Building Professionals Board v Chalmers
[2008] NSWADT 158
•29 May 2008
CITATION: Building Professionals Board v Chalmers [2008] NSWADT 158 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Building Professionals Board
Gary ChalmersFILE NUMBER: 073164 HEARING DATES: 14 April 2008 SUBMISSIONS CLOSED: 14 April 2008
DATE OF DECISION:
29 May 2008BEFORE: O'Connor K - DCJ (President); Mallison GJ - 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: N/A REPRESENTATION: APPLICANT
RESPONDENT
A Grey, Legal Officer
G Butterfield, solicitorORDERS: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct
2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $6,600.
REASONS FOR DECISION
1 The Building Professionals Board (the Board) has applied under the Building Professionals Act 2005 (the BP Act) by Application filed 29 May 2007 for disciplinary findings and orders to be made against the respondent, Mr Gary Chalmers, an accredited certifier. Mr Chalmers’ current accreditation is A2 – Accredited Certifier – Building Surveying Grade 2 (expiring 27 February 2009).
2 The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The 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). This is a case arising from a complaint made under the previous scheme.
4 Camden Council submitted to the accreditation body by letter dated 26 July 2004 that Mr Chalmers had on 15 May 2003 inappropriately issued a final occupation certificate in respect of an industrial development at 6 Samantha Place, Smeaton Grange. The development consent had been given in 2001. Mr Bernard Cohen, of Essential Certifiers Pty Ltd, was appointed as the principal certifying authority. The development was set back from Samantha Place, with car parking at the front of the site. It was divided into two units, Unit 1 and Unit 2. At ground level of each unit there was a large warehouse. Each unit had an entry foyer with stairwells leading to the upper level. The upper level was designated as office space.
5 The developer was a Mr Siracusa. Mr Siracusa asked Mr Chalmers if he would issue the occupation certificate when Mr Cohen was away overseas on leave. Mr Chalmers agreed to do so. He undertook an inspection on 17 April 2003.
6 On 6 May 2003, Mr Siracusa applied to the Council for a building certificate under s 149 of the Environmental Planning and Assessment Act 1979. (A building certificate prevents council from issuing repair, alteration or demolition orders for seven years or exercising powers of encroachment.) The Council inspector immediately undertook an inspection, and noted areas of non-compliance. The evidence is that the Council informed the applicant of non-compliances on 12 May 2003. Council declined to issue the certificate. As noted, Mr Chalmers issued an occupation certificate three days later, on 15 May 2003. As is required, the occupation certificate was sent to the Council. It received the occupation certificate on 16 May 2003.
7 The Council formally notified its refusal of the building certificate on 7 July 2003. By this time Mr Siracusa had sold the units to members of the Taylor family. The Council was not satisfied by the steps taken to achieve compliance. Consequently, it served orders on 7 May 2004, under s 121B, requiring the new owners to rectify eight matters. Six of those eight matters are raised by this application.
8 It will be seen that there are two primary allegations: one, that the final occupation certificate was issued when the building was not suitable for occupation; and two, Mr Chalmers was not the principal certifying authority for the development, and accordingly was not entitled to issue a final occupation certificate.
9 The Board’s affidavit as to jurisdiction sets out the procedural history of the complaint. The steps taken included a site inspection conducted in March 2005 by Departmental Auditors in the presence of Mr Chalmers and Mr Cohen. An investigation report was prepared for the Complaints Review Committee by Ms Tereza Wickerson, Departmental Auditor.
10 At two stages of the process Mr Chalmers made written representations as to the complaint. Finally on 7 April 2006 the State Assessment Committee recommended that an application be made to the Tribunal for a disciplinary finding. The present application is the result.
11 The material parts of the application follow:
12 The relevant law is accurately stated in the application.
Disciplinary finding/s sought:
1. (First disciplinary finding sought)
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 Gary Chalmers (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 Mr Kevin Douglass of the Council of Camden to the Department of Planning on 2 August 2004 against the Respondent in relation to the inappropriate issue of an occupation certificate in respect to a development at 6 Samantha Place, Smeaton Grange.
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.
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 occupation certificate, 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
Issue of Occupation Certificate
(1) Relevant legislation
Section 109H(1)(c) of the EP & A Act provides:
(1) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless the certifying authority is satisfied:
(c) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia.
