Building Professionals Board v Johnson

[2008] NSWADT 60

CITATION:	Building Professionals Board v Johnson [2008] NSWADT 60 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Building Professionals Board RESPONDENT Barry Johnson
FILE NUMBER:	073170
HEARING DATES:	12 November 2007
SUBMISSIONS CLOSED:	12 November 2007
DATE OF DECISION:	25 February 2008
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non Judicial Member
CATCHWORDS:	Disciplinary Findings and Disciplinary Order
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Building Professionals Act 2005; Building Professionals Regulation 2007; Environmental Planning and Assessment Act 1979; Environment Planning & Assessment Regulation 2000
CASES CITED:	Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43, Johnson v Building Professionals Board [2008] NSWADT 61, Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159
REPRESENTATION:	APPLICANT A Grey, solicitor RESPONDENT K Lovegrove, solicitor
ORDERS:	1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct. 2. The Tribunal orders that Mr Johnson be cautioned.

REASONS FOR DECISION

1 The Building Professionals Act 2005 (the BP Act) regulates those who practise as accredited private certifiers, and has replaced earlier legislation which had been in force since 1998. The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Building Professionals Board is responsible under the legislation for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal.

2 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1).

3 The Board has referred to the Tribunal by application filed 29 May 2007 certain conduct of the respondent, Mr Barry Johnson, an accredited certifier. Mr Johnson was the principal certifying authority for a commercial and residential development at 580 Botany Road, Alexandria. The site is on the corner of Botany Road and Shirley Street. He issued a construction certificate in December 2000 and an interim occupation certificate in September 2002.

4 The apartments were marketed as ‘Phoenix Apartments’ at the address 1 Shirley Street, Alexandria. In November 2002 shortly after moving in, an apartment purchaser complained to the South Sydney Council over a number of perceived deficiencies in the building as a whole, as well as in the finishing off of his apartment. Some of the matters went to the question of whether the interim occupation certificate could in the circumstances have been properly issued by the accredited certifier. The Council notified the accreditation body of the complaint.

5 During 2003 Mr Johnson provided the accreditation body with substantive responses. Then there is a gap of almost three years before the lower tier internal oversight body, the Complaints Review Committee(CRC) considered the report of the investigation. That occurred between March and July 2006. The case was then referred to the higher tier body, the State Assessment Committee (SAC). At its meeting on 26 November 2006, after hearing from Mr Johnson, SAC recommended to the accreditation body that it refer the certain matters to the Tribunal as they might, if proven, amount to professional misconduct. In line with that decision, the new Board made this referral.

6 Mr Johnson remains in practice. He was first accredited on 2 March 1999 (Grade 2). Since 3 March 2007 he has held an A1 accreditation subject to conditions, one of which is that he is not entitled to give certificates in respect of fire safety.

7 The material parts of the application follow:

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 Barry Johnson (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 Stuart Voelkel to the Department of Planning on 1 November 2002 against the Respondent in relation to the inappropriate issue of an occupation certificate in respect to a development at 580 Botany Road, Alexandria.

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 [sic] 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 79G(1)(b) of the Environmental Planning and Assessment Regulation 1994 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 will comply with the relevant requirements of the Building Code of Australia.

(2) Particulars of Conduct

(a) The Respondent issued Construction Certificate No. EFC00154 on 4 December 2000 in respect of a development, namely, a residential and commercial building, at 580 Botany Road, Alexandria (the development).

(b) The construction certificate approved certain specified plans drawn by ARC Architects (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).

Particulars of non-compliance with BCA

The approved plans do not depict spandrels or other structures to provide fire separation between floors as required by C2.6 of the Building Code of Australia, Volume 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(3) of the EP & A Act provides:

An interim occupation certificate must not be issued to authorise a person:

(a) to commence occupation or use of a partially completed new building,

(b) to commence a change of building use for part of an existing building,

unless the certifying authority is satisfied that such matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

Clause 154 of the EP & A Regulation provides:

Health and safety: section 109H

(1) In the case of an interim occupation certificate to authorise a person:

(a) to commence occupation or use of a partially completed new building, or

(b) to commence a change of building use for part of an existing building,

a certifying authority must be satisfied that the building will not constitute a hazard to the health or safety of the occupants of the building.

