Building Professionals Board v Cohen
[2010] NSWADT 62
•8 March 2010
CITATION: Building Professionals Board v Cohen [2010] NSWADT 62 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Building Professionals Board
Bernard CohenFILE NUMBER: 073165, 073166 HEARING DATES: 22 April 2009 SUBMISSIONS CLOSED: 17 September 2009
DATE OF DECISION:
8 March 2010BEFORE: O'Connor K - DCJ (President); O'Carrigan P - Non-Judicial Member CATCHWORDS: Accredited Certifier – Applications for Disciplinary Finding – Construction and Final Occupation Certificates – Fire Safety – Disability Access – Delegation of Final Inspection – Applicable Professional Standard at the time – Finding of Professional Misconduct – Building Professionals Act 2005 LEGISLATION CITED: Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003
Environmental Planning and Assessment Regulation 2000CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Building Professionals Board v Boulle [2008] NSWADT 80
Building Professionals Board v Cogo [2008] NSWADT 119
Dix v Building Professionals Board [2009] NSWADT 46REPRESENTATION: APPLICANT
RESPONDENT
A Grey, solicitor, Building Professionals Board
G Butterfield, solicitor, Marsdens Law GroupORDERS: 073165, 073166
1. The Tribunal finds the Respondent guilty of professional misconduct.
2. Registrar to fix a date for a directions hearing in relation to the Applicant’s applications for disciplinary orders.
Applications
1 On 29 May 2007 the Building Professionals Board (the Board) lodged two applications with the Tribunal under s 31 of the Building Professionals Act 2005 (the BP Act) applying for disciplinary findings and orders to be made against an accredited certifier, Mr Bernard Cohen, trading as Essential Certifiers. The material text of the applications is appended.
2 At all relevant times, Mr Cohen held, under the classification system then used, accreditation as a certifier and principal certifying authority in respect of the class of buildings the subject of these proceedings.
Procedural Matters
3 Regulatory Background: The BP Act came fully into force on 1 March 2007. The current disciplinary arrangements replace an earlier system that dated from the foundation of the accredited certifier office in 1998.
4 The applications in this case were lodged under the provisions of the BP Act as in force in May 2007. At that point it was mandatory for the Board to refer to the Tribunal cases where it formed the preliminary view that a finding of professional misconduct could be made (with the consequence that a severe disciplinary order might be appropriate, such as suspension or removal of accreditation).
5 Since then there has been a further significant change, with the Board now having a full authority to make findings of professional misconduct, and to impose orders that include suspension or removal of accreditation. This change came into effect in August 2008.
6 Board Investigation: In accordance with Tribunal requirements, the respondent was given the opportunity to raise any objection to jurisdiction related to any failure of the Board, or the predecessor accreditation authority, to observe statutory requirements that are pre-conditions to the Tribunal exercising jurisdiction. There has been no objection. This matter is not considered any further.
7 Constitution of Tribunal: This class of proceedings is committed by the governing legislation to the General Division of the Tribunal. The General Division may be constituted, as a minimum, by a single judicial member of the Tribunal. In accredited certifier discipline cases, the usual listing practice is for the Tribunal to be constituted by two members, a judicial member (usually one of presidential member status) and a non-judicial member with relevant expertise. In this case the non-judicial member is a registered architect of substantial experience, Mr Patrick O’Carrigan FRAIA.
8 The following abbreviations are used from time to time in these reasons: DA for development approval, DC for development consent, CC for construction certificate, OC for occupation certificate, PCA for principal certifying authority, FRL for fire resistance level.
Relevant Disciplinary Standards
9 In this case the conduct in issue occurred prior to the date of commencement of the BP Act, and the investigation commenced prior to that date. Accordingly the complaint is to be dealt with under Part 3 of the BP Act: see transitional provisions, cl 3(1), sch 2; see also Building Professionals Regulation 2007, sch 4. Consequently, the meanings given to ‘unsatisfactory professional conduct’ and ‘professional misconduct’ found in s 109R of the Environmental Planning and Assessment Act 1979 (EP&A Act), as in force immediately before its repeal, are to be applied rather than the meanings for those terms in s 19 of the BP Act 2005.
10 The s 109R definitions follow.
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:
(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.
11 Professional misconduct is defined as:
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.
Findings Sought
12 In both matters the Board applies for a disciplinary finding of professional misconduct or, in the alternative, unsatisfactory professional conduct, and asserts that Mr Cohen 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.
13 On this point, Mr Cohen’s submissions (17 September 2009) noted that the two items (a) and (b) replicate the terms of paragraphs (a) and (e) of meaning of unsatisfactory professional conduct. It is submitted that there is no pleading to the effect that the conduct is of a ‘sufficiently serious nature’ to warrant a finding of professional misconduct.
14 In our view, the application’s opening paragraph, in seeking a finding in the alternative of professional misconduct, sufficiently pleads that point, if a pleading is necessary. In any event, once the conduct is before the disciplinary tribunal, it is ultimately the disciplinary tribunal’s task, in the public interest, to assess the seriousness of the conduct.
The Hearing
15 The first part of each application itemises the alleged failures in relation to the issuance of the CC and the second part itemises the alleged failures in relation to the issuance of the OC. Many of the alleged errors in respect of both developments are of a similar character, and concern either non-enforcement of fire safety standards or non-enforcement of accessibility standards.
16 The Tribunal has dealt with the two matters together, as desired by the parties, and because Mr Cohen has relied in part in his defence on circumstances common to both matters.
17 This decision deals with the application for disciplinary findings. As agreed by the parties, submissions in relation to disciplinary orders were deferred, pending the outcome of this element of the proceedings.
Relevant Legislation
18 At the CC stage, it is the responsibility of the accredited certifier to ensure that the conditions of the development consent are met, and that all relevant building standards and conditions are satisfied by the plans, in particular the Building Code of Australia (BCA). See generally, EP&A Act, s 81A(2), (5); Part 4A (certification of development), esp. s 109C(b) (meaning of ‘construction certificate’), (c) (meaning of ‘occupation certificate’); s 109D; s 109E; s 109F; s 109G; and Environmental Planning and Assessment Regulation 2000 (EP&A Reg), Pt 8 (certification of development), esp cl 145. Under cl 145 the applicable BCA provisions are those in force at the time the application for the construction certificate was made. (The provisions mentioned are as in force at the end of 2003.)
19 The applicable statutory and other provisions are accurately stated in the appended applications, and they are not in contest in the proceedings.
Mr Cohen’s Case in Outline
20 Mr Cohen made formal admissions in relation to many of the errors alleged against him in respect of the CCs for each development, though often with qualifications. Most of the deficiencies in the CC plans were repeated in the buildings as built. There were some additional deficiencies at the OC stage. While he took personal responsibility for any omissions at the CC stage, he denied it in relation to any errors at the OC stage.
21 While he had issued both of the OCs, he had not undertaken the final inspection. He had delegated that task to Mr Gary Chalmers, an employee of Essential Certifiers with a level of accreditation that entitled him to be a PCA in relation to the class to which the affected buildings belonged. At the time of his affidavit, 9 February 2009, Mr Chalmers had worked in the certification area for 25 years, 16 years with Councils, and for the last 9 years as a private certifier. Mr Cohen submits that he did not act incompetently in delegating to Mr Chalmers, and he should not be blamed for errors made by Mr Chalmers.
22 He considers it to be permissible, having regard to industry practice at the relevant times, to delegate final inspections to another certifier of equivalent accreditation and rely on that certifier’s advice in issuing a CC. This defence was first raised in the submissions lodged at hearing. The Board, consequently, was given leave to file additional material replying to this defence.
23 In these reasons in respect of each application we deal first with whether the omissions alleged gave rise to contraventions of the applicable standard. We then deal with the general defence in relation to the OC allegations. It will be seen that we reject the general defence. Finally, we consider whether the allegations proven show incompetence sufficient to warrant a finding of unsatisfactory professional conduct, and, if so, whether they are sufficiently serious to warrant a finding of professional misconduct. Our conclusion is that findings of professional misconduct be made in respect of each application.
The Experts and Submissions as to their Evidence
24 In both cases, the Board relied, principally, on the expert evidence of Mr Paul Robinson, Licensed Building Consultant, P. L. & E. A. Robinson Building Services Pty Ltd. Mr Robinson holds various diploma and postgraduate certificate qualifications in building disciplines including fire safety. He held positions in the health and building surveying departments of local government between 1978 and 1991, and since then has practised privately. He is a member of various professional bodies connected with the building industry.
25 Mr Cohen relied, as to compliance issues, on expert evidence from Mr Stephen Kip, Skip Consulting Pty Ltd. Mr Kip holds a Master’s degree in Engineering, and other degree and postgraduate certificate qualifications in building disciplines including fire safety. His curriculum vitae shows 9 years working in the public sector at local government level and with the peak Victorian regulatory body, and the remainder in positions in the private sector, practising privately for the last two years. He is the current national president of the Society of Fire Safety Engineers of Australia.
26 Mr Robinson and Mr Kip gave oral evidence, and were cross-examined.
27 In his final written submissions Mr Cohen submitted that the evidence of his expert, Mr Kip, ought be preferred where it is in conflict with the evidence of Mr Robinson, on the ground that were they to be accredited under the NSW system, Mr Kip would be graded at Grade 1 and Mr Robinson at Grade 3, having regard to their qualifications and experience.
28 When Mr Robinson was called there was no significant challenge to his expertise. We are satisfied that Mr Robinson is qualified as an expert in BCA compliance matters. There was no challenge to Mr Kip in this regard.
29 The comparisons that are drawn in our reasons between the evidence of Mr Robinson and Mr Kip reflect our view of the cogency of that evidence. It will be seen that on many matters the evidence of Mr Robinson is preferred.
(1) HARRINGTON PARK – CHILD CARE CENTRE DEVELOPMENT
The Development
30 Camden Council granted the development consent on 30 July 2003. On 10 November 2003, Mr Cohen issued the CC for the development (builder, Masterton Homes). As PCA for the development, he issued the Final OC on 18 June 2004.
31 In May 2005 Council officers became aware of potential difficulties with the development, as built. In the course of dealing with a bond refund application, they noticed that the CC plans had features which, on their face, were not compliant with fire safety requirements. They formed the preliminary opinion that the CC plans did not comply in certain respects. Mr S Netting, the Council’s fire safety officer, ultimately, undertook a complete inspection of the building, and found, what he assessed as, a number of non-compliances, principally in relation to matters connected with fire safety.
