Building Professionals Board v Ball

[2008] NSWADT 154

Set aside by Appeal:

CITATION:	Building Professionals Board v Ball [2008] NSWADT 154 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Darren Ball
FILE NUMBER:	073162
HEARING DATES:	12 December 2007
SUBMISSIONS CLOSED:	7 March 2008
DATE OF DECISION:	27 May 2008
BEFORE:	Olsson E SC - Deputy President; Friedmann P - Non Judicial Member
CATCHWORDS:	Disciplinary determination
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Building Professionals Act 2005 Environmental Planning and Assessment Act 1979
CASES CITED:	Craig v Medical Board of South Australia [2001] SASC 149 Director General Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43 Brooks Maher v Cheung [2001] NSWADT 18 Insley v State Electoral Commission [2001] NSWADT 24
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT T Howard, barrister
ORDERS:	1. Application dismissed 2. Applicant to pay Respondents costs.

REASONS FOR DECISION

Introduction

1 This matter is an application to the Administrative Decisions Tribunal for a disciplinary finding in relation to the Respondent who is an accredited certifier. The Applicant seeks findings that the Respondent is guilty of unsatisfactory professional conduct, or in the alternative, professional misconduct in relation to the issue by him of a construction certificate and fire safety schedule on 2 October 2003 for a warehouse development at 31 Glendenning Road, Glendenning.

2 The Tribunal has jurisdiction to hear and determine the application as an original decision pursuant to section 31 of the Building Professionals Act 2005 and sections 7 and 37 of the Administrative Decisions Tribunal Act 1997, and has the power to make the findings, decisions and/or orders set out in section 34 of the Building Professionals Act 2005 which is to be read in conjunction with section 45 of the Administrative Decisions Tribunal Act 1997.

3 The disciplinary findings which were sought by the Respondent were originally defined in Part 6 of the application to the Tribunal, but were refined at the hearing as follows:

Pursuant to section 31(2) and (3) of the Building Professionals Act 2005 (“the BP Act”), the Building Professionals Board (“the applicant”) makes application for a disciplinary finding against Mr Darren Ball (“the respondent), being a finding of professional misconduct, or in the alternative, of unsatisfactory professional conduct, in respect of the matters set out below.

General Description of Conduct

A. A complaint was made pursuant to section 109(v) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) by Mr Brian Malouf of Blacktown City Council to the Department of Planning on 23 February 2005, against the respondent in relation to the inappropriate issue of a construction certificate, an occupation certificate, and other regulatory matters in respect to development 31 Glendenning Road, Glendenning.

B. The Respondent was at all material times an accredited certifier and principal certifying authority pursuant to section 109T of the EP&A Act.

The Respondent was accredited under the Building Surveyors & Allied Professions Accreditation Scheme (“the BSAP Scheme”) and Neil Cocks, Director, Building Professionals Branch, Department of Planning, had been appointed by the Minister under clause 199(3)(a) of the Environmental Planning & Assessment Regulation 2000 (“the EP&A Regulation”) to administer the BSAP Scheme.

C. The complaint has been investigated pursuant to section 109W of the EP&A Act by officers of the Department of Planning on behalf of Mr Cocks.

D. The authority of Mr Cocks expired with the commencement of the Building Professionals Act 2005 (“the BP Act”) on 1 March 2007. Pursuant to clause 3(1), Schedule 2 of the BP Act, the Applicant is required to continue to deal with the complaint as a complaint under Part 3 of the BP Act.

E. By issuing the construction certificate, the occupation certificate, and by failing to comply with other regulatory requirements, the Respondent has engaged in conduct; (a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or (b) by which he contravened the EP&A Act.

Particulars

a) Issue of Construction Certificate

Relevant Legislative Provisions

(a) Section 109F(1)(a) of the EP&A Act provides:

“Restriction on Issue of Construction Certificates”

A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:

(a) The requirement of the regulations referred to in section 85A(5) have been complied with.”

(b) Clause 144(1) and (2) of the EP&A Regulations provides:

“Referral of Certain Plans & Specifications to New South Wales Fire Brigade”

(1) This clause applies to:

(a) A class 9a building that is proposed to have a total floor area of 2000 square metres or more; or

(b) A building (other than a class 9a building) that is proposed to have:

(i) A fire compartment with a total floor area of more than 2000 square metres; or

(ii) A total floor area of more than 6000 square metres, where:

(c) The building is the subject of an application for erection, rebuilding, alteration, enlarging or extension, and

(d) The plans and specifications for the direction, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the category 2 fire safety provisions.