(2) In this clause, new building has the same meaning as it has in section 109H of the Act.

(2) Particulars of Conduct

(a) The Respondent issued Interim Occupation Certificate No. EFC/OC/00154 dated 25 September 2002 in respect to the development.

(b) At the time of issuing the Interim Occupation Certificate the building constituted a hazard to the health or safety of the occupants.

Particulars of hazards

(i) The building had been constructed without spandrels or other structures to provide fire separation between floors as required by C2.6 of the Building Code of Australia.

(ii) The handrails to stairways 2, 3 and 4 do not provide a minimum clear width of 1m as required by clause D1.6 of the Building Code of Australia.

(iii) The unobstructed height throughout the exit stairways is less than 2m, as measured above the nosing of the stair tread, and does not comply with the requirements of clause D2.9 of the Building Code of Australia.

(c) By issuing the Interim Occupation Certificate in respect to the building, the Respondent has engaged in conduct:

- occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier; and/or

- by which he contravened the Act.

7. Orders sought

The Applicant seeks the following orders:

That the Tribunal makes a finding that the Respondent has been guilty of professional misconduct, or in the alternative, of unsatisfactory professional conduct, and makes a decision under s.34 BP Act.

8 As the conduct under notice predates the current Act, the meanings given by the previous legislation to ‘professional misconduct’ and ‘unsatisfactory professional conduct’ are to be applied: BPR 2007. Accordingly the operative meanings are those found in the Environmental Planning and Assessment Act 1979 (the EP & A Act), s 109R, i.e.:
professional misconduct , in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission):

(a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, or

(b) by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(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.

9 The matters of concern to the applicant all relate to fire safety.

10 Spandrels. A spandrel (typically a metal insert) operates as a fire retardant in the event of fire. It is a passive means of fire control. The BCA (Part C.26) requires a spandrel (or an alternative solution providing the same result) to be inserted between adjacent floors with floor-to-ceiling glazed areas. Examples of an acceptable alternative solution include a slab or horizontal projection between the affected floors, or construction of a curtain wall or panel wall behind the glazing.

11 Stairwells. Stairwell layout must adhere strictly to the minimum width and height requirements of the BCA.

12 Reply to Charges. Mr Johnson lodged a Reply on 19 July 2007. The Reply was substantially altered by the Amended Reply lodged on 22 October 2007.

13 As to item A of the Particulars (the construction certificate charge), in his original Reply Mr Johnson did not admit that the approved plans were deficient in the way alleged. He stated that the construction certificate plans depict a line through openings, which represents a fire rated panel behind the opening (‘the method’). He submitted that ‘the method’ satisfied cl 2.6 of the BCA. If there was an omission on his part he denied that it amounted either to unsatisfactory professional conduct or professional misconduct. In the Amended Reply he withdrew any claim that the plans showed an appropriate solution, and admitted those particulars. However, he maintained his denial of any breach of professional standards. He said that the architect had a discussion with him about incorporation of a fire rated panel.

14 As to item B (the occupation certificate charge), in the original Reply he denied any breach of his duty. He said that in or about July 2002 the architect had approached him. He said he had agreed to the architect’s proposal that a fire rated panel be placed behind the windows (‘the method’ mentioned in connection with charge 1). He did not admit the stairwell deviations, and asserted that both sets of measurements (widths, heights) had been undertaken in an incorrect way. In the Amended Reply he withdrew any claim that the measurements had been done incorrectly or were incorrect. He admitted those particulars. However, he disputed whether these omissions, had he identified them, would have led a competent accredited certifier to form the opinion that ‘the building constituted a hazard to the health or safety of the occupants’.

15 He sought orders that he had not engaged in unsatisfactory professional conduct or professional misconduct.

The Hearing

16 The Board relied on affidavit evidence from one of its inspectors, Mr Rupolo. As is usual practice the affidavit attached a folder containing all material relied upon by the Board (the Folder). Mr Lovegrove of counsel appeared for Mr Johnson. Mr Johnson did not give any direct evidence. Mr Lovegrove tendered a document headed ‘Technical Opinion’ from a fire safety engineer, Mr Stephen Kip of SKIP Consulting Pty Ltd, Geelong, Victoria. Mr Kip gave evidence and was cross examined. Mr Lovegrove handed up written submissions and made further oral submissions.