32 On 14 July 2005 the Council issued an Order under s 121B of the EP&A Act requiring the owners (Child Care Developments Australia Pty Ltd) to attend to 15 items. Subsequently, after negotiation, the order was slightly modified, and rectification of remaining defects was undertaken.
33 On 22 July 2005 the Council lodged a complaint against Mr Cohen pursuant to s 109V of the EP&A Act.
Material before the Tribunal
34 The Tribunal had before it the following:
From the Board: Application and Affidavit as to Jurisdiction from M Wunsch, Team Leader, Complaints, at the Board, filed 29 May 2007; Affidavit of F Rupolo, Acting Team Leader, Complaints, at the Board, filed 23 November 2007 with Exhibit 1 (setting out the official records relating to the complaint, its investigation and the decision to refer to the Tribunal); Further Report of Mr Paul Robinson, Building Consultant, filed 20 March 2008; Two Reports of Mr Robinson responding to Mr Cohen’s affidavit and Mr Kip’s report, filed 20 November 2008; Affidavit of S Netting, Fire Safety Officer, Camden Council at the times relevant to his evidence, filed 22 December 2008; Preliminary Submissions and Outline of Evidence, filed 3 February 2009; Affidavit of M Wunsch, with Exhibits MW 2 and MW 3, filed 21 April 2009 (relating to the General Defence); Final Submissions filed 15 June 2009.
From Mr Cohen: Reply filed 24 September 2007; Technical Opinion of Mr Stephen Kip, Fire Safety Engineering and Building Regulatory Consultant, filed 1 July 2008; Affidavit of Mr Cohen filed 24 July 2008; Outline of Submissions regarding the Occupation Certificate Allegation handed up at hearing, 9 February 2009; Affidavit of Mr Cohen, filed 9 February 2009; Affidavit of Gary Chalmers, filed 13 February 2009; Outline of Submissions regarding Liability, filed 17 September 2009.
35 Various additional documents were admitted into evidence, some relevant to both cases, some relevant to one (marked R1 to R15).
36 At hearing, Mr Cohen gave oral evidence, and was cross-examined. Mr Chalmers’ affidavit was received into evidence, but he was not required for cross-examination.
37 Mr Cohen called, to give evidence on industry practice in the period 1999-2004, Mr Craig Edward Hardy, B App Sc (Env Health), M Sc (Env Toxicology), MBA, Accredited Certifier since 1999, President of the Accredited Certifiers Association. Mr Hardy was cross-examined. On this matter, the Board referred to material set out in the Exhibit MW 2 and MW 3, including: correspondence from Mr Brett Daintry, chief building officer, Municipality of Woollahra; relevant parts of the Report of a Parliamentary Committee, Report upon the Quality of Buildings, Joint Select Committee on the Quality of Buildings, Parliament of NSW, July 2002; and documents relating to some other developments for which Mr Cohen was the PCA in the relevant period, upon which he was cross-examined.
The Allegations
38 Introduction. The subject building is in the style of a large suburban residence. This is in keeping with the surrounding subdivision, and consistent with the usual practice in relation to the style of child care centres in new release areas. It is large, with a slab area of 392 square metres. It is licensed for up to 56 children. The cot room provides for 10 spaces, to allow for the sleeping needs of infants. The main child-care elements are three large play rooms and the cot room. There are staff and utility spaces, such as toilets (referred to as WCs), kitchen and administration areas. It was classified in the CC as a Class 9b building for the purpose of the BCA.
39 The Board itemises nine sets of alleged omissions by Mr Cohen, affecting either one or both of the certificates granted by him. In the examination of these allegations that follows, Mr Cohen’s formal reply at hearing to the CC allegation is shown. In instances where the CC breach is admitted, usually the OC breach is only denied by reference to what we have termed the ‘general defence’. In instances where the CC breach is not admitted, then any related OC breach is usually the subject of a matching non-admission, as well as the general defence.
40 It will be seen that in respect of many of the formal admissions, Mr Cohen’s explanation in mitigation in some instances is so extensive as to suggest that the true position is that there is no formal admission.
41 In the following account the place where the allegation appears in the application is given in brackets.
(1) Openings within 3.0 metres of the side and rear boundaries, namely:
- The sliding door in the staff room
- The window in the kitchen
- The window in the Director’s office
- The window in the Administration room
- The window in the WC off playroom 1
are not protected in accordance with clause C3.2 and clause C3.4 of the BCA [as to CC, item (i), as to OC, item (i)].
42 For a building of the present type the ordinary separation that must exist between openings and a fire source feature (in this case the boundary of the property) is 3.0m. If the opening is within 3.0m from a side or rear boundary, fire protection measures must be adopted, such as wall-wetting sprinklers.
43 Mr Robinson notes that the actual separations were shown on the certified CC plans. It was, in his submission, patent that they were less than the prescribed separations under the BCA. They are listed in his submissions, and there is no dispute with the measurements. They range from 2.1m (kitchen window) to 2.565m (the Administration room window).
44 The errors on the part of the certifier suggest to him a lack of attention to detail. He referred in his report to methods that could have been used to overcome the problem.
45 Mr Robinson noted that at the time of his inspection in late 2007, measures had been taken to provide ‘protection’ to these openings, including the construction of nib walls to form spandrels, and thereby increase the straight line distance from the openings to the boundary to 3.0m. He commented that the work had not conclusively dealt with the problem, and noted that there was no evidence to verify that the nib is constructed of building material that has the required fire resistance level (FRL).
46 Mr Cohen originally claimed (letter to the accreditation authority, 30 September 2005) that the windows were all to be of the glass block type. As the Board’s submissions note, this statement is not consistent with the CC plans, which clearly differentiate between usage of glass block and usage of plain glass for different windows. The submissions also note that in his report of 23 June 2008, Mr Kip refers to Mr Cohen seeing as acceptable a method of measurement of the distance between a window opening and the boundary which includes the set back caused by the reveal and the sill, with the result that they would all have been approximately 3.0m from the boundary. As the Board notes, this was the first time in the history of Mr Cohen’s explanations as to these discrepancies that an explanation of this kind was advanced.
47 In his affidavit sworn 18 July 2008, and in evidence at hearing, Mr Cohen asserted that he regarded as acceptable practice a method of measurement which proceeded on a 45 degree angle from the corner where the glass meets the surround to the side boundary. He included a drawing showing the result in relation to the Director’s office window, being 3.6m. On the other hand a straight line measurement, i.e. one following the line of the window wall at 90 degrees direct to the boundary would result in a measurement under 3.0m.
48 In our view, this evidence was extraordinary. Mr Cohen’s solicitor, Mr Butterfield, indicated to the Tribunal when Mr Cohen’s affidavit was admitted into evidence on 9 February 2009 that it was not now being relied upon in relation to matters that were admitted. Nonetheless, despite his admission on this matter, Mr Cohen continued at hearing to defend his measurement approach as described in his affidavit and indicated that he had used it throughout his 25 years in the field.
49 The only sensible understanding of references to distances in a code such as the BCA is that they refer to minimum separations. Where the two points in issue are parallel, as here, then the method of measurement would be straight line, or perpendicular. Mr Cohen’s method was self-serving and must raise doubts as to all those certifications where he has used his own check measurements to satisfy himself as to compliance.
50 As noted by the Board, Mr Kip said in cross-examination that he had never seen the method of measurement commended by Mr Cohen used before by anyone.
51 There was a debate between the experts as to the effect of non-compliance. This kind of debate was repeated in relation to many of the items in this case. In our view, Mr Robinson’s approach to the question of the effect of non-compliance in relation to fire safety matters is generally to be preferred.
52 In our view, the BCA standards have as their aim the minimisation of risk. Mr Robinson’s general approach is to point to the increased risk of fire spread that goes with non-protection of openings when they fall below the minimum separation distances. There is necessarily an arbitrary aspect to the specification of the precise distance or point at which a requirement for extra protection measures is imposed. But these were not examples of deviations that were on the margins of the required point. Here the variances were ones of the order of 20% to 33% short of the required separations. We agree with Mr Robinson that these failures increased the risk.
53 Mr Kip’s observations were, in our view, not persuasive. His approach on this point was reflected in his comments on the other omissions. He had regard to the actual state of surrounding occupancies as at the time of his inspection in June 2008 in expressing the opinion that level of risk was ‘low to occupants’.
54 It is not unusual for development activity to occur sporadically in previously undeveloped sites. There will often be a period when a new building has no immediate neighbours, and to that extent the actual risk of building to building spread of fire will be low. But that does not, in our view, excuse non-compliances. Necessarily, building fire safety standards must assume that a building may one day exist on a neighbouring site.
55 Mr Kip’s approach, if taken up, would tend to encourage a less vigilant approach to compliance on the part of developments that have adjacent undeveloped land. This approach does not address the difficulty that would then arise in having the built development brought into strict compliance when the neighbouring land is developed. It pays no heed to the interests of the developer of the adjacent land in having alongside a compliant building.
56 It is not appropriate to form any opinion as to the potential seriousness or otherwise of the omission by reference to the absence of surrounding developments at the time of the approval. Nor is it relevant to make such an assessment by reference to the state of the surrounding developments at the time of an expert inspection. The requirement on the accredited certifier is to issue a certificate that is compliant on the date of its issue. A regulatory code such as the BCA must be framed on a predictive basis, and make reasonable assumptions as to what kinds of risks are to be addressed in relation to contiguous land and potential developments thereon.
57 In any event, as the Board’s submissions note, it will not always be the case that vacant land represents a reduced fire risk as compared to a building. In industrial areas, it is not unusual for vacant land to be used for storage of flammable material.
58 In its submissions going to this and other allegations, the Board also criticised Mr Kip’s reliance on a calculation of risk methodology developed by him which he called ‘Risk Management Approach for Ranking of BCA Non-Compliance’. This tool purported to assess ‘probability’ of an event, and to assess the ‘significance’ of any ‘consequence’ of the event.
59 As the Board notes, the statistical likelihood of a fire, especially a serious one, in the life of a building is likely to be very low. The community’s interest is in avoiding any fire at any time, and the threat to life, ecology and property that fire carries. It is of little assistance to the assessment of seriousness of non-compliance to use the measure ‘unlikely’ in assessing the risk of fire as an aid to understanding, as Mr Kip does.
60 The point of fire safety measures is, as we see it, twofold: first, to minimise to the lowest level possible consistent with practicality the risk of fire occurring; and secondly, to manage and limit the intensity and spread of the fire when it occurs. Further, we agree with the Board’s criticism that Mr Kip’s model is simplistic in that it takes no account of the effect of cumulative non-compliances, such as is alleged in this instance and a number of others in this case.
