Building Professionals Board v Hans - [2007] NSWADT 83

Set aside by Appeal:

CITATION: Building Professionals Board v Hans [2007] NSWADT 83

DIVISION: General Division

PARTIES: APPLICANT
Building Professionals Board
RESPONDENT
Anthony Hans

FILE NUMBER: 063382

HEARING DATES: 30 March 2007

SUBMISSIONS CLOSED: 30 March 2007

DATE OF DECISION:
12 April 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Friedmann P - Non Judicial Member

CATCHWORDS: Accredited Certifier - unsatisfactory professional conduct

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia [2001] SASC 149

REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
In person

ORDERS: 1. The respondent is guilty of unsatisfactory professional conduct; 2. The respondent is reprimanded; 3. The respondent is fined $2,200.00 payable within 28 days of the date of these reasons; 4. The following condition, or a condition to the following effect, is imposed on the respondent’s A2 accreditation as a Building Surveyor Grade 2:Mr Hans is prevented from issuing complying development certificates for building work or change of use; 5. The condition imposed in Order 4 expires on 11 April 2008.

REASONS FOR DECISION

Introduction

1 Mr Anthony Hans is an accredited certifier. Among other things, his certification allows him to issue complying development certificates for building work in relation to particular classes of building. Complying development certificates are certificates which certify that the development complies with certain standards and regulations. During a two year period from January 2003 to January 2005, Mr Hans issued 25 complying development certificates in circumstances where the developments did not comply with a clause of the Wingecarribee Local Environmental Plan (LEP) 1989. That clause states, in part, that a “development is not a complying development if it is carried out on land that is not serviced by a reticulated sewerage scheme . . .”: Clause 6B(3)(i). We will refer to this provision as the “sewerage requirement”. The purpose of this clause was presumably to ensure that where there was no reticulated sewerage scheme, on-site effluent loadings were not increased as a result of developments.

2 Mr Hans knew in relation to each of the 25 developments for which complying development certificates were issued, that the land was not serviced by a reticulated sewerage scheme. However, in his view, the sewerage requirement was not applicable because the developments were minor ones involving, for example, a shed, a garage or a swimming pool, and their construction did not have any effect on the water catchment area.

3 The Building Professionals Board (BPB) has applied to the Tribunal for an order that a disciplinary finding be made against Mr Hans. The finding they seek is that Mr Hans is guilty of unsatisfactory professional conduct which is serious enough to amount to professional misconduct: Environmental Planning and Assessment Act 1979 (the Act), s 109ZA. (Although Part 4B of the Act has now been repealed, those are the provisions that are applicable to these proceedings.) The Tribunal’s role is to assess Mr Hans’ conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Building Professionals Board v Hans

Details

AGLC: Building Professionals Board v Hans [2007] NSWADT 83
Case: [2007] NSWADT 83
Decision Date: 12 April 2007

CaseChat Overview and Summary

The Building Professionals Board brought proceedings against Mr Hans, an accredited certifier, concerning allegations of unsatisfactory professional conduct. The case was heard and determined by the Building and Construction Industry Payments Board in Victoria. The Board alleged that Mr Hans had engaged in conduct that was unsatisfactory, specifically in relation to the issuing of complying development certificates.

The primary legal issue before the Board was whether Mr Hans' actions constituted unsatisfactory professional conduct under the Building Act 1993. The Board needed to determine whether Mr Hans' conduct fell below the expected standards of a professional in his field. This involved examining the nature and extent of the alleged misconduct, as well as considering the impact of such conduct on the public and the industry.

The Board found that Mr Hans' conduct was indeed unsatisfactory, as it involved issuing certificates without proper verification of the work done. The Board emphasised that accredited certifiers have a responsibility to ensure that building work complies with relevant regulations and standards. Mr Hans' failure to adhere to these standards compromised the integrity of the certification process and posed potential risks to public safety. Consequently, the Board issued a reprimand and imposed a fine on Mr Hans. Additionally, it imposed a condition on his accreditation, preventing him from issuing complying development certificates for building work or change of use until 11 April 2008. These measures were intended to address the misconduct and deter future breaches of professional standards.

Orders

Orders of the court

1. The respondent is guilty of unsatisfactory professional conduct; 2. The respondent is reprimanded; 3. The respondent is fined $2,200.00 payable within 28 days of the date of these reasons; 4. The following condition, or a condition to the following effect, is imposed on the respondent's A2 accreditation as a Building Surveyor Grade 2:Mr Hans is prevented from issuing complying development certificates for building work or change of use; 5. The condition imposed in Order 4 expires on 11 April 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Building Professionals Board v Hans [2007] NSWADT 83
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Anthony Hans
FILE NUMBER:	063382
HEARING DATES:	30 March 2007
SUBMISSIONS CLOSED:	30 March 2007
DATE OF DECISION:	12 April 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Friedmann P - Non Judicial Member
CATCHWORDS:	Accredited Certifier - unsatisfactory professional conduct
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia [2001] SASC 149
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT In person
ORDERS:	1. The respondent is guilty of unsatisfactory professional conduct; 2. The respondent is reprimanded; 3. The respondent is fined $2,200.00 payable within 28 days of the date of these reasons; 4. The following condition, or a condition to the following effect, is imposed on the respondent’s A2 accreditation as a Building Surveyor Grade 2:Mr Hans is prevented from issuing complying development certificates for building work or change of use; 5. The condition imposed in Order 4 expires on 11 April 2008.