Written submissions 1. The applicant made the following written submissions: 1. as to the form of the CDC, the statement on the CDC sufficiently complied with cl 134(1)(e) of the EPA Regulation; 2. as to structural design, he was satisfied that the proposed building would comply with the structural design requirements of the BCA and Section B of the BCA; 3. as to emergency egress, an alternative solution to Section D1.4 of the BCA was required, but it never became necessary to determine the alternative solution; 4. as to access for people with a disability, he accepted that some detail and information was not provided within the CDC documentation. However, it is of little or no consequence as access for people with a disability is provided for; 5. as to fire-fighting equipment and emergency lighting, there was no requirement for CDC plans to indicate the lire safety systems for the proposed building. He issued the Fire Safety Schedule in which the measures were cross-referenced against BCA requirements. 6. as to energy efficiency, he accepted that the CDC plans do not of themselves, indicate design, materials and/or features to be implemented. However, Section J provisions were assessed in the BCA assessment; 7. as to general BCA compliance, the endorsed CDC plans show the material from which the building is to be built; 8. as to the BCA classification on the CDC, the classification of "Class 5 & 7" is correct in that the proposal includes a Class 7a and 7b building; 9. as to whether there was a failure to carry out a proper assessment of the submitted CDC application, the assessment was carried out to the best of his ability. If there was any non-compliance and lack of details, then they were insignificant to the assessment. Oral submissions 1. The applicant made oral submissions which substantially repeated his written submissions. The applicant conceded in relation to emergency egress that he did not prepare a written alternative solution. The submissions of the respondent Written submissions 1. The respondent made the following written submissions: 1. as to the form of the CDC, the statement on the CDC does not and could not satisfy cl 134(1)(e) of the EPA Regulation; 2. as to structural design, there was not sufficient information to determine compliance; 3. as to emergency egress, It does not meet with the deemed to satisfy performance requirements and if there is no alternate solution it does not comply with relevant requirements of BCA; 4. as to access for people with a disability, the applicant did not exercise reasonable care, attention and standard of competency; 5. as to fire-fighting equipment and emergency lighting, the report relied upon did not express compliance but rather methods to comply; 6. as to energy efficiency, the BCA assessment relied upon did not express compliance but rather methods to comply; 7. as to general BCA compliance, the materials nominated are insufficient and should not have been accepted; 8. as to the BCA classification on the CDC, Class 7a and 7b are separate classifications; 9. as to whether there was a failure to carry out a proper assessment of the submitted CDC application, no meaningful and proper assessment could have been carried out. Oral submissions 1. The respondent made oral submissions which substantially repeated its written submissions. Applicable statutory provisions EPA Regulation 1. Part 7 Division 1 (cll 125-129D) as it was in force at the time of the conduct constituting the Complaint dealt with applications for complying development certificates. Clause 126 dealt with the requirements for making an application for a complying development certificate, and relevantly provided: 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 1. Part 9 Division 2 (cll 168-168B) as it was in force at the time of the conduct constituting the Complaint dealt with fire safety schedules. Clause 168 dealt with fire safety schedules, and relevantly provided: 168 Fire safety schedules (cf clause 80C of EP&A Regulation 1994) (1) When: … (b) issuing a complying development certificate for the erection of a building or for a change of building use, or … the person doing so must issue a schedule (a fire safety schedule) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises. … (4) A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate. 1. Schedule 1 Part 2 (cll 3-4B) dealt with the form for complying development certificates. Clause 4 dealt with the documents to accompany an application for complying development certificate, and relevantly provided: 4 Documents to accompany application for complying development certificate (1) An application for a complying development certificate must be accompanied by the following documents: … (d) if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house): … (ii) appropriate building work plans and specifications, (e) if the development involves building work (other than work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house): … (ii) a list of the proposed fire safety measures to be provided in relation to the land and any building on the land as a consequence of the building work, … (5) Appropriate building work plans and specifications referred to in subclause (1)(d)(ii) include the following: … (b) specifications for the development: … (c) a statement as to how the performance requirements of the Building Code of Australia are to be complied with (if an alternative solution, to meet the performance requirements, is to be used), BCA 1. Section A2 dealt with the acceptance of design and construction, and relevantly provided: A2.1 Suitability of materials Every part of a building must be constructed in an appropriate manner to achieve the requirements of the BCA, using materials and construction being fit for the purpose for which they are intended including the provision of access for maintenance. A2.2 Evidence of suitability (a) Subject to A2.3 and A2.4, evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision may be in the form of one or a combination of the following: … (iii) A certificate from a professional engineer or other appropriately qualified person which— (A) certifies that a material, design, or form of construction complies with the requirements of the BCA; and (B) sets out the basis on which it is given and the extent to which relevant specifications, rules, codes of practice or other publications have been relied upon. … (vi) Any other form of documentary evidence that correctly describes the properties and performance of the material or form of construction and adequately demonstrates its suitability for use in the building. 