61 More specifically, we accept the Board’s criticism of the use by Mr Kip, in forming an opinion in connection with the present proceedings, of risk models in the BCA connected with catastrophic events such as collapse due to earthquake or snow loads. In this case, as it will be in most fire safety cases, the issue is the standards of fire safety that should apply in relation to the ordinary structural and materials elements of a commercial development so as to minimise the occurrence and spread of fire produced by such events as the combustion of materials on premises, failures in wiring or deliberate action.
62 We accept the Board’s submissions, drawn from the plans and documents in evidence, that Mr Kip overstates the position as regards the absence of neighbouring buildings. While there was no building at the time of his inspection near the eastern and southern boundaries, there were buildings on the western and northern sides of the subject building.
(2) The main entry exit door swings against the direction of egress and is used as a required exit not in accordance with clause D2.20 of the BCA [CC (ii), OC (iii)].
CC: Admitted. OC: General Defence.
63 The plans show double 820mm doors swinging inwards and a child proof gate swinging inwards. Mr Robinson considered that these doors were the natural front doors to the premises. As such they must swing out in a building of this type. He explained why for fire safety purposes it is required that in a building of this type doors should swing out to allow the safest form of egress and avoid jamming of people in an emergency. The error is depicted in photographs taken by the council inspector, Mr Netting, on 20 May 2005.
64 In his view, this was another patent error.
65 The error has been rectified. As at the date of Mr Robinson’s inspection in late 2007, the front entry doors had been modified so that they swung in the direction of egress; and in his opinion no further work was required.
66 Mr Cohen’s admission was a late one.
67 The Board notes that Mr Cohen previously claimed (letter 30 September 2005) that the doors as originally installed were compliant. We agree with the Board that this claim had no merit. It depended on the door not being seen as a required exit. In practical terms, it is logical that it be treated as a required exit, and the plans in marking the door with an exit sign reflected that view.
68 In his affidavit sworn 18 July 2008, Mr Cohen raised another possibility as to compliance. He suggests that the front door could not be a required exit, having regard to Department of Community Services guidelines relating to the relationship between outward opening doors in child care centres and an open space that they lead to. The guidelines were not produced. In any event, as the Board notes, the plans did show a protective inward opening childproof gate off the porch, which would appear to meet the potential problem to which Mr Cohen refers. There is nothing in the evidence to suggest that this explanation is other-than a lately made attempt to overcome the obvious non-compliance at the time the CC was issued.
69 As to the effect of non-compliance, Mr Robinson proceeded on the basis that the front door of the building would be the most likely exit point to which occupants of the building would proceed in the event of a fire. He referred to the obvious difficulties an inward swinging door would present, such as the ‘trapping effect’ it would have, and the possibility of a ‘pile-up of people behind’ if the doors jammed shut. Mr Kip criticised Mr Robinson’s assessment. He considered that ‘there is not a large number of people in the building’ and ‘it is highly unlikely that all would reach the exit at exactly the same time’ and that ‘queuing’ would tend to occur at the exit door. He applied his risk tool to assess the non-compliance as producing an ‘unlikely probability’ with an ‘insignificant consequence’ resulting in a ‘low risk’ to occupants.
70 For the reasons already given under (1) we regard Mr Kip’s approach as unpersuasive. The centre had approval for up to 56 children, 10 of whom could be under two. Adding staff, this is a very large potential population for a building of this scale. During the centre’s business day, the population would be made up, overwhelmingly, of young children with little or no ability to comprehend danger. The Board, in its criticisms of Mr Kip’s opinion, refers to the possibility of others such as parents, siblings and grandparents being on the premises, especially at peak times or in connection with special events. They could include persons with disabilities including ones of mobility.
(3) An exit to the rear courtyard is not provided with a 1.0 metre clear unobstructed path of travel to open space in accordance with clause D1.10 of the BCA [CC (iii), OC (iv)].
CC: Admitted. OC: General Defence.
71 This item refers to obstructions in the path of travel from a door marked as a required exit by way of an Exit Sign under the CC approved plans. This door opened to the rear courtyard. The rear courtyard was outside the staff room. The staff room had a sliding glass door to the courtyard.
72 The rule is that there must be a 1.0m wide unobstructed path of travel from a required exit so as to facilitate as safe egress as possible in an emergency.
73 The plans included design and landscaping features, such as the retaining wall, which reduced the ordinary path of travel below 1 metre. There were stepping pads, shrubs and accent plants that impeded travel. Finally there was a gate at the south west corner between the boundary and the building which swung against the path of travel.
74 Again, Mr Robinson saw these as obvious errors, and attributed the failure to notice it to a lack of attention to detail.
75 When inspected in 2005, the council officer, Mr Netting, regarded the as-built situation as worse than the plans. His photographs showed the presence of two external hot water systems in the path of travel further limiting the available space and a raised Koppers Log garden bed. The photographs showed, as the Board notes, ‘no trafficable passageway at all’. The Robinson photographs taken in 2008 show a gap of only 310mm between the external water heaters and the boundary.
76 As at the time of Mr Robinson’s inspection the problem had been rectified by removing the Exit Sign from above the door, and thereby not having the door as a required exit.
77 The Board’s submissions criticise an explanation given by Mr Cohen (letter 30 September 2005 to the accreditation authority) that the rear courtyard ‘should not’ have been identified by the Council as an exit. As the Board notes, there is no basis in any of the material for this statement. The status of ‘required exit’ flows from the decision contained in the plans to have an illuminated exit sign placed over the relevant door. The Council is not involved. While the DC issues from the Council there is nothing in the material to suggest that the Council directed that this particular door be one of the required exits.
78 The Board’s submissions refer to the assessment of Mr Kip. Mr Kip makes a risk assessment. We have commented previously on this approach.
79 The issue raised has to do with the adequacy of the approval at the CC and OC stages. The CC plans showed a maximum width of 800mm. From the outset there was a significant failure of compliance, with the width being 20% below the minimum distance, 1.0m. The landscaping features added to the extent of non-compliance by reducing the width further at certain points. Finally, it is reasonable to infer that the external water heaters were part of the as-built development, in which case the degree of non-compliance was extreme by the time the OC issued. Mr Kip’s assessment does not address these points.
80 Mr Cohen in his affidavit of 18 July 2008 depicts the issue as one relating to a ‘route of access’ to the rear courtyard. As the Board notes, the issue raised is about the adequacy of the route as a route of ‘escape’ in an emergency fire situation. It is not to the point that it was never an important route for purposes of day-to-day access to the centre.
(4) Facilities accessible to people with a disability do not comply with clause F2.4 of the BCA and AS 1428.1 [CC (iv), OC (vi)]. Signage identifying facilities accessible to people with a disability was not provided [OC (v)].
As to first items, CC: Not Admitted. OC: Not Admitted. General Defence.
As to second item, OC: Admitted, but now rectified.
81 This item refers to the BCA standards in relation to disabled access. This is a building of a class to which standards in relation to accessibility for people with disabilities apply.
82 We note that the specifications issued by the builder, Masterton Homes, which should have been read by Mr Cohen when he issued the CC, listed ‘White Wall Tiles’ to ‘Toilets 1, 2, Disabled Male and Female’. However, the plans make no reference to the toilets being made suitable for disabled access. They are simply described in the plans as ‘WC Female’ and ‘WC Male’. The CC fails to rectify the omission.
83 There was no dispute by Mr Cohen’s original inspector (Mr Jones, 13 August 2005) over the non-compliances. Measures were taken to adapt the toilet closest to the kitchen as a disabled toilet.
84 On inspection in late 2007, Mr Robinson noted that one of the two toilets did have appropriate signage, the one closest to the storeroom and kitchen. The following non-compliances were found: toilet pans too low; hand basin too high; vanity does not sufficiently project from wall; lever handle is too high; top of horizontal grab rail is too high; no inclined or vertical extension to the hand-rail; no second grab rail beside the cistern; doors do not open in both directions or have fittings which allow the doors to be removed from the outside; doors do not have ‘in-use’ indicators; doors do not have signs indicating access for people with disabilities.
85 Mr Cohen denies the allegation on the basis that it was apparent from the size of the WCs that they were intended to be used by persons with a disability. Mr Cohen submits that the drawings are ‘dimensionally compliant’ with the relevant standard, AS 1428.1. He refers to Mr Kip’s statement that it is ‘incomprehensible that the architect and draftsperson would have dimensioned the toilets like this and not intended them to be AS 1428.1 compliant, as they are more than twice the size of a typical toilet’. Mr Cohen submits that it was reasonable for him to have assumed, therefore, that the designers had given instructions in the plan that were AS 1428.1 compliant.
86 This explanation does not have regard to the fact that the plans have no marking indicating that the WCs are to be appointed in a way that meets disabled access standards. It is the case, as Mr Kip suggests, that plans would not be expected to show all the additional details that are required to be addressed. It is routinely the case that plans do not detail every specific requirement. However, the certifier is required to ensure strict compliance with BCA requirements in all respects.
87 The Board noted that in his letter of 30 September 2005 after Mr Jones’ inspection, Mr Cohen admitted that the signage and the sanitary facilities did not comply with AS 1824.1. On the other hand, in his affidavit of 23 June 2008 he stated that the plans were approved for ‘unisex disabled toilet facilities’. He attached plans. They do not bear out this statement. The plans simply have the markings already mentioned. He refers to conversations he said he had with the builder’s representatives on this issue. As the Board notes, any conversations are irrelevant. The CC approved the plans. The plans were not satisfactory. The only reference in the plans to disability access was a notation for ‘Disability Space’ on car parks 9 and 10.
88 In relation to the allegation that signage identifying facilities accessible to people with a disability was not provided, Mr Cohen submits that the problem has now been rectified, and refers to the Kip report. Mr Kip merely states that at the time of inspection signage was provided to one toilet. This accords with Mr Robinson’s statement that at the time of his inspection, signage had been provided to the toilet closest to the storeroom and kitchen. He stated that the toilet closest to the Director’s office has not been marked as a disabled toilet.
89 Mr Robinson’s conclusion on this point was that, in his view, there was an obvious breach in issuing an OC without the proper signage installed. This indicated to him a lack of attention to detail and the absence of a prior inspection.
90 He expressed the opinion that ‘by not identifying the facilities for personal hygiene at appropriate locations, [this] compromises the dignity of people in finding those facilities’. Mr Kip’s view was that if there was a breach at the OC stage, ‘given the level of staff in the building to assist and direct disabled person [sic], this appears to be very minor’. Further he said, ‘I disagree with the opinion of the Robinson report that this non-compliance ‘compromises the dignity of people finding these facilities’’.
