Building Professionals Board v Boulle
[2008] NSWADT 80
•13 March 2008
CITATION: Building Professionals Board v Boulle [2008] NSWADT 80 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Building Professionals Board
Ivan BoulleFILE NUMBER: 073163 HEARING DATES: 14 November 2007 SUBMISSIONS CLOSED: 14 November 2007
DATE OF DECISION:
13 March 2008BEFORE: O'Connor K - DCJ (President); Hayward P - Non Judicial Member CATCHWORDS: Disciplinary Findings and Order MATTER FOR DECISION: Principal matter LEGISLATION CITED: Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000CASES CITED: Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43 REPRESENTATION: APPLICANT
RESPONDENT
A Grey, solicitor
In personORDERS: 1. The Tribunal finds the Respondent guilty of professional misconduct
2. The Tribunal orders that the Respondent: (a) Be reprimanded; and (b) Pay to the Board a fine of $5,500 within 60 days, or such further time as is allowed by the Board.
REASONS FOR DECISION
1 The Building Professionals Board (the Board) has referred to the Tribunal by application filed 29 May 2007 certain conduct of the respondent, Mr Ivan Boulle, an accredited certifier. The application results from an investigation by the Board of a complaint made by the Willoughby City Council (the Council) against Mr Boulle about a construction certificate issued on 21 January 2002. He approved the commencement of construction of a roof over an open-air roof-top car park.
2 The Building Professionals Act 2005 (the BP Act) regulates those who practise as accredited private certifiers, and has replaced earlier legislation which had been in force since 1998. The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Building Professionals Board is responsible under the legislation for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal.
3 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct, it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1).
4 The Council was the principal certifying authority for the development. It was responsible for issuance of compliance certificates and occupation certificates. In that capacity it perused the certificate issued by Mr Boulle and the associated plans. Its assessment was that if the building works were to be erected in accordance with the construction certificate, the development would fail to meet the deemed-to-satisfy provisions of the Building Code of Australia (BCA) concerning fire safety, in particular, provisions in Parts C1, C3, D1, E1, E4 and F4. The Council lodged its complaint on 4 April 2002, and the then responsible body for investigating complaints notified Mr Boulle of the complaint on 15 April 2002.
5 It has taken over five years for the matter to reach the Tribunal. The complaint history shows that Mr Boulle at no time responded formally to letters from the investigating body. The matter had proceeded to the State Assessment Committee by July 2004. It had a report from a fire safety expert, Mr Michael Wynn Jones of Michael Wynn Jones and Associates Pty Ltd. At its meeting in July 2004, it considered that a further report should be obtained. An additional allegation resulted. The State Assessment Committee convened again. The Committee considered a further report on 27 October 2006, and recommended that there be an application to the Tribunal for a disciplinary finding and order. The present application was made by the new Board on 29 May 2007.
6 The application makes three sets of allegations.
7 At the time of the issuance of the certificate the building comprised three separate two level industrial units occupying lots 32, 33 and 34 of Section 9 as shown on Deposited Plan 4088 generally known as 2, 4 and 6 Whiting Street, Artarmon. The building was used as a united building. It straddled the three lots. The frontage to Whiting Street had an office-type appearance. The enclosed second level ended about half way back. Behind the wall there was an open-air roof-top car park. The project involved roofing and enclosing the car park. The car park looks to the rear street, Curry Lane, and is accessed by a ramp from Curry Lane.
- That the fire protection and structural capacity of the building would be reduced if the building work had been carried out in accordance with the approved plans. This allegation is supported by seven particulars.
- The fire safety schedule attached to the construction certificate did not comply with the requirements of cl 168(3) of the EP&A Regulation. There is one particular.
- The building work proposed in the approved plans did not comply with the requirements of the BCA. This allegation relied on three of the particulars (i), (ii) and (iii) given in support of the first allegation.
8 The material parts of the application follow:
The Hearing
‘ Disciplinary finding/s sought:
1. Pursuant to sections 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 Ivan Boulle (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 s.109V of the Environmental Planning and Assessment Act 1979 (the EP&A Act) by Willoughby City Council on 4 April 2002 to the Building Surveyors & Allied Professions Board (BSAP) against the Respondent in relation to the inappropriate issue of a construction certificate in respect to a development at 2-6 Whiting Street, Artarmon.