1. Section A3 dealt with the classification of buildings and structures, and relevantly provided: A3.2 Classifications Buildings are classified as follows: … Class 5: an office building used for professional or commercial purposes, excluding buildings of Class 6, 7, 8 or 9. … Class 7: a building which is— (a) Class 7a — a carpark; or (b) Class 7b — for storage, or display of goods or produce for sale by wholesale. 1. Section B dealt with structural provisions, and relevantly set out performance requirements (BP1.1-BP1.4). 2. Section D dealt with access and egress, and relevantly provided that where a deemed-to-satisfy solution is proposed, performance requirements DP1 to DP6, DP8 and DP9 are satisfied by complying with: 1. D1.4 with respect to exit travel distances; 2. D3 which specified access for people with a disability. D3.1 to D3.12 deal with how access for people with a disability will be provided to and within all areas of the building normally used by the occupants, such as a lack of details, design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities. 1. Section E dealt with services and equipment, and relevantly provided that where a deemed-to-satisfy solution is proposed: 1. performance requirements EP1.1 to EP1.6 are satisfied by complying with: 1. E1.3 with respect to fire hydrants; 2. E1.4 with respect to fire hose reels; 3. E1.6 with respect to portable fire extinguishers; 1. performance requirements EP4.1 to EP4.3 are satisfied by complying with: 1. E4.1 to E4.4 with respect to emergency lighting requirements; 2. E4.5 with respect to exit signs. 1. Section F dealt with health and amenity, and relevantly provided performance requirements for damp and weatherproofing, sanitary and other facilities, room heights, light and ventilation, and sound transmission and insulation. 2. Section J dealt with energy efficiency, and relevantly provided that where a deemed-to-satisfy solution is proposed performance requirements JP1 to JP3 are satisfied by complying with specified provisions with respect to specified aspects of energy efficiency. Consideration The form of the CDC 1. The CDC did not contain a statement in terms of cl 134(1)(e) of the EPA Regulation. However, taking into account that the reference to s 85A(5) of the EPA Act was an obvious incorrect reference, the certificate with the CDC was a statement within cl 134(1)(e) of the EPA Regulation. BCA classification 1. We are satisfied that the applicant correctly classified the building as "Class 5 & 7". Class 7 will apply where there is a building which is either a carpark (Class 7a) or for storage, or display of goods or produce for sale by wholesale (Class 7b). Where the building is of either type it is correctly described as Class 7. Structural design 1. We are satisfied that the applicant could not have been reasonably satisfied on the basis of the Haykal structural design certificate that the proposed building would comply with the performance requirements in Section B of the BCA. The Haykal structural design certificate did not conform with Section A2.2(a)(iii) of the BCA as it did not refer to the BCA and set out the basis on which it was given and the extent to which relevant specifications, rules, codes of practice or other publications had been relied upon. Emergency egress 1. We are satisfied that the building did not comply with the deemed-to-satisfy performance requirements with respect to exit travel distances in Section D1.4 of the BCA. The application for the CDC did not comply with cl 126(1)(a) of the EPA Regulation when read with cll (1)(d)(ii) and (5)(c) of Sch 1 because it did not include a statement as to how the performance requirements in Section D of the BCA with respect to exit travel distances were to be complied with. It follows that the applicant could not have been reasonably satisfied that the proposed building would comply with these requirements of the BCA. Access for people with a disability 1. We are satisfied that the applicant could not have been reasonably satisfied that the proposed building would comply with the performance requirements for access for people with a disability in Section D3 of the BCA. The depiction of a lift in the plans serving the first floor only deals with some of the applicable requirements. Fire-fighting equipment and emergency lighting 1. We are satisfied that the applicant could not have been reasonably satisfied that the proposed building would comply with the performance requirements for fire-fighting equipment and emergency lighting in Sections E1 and E4 of the BCA. By attaching the Fire Safety Schedule to the CDC the applicant complied with cl 168 of the EPA Regulation. However, the applicant by preparing the Fire Safety Schedule could have had no satisfaction that the proposed building would comply with the applicable performance requirements when the documents he considered contained no reference to fire-fighting equipment and emergency lighting. Energy efficiency 1. We are satisfied that the applicant could not have been reasonably satisfied that the proposed building would comply with the performance requirements for energy