17 Mr Kip’s general expertise was accepted. His academic record includes a Master of Engineering and a Graduate Diploma in Building Fire Safety and Risk Engineering. He has extensive practical and consultancy experience, and membership of relevant professional bodies. He has lectured in fire safety at major universities. He is National President of the Fire Safety Engineers of Australia. He acknowledged that his primary registrations were in Victoria, but considered that this national position gave him a sufficient cross-jurisdictional understanding for present purposes, as it is a national standard. He has regularly sat on Building Code Boards responsible for specifying standards.

18 Item A. Construction Certificate. Mr Johnson now agrees that the approved plans did not depict spandrels or other structures to provide the kind of fire separation between floors required by the BCA. The areas affected by the spandrel omissions were marked in green by the Tribunal in the photographs at p 235 and p 236 of the Folder. Mr Kip accepted that Mr Johnson’s omission produced a breach of the BCA, but he did not regard it, in the circumstances, as a heinous offence. Mr Kip’s evidence went to the significance of the omission.

19 He said that the BCA is an evolving technical instrument; and that today’s BCA as it relates to fire safety measures reflects a shifting of the focus from asset protection to protection of life and physical safety. He said that the life safety consequence of spandrel failure is low. He said the risk of fire spreading to higher floors depends on the geometry of the openings. In the case of this development he noted that the full length windows were not able to be opened. This factor diminished the risk of fire spreading upwards, and to that extent the omission of spandrels was less important than if the windows could be opened. He noted also that spandrels were a requirement only for the intermediate range of high rise buildings, those having three to eight floors. Once the building goes beyond eight floors, the inclusion of fire sprinklers is compulsory, and they serve the fire retardant function played in part by spandrels in an intermediate building.

20 He acknowledged in cross examination that spandrels had been a BCA requirement for a couple of decades. He acknowledged the importance of compliance with the BCA. He did not think it was a difficult matter, for a person with relevant expertise, to see that spandrels had not been depicted in plans.

21 He agreed that the omission should have been obvious at the occupation certificate stage. He said that spandrels are a visible building element. Their absence should be able to be noticed especially in the instance of the area between adjacent floor to ceiling windows. On the other hand, he felt it was sometimes more difficult to see whether spandrels had been omitted at balcony/window joins (the other omission raised by this case).

22 Item B. Interim Occupation Certificate. Section 109H is headed ‘Restrictions on the issue of occupation certificates’. Sub-section (1) distinguishes between an interim occupation certificate and a final occupation certificate. Plainly the grant of an interim occupation certificate is a significant step because it authorises entry into occupation even though the building is not fully completed. The requirements to be met before an interim occupation certificate can issue are set down in sub-section (3) and sub-section (4). In this instance the application refers to the following requirement in sub-section (3):

(3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless: …

(d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

23 The application then refers to a Regulation, cl 154 of the Environmental Planning and Assessment Regulation 2000 (EP&A Reg). This is a provision expressed in broad terms, and does not have the specific character one might expect to find in a regulation made subordinate to principal legislation. The provision, to repeat the contents of the application, is:

Health and safety: section 109H

(1) In the case of an interim occupation certificate to authorise a person:

(a) to commence occupation or use of a partially completed new building, or

(b) to commence a change of building use for part of an existing building,

a certifying authority must be satisfied that the building will not constitute a hazard to the health or safety of the occupants of the building.

(2) In this clause, new building has the same meaning as it has in section 109H of the Act.

24 The Board’s case in support of the charge that Mr Johnson breached the duty imposed by cl 154 is based on:
(i) his failure to ensure that spandrels were provided for before issuing the construction certificate;

(ii) the failure of the handrails to stairways 2, 3 and 4 to provide a minimum clear width of 1m as required by clause D1.6 of the Building Code of Australia.

(iii) The failure to ensure that the unobstructed height throughout the exit stairways is less than 2m, as measured above the nosing of the stair tread, and does not comply with the requirements of clause D2.9 of the Building Code of Australia.