B. The Respondent was at all material times accredited as an accredited certifier and principal certifying authority pursuant to s.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 and Assessment Regulation 2000 (the EP&A Regulation) to administer the BSAP Scheme after the Minister withdrew BSAP’s authorisation in May 2002.
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 Respondent has engaged in conduct;
(2) Particulars of 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.
Reduction of fire protection and structural capacity
(a) The Respondent issued Construction Certificate No. 01/248 on 21 January 2002 in respect of a development, namely, the construction of a new roof over an existing car park, at 2-6 Whiting Street, Artarmon (the development).
(b) The development did not involve a change of use of the building.
(c) The construction certificate approved the plans and specifications described as:
(d) The fire protection and structural capacity of the building would be reduced if the building work was carried out in accordance with the approved plans.
“Plans prepared by Equilibria Architects numbered LRA 190900/A1-A6 dated 21st December 2001” (the approved plans).
Particulars of reductions
(i) The fire resistance level (FRL) of the unprotected steel columns and the external walls bounding the existing car park adjacent to the north-east and south-west property boundaries do not comply with Specification C1.1 of the BCA as the columns and walls do not achieve the required FRL;
(ii) The openings in the external walls bounding the existing car park adjacent to the north-east and south-west property boundaries do not comply with C3.2 of the BCA and are not protected in accordance with C3.4 of the BCA.
(iii) In the event of fire in an adjoining building, persons using the existing building and the car park are not protected due to:
(iv) The spread of fire from the existing building and car park to other buildings nearby is not restricted due to the deficiencies referred to in (iii) above.
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been protected to comply with C3.2 of the BCA; and
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been protected to satisfy the BCA performance requirements CP2 and CP8; and
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been provided with any measures that will prevent the spread of fire.
(v) The enclosure of the existing open-air car park previously open to the sky reduces the amount of smoke and flames that would vent to the outside of the building were a fire to occur in the existing building or the car park.
(vi) The existing ramps serving as exits from the car park and the existing building do not comply with the BCA in the following respects:
The approved plans do not make provision for any changes to the means of egress from the existing building or the car park to address the increased need for safe egress from and through the enclosed car park in the event of fire.
- The existing ramp gradients are steeper than 1:8 and do not comply with D2.10; and
- The handrails to the side of the ramps are less than 865 mm high and do not comply with D2.17.
(vii) The approved plans did not contain any designs, specifications or details relating to the provision of fire safety measures, including fire hydrant system, fire hose reel system, emergency lighting system and exit signs, listed in the fire safety schedule referred to below.
(e) By issuing the Construction Certificate in circumstances where the proposed work would result in a reduction in the fire protection and structural capacity of the building, the Respondent has engaged in conduct:
Non-compliant fire safety schedule
- 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.
(a) The construction certificate includes a fire safety schedule under the heading:
(b) The fire safety schedule did not comply with the requirements of the Clause 168(3) of the EP&A Regulation.
“PROPOSED Essential Fire or Other Safety Measures – 2-6 Whiting Street, Artarmon.”
Particulars of non-compliance
The schedule did not distinguish between the fire safety measures currently implemented in the building and those proposed or required to be implemented.
(c) By issuing the Construction Certificate which contained a non-compliant fire safety schedule, the Respondent has engaged in conduct :
Non-compliance with the BCA
- 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.
(a) The building work proposed in the approved plans did not comply with the requirements of the BCA.
Particulars of non-compliance
Non-compliances as set out in “Reduction of fire protection and structural capacity” – particulars (i), (ii) and (iii).
(b) By issuing the Construction Certificate in respect of works which did not comply with the requirements of the BCA, the Respondent has engaged in conduct:
Orders sought
- 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.
The Applicant seeks the following orders:
That the Tribunal makes a finding that the Respondent has been guilty of professional misconduct, or in the alternative, of unsatisfactory professional conduct, and make a decision under s.34 BP Act.’
