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 and decide whether it warrants a disciplinary finding against him. If Mr Hans’ conduct is serious enough to amount to professional misconduct, then his accreditation may be suspended or withdrawn. The BPB has applied for Mr Hans’ accreditation to be withdrawn for three years. If we find the conduct to be less serious, but still within the bounds of unsatisfactory professional conduct, then we may impose lesser penalties including a caution, a reprimand or a fine: s 109ZA.

4 Mr Hans now admits that the complying development certificates were issued in error. However, he came to that view in early January 2007, after seeking legal advice. He says that his interpretation of the sewerage requirement was incorrect but he should not be penalised for this misunderstanding and that the application by the BPB should be dismissed.

Issuing complying development certificates - legal framework

5 A person wishing to erect a building or carry out other work such as installing a swimming pool, needs consent from a relevant authority before doing so: s 76A. In particular, if an environmental planning instrument, such as an LEP, provides that specified developments may not be carried out except with development consent, a person must obtain that consent before proceeding with the development: 76A(1). The Wingecarribee LEP provides that development in that shire will be a complying development if it meets certain standards, including the sewerage requirement: 76A(5). If the development is a complying development, an accredited certifier may issue a complying development certificate. If the development does not comply with all the standards, then the person seeking the consent must apply to the relevant council for development consent: s 76A(2). Council officers will then determine whether or not consent should be given.

6 Under s 85A(3) of the Act, when an accredited certifier receives an application for a complying development certificate, he or she must consider the application and determine:

(a) whether or not the proposed development is complying development, and

(b) whether or not the proposed development complies with the relevant development standards, and

(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.

7 Clause 6B(3)(i) of the Wingecarribee LEP provides that:
Development is not complying development if it is carried out on land that:

(i) is not serviced by a reticulated sewerage scheme, or is unsewered land within a special area of hydrological catchment within the meaning of State Environmental Planning Policy No. 58 – Protecting Sydney’s Water Supply.

History of the complaint

8 Mr Hans became an accredited certifier on 8 February 2001 after 15 years experience working as an Environmental Health and Building Surveyor for various councils. He said that when the scheme for accredited certifiers was introduced in 2000, he understood that its aim was to allow the majority of development proposals to be approved quickly by accredited certifiers. That was obviously not his experience because about 12 months after Mr Hans began working as an accredited certifier, he wrote to Planning NSW (the former name for the Department of Planning). In that letter he expressed his concerns about various aspects of the certification process under the Act. In particular, he noted that the Wingecarribee LEP “broadly excluded all development in the hydrological catchment.” He said that that was not consistent with the aims of State Environmental Planning Policy No 58 which dealt with the protection of Sydney’s Water Supply. He went on to say that:

There needs to be scope for the accommodation of Complying Development within the hydrological catchment, which does not require any alteration to an on-site effluent system, particularly given that the Southern Highlands Region is predominantly within the hydrological catchment. Otherwise the applicants for even the most minor developments such as carports, garden and rural sheds, and small alterations to existing dwellings will be required to obtain Development Consent from the Council. Surely this is not the intent of the planning reforms.
9 Planning NSW wrote back to Mr Hans on 26 April 2002 saying that he must abide by the requirements in the LEP. The letter went on to say that:
An accredited certifier must refuse to issue a complying development certificate for a development that does not comply with the criteria defining complying development in a Council’s LEP. You should not ignore the requirements of an LEP for exempt and complying development even if you are of the opinion that the LEP is not consistent with the aims of the State Environmental Planning Policy No 58 – Protecting Sydney’s Water Supply.
10 Despite this letter, Mr Hans continued to issue complying development certificates in circumstances where the sewerage requirement had not been met, but where, in his view, there was no effect on the water catchment area. In July 2002, Mr Hans sought advice from the Sydney Catchment Authority as to the circumstances in which that Authority had to be notified of minor developments. The Authority replied that:
. . . depending on their location, minor developments only require concurrence from or notification to the Authority under SEPP 58 if they either create or increase the need for on-site effluent management. Alterations and additions to dwellings which include extra bedrooms or rooms that are designed as potential bedrooms are considered as increasing the need for on-site effluent management.
11 It was not in dispute that this letter related to the need to notify the Sydney Catchment Authority about particular developments, not the obligations on accredited certifiers when issuing complying development certificates. However, comforted by this advice from the Sydney Catchment Authority, Mr Hans issued seven more complying development certificates during the two month period from 13 January 2003 to 19 March 2003.

12 Wingecarribee Council wrote to Mr Hans on 7 April 2003 advising him that it was not appropriate to issue one of certificates because the land was not sewered and that a development application to Council was required. During the 12 month period from June 2003 to June 2004, Mr Hans issued a further 14 complying development certificates where the development did not meet the sewerage requirement. On 18 August 2005, Wingecarribee Council wrote to Mr Hans again pointing out that it was not appropriate to issue one of the complying development certificates because the sewerage requirement had not been met.