efficiency in Section J of the BCA. The applicant by preparing the BCA assessment could have had no satisfaction that the proposed building would comply with the applicable performance requirements when the documents he considered contained no reference to the various elements of energy efficiency specified in Section J of the BCA. General BCA compliance 1. We are satisfied that the applicant could not have been reasonably satisfied that the proposed building would comply with Section A2.1 with respect to the suitability of materials. The approved plans included only limited information regarding some of the proposed building materials. Failure to carry out a proper assessment of the submitted CDC application 1. We are satisfied that the applicant could not have been reasonably satisfied that the proposed building would comply with the relevant requirements of the BCA. Not only were the deficiencies with respect to structural design, emergency egress, access for people with a disability, fire-fighting equipment and emergency lighting, energy efficiency, and the suitability of materials, there was also the failure to properly address the requirements of health and amenity in Section F of the BCA. It follows that the applicant failed to carry out a proper assessment of the submitted CDC application. Conclusion 1. We find that Complaint no 66/17 - Matter 1: 1. is established by reason that the applicant issued the CDC for building work without adequate plans and specifications in regard to the BCA; 2. is not established with respect to the BCA classification. Whether the conduct constituting the Complaints should be characterised as unsatisfactory professional conduct Introduction 1. In view of our findings with respect to Complaint no 43/17 - Additional Matter A and Complaint no 43/17 - Matter 1 we have not considered whether these Complaints should be characterised as unsatisfactory professional conduct. The Reasons 1. The respondent in the Reasons characterised the conduct constituting the Complaints in the following manner: 1. Complaint no 25/17 - Matter 1: within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct; 2. Complaint no 25/17 - Additional Matter A: within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct; 3. Complaint no 25/17 - Additional Matter B: within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct; 4. Complaint no 25/17 - Additional Matter C: within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct; 5. Complaint no 66/17 - Matter 1: within paragraphs (a), (b), (d) and (g) of the definition of unsatisfactory professional conduct. The submissions of the applicant Written submissions 1. The applicant made the following written submissions with respect to each of the Complaints on the question as to whether the conduct constituting the Complaint should be characterised as a failure to comply with the Code of Conduct, and as unsatisfactory professional conduct: 1. as to requirement 1 of the Code of Conduct, he carried out his functions and duties, and exercised his discretionary powers, as an accredited certifier in a way that promoted and preserved the public interest. 2. as to requirement 5 of the Code of Conduct, he exercised reasonable care and attention in carrying out his duties; 3. his conduct was not unsatisfactory professional conduct within s 19(1)(a), (b), (d) or (g) of the BP Act. Oral submissions 1. The applicant made oral submissions which substantially repeated his written submissions. He contended that an accredited certifier is not required to achieve a standard of perfection. The submissions of the respondent 1. The respondent made the following written submissions with respect to each of the Complaints on the question as to whether the conduct constituting the Complaint should be characterised as a failure to comply with the Code of Conduct, and as unsatisfactory professional conduct: 1. as to requirement 5 of the Code of Conduct, the applicant did not exercise reasonable care, attention and standard of competency; 2. the applicant's conduct was unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act, and additionally with s 19(1)(b) in the case of Complaint no 66/17. Oral submissions 1. The respondent made oral submissions which substantially repeated its written submissions. Applicable legal principles 1. Whether proved conduct is unsatisfactory professional conduct or misconduct is very much a matter of degree that will depend, amongst other things, on the character of what was done and the explanation for it: Dix v Building Professionals Board [2011] NSWSC 926 at [10]. Consideration Complaint no 25/17 - Matter 1 1. We are satisfied that the conduct constituting Complaint no 25/17 - Matter 1 is properly to be characterised as conduct within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct for the following reasons: 1. as to paragraph (a), the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. The issue of the CDC without compliance with the privacy requirements for the windows in bedrooms 2 and 5 and the rear balconies, and the size requirements for the rear terraces were obvious errors which a careful accredited certifier would not have made. The applicant did not provide any convincing explanation for his conduct. In particular, the events after the issue of the CDC relied upon by the applicant provide no answer to his failures with respect to its issue; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with his statutory duty under cl 130(1) of the EPA Regulation; 3. as to paragraph (g), for the same reasons with respect to paragraph (a) the applicant in issuing of the CDC failed to comply with requirement 5 of the Code of Conduct. Complaint no 25/17 - Additional Matter A 1. We are satisfied that the conduct constituting Complaint no 25/17 - Additional Matter A is properly to be characterised as conduct