Section 109D(2) of the EP & A Act provides:
(2) An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.
Section 109ZH of the EP & A Act provides:
(1) A person who:
(a) issues a Part 4A certificate or complying development certificate that he or she is not authorised by or under this Act to issue, or
(b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate,
is guilty of an offence against this Act.
Maximum penalty: 300 penalty units.
(2) An accredited certifier who falsely represents that he or she is a certifying authority or principal certifying authority in relation to any development is guilty of an offence against this Act.
(2) Particulars of Conduct
Building not suitable for occupation
(a) The Respondent issued a Final Occupation Certificate No. CC 2002-07045 dated 15 May 2003 in respect to a development at 6 Samantha Place, Smeaton Grange.
(b) At the time of issuing the Final Occupation Certificate the building was not suitable for occupation in accordance with its classification under the BCA.
Particulars of unsuitability
(i) Door openings within 3.0 metres of the side boundary were not protected against the spread of fire in accordance with clause C3.2 and clause C3.4 of the BCA.
(ii) The exit stairway has an effective maximum width of 910 mm and does not comply with the requirements of clause D1.6 of the BCA.
(iii) The latches to the exit doors and the doors in the paths of travel to an exit do not comply with clause D2.21 of the BCA as they have snib action latches and round knob handles.
(iv) The sanitary facilities do not comply with the requirements of Part D3 of the BCA and Australian Standard (AS) 1428.1-2000 in that they do not have sufficient circulation space and door width to provide access for disabled persons.
(v) The sanitary facilities do not comply with the requirements of D2.17 and D3.3 of the BCA in that handrails for disabled persons have not been installed.
(vi) The water closet facilities for disabled persons in each of the factory units, as depicted in the plans attached to the construction certificate for the development and as required by clause F2.4 of the BCA and AS 1428.1-2000, have not been provided.
(c) By issuing the Final Occupation Certificate in respect to the building, 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.
Respondent not the PCA
[N.B.: no item (d)]
(e) On or about 11 July 2001 Mr Bernard Cohen was appointed as the Principal Certifying Authority for the development.
(f) At the time that the Respondent issued the Final Occupation Certificate on 15 May 2003 he had not been appointed to replace Mr Cohen as the Principal Certifying Authority for the development.
(g) By issuing the Final Occupation Certificate in respect to the building, 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.
7. Orders sought
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.
13 In his formal Reply to the application filed 24 September 2007, Mr Chalmers did not admit many of the particulars of the first allegation. At hearing Mr Chalmers did not continue to contest any of the particulars of the first allegation, or the opinion that a disciplinary finding was appropriate. In relation to the second allegation, he continued to press the view that there was an extenuating explanation for what occurred. His solicitor, Mr Butterfield, made submissions as to the level of the finding, and the orders. He referred at some length to Mr Chalmers’ professional history.
14 The hearing proceeded on 14 April 2008. It had been adjourned from an earlier date to enable Mr Chalmers and his solicitor to examine the contents of a further investigation report obtained by the Board from Mr Paul Robinson, dated 19 March 2008. Mr Robinson holds numerous relevant qualifications in areas such as building, building surveying, health surveying and fire engineering. His expertise was not questioned. His report is based on an inspection undertaken on 14 January 2008.
15 At the hearing, there were ten documents before the Tribunal: the application, the reply, the affidavit as to jurisdiction, the affidavit of evidence and supporting material (the Folder), the Robinson report, applicant’s outline of evidence in support of application, respondent’s submissions, two testimonials, comments provided to respondent by Mr Stephen Kip of SKIP Consulting Pty Ltd, Geelong, Victoria dated 9 April 2008 responding to the Robinson report, and the respondent’s accreditation history (prepared by the respondent). Following queries as to certain matters subsequent to hearing from the President, there is a further document – a letter dated 14 May 2008 from the applicant’s principal legal officer, Mr Grey, responding to the queries.
First Allegation – Explanation
16 Mr Chalmers replied in writing to the notice of complaint by letter dated 13 October 2004, and said:
Assessment
‘1. The two exit doors in question, one of which complies and the other is to be changed following negotiations with the original owner, along with the door furniture and a self closing device so as to comply with the relevant BCA requirements.