13 On 24 August 2004 Mr Hans issued another complying development certificate, the 22nd since January 2003, in circumstances where the sewerage requirement had not been met. The Wingecarribee Council wrote to him a week later saying that the certificate was not legal and that a development application to Council was required. Two more complying development certificates were issued during the period 26 October 2004 to 2 December 2004. On 9 December 2004, Council wrote another letter to the same effect regarding one of those certificates. Despite this correspondence, Mr Hans issued another complying development certificate in circumstances where the sewerage requirement had not been met. Council wrote to Mr Hans on 1 February 2005 with the same response.

14 On 4 February 2005 the Wingecarribee Council complained about Mr Hans’ conduct to the Department of Planning: s 109V. The Department wrote to Mr Hans inviting him to respond to the complaint. His response was that Wingecarribee Council did not make available to the public maps showing sewered and un-sewered areas or water catchment areas within the Shire. He said that if such maps were available, the complaints would cease to exist. Mr Hans wrote to the Department again on 1 February 2006 attaching a report from Mr Steven Fischer of BCA Project Solutions Pty Ltd. Mr Fischer inspected the 25 developments approved by Mr Hans and concluded that they did not increase effluent loadings on the land concerned nor did the works impact on the existing effluent disposal system.

15 In October 2006, the BPB lodged an application with the Tribunal for a disciplinary finding in relation to Mr Hans. On 25 January 2007, after receiving legal advice, Mr Hans filed a Reply saying that the complying development certificates were issued in error and that he misinterpreted the sewerage requirement. Attached to that Reply were eight Customer Service Questionnaire forms which contained positive feedback from clients in relation to Mr Hans’ services. Mr Hans also said that no client had ever complained about his services.

Issues

16 Our first task is to determine whether Mr Hans’ conduct falls within the definition of unsatisfactory professional conduct in s 109R. If it does, we must then determine whether it is serious enough to justify suspension or withdrawal of his accreditation: s 109R. If it is not serious enough, we must determine which of the lesser penalties set out in s 109ZA(2), if any, to impose. Allegations relating to conduct are to be proven on the balance of probabilities to a level of satisfaction commensurate with their seriousness and mindful of the consequences for Mr Hans of an adverse finding: Briginshaw v Briginshaw (1938) 60 CLR 336.

17 According to the BPB, Mr Hans’ conduct met each of the definitions of unsatisfactory professional conduct on s 109R, namely that the conduct:

(a) occurred in connection with the exercise of his functions as an accredited certifier and it 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;

(b) contravened the Act;

(c) amounted to a wilful disregard of matters to which an accredited certifier is required to have regard in exercising his or her functions.

18 We can deal shortly with the second matter. Mr Grey, representing BPB, did not point to a provision of the Act which Mr Hans had contravened. It is not an offence, for example, to issue a complying development certificate in circumstances where a requirement or standard for the issuing of such a certificate has not been met. Nor was it alleged that Mr Hans had committed an offence by making a false or misleading statement: s 109ZH.

19 In relation to the first and third matters, we are satisfied that Mr Hans issued the complying development certificates in connection with his functions as an accredited certifier. It remains for us to determine whether the conduct was otherwise in breach of the standards required of accredited certifiers.

Findings

20 There is very little dispute as to the facts. The real question is how Mr Hans’ conduct should be characterised. Mr Grey said that Mr Hans wilfully and repeatedly disregarded the sewerage requirement and that his conduct reflected contempt for the system of certification provided by the Act. Mr Hans denied that he had wilfully disregarded the advice of Planning NSW or Wingecarribee Council. He said there were conflicting views as to what was intended by the sewerage requirement. While understanding the literal meaning of the requirement, he took the view, until he obtained legal advice, that the requirement was not relevant if the developments had no adverse effect on the water catchment area. He said that the interpretation of the sewerage requirement by the Department and the Council was simply incorrect. He now acknowledges that their interpretation was correct.

21 Prior to obtaining legal advice, Mr Hans conduct, as evidenced by the correspondence he wrote and the submissions he provided, demonstrates that he regarded the sewerage requirement in relation to minor developments with no impact on on-site effluent loadings, as unnecessary. In his view the requirement was unnecessary because it was inconsistent with the aims of the State government’s policy in relation to Protecting Sydney’s Water Supply. That is apparent from the letter he wrote to the Department at the beginning of 2001. He continued to hold this view despite being advised by the Department that he had no discretion to disregard the sewerage requirement. He also continued to issue certificates after the Wingecarribee Council repeatedly told him that a development application to Council was required where the sewerage requirement had not been met.