91 In our view this is an instance, repeated at other points in this case, of a degree of indifference to the importance of disabled access standards on the part of Mr Kip that has been uncritically adopted by Mr Cohen.
(5) Illuminated exit signs are not installed in the building in accordance with clause E4.5 and clause E4.6 of the BCA [CC (v); OC (ix)].
CC: Not Admitted. OC: Not Admitted. General Defence.
92 BCA E4 deals with Emergency Lighting, Exit Signs and Warning Systems. E4.5 deals with Exit Signs and E4.6 deals with Direction Signs. These are the issues raised by the application. The adequacy of the emergency lighting is not put in issue by the application (see Board’s submissions, 15 June 2009, p 23).
93 The allegations refer only to:
- illuminated exit signs over required exits; and
- illuminated signs that indicate the direction in which a required exit is located.
Exit signs
94 E4.5 provides that an exit sign must be clearly visible to persons approaching the exit, and must be installed above or adjacent to doors serving various purposes set out in the rule, relevantly to this case doors leading to open space.
95 We agree with the Board’s submission that it is reasonable to assume that the markings that correspond to the legend in the electrical plan (the rectangular exit symbols) mark the points where the illuminated exit signs were intended to be placed. The breach alleged in relation to this standard concerns the exit sign over the staff room. Because the path of travel was obstructed, it should not have been allowed as an exit.
Directional Signs
96 E4.6 (NSW) provides:
If an exit is not readily apparent to persons occupying or visiting the building then exit signs with directional arrows must be installed in appropriate positions in corridors, hallways, lobbies and the like, indicating the direction to a required exit.
97 This is the main point of this allegation. In Mr Robinson’s opinion, the paths of travel to exits were from each of the playrooms directly to external doors: out of the staff room, laundry, kitchen, toilets and offices to the main entry hallway and the other the main front entry, with an alternate exit through the playrooms. Mr Robinson states: ‘Consequently directional signs are then required to clearly indicate paths of travel to exits’. In oral evidence, Mr Robinson indicated a position in the short hallway directly outside the laundry door as a location where a directional sign would be required. Mr Cohen produced photos he had taken at the premises on 2 March 2009 in support of his contention that a directional sign outside the laundry door was not needed.
98 In Mr Robinson’s opinion the building was compromised as a result of the CC being issued with the uncorrected exit signs and no appropriate directional signs being indicated. We have reviewed the plans, and agree that the electrical plan did not provide for any directional signs.
99 On the other hand, Mr Cohen submits that the plans show compliance. He refers to Mr Kip’s opinion that the requirement of E4.6 was met. He refers to the words ‘readily apparent’.
100 Mr Kip’s assessment and the photographs are marginally helpful. The assessment of whether a directional sign is required has to be approached from the standpoint of the use of the affected area and its likely population. In this instance the main population is young children. It seems to us that, whether or not they are capable of reading signs and understanding their importance, egress would be assisted by having directional signage available to supervising staff. When Mr Robinson referred in his evidence to having a ‘conservative’ view on this matter, to which objection is taken in the submissions as a relevant standard, we understood him to be saying that a judgment as to whether signage is desirable should err on the side of incorporating directional signage rather than the opposite.
101 The photographs brought to hearing by Mr Cohen on 22 April 2009 (and taken the previous day) were, in our view, unpersuasive as to sight line issues. They were taken by an adult, and did not give the perspective that a child might have. The playroom walls were solid in their lower part, and then had visual panels. We were not satisfied that a child would have the ability to work out where to go by sight alone. In any case we agree with Mr Robinson that a ‘conservative’ approach should be taken to providing signage in a building housing a vulnerable population.
(6) Natural ventilation has not been provided to the “Cot Room” in accordance with Parts 4.5 and 4.6 of the BCA [CC (vi)].
CC: Admitted.
102 This alleged omission was not included in the Council notice. It was detected by the Board’s inspector.
103 The basic principle is that all parts of a building used by occupants are to have access to outdoor air. The requirements seek to ensure that this principle is maintained in relation to internal enclosed spaces intended for use by occupants but do not have direct access to outdoor air. Under the BCA such a room must have natural ventilation (openable windows), ventilation provided by mechanical means, such as air conditioning or ventilation ‘borrowed’ from an adjoining room.
104 The site plan provided for air conditioning to the whole of the building. The building did include a number of openable windows at other points. Accordingly there would be periods when the windows elsewhere would be open, and the air conditioning system might not operate.
105 In Mr Robinson’s opinion the cot room was an internal enclosed space. He gives the measurements of the distance of the room from the northern and western property boundaries. We accept his calculations. The cot room had four sealed windows of glass block construction. The question then becomes whether the air conditioning system is compliant with the BCA for the purpose of providing an adequate source of air to the cot room. Mr Robinson noted that there was no performance specification for the air conditioning system, and therefore the plans do not demonstrate compliance with the BCA.
106 Further he found that the air conditioning system was non-compliant to a significant degree. At the time of Mr Robinson’s inspection, late 2007, no measures had been taken subsequent to the Departmental investigator’s finding to rectify the problem.
107 Following his inspection in 2008, Mr Kip found that the air conditioning system was non-compliant to a very large degree. His calculations included an allowance for ‘borrowed’ air. We agree with the Board that Mr Kip’s allowance was too low. He erred in treating four internal windows (those situated in the wall between two internal rooms) as being able to be opened. We agree with the Board that he has misread the acronyms on the plans. They are aluminium fixed windows (i.e. AFWs) and not sliding windows (ASWs) as he asserts. Clearly therefore they can not be a source of ‘borrowed’ air.
108 As the Board’s submissions note, Mr Cohen’s evidence on this matter is unsatisfactory. He is wrong in asserting (affidavit 18 July 2008) that the plans provided for openable cot room windows. Moreover, it is irrelevant to the question of the adequacy of his certification whether a builder said to him, as he asserts, that there would be an openable window for the cot room.
109 Clearly this omission is a grave one in the environment of a child care centre, and particularly as it affects a cot room. Mr Robinson expressed the opinion that unless there is sufficient natural or mechanical ventilation for a sleeping area of this kind, adequate air quality may be compromised.
110 Mr Kip states that there is ‘no evidence’ that any lack of ventilation has caused a reduction in air quality, and that the non-compliance, using his formula, gives rise to a low risk to occupants. For reasons similar to those given elsewhere in this decision, we reject Mr Kip’s use of the formula. Further there is no indication in his report as to what methods he may have employed to ascertain if there is evidence before reaching his ‘no evidence’ conclusion. In any event this type of analysis distracts attention from the nature of the obligations that fall on the certifier, i.e. to be satisfied that strict compliance has been achieved at the point of certification.
(7) Floor coverings compliance not demonstrated [OC (ii)].
OC: Not Admitted. General Defence.
111 Mr Robinson notes that the floor coverings to the play rooms, entry and office areas are sheeted with vinyl. He notes that ceramic tiles are fitted to the wet areas. The general principle is that a building of the present type must have elements which, to the degree necessary, maintain structural stability during a fire. The fire hazard properties must in the case of floor materials and floor coverings (and linings) be as per the relevant specification. The key concept in this regard is ‘critical radiant flux’. Mr Robinson explains in his report that it is essential that the certifier assure himself (or herself) that floor coverings meet the relevant specification. There is no supporting certificate in this case to that effect. This again, in Mr Robinson’s opinion, is an obvious breach, suggesting a lack of attention to detail.
112 Mr Cohen did not challenge the Council’s order on this point nor Mr Robinson’s opinion. On the other hand Mr Kip in his report opined that the materials in the building are ‘likely to comply’ and said that ‘it is not always common practice to require test reports for materials to be supplied’ in a situation like this. We agree with the Board’s criticisms that Mr Kip established no foundation for either of these statements.
113 This is an area where the certifier must have an appropriate certification from the manufacturer or supplier, and none was obtained.
(8) The building had ducted air-conditioning installed and was not provided with automatic shutdown of air handling systems in accordance with clause E2.2, NSW Table E2.2b of the BCA on activation of an automatic smoke detection and alarm system installed in accordance with specification E2.2a of the BCA [OC (vii)].
(9) The building was not provided with an automatic smoke detection and alarm system installed in accordance with specification E2.2a of the BCA and AS 1670.1 [OC (viii)].
OC: Not admitted as to both. General Defence as to both.
114 These are related allegations, and can be dealt with together. In the case of fire, the potential for spread of fire, smoke and gasses is reduced if the air conditioning shuts down, and that operation of alarm systems and shut down is assisted by automatic smoke detection and alarm system mechanisms.
115 The building, as built, had return air ducts in the main hallway and air delivery ducts throughout the building together with dedicated smoke detection and emergency light facilities to most rooms. Mr Robinson explained that in the event of fire there is a real danger that if the ducting remains operative it will promote the spread of fire and smoke, and militate against effective egress from the building.
116 For these reasons, building standards require an automatic shutdown facility to be incorporated into the system in buildings of the present class. The OC had been issued without there being any provision for an automatic shutdown facility. Mr Robinson saw this as an obvious breach, suggesting a lack of attention to detail.
117 There was dispute initially (by Mr Jones in letters to the builder and to the Council in July 2005) as to whether a change subsequently made to the system made it satisfactory. He disputed the need to install an AS 1670.1 system as distinct from the one installed, an AS 3786 system.
118 We agree with Mr Robinson and the Board that the report on this issue prepared by Mr N Halstead of AE & D Consulting, Pyrmont, in August 2005, is persuasive. Mr Halstead concluded that the change, providing for automatic shutdown once an AS 3786 smoke detection system was activated, was not sufficient. The shutdown facility that was needed was one compliant with the AS 1670.1. Mr Halstead proposed an Alternative Solution to meet this deficiency. As at June 2009 no certification had been supplied to confirm that this change had been made, and certified by a certifier with the relevant accreditation to approve fire safety alternative solutions for class 2 to 9 buildings, one not possessed by Mr Cohen. There is no explanation from Mr Cohen as to this omission.
119 Mr Robinson notes that the failure to have a compliant smoke detection and alarm system compromises such matters as the temperature within the room, contributes to an increase in the intensity of fire, affects visibility during an emergency due to increased levels of recycled smoke, with consequent effects on safe egress.
120 Item (9) is a corollary to item (8). The matter is also governed by AS 3786, and there was the same dispute as to whether a AS 1670.1 deemed-to-satisfy solution was adequate. We agree with the view of Mr Halstead that the change made is not compliant, and that both allegations are made out.