(2) As soon as practicable after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner:

(a) A copy of the application, and

(b) A copy of the plans and specifications for the building, and

(c) Details of the performance requirements that the alternative solution is intended to meet, and

(d) Details of the assessment methods to be used to establish compliance with those performance requirement, which may be delivered by hand, forwarded by post, or transmitted electronically, but may not be sent by facsimile transmission.”

(c) Clause 145(1)(b) of the EP&A Regulation provides:

“Compliance With Development Consent & Building Code of Australia”

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(b) That 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 of the application for the construction certificate was made).”
(d) Clause C2.4(b)(ii) of the Building Code of Australia provides:
“(b) Vehicular access required by this Part:

(i) Must be capable of providing emergency vehicle access and passage from a public road; and

(ii) Must have a minimum unobstructed width of 6 metres with no part of its furthest boundary more than 18 metres from the building, and in no part of the 6 metres be built upon or used for any purpose other than vehicular or pedestrian movement.”

(e) Clause 168(3) and (4) of the EP&A Regulation provides:

“(3) A fire safety schedule:

(a) Must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and

(b) Must include:

(i) Such of the fire safety measures currently implemented in the building premises; and

(ii) Such of the fire safety measures proposed or required to be implemented in the building premises, as are statutory fire safety measures, and

(c) Must distinguish between:

(i) The fire safety measures currently implemented in the building premises; and

(ii) The fire safety measures proposed or required to be implemented in the building premises; and

(d) Must identify each measure that is a critical fire safety measure, and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the Council in respect of each such measure, and

(e) Must specify the minimum standard of performance for each fire safety measure included in the schedule.

(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.”
b) Particulars of Conduct
Issued Construction Certificate – Non-Compliance with the BCA

The respondent issued construction certificate number 125/03 on 2 October 2003 in respect of the development, namely, a warehouse, distribution centre, and offices at 31 Glendenning Road, Glendenning (“the development”).

The construction certificate approved certain plans prepared by Peter Hunt, Architect, (architectural & landscape), James Griffiths (structural), and Michael Frost & Associates Pty Limited (hydraulic), (collectively, “the approved plans”).

The proposed building depicted in the approved plans did not comply with the requirements of the Building Code of Australia (“the BCA”) as in force at the time that the application for the construction certificate was made.

1. Particulars of Non-Compliance with BCA

The ground floor plan, forming part of the architectural plans prepared by Peter Hunt, Architect, depicts a retaining wall parallel to the southern side of the development, which is located such that the retaining wall would:

(i) Be built on the area, which would provide vehicular access as required by clause C2.4(b)(ii) of the BCA;

(ii) Obstruct vehicular access to and around the southern side and the south western corner of the development, and

(iii) Prevent emergency vehicles from having access and passage from the public road to the southern side and the south western corner of the development,

By issuing the construction certificate in respect of the development, the respondent has engaged in conduct:

Occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or

By which he contravened the Act.

c) Non-Compliant Fire Safety Schedule
(1) The fire safety schedule attached to, and forming part of the construction certificate issued by the respondent lists:
“9. Perimeter access for emergency vehicles – BCA C2.3 & C2.4 (proposed).”
as an essential fire safety measure.

(2) The above fire safety measure should not have been included in the fire safety schedule as:

(i) The perimeter access did not comply with clause C2.4(b) of the BPA as particularised in 2A(c)(i), (ii), and (iii) above;

(ii) The subdivision of the property, and the “reciprocal rights of carriageways” had not been created by being registered;

(iii) It was external to the building premises.

(3) By issuing the construction certificate which contained a fire schedule which did not comply with the requirements of clause 168 of the EP&A Regulation, the respondent has engaged in conduct:
Occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or

By which he contrived the Act.

4 The matter came to the attention of the Applicant as a result of the investigation of a complaint by Blacktown City Council against the Respondent made under the provisions of the Environmental Planning & Assessment Act 1979 (“the Act”).

5 The complaint related to the construction of a warehouse, distribution centre and office development at 31 Glendenning Road, Glendenning (“the property”).