9 In his formal reply to the application filed 21 June 2007, Mr Boulle admitted all particulars. The hearing was fixed for 14 November 2007, and proceeded on that date. On 22 October 2007 Mr Boulle filed a statement (in the form of a letter to the Tribunal (Ex R2)) in which, at variance with his original reply, he challenged some of the particulars relied upon in the application. He also noted that the non-compliances had been rectified. He said:
10 In that letter he referred back to a formal letter sent to him by the accreditation body before the State Assessment Committee hearing of October 2006. That letter had set out allegations and particulars which were similar to those now found in the application before the Tribunal. He did not respond to that letter at the time, but in the letter submitted to the Tribunal he challenged some of the particulars.
‘The plans approved by myself failed to indicate the car park roof would comply with the deemed-to-satisfy provisions of the BCA relating to the fire resistance levels of steel columns and protection of openings adjacent to a fire source feature.
It was originally understood at the time of inspection the existing brick construction was part of the subject site. However, after I received the complaint, it was brought to my attention that this was not the case. It was an error on my behalf and once notified I immediately stopped the building works and arranged for Arup Engineers (Fire Engineers) and Steve Watson & Partners (Certifiers) to rectify these non-compliances at my expense.’
11 The points on which he disagreed are set out below. First the statement made in the letter from the accreditation body is set out (using the numbering in that letter), and then Mr Boulle’s response.
12 At the opening of the hearing the Board informed the Tribunal that it did not seek any action against Mr Boulle’s accreditation. Mr Grey appeared for the Board and Mr Boulle appeared without representation.
(1) Statement:
3. On the completion of the building work, if carried out in accordance with the plans and specifications to which the construction relates:
(a): The enclosure of the existing open-air car park previously open to the sky reduces the amount of smoke and flames that would vent to the outside of the building were a fire to occur in the existing building or car park;
Response to (1):
The approved plans showed natural ventilation entering through two (2) ramps and four (4) turbo vents in the roof of the car park. Jim Hatz & Associates Engineering Consultants prepared ventilation for the project on 18th March 2002. As certifiers, we reply on the design prepared by appropriately qualified engineers, which was the case. If an engineer in his chosen profession and qualified discipline submits mechanical ventilation that he/she deems appropriate, who am I to argue when I am not a mechanical engineer.
(2) Statement:
3. (b) The structural capacity of the existing building would be reduced in terms of items (b) and (c) of the definition of ‘Fire Protection and Structural Capacity of a Building’ as defined in Clause 3 of the Regulation, in the following ways:
(iv) The building work does not involve any changes to the means of egress from the existing building or the car park however the existing ramps serving as exits from the car park and the existing building does not comply with the following DTS provisions in the BCA:
a. The existing ramp gradients are steeper than 1:8 and do not comply with D2.10; and
b. The handrails to the side of the ramps are less than 865mm high and do not comply with D2.17.
Response to (2):
The construction certificate approval consists of the roof enclosure only. The existing exits were retained and not part of the approval. The Council in its consent never requested the upgrading of the exits and as such was left to the discretion of the Certifier. It was deemed in this instance that the existing exits did not require upgrading as they served a car park that is barely occupied as the occupants are generally within the building.
Furthermore, the BPB assessed the exits in the same manner as outlined below.
I refer to page 39 of attachment AA “Exhibit 1” prepared by Glen Champion (Department Inspector) and endorsed by Matthew Wunsch (A/Team Leader Complaints), which states, “The evidence does not substantiate the allegation that Mr Boulle issued a Construction Certificate for building works which failed to meet deemed-to-satisfy provisions of the BCA in respect to Part D1 and D2. The vehicle ramps used as exits from the car park were existing and no condition of development consent required the exits to be upgraded to comply with Clause D1.2, D1.4, D2.10 and D2.17 of the BCA”.
(3) Statement:
3. (b) (vi) The existing and proposed fire safety measures and their standard of performance was not detailed in the plans and specifications to which the construction certificate relates and therefore there was no design for services and equipment such as a fire hydrant system, fire hose reel system, emergency lighting system and exit signs, to safeguard against the spread of fire and assist the egress of persons in the event of fire.