121 In this instance Mr Cohen’s defence goes beyond his general denial of responsibility. He said (response to accreditation authority, 30 September 2005) that the builder did not raise the possibility of inclusion of a ducted air-conditioning system in the building during the CC process. He then stated, in reply to item (8), that ‘for this reason I believe Mr Chalmers was not aware of the requirements when he conducted the final inspection.’ He makes a similar point in relation to item (9). The Board correctly points out that Note 7 on the site plan provides: ‘7. Reverse cycle ducted air conditioning to whole of building.’ Accordingly this issue was identifiable both at the CC stage and the OC stage, and needed to be addressed.
Summary
122 In our view, all of the allegations pressed by the Board have been proven, subject to the issue of whether Mr Cohen’s general defence on the OC allegations exculpates him in respect of those allegations. We deal with the general defence after considering the specific allegations in relation to the Camden development.
(2) CAMDEN – OFFICE BUILDING
The Development
123 The development consent was granted by the Camden Council on 12 May 2003. Mr Cohen issued the CC on 15 March 2004. As principal certifying authority for the development, he issued the final OC on 14 July 2005. In connection with the Council’s proposed rectification notice, Mr Jones attended the premises on behalf of Mr Cohen on 22 August 2005. The Council issued a s 121B rectification notice on 25 August 2005. On 24 February 2006 the Council lodged a complaint against Mr Cohen pursuant to s 109V of the EP&A Act.
124 While the building is an office and administration building, it has the general appearance to the street of a simple single fronted, single storey heritage style colonial brick residence, with such features as a corrugated main roof, corrugated front verandah roof, and picket fence. It becomes a two storey building further back.
125 The building sits close to the front of the site and close to the left boundary. There is a paved driveway on the right side between the side of the building and the boundary of the site leading to the rear area. There is a garage at the back and an external car park area.
126 The building has the following primary features: a ground floor entry level with a reception area, reception counter, behind which are three enclosed offices and an open office area with toilets. The site falls away to the rear. Stairs lead down to the garage area at the rear with three internal car spaces provided for, while other stairs lead up to an attic area. The office area and the garage area each have above them an open area. In the case of the office area the area is marked ‘attic’. The area above the garage is smaller, and is marked ‘flood storage’ area. Mr Robinson notes that the attic area (75.18m2) could lawfully accommodate 8 people, but none could be accommodated in the flood storage area as its ceiling height is only 2m (first report, 4.4).
Material before the Tribunal
127 The Tribunal had before it documentation separate to that filed in relation to the Harrington Park application, with many items having the same authors, and the same dates, as follows.
From the Board: Application and Affidavit as to Jurisdiction from M Wunsch, Team Leader, Complaints, at the Board, filed 29 May 2007; Affidavit of M Wunsch, filed 23 November 2007 with Exhibit 1 (setting out the official records relating to the complaint, its investigation and the decision to refer to the Tribunal); Further Report of Mr Paul Robinson, Building Consultant, filed 20 March 2008; Two Reports of Mr Robinson responding to Mr Cohen’s affidavit and Mr Kip’s report, filed 20 November 2008; Affidavit of S Netting, Fire Safety Officer, Camden Council at the times relevant to his evidence, filed 22 December 2008; Preliminary Submissions and Outline of Evidence, filed 3 February 2009; Affidavit of M Wunsch, with Exhibits MW 2 and MW 3, filed 21 April 2009 (relating to the General Defence); Final Submissions filed 15 June 2009.
From Mr Cohen: Reply filed 24 September 2007; Technical Opinion of Mr Stephen Kip, Fire Safety Engineering and Building Regulatory Consultant, filed 1 July 2008; Affidavit of Mr Cohen filed 24 July 2008; Outline of Submissions regarding the Occupation Certificate Allegation handed up at hearing, 9 February 2009; Affidavit of Mr Cohen, filed 9 February 2009; Affidavit of Gary Chalmers, filed 13 February 2009; Outline of Submissions regarding Liability, filed 17 September 2009.
128 As noted in relation to the Harrington Park application, various additional documents were admitted into evidence, some relevant to both cases, some relevant to one (marked R1 to R15); and at hearing, Mr Cohen gave oral evidence, and was cross-examined. Mr Chalmers’ affidavit was received into evidence, but he was not required for cross-examination.
129 The evidence relating to the general defence was the same in relation to both applications, as itemised at para [27], above.
The Allegations
130 The Board itemises nine types of omission affecting either one or both of the certificates granted by Mr Cohen. Like the Harrington Park case, a number of the errors flowed through to the grant of the OC. Six of the alleged errors related to both stages. Three others related to the OC only. They are summarised below. Mr Cohen’s reply to the CC allegation is shown. In instances where the CC breach is admitted, usually the OC breach is only denied by reference to what we termed, adopting the Board’s description, the ‘General Defence’. In instances where the CC breach is not admitted, then the related OC breach is usually the subject of a matching specific Defence as well as the general Defence.
(1) Window openings within 3.0m of side boundaries were not protected against the spread of fire in accordance with C3.2 and C3.4 of the BCA, both in plans and as built [CC(i)]; openings within 3.0m of side boundaries not protected, including non-window openings (grille, openings between columns) in addition, openings between the columns were not BCA compliant as built [OC (i)].
As to CC item: Admitted. As to OC item: General Defence.
131 The first set of allegations refer to the window openings. The front elevation drawing shows the two storeys with the second storey concealed to a degree by the roof line of the first storey. There are four front windows, two on either side of the door, at the ground level, and two on the upper level attic, one set near the left side, the other set near the right side.
132 The allegation refers to the window at each level immediately to the side of the north-west side of the building. These windows were located within 1800 mm of the side boundary. Consequently special measures to prevent spread of fire are required. They were not provided for. No form of protection was supplied.
133 The second part of the allegation is only pressed in respect of the OC as the plans were compliant, but the building as-built did not implement the plans. At the rear of the building there are open mesh type roller doors, with a void area behind and open security grille work above them. This set of allegations refer to the openings between the structural brick piers or columns and the side wall.
134 The Board explained in its submissions the calculations that lead to the conclusion that the opening constituted by the grille panel was, in the approved plans the required minimum distance from the fire source features, the boundary (2m in from external line of building, which in turn was 1m from the boundary).
135 We accept the evidence of Mr Robinson that the work was not carried out in accordance with the plans, for the reasons given by the Board in its submissions.
136 First, the grille was repositioned from being 2m in from the external line of the building, and was installed instead between the brick columns on the external wall of the building. It was necessary for a fire protection measure to be introduced. This did not occur.
137 Secondly, a further grille was installed between the brick columns at the rear corner of the building. The closest point of this now enclosed opening (the plans had shown a void) was approximately 1500 mm from the boundary. Again a fire protection measure was required.
138 Thirdly, contrary to the markings on the approved plan, no fire rated ceiling was installed to any part of the underside of the floor structure of the flood storage room in the upper level area.
139 We will not set out in detail the history of the steps taken to rectify these omissions. Fire shutters have been installed over the affected windows linked to a thermocouple activation device. Mr Robinson notes that, as at the time of his report, no installer certificates as to efficacy of fire safety had been provided.
140 He noted further that no work had been undertaken in respect of the protection of the side and rear grilles that were within 3m of the side boundary. As to this matter, Mr Kip was of the opinion that a fire safety exemption applied, because the garage area resembled a colonnade verandah or balcony, and as such is specifically exempted by the BCA from having to comply with the requirement to provide protection from the spread of fire. In our view this is a far fetched interpretation, and one, we note, not advanced previously.
141 We agree with the submissions of the Board. The area is designated ‘garage’ in the approved plans, and the columns, grille panels and roller doors, comprise the ‘walls’ of the garage. Mr Robinson refers to the colonnade argument. We agree with his opinion that brick columns with panel infills are not consistent with the nature of a colonnade.
142 We agree with the Board that Mr Cohen’s original explanation (affidavit, 18 July 2008, para 5) is implausible. He said that the windows were installed ‘two metres’ from the boundary ‘as a result of construction constraints of the roof structure on the site’. Each window belonging to each pair is set out in the plans in an equidistant relationship. In our view, the problem flows from aesthetic rather than structural considerations. It was necessary because the building was set close to one boundary, either to alter the aesthetic choice and set the north-west facing windows further in, or leave the far left windows as they were and incorporate the fire safety feature.
143 In response to the Council’s s 121B rectification notice as it related to lack of fire protection affecting the rear area, Dr V Shestopal, accredited certifier in mechanical and fire safety engineering, issued an expert opinion on 18 January 2006.
144 In the expert opinion, he noted that the void was not connected to the office by any interior door. Therefore, in his opinion, the use of metal louvres as fire protection elements was an adequate solution, even though it was not as specified in C3.4 of the BCA. He said that fire can not spread to the building due to the ‘imperfection of the protection of the openings’ because ‘there are no combustibles inside to be ignited’. He regarded the solution as adequate while the separate compartment ‘remains separated and empty’.
145 Dr Shestopal gave this opinion without visiting the site. In any case Dr Shestopal’s opinion involves a plain misreading of the documents, and raises a doubt in our minds as to whether he was ever shown them. It would be unlikely that a garage in a modern office building would not be connected internally to the office area. If Dr Shestopal’s assumption were correct, then occupants of the parked vehicle would need to leave the garage by an external route, and enter the building via an external door. We agree with the Board that the plans, as might be expected, show an internal pathway from the garage to the office area, via a staircase. The plans also show a second internal connection off the staircase, to the attic.
146 Moreover the garage area could not reasonably be regarded as ‘empty’ given the staircases and landings shown with the area in the plans. The Board also noted that as at the time of Mr Robinson’s inspection in 2008 there were, again unsurprisingly, a variety of combustible building and storage materials located there.
147 The Board’s submissions also note the nature of the materials used in this and other parts of the building, especially timber and pine.
148 It reflects poorly on Mr Cohen that he proceeded to furnish such an opinion to the Council, and then rely on it in these proceedings. The Council would, we think reasonably, have expected such an opinion to issue after direct inspection. We also endorse the Board’s criticism of Mr Cohen for tendering the Shestopal letter as an expert opinion on the matter, given the obvious factual errors it contained, and the implausibility of its assertions. Mr Cohen’s response in evidence was entirely unconvincing, i.e. that it was not for him to question the expertise of Dr Shestopal.
(2) Absence of bollard or other barrier to protect rear exit door from being blocked by parked cars [CC(ii); OC (iii)].