6 On 17 July 2003 Blacktown City Council granted development consent, subject to conditions. Relevantly, condition 30 provided that the requirements of Parts C, D and E of the Building Code of Australia be addressed by the issue of a construction certificate.

7 The Respondent, an accredited certifier, issued a construction certificate in respect of the development on 2 October 2003. Amongst the plans approved by the issue of the construction certificate were architectural and landscape plans prepared by Peter Hunt (architect). The plans show a retaining wall to be constructed along the southern boundary of the development site for a substantial length, and parallel to an access road to another property at the rear of the subject development. The plans also showed that the southern wall of the building was to be constructed no less than 6 metres from the southern boundary.

8 The Applicant says the presence of the retaining wall and the proximity of the wall of the building to the boundary have implications with respect to the arrangements for fire and emergency services vehicles. In February 2005 Blacktown Council lodged a complaint with the Building Professionals Branch of the Department of Infrastructure, Planning & Natural Resources (the Applicant’s predecessor as an accreditation body) against the Respondent, and the complaint was investigated by the officers of the Department of Planning. Following commencement of the Building Professionals Act2005 on 1 March 2007, the Applicant determined the complaint by lodging the present application.

9 The Building Code of Australia clause C2.3(a) requires perimeter vehicular access to be provided to a building of this kind (a large, isolated building).

10 The essential issue in the case against the Respondent (as amended) turns on a consideration of the meaning of clause C2.4(b) of the Building Code of Australia.

11 Part C 2.4(b) of the BCA provides:

“(b) Vehicular access required by this Part:
(i) must be capable of providing emergency vehicle access and passage from the road; and

(ii) must have a minimum unobstructed width of 6 metres with no part of its furthest boundary more than 18 metres from the building, and in no part of the 6 metre width be built upon or used for any purpose other than vehicular or pedestrian movement; and

(iii) must provide reasonable pedestrian access from the vehicular access to the building; and

(iv) must have a load bearing capacity and unobstructed height to permit the operation of passage of fire brigade vehicles; and

(v) where a public road complies with (i), (ii), (iii) and (iv), may serve as the vehicular access or part thereof.”

Findings

12 It was common ground that the Respondent was, at all material times, an accredited certifier, exercising functions pursuant to Part 4A of the Environmental Planning and Assessment Act 1979 (EPAA).

13 He had been appointed the principal certifying authority with respect to the subject warehouse development pursuant to section 109E of the EPAA and acted in that capacity in issuing the construction certificate for the subject development.

14 The Respondent contended that the building, including its plans and specifications, had been approved by him pursuant to construction certificate number 125/03 and that the certificate was assessed in accordance with the BCA.

15 The first central issue in the proceedings concerned whether or not the proposed perimeter vehicular access (PVA) as shown on the approved plans complied with the relevant requirements of the BCA.

16 The Applicant contended that the PVA does not comply with the requirement to have “a minimum unobstructed width of 6 metres” as a result of the presence of a retaining wall.

17 The Applicant says the PVA does not comply with the requirement that “no part of the 6 metre width be built upon” because of the presence of the retaining wall.

18 The Applicant further says the PVA does not comply with the requirement that it is not to be “used for any purpose other than vehicular or pedestrian movement” as part of the PVA is designated on the plan as an “external unloading zone”.

19 The Applicant says that portion of the PVA proposed by the respondent to be provided by the access road on the adjoining lot (number 102) does not comply with C2.4(b) of the BCA. This complaint is not further particularized but is dealt with by submissions in the context of the earlier contentions.

20 It was common ground that since the building was served by a BCA compliant sprinkler system, PVA pursuant to BCA clause 2.4(b) was required to be satisfied.

21 The second central issue concerns the issue by the Respondent of the fire safety schedule. It was contended by the Applicant that one of the nine essential fire safety measures listed was in breach of clause 168 of the EP&A Regulations. Item 9 provided “Perimeter access for emergency vehicles – BCA C2.3 and C2.4 (proposed)”.

22 It is necessary to understand the layout of the site. The warehouse building is situated such that its eastern wall is parallel with Glendenning Road. The retaining wall, which is central to the Applicant’s complaint, lies along part of the southern wall, starting (or finishing) from the south western corner. Thus if one were facing the building from Glendenning Road, the retaining wall would be on the left. To the left (or south) of the retaining wall and southern boundary of the building is the adjoining lot referred to in the evidence as Lot 102.