Response to (3):
Whilst the proposed fire safety measures and their standard of performance was not detailed on the construction certificate plans, they were detailed in a schedule attached on the construction certificate approval which is an integral part of the overall approval and serves as the same purpose.
13 In support of the application, the Board relied on the affidavit of Mr Matthew Wunsch, Team Leader, Complaints, Building Professionals Board and the attachment containing the Board’s material in support of the charges (the Folder). The Board called Mr Wynn Jones in support of its case. He was cross examined by Mr Boulle. Mr Boulle did not challenge his expertise.
14 Mr Boulle gave oral evidence and was cross examined. He gave an explanation as to why the omissions might have occurred. He noted that the events under notice had occurred more than six years ago. He noted that he was no longer accredited at the level he was at the time of the omissions, and this meant that there was less risk of a recurrence of the problems identified in this case.
15 As he had in the letter to the Tribunal, Mr Boulle emphasised that his conduct did not give rise to any actual harm. The problems with the construction certificate were identified before work proceeded. The developer revised the works. A new accredited certifier was appointed, and the Council in due course issued an occupation certificate. He did not press a number of other points made in his letter.
16 Mr Wynn Jones is an accredited certifier (Grade 1). He holds a Master of Applied Science in Fire Safety Design, and Associate Diploma in Applied Science (Health and Building Surveying) and a Bachelor of Applied Science (Building Surveying). He has wide ranging experience in advising on fire safety matters across many building types. He has an extensive academic teaching record in this area at undergraduate and postgraduate level. Mr Wynn Jones’ report is at p 55 to p 137 of the Folder.
Reduction of Fire Protection and Structural Capacity
17 As the text of the application notes, s 109F(1)(a) of the EP&A Act provides that a construction certificate must not issue with respect to plans and specifications unless the certifying authority is satisfied that relevant requirements in the regulations are satisfied. Clause 143(3) of the EP&A Reg, as noted in the application, deals with fire protection and structural capacity. This project was of the type to which cl 143(3) refers, i.e. it comprised building work which involved alteration of an existing building with no change in use of the building intended. The rule is that the certifying authority must not issue a construction certificate unless it is satisfied that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced. ‘Fire protection and structural capacity’ is a defined term (see the Application), and it is to the various aspects of the definition that Mr Wynn Jones’ assessment related. Clause 145(1)(b) of the EP&A Reg continues the broad requirement that any construction certificate for building work comply with the ‘relevant requirements’ of the BCA.
18 The consequence of these provisions for the authority issuing the construction certificate is it must be satisfied that the fire protection and structural capacity ‘will not be reduced’, and specifically that ‘relevant requirements’ of the BCA are met. There is room for debate, obviously, around the question of whether a particular aspect of an alteration gives rise to a ‘reduction’ in fire protection, and as to what might be ‘relevant requirements’ of the BCA.
19 As Mr Wynn Jones explained, the step of enclosing a previously open roof-top car park meant that new fire protection issues arose. Air circulation is reduced, and the ability of fire to escape upwards is affected. It is necessary to assess whether the site as remodelled continues to have adequate fire resistance levels at the site boundaries to diminish the risk of spread to neighbouring sites.
20 The first particular is:
21 As to (i), Mr Wynn Jones stated that the construction certificate had allowed Type C construction standards. His assessment was that the building was a Type B building after making the calculations required by the BCA which take account of the total area of the building and the internal uses of the building. The standards that had to be met in respect of fire resistance levels were more stringent for a Type B building. Mr Boulle did not contest Mr Wynn Jones’ assessment.
(i) The fire resistance level (FRL) of the unprotected steel columns and the external walls bounding the existing car park adjacent to the north-east and south-west property boundaries do not comply with Specification C1.1 of the BCA as the columns and walls do not achieve the required FRL;
22 The following three particulars are interrelated.
23 As to (ii), (iii) and (iv), Mr Wynn Jones said there was no evidence in the documentation forming part of the construction certificate demonstrating that the openings in the external wall exposed to the side boundary (north-east and south-west) comply with Part C3 of the BCA in respect of minimising fire. Nor was there evidence that the openings in the external walls comply with the relevant performance requirements of the BCA. Mr Wynn Jones explained at hearing that because the steel columns were within 3 metres of each other additional barriers were needed such as fire doors, special glass, lighter material or fire drenchers. Mr Boulle did not contest these opinions.