25 There is no dispute as to the requirements and that they were not fully complied with. The Council inspector found: that stairwell widths varied from 930 mm, 970 mm in parts and to 1m and beyond in other areas. The inspection found that the height from stair nosing to ceiling in parts was 1930mm, outside unit 11 it was 1920mm, and also 1920mm in the carpark stair.

26 Mr Lovegrove made the following submissions drawing on Mr Kip’s report. He noted that the BCA has a range of measures bearing on fire safety, of which spandrels and height and width of stairwells form part. He submitted that it was necessary to look at the whole of the project before forming a view as to whether there had been a failure of the kind charged against Mr Johnson. He noted that the project did include non-combustible material to the exterior, thick glass to windows, low fireload density in the units (being residential premises), sprinkler system in basement, smoke detectors and exit stairways. His client accepted that spandrels had been lacking at the time the certificates were issued.

Assessment

27 As to item A, in our view the conclusion is inescapable that Mr Johnson failed to uphold the professional standards expected of accredited certifiers. The architects’ plans were, we think, deficient in showing no markings for spandrels. Nonetheless the certifier is ultimately responsible for certifying that the plans are compliant. In this instance the development consent, as well as the general law (which is recited accurately in the Board’s application), made the incorporation of spandrels mandatory.

28 Mr Johnson’s omission constituted, at the least, conduct falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier. Accordingly, it amounted to unsatisfactory professional conduct under the most general of the categories listed in the statutory definition (category (a)).

29 As to item B, we will deal first with particulars of breach (ii) and (iii). Clearly, the developer should not have been allowed to get an interim occupation certificate when the stairwell height and width requirements had not been met. This is a strict compliance matter. Nonetheless the deviations identified by the check measurements were all small, of the order of 3mm to 8 mm. There was no suggestion that they were consistent throughout the whole of the stairwells.

30 We had no expert evidence going to the significance or otherwise for fire prevention, fire safety and fire fighting of these degrees of deviation. We doubt whether deviations of the sort identified in this case would lead to any significant increase in risk of fire spread, difficulties in access for firefighters or for their equipment or would significantly affect evacuation. We do not, by these comments, seek to diminish the importance of the BCA requirements and the importance of strict compliance.

31 We are not prepared to accept the proposition advanced by the applicant that any failure of strict compliance in matters to do with fire safety should result in a finding that an accredited satisfier failed in his duty to ensure that a building is not a ‘hazard’ to the ‘health or safety of the occupants of the building’. This is a serious allegation. There are questions of degree involved.

32 The term ‘hazard’ is an inexact one. The meanings found in the Macquarie Dictionary (1981) that we believe come closest to its usage in cl 154 of the EPA Reg are these:

‘n. 1. a risk; exposure to danger or harm. 2. the cause of such a risk; a potential source of harm, injury or difficulty’.

In the Australian Concise Oxford Dictionary (3rd ed. 1997) relevant meanings are:

‘n. 1. a danger or risk. 2. a source of this.’

33 The case of Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159 provides a good example, we think, where the accumulation of omissions would readily lead one to the conclusion that the building might be described as a danger or risk to the safety of occupants; and the certifier failed in the duty imposed by cl 154. The premises under notice in that case were for backpacker accommodation. The certifier issued certificates of compliance, even though the building did not comply with the development consent in relation to installation of a comprehensive sprinkler system, fire resisting construction materials along public corridors and paths to exits, stair tread and width requirements (one 20% below) and exit height requirements (significant non-compliance).

34 In this instance the errors in connection with particulars (ii) and (iii) were much less significant. Without any compelling evidence as to the fire safety implications of the deviations, we do not think it would be fair to conclude that Mr Johnson had failed in the duty imposed by cl 154. However the omission in respect of particular (i) (the spandrels) was more serious.

35 Mr Johnson’s omission did, we think, give rise to a breach of the duty imposed by cl 154. Had it been a case of one or, even, two spandrels missing, we may not have so concluded. However, all four spandrels needed for the separations between Levels 2 and 3, Levels 3 and 4, Levels 4 and 5 and Levels 5 and 6 were missing. They were also missing as between the smaller side windows and the balconies for each of the affected apartments that faced Botany Road.