23 It was common ground that if the retaining wall was constructed according to the plan, a vehicle would not have been able to travel around the warehouse building in a continuous circle.

24 However, according to the plans, a vehicle would have at least 6 metre wide access to the eastern, northern and western walls of the building by virtue of access at the north eastern corner of the site from Glendenning Road and access to the southern side of the retaining wall by virtue of an easement created over Lot 102 for a corridor of 12 metres in width along the southern boundary of the subject site. The easement was registered on 12 July 2005, after the construction certificate issued but before the final occupation certificate.

25 The terms of the easement are:

“it may only be used for fire fighting and emergency vehicles in the event of a fire occurring within the lot benefited, and such fire fighting and emergency vehicles and personnel may be on and remain within the said easement to undertake their duties until the fire has been extinguished to the satisfaction of the commanding fire officer in charge of and managing the fire.”
26 The Applicant relied primarily on the expert evidence of Mr Wynn-Jones, a building surveyor who opined that the intent of BCA clause C2.4(b) was that the requisite vehicular access was wholly contained within the subject allotment [emphasis added]. He formed this opinion for two reasons: firstly, he said that although the clause C2.4(a) provisions as to open space did not apply, they were “intrinsically linked” to perimeter vehicular access. He did not specifically elaborate on this point.

27 Secondly, he said that in May 2007 clause C2.4(b) was amended to “clarify the intent that vehicular access must be wholly within the allotment”. He further said that many councils and accredited certifiers ‘considered’ that the intent of the clause as it was in 2004 was that emergency vehicles attending a particular site would have access to the whole of the site without having to rely on access to other premises and that the only exception (which was specifically incorporated in the clause) was a public road.

28 The Respondent answers the allegations in a number of ways. Firstly, he says that at the time of issue of the construction certificate and the fire safety schedule, the land was not in fact subdivided (although subdivision had been given development consent) and therefore the PVA was contained within the allotment. Because the construction certificate applied to all of the land in the proposed new allotments, the Respondent was in a position to insist that the easement be created before an occupation certificate was granted. Thus, at the time of issue of the construction certificate, the PVA was shown to be wholly within the allotment and the proposal (to which effect was given) was that after subdivision was effected, the PVA was provided for by way of easement.

29 The perimeter vehicular access for the southern side of the retaining wall was in fact located on an existing 12 metre wide concrete driveway on the adjacent allotment. The Respondent contended that, as the easement is a legal encumbrance on the allotment, the integrity of the easement is guaranteed, and may be certified with all future fire statements for the property.

30 Secondly, the Respondent says that in any event, BCA clause C2.4(b) requires perimeter vehicular access around a large, isolated building. The clause, as it was in 2004, made no specific requirement for the perimeter vehicular access to be contained wholly within the subject allotment. The Respondent cited the fact that a public road is permitted to be used as part of the perimeter vehicular access in support of his contention that there was no requirement for the access to be wholly contained within the lot.

31 Thirdly, the Respondent referred to the argument of the Applicant that access should be continuous around the building (referred to by the Respondent as the ‘continuous circle’ hypothesis). The Respondent contends that the hypothesis does not derive support from the words used in the relevant version of clause C2.4(b) and that such a construction was not required in order to give operational purpose to the clause. He cited evidence of correspondence from NSW Fire Brigades, which expressed satisfaction with the vehicular access to the building.

32 The Respondent relied on the expert opinion of Mr Brendan Bennett. Mr Bennett’s view was that nothing in the wording of the relevant provisions of the BCA required PVA to be wholly contained within a lot and that as long as emergency vehicles could access all parts of the building, the design regime would satisfy the BCA.

33 The relevant standard of proof is that of Brigenshaw v Brigenshaw (1938) 60 CLR 336.

34 The Tribunal accepts the evidence of Mr Bennett and Mr Ball that, properly construed, the clause as it was drafted in 2004 did not require the PVA to be wholly contained within an allotment and observes that the fact that an amendment is made some years later which purports to reflect the ‘intent’ of the original clause does not dictate the meaning of the clause for all time. This view is reinforced by three things:

(i) the actual wording of the clause, which does not include a reference to the necessity for the PVA to be wholly contained within the allotment

(ii) the clause itself contemplates access which is off-site, namely a public road, and

(iii) the fact that the operational purpose of the clause is given effect notwithstanding that access is obtained off-site

35 There seems little doubt that there was considerable divergence of expert opinion as to the precise meaning of clause C2.4(b) in its original form. The Tribunal notes that in its final submissions the Applicant acknowledges that it was the construction certificate issued in this matter, which was the actual catalyst for the introduction of the 2007 ‘clarifying’ amendment.