( ii) The openings in the external walls bounding the existing car park adjacent to the north-east and south-west property boundaries do not comply with C3.2 of the BCA and are not protected in accordance with C3.4 of the BCA.
(iii) In the event of fire in an adjoining building, persons using the existing building and the car park are not protected due to:
(iv) The spread of fire from the existing building and car park to other buildings nearby is not restricted due to the deficiencies referred to in (iii) above.
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been protected to comply with C3.2 of the BCA; and
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been protected to satisfy the BCA performance requirements CP2 and CP8; and
- The openings in the external walls adjacent to the north-east and south-west property boundaries have not been provided with any measures that will prevent the spread of fire.
24 Mr Boulle did not contest this conclusion at hearing. In our view, the general proposition reflected in this particular is apparent.
(v) The enclosure of the existing open-air car park previously open to the sky reduces the amount of smoke and flames that would vent to the outside of the building were a fire to occur in the existing building or the car park.
25 Mr Boulle in his letter dated 22 October 2007 questioned this conclusion. This was the new point that gave rise to further consideration of the complaint by the State Assessment Committee in October 2006. Mr Wynn Jones explained that once a roof was placed on the car park, there was a need, corresponding to the increased danger created, for the ingress and egress arrangements that were appropriate to an open air car park to be reviewed. He said that there was no indication from the construction certificate that BCA implications were examined. We agree.
(vi) The existing ramps serving as exits from the car park and the existing building do not comply with the BCA in the following respects:
The approved plans do not make provision for any changes to the means of egress from the existing building or the car park to address the increased need for safe egress from and through the enclosed car park in the event of fire.
- The existing ramp gradients are steeper than 1:8 and do not comply with D2.10; and
- The handrails to the side of the ramps are less than 865 mm high and do not comply with D2.17.
26 Mr Wynn Jones said that it would be normal for a set of plans to refer to fire hose reels and fire hydrants, and the like. The certifier must, he said, have indications of this kind before proceeding to approve plans.
(vii) The approved plans did not contain any designs, specifications or details relating to the provision of fire safety measures, including fire hydrant system, fire hose reel system, emergency lighting system and exit signs, listed in the fire safety schedule referred to below.
27 One of the matters raised by Mr Boulle concerned the inclusion in the new roof of roof ventilators. Mr Wynn Jones accepted that roof vents assisted in the dispersal upwards of fire. But they did not provide a complete solution to the issues of dispersal of fire that arose once an open area was enclosed. He said that fire could spread at ground level between properties, and the increased risk of this needed to be addressed. Moreover, he felt that the ventilators that had been proposed in this case were not large in terms of roof area. He said that their purpose would predominantly have been to assist natural air-flow, and not to serve fire protection needs. He saw the vents, having regard to their size, as having as the main objective occupant amenity.
Non-compliant Fire Safety Schedule
28 As the application notes, there is a specific provision in the EP&A Reg – cl 168 – dealing with the obligation to have attached to a construction certificate a Fire Safety Schedule. In this instance the Fire Safety Schedule (FSS) was rudimentary and inadequate. The inadequacies in the plans that received endorsement by the certificate have been mentioned: see para [27] above.
29 The rule is quite specific as to what must be covered in the FSS for a building the subject of alteration or extension. The FSS must deal with the whole building not just the area affected by the alteration. This requirement reflects the point emphasised by Mr Wynn Jones that the certifier must re-appraise the building’s fire safety standards as a whole. The certifier must look at the implications that the alteration or extension has on compliance across the entire site. The FSS must draw a distinction between the pre-existing measures and those now to be implemented. Among other matters, the FSS must specify the ‘minimum standards of performance for each fire safety measure included in [it].’