CC: Not Admitted. OC: Denied. General Defence.
149 This allegation relates to the rear door that connects the garage to the rear car parking area. The point is that, once designated as an exit, the rear door should not be able to be blocked by, for example, a vehicle or some other physical object being within the area of the door swing of the door. If the rear door can be blocked, then egress in the event of fire is impeded.
150 In our view, the omission is an obvious one. By the time of Mr Robinson’s inspection in 2008, measures had been taken to address the problem, by means of a flexible bollard.
151 In our view the responses of Mr Cohen and Mr Kip to this omission had no merit. Mr Cohen contended in evidence that the way the car parking area was laid out, and accessed, meant that a driver would be most unlikely to park the vehicle in a position so close to the rear door as to block it. Mr Kip said that whether a bollard was required in connection with an outward opening rear door was a matter of discretionary judgement. Mr Kip, in our view, by these comments makes the mistake of focussing on the preferred preventative measure (a bollard) rather than the point of the rule.
152 It is possible that an alternative solution might provide the same protection, for example the use of kerbing, split levels, landscaping or, more arguably, markings and signage. This was a flat plane lay-out. We agree with Mr Robinson’s response that there were no features present in the plan or the as-constructed development to suggest that some other solution might have sufficed.
153 We do not agree with Mr Cohen’s suggestion in evidence that a removable bollard represents adequate compliance. Mr Cohen referred to this as being more desirable than a fixed feature on the basis that there may be situations where accessibility considerations require a space wider than that which would exist if it is defined by a fixed bollard. Clearly the danger exists that a removable bollard may not be restored. In our view, an approach should not be taken, as Mr Cohen would appear to be suggesting, of allowing a fire safety feature to be compromised to meet accessibility considerations. The first approach should always be to see how both considerations can be met harmoniously.
(3) Front main entry door swinging against direction of egress contrary to the requirements of D2.20 of BCA [CC (iii); OC (v)].
CC: Admitted. OC: General Defence.
154 This allegation relates to the front door facing the street. Contrary to the doubt expressed by Mr Kip, in our opinion the CC plans unmistakably show an inward swing. There is no dispute as between the Council, Mr Robinson and Mr Kip that the door in a development of this kind must swing outwards. D2.20 provides that a swinging door in a required exit must swing in the direction of egress. There are some exceptions in D2.20. None of those exceptions are relied upon.
155 However, Mr Cohen has contended that it is permissible for the door to swing inwards, relying on another provision of the BCA. He refers to BCA provision D1.4(c)(ii), which permits this outcome. D1.4(c) provides:
(c) Class 5 to 9 Buildings …
(i) no point on a floor must be more than 20m from an exit, or a point from which travel in different directions to 2 exits is available, in which case the maximum distance to one of those exits must not exceed 40m; and
(ii) in a Class 5 or 6 building, the distance to a single exit serving a storey at the level of access to a road or open space may be increased to 30m.
156 Mr Cohen’s contention is that as the building is a class 5 building, a travel distance of 30m is permitted before a front outward-swinging door is needed in addition to the outward-swinging rear door. Mr Robinson replies that sub-rule (ii) represents a more generous position than the primary rule. In his view, the words ‘a storey at the level of access to a road or open space’ is a reference to a single storey building. This building was not such a building.
157 In our view, Mr Robinson’s reply is correct. Sub-rule (ii) involves a concession as compared to the principal rule, sub-rule (i). There is an allowance of a further 10m where the path of egress of the affected storey opens to a road or open space. (This may be a significant concession in, for example, a sloping site situation with one level opening to space at the front of the site, and another level opening to space at the rear of the site.)
158 In any event if Mr Cohen’s interpretation is open, Mr Robinson submits that the plans failed to comply with the maximum travel distance of 30m. This is a multi-storey building. Therefore it is necessary to estimate the travel distance from the furthest points inside the building to the nearest exits. The travel distance from the attic’s furthest corner comprises 12.5m plus 3.8m (the stairs) plus distance to front entry door, 19.2m, total 35.5m. We agree with his calculations.
159 Finally, there is no evidence corroborating Mr Cohen’s assertion that at the time the OC was issued the door was fitted with a pin hinge allowing it to swing in either direction. Mr Cohen’s evidence is rejected. We note, as did the Board, that Mr Jones’ letter of August 2005 reporting his inspection calls for the door to be re-hung to swing in the direction of egress. Mr Cohen’s evidence was, in our view, concocted.
(4) Internal door at top of stairs leading to the attic office swings in a way that impedes the path of egress to the exit servicing the attic office [CC (iv); OC (vi)].
CC: Admitted. OC: General Defence.
160 The attic plan shows two 820 doors swinging into each other, one from the top of the ground floor stairs up to the attic and the other exiting from the attic swing back towards the attic. The landing connects the office area and the garage area. The offending door has now been removed, resolving the problem. Mr Robinson noted that the jamb and locksets remained, leaving open the possibility that, in ignorance, a door might be rehung in an offending way. The inspector and both experts were agreed as to non-compliance.
161 Mr Cohen admits that he was in error as to the interaction of the two doors, but claimed in his affidavit of 18 July 2008 that the subject door is not required to open in the direction of egress provided it is fitted with a hold open device. There is nothing in the plans to support any such possibility, and no other evidence on the matter. This, in our view, is another example of an opportunistic explanation and concoction.
(5) Stairs to which (4) refers not provided with second hand rail [CC (v); OC (viii)].
CC: Not Admitted. OC: Denied. General Defence.
162 As shown in the CC plans, and as installed, the stairs from the ground floor offices to the attic had handrails only to the one side. There were none on the wall side. The relevant requirements of the BCA as they relate to meeting the accessibility needs of people with disabilities (D3.3 and AS 1429.1) require a handrail on both sides in a building of this kind. The original handrail was a timber one. A second simple, metal handrail on the wall side has now been installed. Mr Robinson’s opinion is that the second handrail is non-compliant with the requirements that apply to handrails in this situation, in that it does not have horizontal extensions to the top and bottom of the rail, together with looped ends.
163 Mr Cohen claims that the concession given by D3.4 is applicable. D3.4 provides:
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.
164 Mr Kip’s opinion was that disability access considerations are not applicable, and there is no need for a second handrail. His opinion is based on information provided to him by the owner on site that the area is only used by ‘supervisory staff’ at the beginning and end of each day. Mr Kip’s uncritical adoption of this information proceeds on the assumption that supervisory staff would not include people with disabilities. It is the plain objective of disability access standards that buildings be built in a manner which takes reasonable measures to make them accessible for people with disabilities. There was nothing, in our view, revealed by the plans to suggest that the particular purpose for which this area might be used was other than as a space connected to the general administration of the activities taking place in the building. There was no specific explanation given as to why the particular purpose to which this area of the building might be put was such that a person with, for example, a mobility or sight disability would be excluded from involvement in those activities.
165 Mr Cohen argued on another basis that the area was one to which it is not appropriate to apply disability access standards. He stated that the attic area is only 64m2 in area and that it was proposed to be used as a facility for the storage of archived documents. He states the ceiling is less than 2.4m and the room is not habitable in terms of the BCA definition. Mr Robinson says in reply that the attic floor plan area is 75.18m2. He notes further that the area has natural light, ventilation and sufficient ceiling height to be used as a habitable area. As to these matters the plans, and the as-built structure, include several dormer windows. We agree with Mr Robinson’s assessment that as planned, and as built, the area is readily capable of human habitation.
166 It follows therefore that disability access standards must be applied. As we have noted earlier in these reasons, the overall look of the building is one whereby the building presents to the street in the style of a colonial residence. The internal fit out reflects a similar idea, using, for example, domestic style timber hand rails, and balustrades with a colonial appearance. The attic level has another feature typical of a residential style – the installation of dormer windows. While the permitted use (and the actual use since) is that of an office building, it is plain, we think, that the planning of the upper attic level was designed to provide the option which would permit its use by humans during the work day, having regard to its scale, window openings and emphasis on ventilation.
(6) Rear exit from garage not provided with an exit sign [CC (vi); OC (ix)].
CC: Admitted. OC: General Defence.
167 This allegation relates to the door leading from the garage to the rear car park area, the same door that is the subject of the allegation relating to the absence of a protective bollard or other measure. The BCA requires an illuminated exit sign to be provided for each door that serves as a required exit. The plans provided for exit signs to be installed over the front and rear doors of the office. There was no provision for an exit sign over the subject door. Mr Cohen has admitted to making a mistake in this regard. The building as built did not include a sign, and it was listed in the council rectification notice. The omission has now been rectified.
(7) Floor coverings compliance with BCA not demonstrated in the form of a supporting certificate [OC (ii)].
OC: Not Admitted. General Defence.
168 The BCA requires floor coverings to meet certain smoke development and spread of flame criteria. There must be a certificate to that effect provided by the manufacturer or supplier. The OC must be supported by such a certificate. The inspector who responded to the council notice on behalf of Mr Cohen, Mr Jones (21 August 2005), did not put this matter in issue, and admitted the error. Mr Kip in his report said that ‘it is not always common practice to require test reports for materials to be supplied for materials that are commonly used and previously established as complying with the BCA’.
169 We agree with the Board’s criticisms of these statements. There is no evidence to establish that the floor coverings in use in this case are commonly used, where they have been used previously and what certification standards apply.
170 It is unhelpful to the Tribunal to have experts give opinions which are expressed in an abstract way with the apparent aim of being read as specific to the subject case, without the experts or other evidence making the logical links that connect the abstract statement to the subject case.
171 There is no other evidence on this issue from Mr Cohen.
(8) Stair not provided with non-skid edges [OC (iv)].
OC: Not Admitted. General Defence.
172 The BCA, D.13, requires that stair treads must have a non-slip finish or a non-skid strip near the edge of the nosings.
173 This omission was not disputed by Mr Cohen’s inspector, Mr Jones. There is no significant contest with the allegation by Mr Kip, and there is no reference to it in Mr Cohen’s evidence.
174 The omissions have been rectified.
(9) All exit doors and doors in the path of travel to an exit are not fitted with appropriate downward action lever type door latches that are openable without a key in accordance with D2.21 of the BCA [OC (vii)].
OC: Admitted. General Defence.
175 The BCA requires that doors in required exits or in a path of travel to a required exit must be readily openable without a key and by a single downward or pushing motion. All the door handles are chrome, round ones, again reflecting the style that might be seen in a domestic residence with a colonial theme. The exception is the door from the rear of the office to the rear stairs leading to the garage where the handle is lever type. The problem here is that it can be deadlocked by the additional turning of a key. At the time of Mr Robinson’s inspection in 2008 the door handles had not been replaced.