2. The egress stairway in question does not serve a storey pursuant to clause C1.2(d) as detailed in the BCA. The stairway is therefore not required to comply with the requirements of D1.6 because clause D1.2 requires one exit from each storey and it has been determined that the mezzanine area does not constitute a storey. It should also be noted that the maximum occupant loading of the area in question is 4-5 people and as a 1.0m wide stair can serve a maximum of 100 people, it is felt that the existing 900mm wide stair is sufficient. This item was assessed during the initial assessment of the plans and deemed to be adequate as only the hand-rail reduces the stair width.
3. The provision of facilities for disabled persons was also investigated during the initial assessment of the development plans. It was felt that the provisions of section D3.4(d) applied allowing for the concession. Due to the nature of the development being factory based, the need for a disabled person to use the facilities was felt to be non existent. The factory/warehouse/bulky goods type of set up does not permit occupation or employment by disabled persons, unless it is to be used as a sheltered workshop. This would require a separate Development Consent to be issued by the Council.
This fact along with the plans approved by the Council not having the required circulation space, indicated that the factories [sic] compliance with the disabled requirements would be unworkable. The builder was advised that if they wished to provide hand-rails etc to the toilet areas it was their own choice as long as the area was not sign posted as being disabled facilities unless it was fully compliant. It should be further noted that there is no disabled access to the mezzanine/showroom.’
17 The Tribunal is satisfied that the particulars are established. We make the following specific comments.
18 (i) Door openings within 3 metres of the side boundary were not protected against the spread of fire in the manner required by the BCA, C3.2 and C3.4. Robinson report, pp 7-12 refers.
19 The doors were on the back wall of each of the warehouse units, and almost adjacent to the side boundary with the next lot. The boundary to a property is regarded as a ‘fire source feature’ for the purpose of the BCA. An adjoining property may be used for the construction of a flammable building or for the storage of flammable materials. Therefore there are special requirements as to how openings from a neighbouring building are to be constructed. Fire doors must comply with the requirements set out in AS/NZS 1905.1. Both the doors and the jambs must be tagged by the manufacturer as a form of certification that the components meet the specification.
20 Aspects of the joinery of the doors, their fixing and door levers were non-compliant. For example, a door had not been painted to the top and bottom faces, there was no tagging of door jambs and the door assembly did not meet the standards required to be a fire rated door. Mr Robinson concludes:
21 Mr Chalmers said in his written submissions at hearing that when he undertook the occupation certificate inspection (April 2003) he had observed that the door from Unit 1 was compliant. He had accepted the builder’s assurance that the door from Unit 2 was also compliant.
‘If the adjoining properties were involved in fire in the proximity of these personal access doors then the building would not be protected at these openings as the door assemblies have not been provided with fire doors. This would allow fire to impinge upon these doors and possibly involve the subject building in fire due to the external walls being compromised.’
22 He said further that the door to Unit 2 was ‘now’ compliant. This statement does not accord with Mr Robinson’s report at least as the position stood in January 2008 when Mr Robinson undertook his inspection and took photographs.
23 Mr Robinson made a number of specific recommendations as to how to rectify the problems identified.
24 (ii) The exit stairway has an effective maximum width of 910mm and does not comply with BCA D1.6. Robinson report, pp 13-15 refers.
25 The minimum width requirement is 1 metre unobstructed. This standard was not able to be achieved due, according to Mr Robinson, to the positioning of the handrails. There were deviations below 1m in the ground floor part of the stairwell from very small (deviation 5mm) to more significant (deviation 103mm).
26 Mr Chalmers said in his written submissions to the Tribunal that this is a common mistake by architects and draft persons (not to discount the handrails for the purpose of determining width). He said he made a decision at the time that this did not have a significant impact on occupiers. The Tribunal has some doubts as to this explanation given that it is not recorded in Mr Chalmers’ earlier letters to the Board.
27 At hearing these matters were described as technical non-compliances with minor consequences. Mr Robinson had said in his report that having regard to the small number of people likely to use the stairwell and the upstairs office area, the construction of the stairs in concrete and the minor degree of effective reduction in the width, he did not consider the transgression to be likely to prejudice the movement of persons in the event of a fire.