22 Mr Hans’ initial response to the Council’s complaint to the BPB was that the availability of maps would have avoided any complaints. That response suggests that he knew that he was doing the wrong thing and was trying to excuse his behaviour. He visited the site of each development before issuing the complying development certificate. Even without a map, that visit would have confirmed that the land was not serviced by a reticulated sewerage scheme. Although Mr Hans stood by his claim about the maps when giving oral evidence, the absence of particular maps was obviously not the reason he issued complying development certificates when the sewerage requirement had not been met.

23 When defending the complaint, Mr Hans submitted a report which concluded that there was no evidence that the developments damaged the environment. Mr Grey agreed that there was no evidence of any damage to the environment as a result of the issuing of the complying development certificates. The fact that Mr Hans relied on such a report indicates that he was focusing on the objectives of environmental planning scheme and not on the written requirement that a development comply with the sewerage requirement before a complying certificate could be issued. He continued to hold the view that the sewerage requirement was unnecessary and relied on the report to prove his point.

24 That mind set is also evident from the fact that Mr Hans relied on positive feedback from his clients and the absence of any complaints from clients about him. He believed that no harm had been done and that his behaviour was justified. Early in 2007 Mr Hans finally received and accepted legal advice that he should not have issued complying development certificates where the sewerage requirement had not been met. He now admits that he “misinterpreted” the sewerage requirement.

25 In our view, Mr Hans did not “misinterpret” the sewerage requirement in the sense that he thought it meant something different from what it said. Rather, he disagreed with the need for the requirement. He genuinely believed that his conduct was justified because it accorded with his view of the objects of the legislation. That conclusion is supported by the fact that Mr Hans did not question the Department or Council’s advice or offer an alternative interpretation. Rather, he continued to act contrary to that advice and then gave an excuse about the absence of maps. Mr Hans believed that he was entitled to ignore the sewerage requirement because he disagreed with it. It was only when he sought legal advice that he began to appreciate the legal implications of his conduct and it was then that he admitted that the certificates were issued in error.

26 We find that Mr Hans’ conduct in issuing 25 complying development certificates in circumstances where he knew that they did not comply with the sewerage requirement falls short of the standard of competence that a member of the public is entitled to expect of a reasonably competent accredited certifier. A member of the public is entitled to expect that an accredited certifier will understand and accept that he or she should only issue a complying development certificate if the development is in fact a complying development. It also follows that since Mr Hans knew that he was not supposed to issue the 25 complying development certificates, he wilfully disregarded a matter to which he was required to have regard in exercising his function. That matter was that the sewerage requirement should have been met before a complying development certificate was issued. There is no question about Mr Hans’ diligence. He was familiar with the legislation and policy in relation to complying development certificates.

27 We do not consider that the conduct amounts to professional misconduct. Mr Hans believed that he was doing the right thing in terms of the objectives of the legislation and he did not act fraudulently or dishonestly.

Penalty

28 The purpose of disciplinary proceedings is protection of the public, not to punish the person concerned, in a criminal sense: Craig v Medical Board of South Australia [2001] SASC 149 at [41]. The available actions under s 109ZA are:

(a) caution or reprimand the accredited certifier,

(b) direct that such conditions as it considers appropriate be imposed on the accredited certifier’s accreditation to practise as an accredited certifier,

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

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

(e) order the accredited certifier to pay a fine of an amount, not exceeding 1,000 penalty units, specified in the order,

(f) order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,

29 There is further evidence which is relevant to the penalty which the Tribunal should impose. That evidence is that Mr Hans issued five more complying development certificates in the same circumstances, long after the Council had lodged a compliant about his conduct with the BSB. Those certificates were issued on 4 July 2006, 9 October 2006, 23 October 2006, 31 October 2006 and 10 November 2006. In fact, the final certificate was issued on the same day as the BSB lodged its application in the Tribunal. That pattern of behaviour reflects the strength of Mr Hans’ conviction that he was doing the right thing and that his stance would ultimately be vindicated. As we have said, it was not until Mr Hans consulted a lawyer that he appreciated that his view was not correct.

30 The lack of any environmental impact as a result of Mr Hans’ conduct and the favourable feedback from clients is relevant to penalty. However, despite these considerations, the public needs to be protected from accredited certifiers like Mr Hans who, until receiving legal advice, believed that he could decide which legal requirements to apply and which were unnecessary. Accredited certifiers including Mr Hans need to understand that they cannot make decisions which are inconsistent with unambiguous legal requirements. It is up to the democratically elected law makers to change the law. Mr Hans persisted in issuing 30 complying development certificates over a period of nearly three years in the face of repeated and specific advice from more than one source that he was not entitled to do so. In those circumstances we consider that Mr Hans should be reprimanded, fined and prevented from issuing complying development certificates for 12 months. The maximum fine is 1,000 penalty units or $110,000. We regard a fine of twenty penalty units ($2,200) as appropriate in the circumstances of this case.

Order

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.