36 In passing, the Tribunal notes that during evidence Mr Wynn-Jones acknowledged in answer to a question from the Tribunal that the position prior to the amendments to the clause were “not clear”.

37 Moreover, the Tribunal notes that technically, at the time of issue of the construction certificate, the PVA was in any case wholly contained on the subject allotment.

38 However, the matter before the Tribunal is not whether the clause actually intended the PVA to be wholly contained within one allotment or not, but whether the Respondent’s conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier and/or whether he breached the EPAA.

39 In circumstances where at least two experts gave differing opinions and where the clause under scrutiny was subjected to a ‘clarifying’ amendment some years after the events which gave rise to these proceedings leads the Tribunal to conclude that it could not find that on this aspect of the complaint, the conduct of the Respondent fell short of the relevant standard of competence of a reasonably competent accredited certifier nor that he breached the EPAA. This conclusion is reinforced by the observation that the Respondent gave clear and cogent evidence as to the efforts to which he went to ensure that the building was capable of being accessed around its perimeter by emergency vehicles and moreover, that the method so devised apparently gained the approval of the agency which would rely upon those efforts, the NSW Fire Brigades.

40 The next matter upon which the Applicant relied was that the access had to be a minimum unobstructed width of 6 metres with no part of its furthest boundary more than 18 metres from the building and that no part of the 6 metre width be built upon. The Applicant contended that the retaining wall breached this provision by virtue of its location. For the reasons outlined above, the Tribunal is of the view that this allegation is not made out. The relevant access is contained within the 12 metre right of way to the southern side of the retaining wall.

41 The Applicant further contented that the nomination of an area on the northern side of the building and marked on the plans as “External Unloading Zone” indicated the potential of an obstruction of this area - and PVA - by vehicles unloading goods. The Respondent submits in reply, and the Tribunal accepts, that the plans show this corridor (between the northern wall of the building and its northern boundary) to be in the order of 28 metres in width, which would allow ample room for an emergency services vehicle to avoid a truck or trucks parked in the unloading bay.

42 As mentioned above, the Applicant also alleged that the Respondent was guilty of unsatisfactory professional conduct or professional misconduct by virtue of his issue of a fire safety schedule which contained an essential fire element of the provision of perimeter access for emergency vehicles when this access did not comply with BCA clause C2.4(b), the right of way had not been registered and the access was external to the premises.

43 Although this complaint is brought as a breach of clause 168 of the EP&A Regulations, in essence it raises by way of particulars the same matters to which consideration has already been given.

44 The Respondent said, in paragraph 44 of his written submissions, that this complaint crystallised as a ‘more general complaint to the effect that a proposed right of way on an adjoining lot is not fit to fulfil the function of compliant perimeter vehicular access’. The Applicant did not join issue with this summary in its submissions in reply.

45 Regulation 168 provides that:

“When

(c) issuing a construction certificate for proposed building work (other than a certificate that relates only to a fire link conversion)

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”

46 Regulation 3 provides:
“building premises, in relation to a building, means the building and the land upon which it is situated”
47 The Applicant submitted that:
(i) the PVA did not comply with clause C2.4(b) and therefore should not have been included in the fire safety schedule

(ii) the subdivision had not been registered at the time of the issue of the fire safety schedule and neither had the easement, therefore part of the PVA was not on the ‘building premises’

(iii) Regulation 182 casts a statutory obligation on the owner of land to maintain each essential fire safety measure

48 The Respondent answered this by submitting that the development consent anticipated the registration of the subdivision and the creation of an easement and since all of the land was to be affected by the conditions of consent, the fire safety schedule was one, which prescribed the fire safety measures, which should be undertaken on the premises.

49 Secondly, the Respondent says (somewhat less convincingly) that Regulation 168 cannot be read as requiring all essential fire safety measures to be implemented on the land upon which the building sits or else a fire safety measure involving a public road would be precluded.