28 (iii) Latches to the exit doors and the doors in the paths of travel to an exit do not comply with BCA, D1.6. Robinson report, pp 16-18 refers.
29 Clause D2.21 of the BCA requires exit doors or doors in a path of travel to an exit to be ‘readily openable without a key from the side that faces the person seeking egress by a single downward action or pushing action on a single device’.
30 In this instance the hand mechanism for opening and closing the doors did not consist of a single device that could be manipulated by a single downward action. Instead, what was installed, and approved, were snib latches and round knob handles, which require more complex action. Mr Robinson explained that these mechanisms meant that doors were not so readily able to be opened, with the result that persons facing and seeking egress in the event of fire would be impeded, and there was a greater chance of a room becoming smoke filled.
31 He recommended that the door-opening mechanisms be replaced with suitable, compliant latch sets.
32 Mr Chalmers said the door now had a compliant lever handle. That change is only one of several seen as necessary by Mr Robinson.
33 (iv) Sanitary facilities – disability access – circulation space and door width; (v) handrails; (vi) water closet facilities for each unit. Robinson report, pp 19-25 refers.
34 The development consent included a condition, Condition 17, headed Disabled Access & Mobility. It required compliance with Part D3 of the BCA and relevant provisions of Australian Standard (AS) 1428. It also required completion of the Check List Schedule located within the Council’s Local Policy No 6.
35 In his report Mr Robinson acknowledged that the second storey would not be required to have access for the disabled as per Table D3.2 of the BCA. However, in his view, the entry, toilets and warehouse areas should comply.
36 As built the toilet facilities were deficient in these respects:
37 D3.2 lays down the general requirement that buildings be ‘accessible’. D3.3 spells this matter out. Strict requirements are imposed, the word ‘must’ being used. One is that access must be provided to any sanitary compartment required for the use of people with disabilities, and to areas normally used by occupants. There must be ramp and handrail access to entrance floors. Paths of travel must be so designed that there is no impediment to a person using a wheelchair.
- Doors leading to the facilities were in too close proximity to one another and circulation spaces were not sufficient
- A toilet paper dispenser was not provided
- The hand basin was too high and too close to the wall
- The grab rails were too high.
38 D3.4 is headed ‘Concessions’ and provides at para (d) – ‘It is not necessary to provide access for people with disabilities to – (d) any area if access would be inappropriate because of the particular purpose for which the area is used.’ Mr Chalmers had contended in his various responses to the complaint that it was not necessary to meet the standards strictly in an industrial development of this kind. He repeated that view in his written submissions to the Tribunal.
39 We agree with Mr Robinson’s assessment of Mr Chalmers’ attempted justification of his failure to ensure strict adherence to the disability access standards.
40 Mr Robinson said:
41 The construction certificate plans showed disabled toilet facilities (‘Disabled Toilet Details’, and the accepted symbol, the wheel-chair symbol, was used at the relevant point of the plans). As Mr Kip observed in his report to Mr Chalmers, ‘so the designer clearly thought access and facilities were required’.
‘4.5.1 It is my opinion that the requirement for disabled access ways must be provided, as far as is reasonable to enable people with disabilities to safely, equitably and with dignity, approach the building from the road and from any car parking spaces associated with the building; and access work and public spaces and facilities for personal hygiene. Also to enable a person in a wheelchair to manoeuvre to and within the building. …
4.5.4. It is my opinion that the concessions set out in D3.4 and relied upon by Mr Chalmers are not substantiated. The warehouse and office area is an appropriate place and the activities conducted in these are normal to everyday life and as such business may be conducted by a disabled person with the occupier of the premises. The occupier of the premises is at liberty to employ machinists who are disabled.’
42 As to item (iv), Mr Chalmers said that the door had been rehung to meet the criticism as to how it opened. This is only one of the points of concern, still current, identified by Mr Robinson.
43 Mr Robinson recommended that the building be assessed by an access consultant and the modifications required to make the toilet and front entry comply with the BCA submitted and work carried out.
Second Allegation
44 As noted the PCA for the development was the principal of Essential Certifiers Pty Ltd, Mr Bernard Cohen. The law requires that no-one other than the PCA can issue the occupation certificates (s 109D(2)). At the time (2003) the law required that the nominated certifier be a natural person. Recently amendments have been proposed which will allow a company to be accredited, and to be named as a certifier.