within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct for the following reasons: 1. as to paragraph (a), the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. The issue of the CDC without compliance with the requirements of the BCA for BCA classification, balustrades, a pool safety barrier, and general BCA compliance, were obvious errors which a careful accredited certifier would not have made. The applicant did not provide any convincing explanation for his conduct. In particular, the events after the issue of the CDC relied upon by the applicant provide no answer to his failures with respect to its issue; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with his statutory duty under cl 130(1) of the EPA Regulation; 3. as to paragraph (g), for the same reasons with respect to paragraph (a) the applicant in issuing of the CDC failed to comply with requirement 5 of the Code of Conduct. In so far as there was no compliance with the requirements of the BCA for balustrades and a pool safety barrier, the applicant in issuing of the CDC failed to comply with requirement 1 of the Code of Conduct as the safety of people was thereby compromised. Complaint no 25/17 - Additional Matter B 1. We are satisfied that the conduct constituting Complaint no 25/17 - Additional Matter B is properly to be characterised as conduct within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct for the following reasons: 1. as to paragraph (a), the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. The failure to endorse structural engineer's drawings and stormwater plans, and to include the correct BCA classification, were obvious errors which a careful accredited certifier would not have made. The applicant did not provide any convincing explanation for his conduct; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with his statutory duty under cll 130(3) and 134(1)(f) of the EPA Regulation; 3. as to paragraph (g), for the same reasons with respect to paragraph (a) the applicant in issuing of the CDC failed to comply with requirement 5 of the Code of Conduct. Complaint no 25/17 - Additional Matter C 1. We are satisfied that the conduct constituting Complaint no 25/17 - Additional Matter C is properly to be characterised as conduct within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct for the following reasons: 1. as to paragraph (a), the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. The omission of some conditions and the misstatement of other conditions specified under Division 2A of the EPA Regulation, and the inclusion of an unauthorised condition, were obvious errors which a careful accredited certifier would not have made. The applicant did not provide any convincing explanation for his conduct; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with his statutory duty under s 85A(6)(a) of the EPA Act and cl 134(1)(g) of the EPA Regulation; 3. as to paragraph (g), for the same reasons with respect to paragraph (a) the applicant in issuing of the CDC failed to comply with requirement 5 of the Code of Conduct. Complaint no 66/17 - Matter 1 1. We are satisfied that the conduct constituting Complaint no 66/17 is properly to be characterised as conduct within paragraphs (a), (d) and (g) of the definition of unsatisfactory professional conduct for the following reasons: 1. as to paragraph (a), the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. The issue of the CDC without compliance with the requirements of the BCA for structural design, emergency egress, access for people with a disability, fire-fighting equipment and emergency lighting, energy efficiency, the suitability of materials, and health and amenity, were obvious errors which a careful accredited certifier would not have made. The applicant did not provide any convincing explanation for his conduct. In particular, the intention of the applicant to subsequently address these requirements of the BCA provides no answer to his failure to address them at the time of the issue of the CDC; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with his statutory duty under cl 130(1) of the EPA Regulation; 3. as to paragraph (g), for the same reasons with respect to paragraph (a) the applicant in issuing of the CDC failed to comply with requirement 5 of the Code of Conduct. 1. We are not satisfied that the conduct constituting Complaint no 66/17 is properly to be characterised as conduct within paragraph (b) of the definition of unsatisfactory professional conduct as there was no applicable contravention by the applicant. The Reasons did not identify the contravention any statutory provision. Further, there is no offence under any statutory provision prohibiting an accredited certifier from issuing a complying development certificate where the decision is unreasonable. Conclusion 1. We find that the applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act. 2. It follows that there needs to be an administrative review of the action taken against the applicant under s 31(4) of the BP Act. Accordingly, we have made directions for the determination of this review. Decision 1. The applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the BP Act. 2. The applicant is to file and serve within 14 days any further evidence, and submissions including whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) dispensing with a hearing, on the action to be taken against him. 3. The respondent is to file and serve within 14 days thereafter any further evidence, and submissions including whether an order should be made pursuant to s 50(2) of the CAT Act dispensing with a hearing, on the action to be taken against the applicant. 4. The applicant is to file and serve within 7 days thereafter any further evidence in reply, and submissions in reply, on the action to be taken against him. ********** 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 March 2020