50 It is well established that the easement, when created, gives the grantee the right to enter the servient land to do whatever is reasonably necessary to make the easement suitable for the exercise of the right granted and to maintain it in a condition suitable for that use (Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343) and the grantor of the easement cannot take steps to obstruct the reasonable use of the easement (Peter Butt, Land Law, 4th ed pp413-414).

Conduct of the Respondent

51 Pursuant to section 31(2) and (3) of the Building Professionals Act 2005 (the “BP Act”) the Applicant makes application for a disciplinary finding against the Respondent, being a finding of professional misconduct or in the alternative of unsatisfactory professional conduct in respect of the matters set out in these reasons for decisions. As the conduct in question occurred prior to the commencement of the BP Act on 1 March 2007, pursuant to clause 3(1) schedule 2 of the BP Act the Applicant (and therefore the Tribunal) is required to continue to deal with the complaints under Part 3 of the BP Act. Therefore schedule 4 of the Building Professionals Regulation 2007 applies. It provides that when a complaint is made under Part 3 of the Act in relation to a person who was an accredited certifier under the Environmental Planning & Assessment Act 1979 in relation to conduct occurring before the commencement of this clause, any complaint is to be dealt with as if the definitions of “professional misconduct” and “unsatisfactory professional conduct” in section 109R of the Environmental Planning & Assessment Act 1979 (as in force immediately before its repeal) applied to the complaint rather than the definition of those terms in section 19 of the BP Act 2005.

52 Accordingly unsatisfactory professional conduct means conduct (whether consisting of an act or omission):

(a) Occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity a member of the public is entitled to expect of a reasonably competent accredited certifier, or

(b) By which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or

(c) By which an accredited certifier wilfully disregards matters to which he or she is required to give regard in the exercise of his or her functions as a certifying authority, or

(d) By which an accredited certifier fails to comply with:

(i) Any relevant code of conduct established by the accreditation body by which he or she is accredited, or

(ii) Any other act or law prescribed by the regulations, or

(e) By which an accredited certifier contravenes this Act whether or not he or she is prosecuted or convicted for the contravention.
53 Professional misconduct means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.

54 The Applicant alleged that the Respondent had engaged in conduct, which offended the definition of unsatisfactory professional conduct with respect to (a) above and (e) above.

55 Section 34 of the BP Act provides that if the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions:

(a) Caution or reprimand the accredited certifier.

(b) Direct that such conditions as it considers appropriate be imposed on the accredited certifier’s certificate of accreditation.

(c) Order that the accredited certifier complete such educational courses as are specified by the Tribunal.

(d) Order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the person specified by the Tribunal.

(e) Order the accredited certifier pay to the Board a fine of an amount not exceeding 1000 penalty units specified in the order.

(f) Order the accredited certifier to pay to the complainant such amount (not exceeding $20,000.00) that the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct.

(g) Suspend the accredited certifier’s certificate of accreditation for such period as the Tribunal sees fit.

(h) Cancel the accredited certifier’s certificate of accreditation.

(i) Order that the accredited certifier cannot apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal.

56 Pursuant to section 34(3), if the Tribunal finds the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct, it is to dismiss the application.

57 The object of disciplinary proceedings is the protection of the public. In the event that a practitioner is found to have breached professional standards, any order is to be made having regard to what is appropriate to the achievement of adequate protection of the public. It is not the purpose of disciplinary proceedings to punish the person in a criminal sense: Craig v Medical Board of South Australia [2001] SASC 149 at 41.

58 For a single instance of unprofessional conduct to amount to professional misconduct, it would have to possess a high degree of objective seriousness, involving, for example, conduct of a grave kind giving rise to significant harm to the interests of particular members of the public, or involving significant harm to the public interests viewed generally: Director General, Department of Infrastructure, Planning & Natural Resources v Boulle [2006] NSWADT 43 at paragraph 50.

59 Considering the overall conduct of the Respondent, there is nothing on his part which indicates that he failed to consider the requirements described by clause C2.4(b) of the Building Code of Australia; indeed all of the evidence points to the fact that he considered compliance with that clause very carefully in the development proposal and construction certificate. The Tribunal is of the view that there was sufficient doubt about the interpretation of the relevant clause in 2004/2005 that Mr Ball was justified in forming the conclusion that he did, namely that perimeter vehicular access could be made available on an adjoining lot by registration of a relevant right of way. The Tribunal’s view is supported by the apparent concurrence with the plan by New South Wales Fire Brigades.