45 Mr Chalmers’ consistent assertion, not challenged by the Board, is that he undertook all the preliminary steps required before signing the certificate. He also points, in his favour, that he did not attempt to conceal in any way his involvement in the issue of the certificate. It stated accurately that Mr Cohen was the PCA and showed Mr Chalmers’ signature as the signature of the person issuing the certificate.
Explanation
46 Mr Chalmers only substantive written explanation for his conduct is in a letter dated 29 March 2006. He said that Mr Cohen was on leave for a month at the time of the issuance of the certificate and ‘a delay of this period was not an option for the developer for financial reasons’. It would appear from that explanation that Mr Chalmers succumbed to pressure from a client, well knowing that Mr Cohen should have signed off. What is left unclear by the evidence is whether Mr Chalmers had any direct knowledge as at 15 May 2003 that his client’s application for a building certificate had been refused, and the grounds for that refusal.
Assessment
47 The law at the time was clear. Mr Chalmers failed in his duty to observe it. He preferred his client’s interests over the obligation to which he was subject under the law. The particulars are established.
Rectification
48 At hearing, Mr Butterfield for Mr Chalmers acknowledged that the problems identified at item (i) (exit doors non-compliances) had now persisted for several years. He told the Tribunal that the rectification works were to occur in the next week. This advice cuts across statements made by Mr Chalmers in his letter to the Board, mentioned earlier, and in his written submissions to the Tribunal which gave the impression that the problems had been fixed. Mr Butterfield also referred to other steps – noted by us in dealing with items (iii) and (iv) above.
49 As to the rehung toilet door, Mr Robinson, we note, had criticised the step taken as inadequate. He noted that the hinges used were not of the kind required for the door of a disabled toilet. The hinges used were standard screwed-in ones, when what is required is a slide-on style so that the door can be easily lifted off the hinge if there is an emergency.
Standards of Competence
50 As this case involves pre-March 2007, the standards of lack of competence for the purpose of making any disciplinary findings of orders are those set by the then applicable legislation, EP&A Act, s 109R:
51 Mr Grey for the Board submitted that a finding of professional misconduct be made, though we note that the complaints during most stages of their procedural history were cast as complaints of unsatisfactory professional conduct.
‘ 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.
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
52 In respect of Allegation 2 there was a contravention of the Act. A contravention is deemed to be unsatisfactory professional conduct by part (e) of the definition.
53 It was suggested at hearing that the scheme at the time did not provide satisfactorily for the kind of problem that arises when the nominated certifier is unavailable. The amendments to the legislation now proposed, enabling companies to be PCAs, go some way to meeting the kind of problem that occurred in this case.
54 Mr Grey said that the procedure for substituting a certifier was not as difficult as Mr Chalmers has suggested. In the letter to the Tribunal dated 14 May 2008, Mr Grey advised that the applicable provision was s 109EA of the EP&A Act which states that unless the accreditation body so approves in writing a person may not be appointed to replace another person as PCA for a development. As at May 2003, certain senior officers of the Department of Infrastructure, Planning and Natural Resources had been appointed by the Minister to carry out the accreditation functions of the defunct accreditation body, the Building Professionals and Allied Professions Board (commonly called BSAP). Mr Grey supplied a copy of the form issued by the Department at that time.
55 The procedure specified by the form was a three way one, a sign off being required from the original PCA, the new PCA and the owner. In this instance it would seem that there was a practical problem in getting Mr Cohen’s sign off (though even if he was overseas he could, perhaps, have been reached by fax). A contributing factor to the difficulty that arose for Mr Chalmers was that Mr Cohen had not ensured that transfers of authority had been made for any jobs that might require PCA action while he was away.
56 Nonetheless we view the matter as involving more than a mere contravention. The conduct goes to a probity issue of importance. Mr Chalmers, in effect, passed himself off as having the required authority.
57 It is fundamental to orderly regulation that licensed persons with apparent authority to issue a required certificate not abuse their office by deliberately putting into circulation official certificates that are false or defective in a way that deprives the certificate of any force. Action of this kind undermines confidence in the certification system, and may have serious consequences for persons who rely in good faith on the certificate or require the certificate for other purposes.