176 Mr Jones, Mr Cohen’s inspector, did not dispute the omissions. Mr Kip noted in his report of 23 June 2008 that the owner advised that arrangements were being made to have the door handles replaced. Mr Kip, the Board notes, made the comment in his report, referring to the possibility of the back door to the stairs being deadlocked, that persons using the building will predominantly be ‘alert, upright and able-bodied’ and ‘staff would usually have access to a key’. This is another remark reflecting, in our view, a dismissive attitude on the part of Mr Kip to the broader issue of safe egress especially for persons with a disability, whether on staff or otherwise, and outsiders in the building at the time of an emergency without key access.
177 The matter is not otherwise addressed in Mr Cohen’s case.
Summary
178 In our view, all of the allegations have been proven, subject to the issue of whether Mr Cohen’s general defence on the OC allegations exculpates him in relation to the OC allegation.
(3) OCCUPATION CERTIFICATE ALLEGATIONS: THE GENERAL DEFENCE
179 In support of his decision to give the task of final inspection to Mr Chalmers, Mr Cohen said it was acceptable industry practice at the relevant time for that to occur, and for the PCA to issue the OC without having personally undertaken the final inspection. He noted that the provisions that are now in force, requiring ‘critical stage inspections’ relating to OCs to be undertaken by the PCA were not then in force. The way the plea is put is that it was not a breach of applicable professional standards in the period in question for the accredited certifier to have the final inspection(s) done by a fellow accredited certifier of equivalent standing, and then for the nominated certifier/PCA to sign off.
180 Section 109E, as it then stood, did not mandate final inspection by the PCA. It was amended by the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003. The new s 109E(3)(d) required inspections to be undertaken by the PCA before issuance of a CC ‘on such occasions (if any) as are prescribed by the regulations’. The relevant regulation is EP&A Reg, cl 162A. It commenced 1 January 2004 except for (4) and (6), with those provisions commencing 1 March 2004. See Govt Gaz 19 December 2003, p 111260. Clause 162A, in its original form, provided relevantly:
162A Critical stage inspections required by section 109E (3) (d)
(1) For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.
Note. These inspections are the critical stage inspections.
(2) Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.
(3) The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.
(4) In the case of a class 1 or 10 building, the development site must be inspected on and after 1 July 2004:
(a) at the commencement of the building work, and
(b) after excavation for, and prior to the placement of, any footings, and
(c) prior to pouring any in-situ reinforced concrete building element, and
(d) prior to covering of the framework for any floor, wall, roof or other building element, and
(e) prior to covering waterproofing in any wet areas, and
(f) prior to covering any stormwater drainage connections, and
(g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(5) In the case of a class 2, 3 or 4 building, the development site must be inspected:
(a) at the commencement of the building work, and
(b) prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and
(c) prior to covering any stormwater drainage connections, and
(d) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(6) In the case of a class 5, 6, 7, 8 or 9 building, the development site must be inspected on and after 1 July 2004:
(a) at the commencement of the building work, and
(b) prior to covering any stormwater drainage connections, and
(c) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
181 Mr Cohen’s case proceeds on the basis that he was not bound by cl 162A. In respect of each development, he had been appointed PCA prior to 1 July 2004. There is no dispute as to this point. He submits further that in issuing the Harrington Park OC (on 18 June 2004) and the Camden OC (on 14 July 2005) without a personal final inspection, he was behaving in accordance with acceptable industry practice.
182 The Final OC for Harrington Park, dated 18 June 2004, contains at the end a three-line box (Ex 1 to M Wunsch’s affidavit, Matter No 073165, p 023). The three lines refer in order to three ‘final inspections’, being ‘stormwater’, ‘framework’ and ‘final OC completion’. Under a column headed ‘inspected by’ the name of Mr Gary Chalmers appears in each instance. The Final OC for Camden, dated 14 July 2005, ends with a two-line box (Ex 1 to M Wunsch’s affidavit, Matter No 073166, p 153) and refers to a ‘Preliminary Final’ and ‘Final OC Completion’. Next to ‘Preliminary Final’ the inspection is stated to have been done by Gary Chalmers and next to ‘Final OC Completion’ appears the name, Bernie Cohen. We understood from the evidence that by ‘Final OC Completion’ Mr Cohen meant to convey that he had been responsible only for the final clerical, administrative steps and the expression did not cover the fact of physical inspection.
183 The question is whether Mr Cohen’s practice constituted conduct that fell ‘short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier’.
184 He did not produce any evidence of a widespread practice of this kind. Mr Hardy’s evidence acknowledged that some certifiers in the period 1999-2004 did conduct themselves in the way that Mr Cohen suggested. However, his own view had been that it was not an acceptable practice, and that failure to undertake the final inspection function could only be justified by extreme circumstances such as remoteness. But these were not cases of that kind. Both projects were in the south-western region of Sydney. Mr Cohen’s business address is Liverpool. There was no special explanation in this case of the kind to which Mr Hardy referred.
185 In any event the standard of conduct for accredited certifiers is not left to be determined solely by reference to what practices may have grown up among other members of the industry. The statutory standard refers to expectations of members of the public.
186 It is the case that the original legislation did not specify, in terms, that the issuer of the certificate must personally check the plans to which the certificate relates when issuing a CC or undertake any inspections personally before issuing an OC.
187 The scheme as enacted in 1998 created a new statutory office of private, accredited certifier. The office was a personal office. In our view it follows from the personal nature of the office of accredited certifier that the community would have expected the nominated certifier (and PCA) to attest to compliance, based on his or her own professional skill and expertise. There would be little point in having a system of personal appointments if that was not the case.
188 The legislation could have chosen to have responsibility for accreditation given to private corporations or firms operating in the private sector, replicating perhaps the business model found inside council building inspectorates. Instead it set up a system of personal accreditation.
189 As noted previously, the Board filed additional material (Exhibit MW2 and MW3) in reply to Mr Cohen’s defence. It included examples of Mr Cohen’s practice in other projects of which the Board is aware. This material showed that Mr Cohen often undertook his certification responsibilities in the corporate style, where employees do the field work and their manager signs off on the required certificate.
190 Mr Cohen was obliged, we consider, to undertake in the period under notice, at least, the final inspection for the OC. His accreditation required him to certify to compliance with building standards. We accept that it was, and remains, customary practice for certifiers to rely on credible, specialist certifications in specialist areas of building work (geotechnical engineering certificates, specialist electrical work and the like). The allegations under notice in this case do not fall into that category. In any case the certifier should always make an independent professional judgement as to the quality of specialist certificates.
191 We agree with the Board’s submissions that certainly by 2002 when the Parliamentary Committee reported, it should have been well understood to certifiers that delegation of the inspection function was not acceptable to the community. It did not represent a competent practice standard.
192 The appropriate standards of professional practice are not to be determined by resort to legalism. The fact that laws affecting the conduct of a profession do not expressly prohibit a practice (here delegation of the inspection function) does not mean that the particular practice is an acceptable one for the profession.
193 In our view Mr Cohen chose to conduct his responsibilities in a way that allowed him to be the certifier for a volume of certifications that went beyond what was humanly possible were he to have undertaken personally the inspections, therefore he had to delegate. This model exposed him to the possibility of incompetent or dishonest certification inspections made by those to whom he delegated.
194 Implied in the case made by Mr Cohen, it would seem, is the proposition that he might have picked up the mistakes at the CC stage had he gone and done the inspection. We have no confidence that that would have occurred.
195 The general defence raised in relation to our findings in respect of the OC allegations is rejected.
Whether any Disciplinary Finding should be made, and if so whether it should be one of Professional Misconduct or Unsatisfactory Professional Conduct
196 Disciplinary proceedings have as their aim the protection of the public. As noted by the Tribunal in Building Professionals Board v Cogo [2008] NSWADT 119 at [73], an accredited certifier engaged in the issuance of a CC or an OC is ‘performing a public function involving immense trust’.
197 Accredited certifiers are called upon to make a host of judgements in the course of their work. The relevant laws and codes are complex and multi-faceted. Instances of carelessness, error and misunderstanding will occur. The usual question in disciplinary proceedings is whether the misconduct proven transgresses the standard of competence, diligence and integrity reasonably to be expected of a practitioner.
198 In this case a number of contraventions of the EP&A Act were established. Consequently the case falls at least within the purview of item (e) of the meaning of unsatisfactory professional conduct in s 109R, i.e. conduct ‘(e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention’. As the Tribunal noted in Building Professionals Board v Boulle [2008] NSWADT 80 at [39] of paragraph (e) (and paragraph (d)):
[They] 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.
199 As to the question of whether the conduct proven 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’, the Board’s submission is that the conduct in each case, viewed as a whole, falls short of the standard. In making a disciplinary finding the Tribunal must, in line with Briginshaw v Briginshaw (1938) 60 CLR 336, be ‘comfortably satisfied’ that the charge is proven, given that it is the exercise of a person’s subjective professional discretion that is under scrutiny, and being mindful of the potential effect of an adverse disciplinary finding on a person’s professional reputation: Dix v Building Professionals Board [2009] NSWADT 46 at [58].
200 In making this assessment, the Tribunal should have regard to the ‘objective gravity’ of the conduct revealed by the case: see Boulle at [41] ff.
201 Our conclusion is that the omissions, viewed as a whole in respect of each case, were grave to the requisite degree. The first application concerned a child care centre development of some scale. The centre was permitted to accommodate 56 children. In addition, having regard to the number of children, there would have been several staff, perhaps 5 to 8. The second application related to an office development. The staff number intended to be accommodated there on the main level appears to have been about 8. The number that could have been accommodated on the upper level was 8. Given their nature, both buildings would have had visitors to deal with, especially the child care centre.
202 An accredited certifier should, we think, take particular care to ensure that fire safety standards are strictly complied with in relation to any building that has as its primary occupant population a vulnerable or dependent group, as was plainly the case with the child care centre.
203 In both applications there were fire safety omissions of the same type going to: inadequate separation distances between openings (windows, doors, columns) and the perimeter boundary; required exit doors swinging against the direction of egress; obstruction of exits or exit pathways; inadequate exit signage; and lack of required certification as to fire rating compliance for floor coverings. In addition, in one or other of the applications the omissions went to: lack of automatic shut down of air conditioning; lack of automatic smoke detection and alarm system (the child care centre); and lack of lever handles on doors in exit paths (the office building).