30 Mr Wynn Jones said that the construction certificate issued by Mr Boulle did have a short schedule at page 4 but it was unclear as to whether the measures mentioned were those that had once existed or presently existed at the site. It made no reference to the standards of performance which the measures were required to meet. In his opinion, the list did not have the level of precision required. It did not meet the FSS requirements of the EP&A Reg. He said, for example, it was impossible to work out from the plans and the construction certificate, or the FSS, what exactly were to be the arrangements in relation to fire exits, ingress, egress and the like.
Non Compliance with BCA
31 It is asserted that the building work proposed in the approved plans did not comply with the requirements of the BCA, and particulars (i), (ii) and (iii) under the heading of ‘Reduction of fire protection and structural capacity’ are relied upon. The relevant law, cl 145(1)(b) and the relevant evidence has been recounted above. If found proven, then it follows that there is a breach of the EP&A Reg in issuing a construction certificate in those circumstances.
Assessment
32 We are satisfied that the particulars in support of each of the charges have been proven.
33 The question therefore is whether the standard of professional competence set by the legislation has been transgressed. As this is a pre-March 2007 case, the standards are those found in the definitions in s 109R of the EP&A Act:
34 What is ‘unsatisfactory professional conduct’ is defined as follows:
‘ professional misconduct , in relation to an accredited certifier, 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.’
35 In this case it is parts (a), (d) and (e) of the definition to which reference is made in the charges.
‘ unsatisfactory professional conduct includes 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 that 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 have regard in exercising his or her functions as a certifying authority, or
(d) by which an accredited certifier fails to comply with:
(e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.’
(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
36 In our view, Mr Boulle did not pay sufficient attention to the implications that the proposed alterations carried for fire safety. He appears to have treated the alteration as raising no significant implications. He attached a FSS to the construction certificate which was inadequate in the extreme. It did not even include the basic differentiation required as between existing measures and proposed measures. It paid no attention to the impact of the changes on fire safety at the boundaries of the site. He appears to have seen boundary protections present in the buildings which neighboured the site the subject of the certificate as being sufficient to meet the requirements governing the subject site.
37 Mr Wynn Jones explained, in essence, that ordinarily a subject site must have sufficient protections within and at its own boundaries. It can not ordinarily rely on the state of affairs that exists on a neighbouring site. This aspect of the requirements should have been well understood by Mr Boulle. It is obvious that a neighbouring site may undergo change or demolition with the result that fire protections once found there are no longer present. For that reason, it is understandable that fire safety law treats each site as sui generis.
38 We are satisfied that the omissions and failures by Mr Boulle identified in this case fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier (part (a) of the definition). These were not mere mistakes of a kind that can sometimes occur in the life of a generally competent certifier. The omissions and lack of attention to the detailed requirements of the BCA revealed incompetence on Mr Boulle’s part.
39 Part (d) and part (e) of the definition are expressed in such a way that any failure, however minor, in complying with any Act or law prescribed by the regulations or any contravention of a penal provision might give rise to a finding of unsatisfactory professional conduct. In our view, a tempered view should always be taken, not an absolutist one, when making findings based on parts (d) and (e), cognisant that the finding is a disciplinary one going to the reputation and standing of a practitioner. Nonetheless, in this case, we are satisfied that the extent of the breaches committed by Mr Boulle in issuing this construction certificate warrant findings of, at the least, unsatisfactory professional conduct by reason of transgression of parts (d) and (e) of the definition.
40 The next question is whether the transgressions warrant a finding at the higher end of the spectrum, i.e. professional misconduct. That is, was the 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’.
41 In our view, in making this assessment one should focus on the objective gravity of the conduct at the time it occurred.
42 Mr Boulle in his submissions focused understandably on the action that was taken to avoid the occurrence of any actual harm once the problems were drawn to his attention by the Council as principal certifying authority. We accept that Mr Boulle did act professionally at this point. The project proceeded with a revised certificate issued by another certifier, and the problems were addressed in that project.
43 These considerations, in our view, bear on penalty. They should not, we think, be given great weight in assessing where conduct falls on the unsatisfactory professional conduct/professional misconduct continuum.