58 Allegation 1 raises omissions in relation to two matters that go to the public safety and amenity of buildings – fire safety and disabled access. We accept that the development overall was substantially compliant. The omissions involved errors of professional judgement, and did not go to the issues of probity and integrity in the way Allegation 2 does.
59 The closeness of the exit doors to the side boundaries should have provided a clear warning to an accredited certifier of competence that there may be issues regarding fire safety compliance.
60 We glean from the submissions of Mr Butterfield at hearing that Mr Chalmers may not have been as competent as was required to deal with issues of this kind. Mr Butterfield said that for the last five years Mr Chalmers had only undertaken class 1 and 10 certifications, i.e. residential and related buildings.
61 As to the disability access issues, it is clear, we think, from the letter of explanation sent by Mr Chalmers in October 2004 that he took a positive decision to grant the final occupation certificate on the basis that disability access requirements need not be met. He made an assumption about what the likelihood was of there being employees with disabilities. He appears to have given no consideration to the possibility that there might be visitors to the premises affected by disabilities. His assumption as to whether there might be employees with disabilities at industrial premises was rejected by Mr Robinson.
62 Mr Butterfield said that his client was quite conscious of the importance of ensuring that buildings complied with disability access requirements. We find it difficult to accept this assurance. There was a clear indication on the approved plans that fully-compliant sanitary facilities were to be provided. At the least, on a sensitive issue of this kind, we believe that a competent certifier would have obtained some independent, authoritative advice to support his conclusion that the concession granted by D4 was applicable. The Council inspector had no doubt that disability access compliance was required.
63 In mitigation on this point, we note that an attempt was made to fit the room out in a way that responded to disability access considerations, the principal element being the handrail. It is not a case of a complete omission to seek to address disability access considerations.
Conclusion
64 In our view, the misconduct viewed as a whole lies at the serious end of the unsatisfactory professional conduct spectrum.
65 In this instance our finding is that the conduct was not 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’, but the matter is marginal.
Appropriate Order
66 Mr Grey informed the Tribunal that Mr Chalmers had no adverse disciplinary history, and that he held a standard type of accreditation, allowing him to undertake certifications in all building classes from 1 to 10, with a limit of 3 storeys and 2000 sq m area. He noted that it was subject to a quite common condition – one not allowing approval of alternative solutions.
67 Mr Butterfield said that his client had spent 25 years in the certifications area, 16 years with councils (including 10 years at Liverpool Council), and for the last 9 years as a private certifier. As noted earlier, he had done no class 2 to 9 approvals for the last five years. He presented testimonials from a former supervisor at Liverpool, and from a local Member of Parliament referring to Mr Chalmers’ standing in his local community (Camden).
68 His client accepted that a reprimand should be administered, and that any fine was for the Tribunal to decide.
69 Reviewing this case, we have three major concerns. The first is Mr Chalmers’ easy dismissal of disability access considerations; and the second is the probity issue. We have dealt with these matters earlier in our reasons.
70 Our third concern is that there was no clarity in the proceedings as to why full or substantial rectification of the problems had not been achieved.
71 The problems with the fit-out of the exit doors, and the internal doors seem to us to be matters that should have been resolved by Mr Chalmers a long time ago. The disability access issues appear not to have been the subject of any serious attempt to achieve compliance.
72 In our view a reprimand and a substantial fine should be administered, set higher than the level suggested by Mr Grey.
73 The level of the fine reflects our dissatisfaction with the absence of rectification especially in connection with the disability access issues. The state of affairs revealed by the photographs taken by Mr Robinson at his January inspection shows no substantial progress since 2003.
74 We have set the fine at 60 penalty units.
75 We note Mr Chalmers’ statements in relation to the limited way in which he uses his accreditation. No variation to his accreditation was sought by the Board. We will not take that step.
76 However, it seems to us that the Board may wish to take account of Mr Chalmers’ statements as to the way in which he is using his accreditation to impose restrictions on the next occasion it comes up for renewal.
77 It is not desirable, as we see it, for accreditations to be furnished which are far wider in scope than the way in which they are used. In our view, regular practice in all the categories permitted by an accreditation is desirable. It provides a protection against the mistakes that might arise when an accreditation is given in a category where the certifier has had no recent experience.
Order
1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct
2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $6,600.
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