60 In all other respects, notwithstanding the submissions made by the Applicant about the provision of an unloading bay, the Tribunal was of the view that there was a relevant degree of perimeter vehicular access for emergency vehicles provided in work undertaken by the Respondent.

61 Accordingly, it was appropriate and in no way a contravention of regulation 168 of the EP&A Regulations, to issue a fire safety schedule which included as an essential item the perimeter access for emergency vehicles.

62 It follows that the Tribunal is not satisfied that the Respondent engaged in conduct which fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably accredited certifier. In this regard, the Tribunal also notes that the Applicant did not refer to any antecedents of the Respondent.

63 It also follows from the foregoing findings that the Tribunal is not satisfied that the Respondent contravened the Environmental Planning & Assessment Act 1979 as alleged.

64 Accordingly, the orders will be that the application is dismissed.

65 An application was made by the Respondent for costs in the event that he was successful. Pursuant to section 35 of the Building Professionals Act 2005 the Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect to these proceedings, but only if there are special circumstances warranting the award.

66 The circumstances must be both “special” and additionally must warrant an award of costs: Brooks Maher v Cheung [2001] NSWADT 18.

67 The discretion to award costs is a wide one. The Tribunal is mindful that use of the costs power as some sort of sanction to punish agencies for poor administration would involve the error condemned frequently by the Courts of using the costs sanction for punitive rather than compensatory purposes: Insley v State Electoral Commission (No.2) (2001) NSWADT 24 at paragraph 16. The legislature has given clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, that is that a successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order. Moreover, due the nature of the Tribunal’s jurisdiction, the fact that the proceedings concern the correctness of an action taken by a Government agency does not in itself raise a special consideration. In these proceedings both sides should normally come to the Tribunal with the expectation that they will pay their own costs.

68 The Tribunal is of the view that in order to satisfy the test of special circumstances, one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and that those special circumstances will warrant an order of costs. In the present case in summary the Respondent says that:

i. He explained his position when he was first confronted with the issue by the complainant in 2004, and at all relevant times the Applicant has been aware of that correspondence.

ii. The New South Wales Fire Brigade has effectively supported the conduct of the Respondent, notwithstanding the strong contrary position taken by the complainant, and the Applicant has been aware of that correspondence at all relevant times.

iii. The Department of Planning itself was aware that the relevant clause of the BCA was unclear as to whether the vehicular access had to be provided on the same lot as the building lot.

iv. By way of letter dated 24 October 2007 the Applicant abandoned almost half of the particulars of conduct, which it had, until then, pressed in its application.

v. On the Applicant’s arguments, even taken at their highest, it was apparent that even if the perimeter vehicular access did not comply with the deemed to satisfy the provisions of the BCA, it was nevertheless acceptable to the New South Wales Fire Brigades, and thus would have been approved as an alternative solution. On that basis, there was no harm flowing from what, at its highest, was a technical breach by the Respondent.

vi. Finally, the Respondent contended that the Applicant’s case in respect of the inadequacy of the registered easement misunderstood the fundamental principles relating to easements contained in New South Wales property law.

69 In the Tribunal’s view, these matters are very persuasive, and clearly matters that one would ordinarily take into account when deciding whether there were special circumstances that would warrant a costs order being made. The Tribunal finds of significance the fact that the Department of Planning, of which the Applicant is effectively a section or an agency, was aware, at least in mid-2005, that the relevant clause of the BCA was unclear, and that was the position adopted also by the Applicant’s expert witness, Mr Wynne-Jones.

70 The other compelling argument by the Respondent is that the solution provided by him, whether or not it satisfied the deemed to satisfy provisions of the BCA, certainly would have been approved as an alternative solution, and one readily accepted by New South Wales Fire Brigades.

71 In those circumstances, the Tribunal is satisfied that there are special circumstances, which warrant the award of costs, and makes the order that the Applicant is to pay the Respondent’s costs of the proceedings.

Orders

1. Application dismissed

2. Applicant pay the Respondent’s costs as agreed or assessed.

30/05/2008 - incorrect submissions date entered - Paragraph(s) .