44 In our view there were a number of important oversights in this case. There was inadequate checking of the plans. As noted earlier, Mr Boulle appears to have little regard to the implications of the alteration for the fire safety status of the building as a whole. He made a fundamental misclassification of where the building sat within the hierarchy of the BCA. In our view, his limited submissions to the process (the letter of 22 October 2007 and the points he made orally at hearing) showed an undue reliance on the continuing openings in the altered building (car park entrances) and the one set of minor new openings (the roof vents) as sufficient. As previously noted, the Fire Safety Schedule he attached to the construction certificate was rudimentary in the extreme.
45 We conclude that the conduct was of a sufficiently serious nature to warrant a finding at the higher end of the spectrum, i.e. it was conduct that could justify (reasonably) at least suspension of the accredited certifier’s accreditation. Accordingly, we make a finding of professional misconduct.
46 It does not follow that an order of suspension must be made.
Appropriate Order
47 The BP Act s 34(2) provides:
48 As previously noted, the Board did not seek an order of suspension or deregistration. While the appropriate order is a matter for independent determination by the Tribunal (as Mr Grey acknowledged), we accept the Board’s submission in this case, especially given the age of the matter.
‘(2) 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 persons specified by the Tribunal,
(e) order the accredited certifier to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order,
(f) order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as 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 thinks fit,
(h) cancel the accredited certifier’s certificate of accreditation,
(i) order that the accredited certifier cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal.
(4) The Tribunal may not make an order under subsection (2) (f) without the consent of the complainant and the making of any such order does not affect any right of the complainant to bring an action to seek additional compensation.’
49 We also accept that Mr Boulle has, to some degree, been co-operative. He did not seriously contest much of the case put against him at hearing. On the other hand, it reflects poorly on Mr Boulle that he did not respond over many years in any meaningful way to the investigation processes undertaken by the disciplinary authority. Accredited certifiers have had conferred upon them a public office of great importance to the orderly conduct of the affairs of the community. They have a vital role to play in ensuring that appropriate standards are observed in the built environment of the country.
50 The disciplinary system imposes on them standards of performance of a kind typical of regulation of professions. It is vital that members of professions respond actively to enquiries made of them by their regulators, and in particular to formal notices in connection with complaints or disciplinary investigations.
51 This complaint may have been concluded a lot sooner had Mr Boulle brought at the outset the kind of co-operation with the process that he manifested at the end. Belated co-operation with a disciplinary process may simply reflect a last-ditch decision to minimise the harshness of the consequences that might otherwise flow rather than reflect any real desire to be co-operative.
52 Mr Boulle’s disciplinary history is poor. This is the fifth time Mr Boulle’s conduct has come to the notice of the disciplinary system. The matters are as follows (using Register numbers): Matter 035 – internal caution by the disciplinary authority; breach of regulations relating to payment of levy; Matter 036 – internal caution: breach of regulations relating to payment of levy; Matter 084: Tribunal reprimand; fine of $2000 – unsatisfactory professional conduct – issuance of construction certificate in the year 2000 – see Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43; Matter 125 – internal reprimand – issuance of construction certificate in relation to plans not consistent with approved plans – in the year 2003. As to these matters Mr Boulle submitted that they all related to conduct that occurred several years ago, as did the present case.
53 Mr Boulle is aged 36 years. He graduated from TAFE in 1990 with a Health and Building Associate Diploma. He has worked at Canterbury Council and North Sydney Council respectively as a cadet and then as a full health and building surveyor. In 1999 he completed a course in Fire Safety Design at the University of Western Sydney. He was accredited at Grade 3 level in 1999. From 2001 to 2003 he was at Grade 1 level. This is the period during which the subject matter of this case occurred. Mr Boulle noted that he had reverted to Grade 3 accreditation in 2003, and that is the level at which he has remained. He holds the equivalent accreditation under the new system – known as A2.
54 He was asked about what practices he follows to avoid recurrence of the kind of problems identified by this case. He said that he now uses full check lists before he issues a certificate and always makes his site inspections with the plans in hand. He said that he had not been using full check lists when some of the problems he encountered in the early years of the scheme had occurred. He said that he undertakes continuing education, and attends seminars held by the Board and by the Australian Institute of Building Surveyors.