204 Disability access standards are a relatively new feature of building regulation. The community’s expectation is that they be actively enforced and implemented. The omissions proven went to: failure to ensure, in several respects, that toilets were compliant with accessibility standards (the child care centre); lack of related signage (the child care centre); adequate staircase hand rail (the office building); and non-skid stair-edges (the office building).
205 Most of the omissions occurred at the CC stage, and were repeated at the OC stage. Some, as noted in the course of the reasons, arose at one only of these points.
206 Mr Cohen’s admissions of error were often, in our view, token in nature. Mr Cohen manifested little recognition of the significance of the omissions, and in his affidavit and oral evidence continued to explain his conduct as reasonable in the circumstances. His failure to enforce strictly additional fire safety standards where usual minimum boundary distances were exceeded was, we consider, a striking example of something not seen by him as especially significant. An omission of this kind not only affects the fire safety of the subject premises but arguably makes the adjacent properties less safe and less developable hence less valuable. The eccentric measuring technique which he said he routinely used provided a simple illustration of his lack of competence in a fundamental aspect of building standards enforcement.
207 Further his evidence on disability access standards showed a fundamental misunderstanding of their objectives. It is not professionally competent to decide not to fully implement standards by speculating as to the kind of people that may occupy the building, and assume that they will all be sufficiently able not to have any need for assistance from disability access measures. These were projects of a conventional kind, belonging to the ordinary life of the community. Disability access standards should have been strictly enforced.
208 As noted, the omissions resulted in rectification notices being issued. The building owners were exposed to cost and inconvenience. As at the date of the Robinson inspections some years later, several of the omissions had not been fully rectified.
209 In our view the objective gravity of Mr Cohen’s conduct requires a finding of professional misconduct in relation to each of the applications. The conduct proven is, in our view, sufficient to warrant suspension or withdrawal of accreditation. It does not follow that the disciplinary order must be one of suspension or withdrawal of accreditation.
210 The Tribunal will hold a directions hearing in relation to the next stage of the proceedings.
Order
073165, 073166
1. The Tribunal finds the Respondent guilty of professional misconduct.
2. Registrar to fix a date for a directions hearing in relation to the Applicant’s applications for disciplinary orders.
APPENDIX
MATERIAL TEXT OF APPLICATIONS
APPLICATION NO 073165 (HARRINGTON PARK)
“6. Disciplinary finding/s sought, general description of conduct said to justify disciplinary finding/s and particulars of that conduct.
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 Bernard Cohen (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 the Mr Stephen Netting of the Council of Camden to the Department of Planning on 26 July 2005 against the Respondent in relation to the inappropriate issue of a construction certificate and an occupation certificate in respect to a development at 53 Glenrowan Drive, Harrington Park.
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 the 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 and 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
A Issue of construction certificate
(1) Relevant legislative provisions
(a) Section 109F(1)(a) of the EP & A Act provides:
109F 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 requirements of the regulations referred to in section 85A(5) have been complied with.
(b) Clause 145(1)(b) of the EP & A Regulation provides:
145 Compliance with development consent and 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 the application for the construction certificate was made).
(a) The Respondent issued Construction Certificate No. CC2004-01291 on 10 November 2003 in respect of a development, namely, the construction of a child care centre, at 53 Glenrowan Drive, Harrington Park (the development).
(b) The construction certificate approved the plans and specifications described as:
“ Architecturals-Job No. 68027 pages 1 to 3, Engineering-Job No. M10242 sheets 1 & 2 issue A by Rafeletos Zanuttini, Specification booklet ” (the approved plans).
(c) 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.
Particulars of non-compliance with BCA
(i) Openings within 3.0 metres of the side and rear boundaries, namely:
- - The sliding door in the staff room
- The window in the kitchen
- The window in the Director’s office
- The window in the Administration room
- The window in the WC off playroom 1
are not protected in accordance with clause C3.2 and clause C3.4 of the BCA.
(ii) The main entry exit door swings against the direction of egress and is used as a required exit not in accordance with clause D2.20 of the BCA.
(iii) An exit to the rear courtyard is not provided with a 1.0 metre clear unobstructed path of travel to open space in accordance with clause D1.10 of the BCA.
(iv) Facilities accessible to people with a disability do not comply with clause F2.4 of the BCA and AS 1428.1.
(v) Illuminated exit signs are not installed in the building in accordance with clause E4.5 and clause E4.6 of the BCA.
(vi) Natural ventilation has not been provided to the “Cot Room” in accordance with Parts 4.5 and 4.6 of the BCA.
(d) By issuing the Construction Certificate in respect to 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.
B. Issue of Occupation Certificate
(1) Relevant legislation
Section 109H(1)(c) of the EP & A Act provides:
(c) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia.
(a) The Respondent issued a Final Occupation Certificate No. CC 2004-01291 dated 18 June 2004 in respect to the development.
(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) Openings within 3.0 metres of the side and rear boundaries, namely:
- - The sliding door in the staff room
- The window in the kitchen
- The window in the Director’s office
- The window in the Administration room
- The window in the WC off playroom 1
were not protected in accordance with clause C3.2 and clause C3.4 of the BCA.
(ii) Compliance with clause C1.10 of the BCA had not been demonstrated for the floor coverings installed in the building.
(iii) The main entry exit door swung against the direction of egress and was used as a required exit not in accordance with clause D2.20 of the BCA.
(iv) An exit to the rear courtyard was not provided with a 1.0 metre clear unobstructed path of travel to open space in accordance with clause D1.10 of the BCA.
(v) Signage identifying facilities accessible to people with a disability was not provided.
(vi) Facilities accessible to people with a disability did not comply with clause F2.4 of the BCA and AS 1428.1.
(vii) The building had ducted air-conditioning installed and was not provided with automatic shutdown of air handling systems in accordance with clause E2.2, NSW Table E2.2b of the BCA on activation of an automatic smoke detection and alarm system installed in accordance with specification E2.2a of the BCA.
(viii) The building was not provided with an automatic smoke detection and alarm system installed in accordance with specification E2.2a of the BCA and AS 1670.1.
(ix) Illuminated exit signs were not installed in the building in accordance with clause E4.5 and clause E4.6 of the BCA.
(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.
7. Orders sought
(NOTE: The completion of this part of the application is not mandatory. However the Applicant may wish to express preliminary views in relation to the orders sought. The Tribunal is not bound to make the orders requested by either party even if both parties are in agreement.)
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.”
APPLICATION NO. 073166 (CAMDEN)
“6. Disciplinary finding/s sought, general description of conduct said to justify disciplinary finding/s and particulars of that conduct.
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 Bernard Cohen (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 Stephen Netting of the Council of Camden to the Department of Planning on 24 February 2006 against the Respondent in relation to the inappropriate issue of a construction certificate and an occupation certificate in respect to a development at 14 Elizabeth Street, Camden.
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 the 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 and 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
A Issue of construction certificate
(1) 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 requirements of the regulations referred to in section 85A(5) have been complied with.
(b) Clause 145(1)(b) of the EP & A Regulation provides:
Compliance with development consent and 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 the application for the construction certificate was made).
(a) The Respondent issued Construction Certificate No. CC2004-02611 on 15 March 2004 in respect of a development, namely, the construction of an administration office building and advertising signage, at 14 Elizabeth Street, Camden (the development).
(b) The construction certificate approved the plans and specifications described as:
“ Job No. 254 pages 1 to 7 dated 5/1/04 ” (the approved plans).
(c) 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.
Particulars of non-compliance with BCA
(i) Protection of the following window [amendment 9 Feb 09] openings located within 3.0 metres of the side boundary in accordance with Clause C3.2 and Clause C3.4 of the BCA is not detailed on the Construction certificate plans:
- - The front window on the western side.
- The window in the flood storage area facing the front on the western side.
- The openings in the north eastern and north western walls of the garage.
(ii) A bollard or other barrier was not detailed to the rear exit door from the garage in accordance with Clause D1.10 of the BCA.
(iii) The front main entry doors are shown to swing against the direction of egress. Clause D2.20 of the BCA requires exit doors to swing in the direction of egress.
(iv) The internal door at the top of the stairs leading from the ground floor offices to the attic office when opened impedes the path of egress to the exit servicing the office attic. Clause D2.20 of the BCA requires swinging doors to not impede the egress path.
(v) The stairs leading from the ground floor offices to the attic office are not provided with a second hand rail in accordance with Clause D3.3 of the BCA and AS 1428.1.
(vi) The rear exit from the garage is not provided with an exit sign in accordance with Clause E4.5 & Clause E4.8 of the BCA and AS 2293.1.”
(d) By issuing the Construction Certificate in respect to 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.
B. Issue of Occupation Certificate
(1) Relevant legislation
Section 109H(1)(c) of the EP & A Act provides:
(c) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia .
(2) Particulars of Conduct
(a) The Respondent issued a Final Occupation Certificate No. CC 2004-02611 dated 14 July 2005 in respect to the development.
(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) Openings within 3.0 metres of the side boundary are not protected in accordance with Clause C3.2 and C3.4 of the BCA. The following openings require protection:
- - The front window on the western side.
- The window in the flood storage area facing the front on the western side.
- The openings in the north eastern and north western walls of the garage.
(ii) Compliance with Clause C1.10 of the BCA has not been demonstrated in the form of a certificate certifying the floor coverings compliance.
(iii) The rear exit door from the garage area is not provided with a bollard or other barrier in accordance with Clause D1.10 of the BCA.
(iv) The stairs are not provided with non-skid edges in accordance with Clause D2.13 of the BCA.
(v) The front main entry doors do not swing in the direction of egress in accordance with Clause D2.20 of the BCA.
(vi) The internal door at the top of the stairs leading from the ground floor offices to the attic office when opened impedes the path of egress to the exit servicing the office attic in contravention with Clause D2.20 of the BCA.
(vii) All the exit doors and doors in a path of travel to an exit are not fitted with downward hand action lever type door latches that are openable without a key in accordance with Clause D2.21 of the BCA.
(viii) The stairs leading from the ground floor offices to the attic office are not provided with a second hand rail in accordance with Clause D3.3 of the BCA and AS 1428.1.
(ix) The rear exit from the garage is not provided with an exit sign in accordance with Clause E4.5 and Clause E4.8 of the BCA and AS 2293.1.”
(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.
7. Orders sought
(NOTE: The completion of this part of the application is not mandatory. However the Applicant may wish to express preliminary views in relation to the orders sought. The Tribunal is not bound to make the orders requested by either party even if both parties are in agreement.)
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.”
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