55 He said, as compared to three or four years ago, he had lost about half his business. He informed the Tribunal that he practises alone from an office in the Kensington area, and that he mainly does certifications for buildings in the Maroubra, Woollahra, Randwick and Waverley council districts. His work was now confined to building projects up to 3 storeys, with a limit of 2000 sq metres. He handled all types of buildings within these parameters, but it was mainly small residential developments. He said Class 1 (Dwellings) were his main work, perhaps 90 per cent, involving about 60 to 80 approvals per year. He only occasionally dealt with a shop or a commercial space.
56 Mr Boulle also alluded to the personal strain and stress these proceedings and the other proceedings against him had imposed.
57 This system of accreditation and discipline has been established to protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers. The orders to be made in the event of an adverse disciplinary finding must serve those objectives. The personal impact of the order on the offender is a minor consideration.
58 Mr Boulle’s present accreditation is A2-Accredited Certifier – Building Surveying Grade 2 (as to the new system of ranking, see BPR, Sch 2). The period of accreditation is 1 April 2007 to 31 March 2008, Registration Number BPB0041. The accreditation is subject to a general condition restricting him to issuing certificates based on the deemed-to-satisfy provisions of the BCA, and not permitting him to issue certificates based on alternative solutions. Under this level of accreditation, Mr Boulle may issue complying development, construction and occupation certificates for buildings falling into any of the classes from 1 to 10, as defined by the BCA, with the further limit that the buildings have no more than 3 storeys (or 4 storeys including a car park), and a maximum area of 2000 square metres: see cl 4, BPR and Sch 1, Part 1.
59 Mr Grey submitted that the Tribunal should give consideration to imposing a special condition on Mr Boulle’s accreditation confining his authority category to (a) buildings only, i.e. class 1 and class 10 buildings. Under the BCA (see BCA 2006, Volume One, A3.2) class 1 is made up of class 1a – a single dwelling, or class 1b – a boarding house, guest house, hostel or the like of small scale. Class 10 is non-habitable building or structure, such as a carport, shed, fence or swimming pool. The other classes cover duplexes, boarding houses and the like of larger scale, shops, commercial and office buildings and laboratory buildings.
60 In terms of his existing practice, a restriction of the kind proposed would involve a relatively minor incursion. It would mean that Mr Boulle, on the basis of what he told the Tribunal, would remain able to do 90% of his present work. Mr Grey also indicated that the Board would accept a time limit on the further restriction.
61 In determining what might be an appropriate disciplinary order, the Tribunal faces the difficulty that the conduct under notice occurred so long ago. It would appear that now for several years Mr Boulle has practised adequately in the Classes 1 to 10 zone. The substantive adverse disciplinary outcomes which Mr Boulle has suffered, including this one, all concern conduct in the 2000-2003 period. It is difficult, we think, to accept that at this point, more than four years since the end of that period, that he should have imposed an additional restriction on his accreditation. Were similar conduct to come to notice that belongs to a more recent time, then it may well be appropriate to proceed in the way suggested by the Board.
62 We have some reservations about what Mr Boulle told us regarding his existing practice. He gave the Tribunal no corroborating evidence on these matters. He is a sole practitioner. Consequently, he is not in a peer environment that might assist in minimising the possibility of incompetent performance or other serious error. As previously noted, we are concerned over Mr Boulle’s lack of responsiveness throughout most of the process giving rise to these proceedings.
63 The finding of professional misconduct that we have made is itself a significant adverse outcome.
64 As to the further orders, in our view the most appropriate orders in this case are ones of reprimand and fine. We would fix the fine at 50 penalty units, i.e. $5,500. These orders adequately meet, in this instance, the objectives of general and specific deterrence.
Orders
1. The Tribunal finds the Respondent guilty of professional misconduct.
2. The Tribunal orders that the Respondent:
(a) Be reprimanded; and
(b) Pay to the Board a fine of $5,500 within 60 days, or such further time as is allowed by the Board.
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