36 Though spandrels are a passive or secondary means of achieving fire safety (as explained by Mr Kip), that are a significant part of the overall mix. Full length windows are not unusual in modern apartment design. Similarly windows that end adjacently to balcony areas are not unusual. This building fell in the mid-range of modern apartment buildings – three to eight floors. Again that is not unusual.

37 A competent accredited certifier would, we consider, have been conscious of the need for spandrels (or an acceptable alternative solution). So much is reflected we think in Mr Johnson’s statement in his amended reply in that he says he raised the matter with the architect. Mr Johnson had referred to the need for spandrels in his own report to the developer in June 2000: the Building Code of Australia Assessment Report (Folder, p 114).

38 We are satisfied that Mr Johnson breached cl 154. We are of the view that the breach here is at the lesser end of the spectrum.

Findings

39 The BP Act s 34(1) and (3) provide:

(1) If an application is made to the Tribunal under section 31 for a disciplinary finding in relation to an accredited certifier, the Tribunal is to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct.

(3) If the Tribunal finds that the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct, it is to dismiss the application.

40 It will be seen that ‘professional misconduct’ is the description given to ‘unsatisfactory professional conduct’ that is ‘of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation’.

41 We are not satisfied in this case that the omissions identified warrant a finding of professional misconduct, as we are not satisfied that the conduct viewed objectively was of a sufficiently serious nature to justify cancellation or suspension of the certificate of accreditation. In both instances the conduct did constitute unsatisfactory professional conduct.

Appropriate Order

42 The BP Act s 34(2) provides:

(2) If the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions:

(a) caution or reprimand the accredited certifier,

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

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

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

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

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

(g) suspend the accredited certifier’s certificate of accreditation for such period as the Tribunal thinks fit,

(h) cancel the accredited certifier’s certificate of accreditation,

(i) order that the accredited certifier cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal.

(4) The Tribunal may not make an order under subsection (2) (f) without the consent of the complainant and the making of any such order does not affect any right of the complainant to bring an action to seek additional compensation.’

43 The Board reaffirmed at the close of the substantive hearing that it was seeking an order that involved suspension or cancellation of Mr Johnson’s accreditation.

44 In reply, Mr Lovegrove, referred to a number of matters. In mitigation he noted that when the omission of spandrels was drawn to attention by the Council inspector Mr Johnson immediately informed the developer (Folder, p 42 containing Mr Johnson’s letter dated 7 December 2002 to the Council and Folder p 77, his letter of same date to the developer). The problems in respect of stairwell widths and heights were rectified. The between-floors spandrels problem has been rectified at several points. The CRC at its meeting of 13 July 2006 noted the costs and disruption that had been caused to occupants by the rectification work. The other problem (spandrels at the balcony edge/window joins) has not been rectified. Mr Lovegrove said that there were complex technical problems in finding a solution. Mr Kip had been engaged to deal with them. The Tribunal is concerned that this matter has remained unaddressed for so long.

45 Mr Lovegrove noted that Mr Johnson had practised now for many years and that the failures identified by the instant case had occurred in the early years of the private certifier scheme. He said that his client now consulted a fire engineer on fire safety and compliance issues, and obtained a general opinion from another Grade 1 certifier. He felt that the recent upgrade of Mr Johnson’s accreditation from Grade 2 to Grade 1 (with conditions) indicated general confidence in him by the regulatory authority.

46 We understood Mr Lovegrove to say at hearing that his client had no adverse disciplinary history. It may be that we misunderstood Mr Lovegrove. We have since the close of the hearing become aware that there was one adverse matter on Mr Johnson’s record at the time of the hearing. The accreditation body had reprimanded and fined Mr Johnson for unsatisfactory professional conduct in respect of conduct over the issuance of a final occupation certificate in respect of a residential development at 128 Cleveland Street, Sydney 19 August 2003. The application for review of that decision was heard by the Tribunal on 12 December 2007. It has been dismissed, so the disciplinary orders stand (reprimand, fine of $7,500): see Johnson v Building Professionals Board [2008] NSWADT 61. The case also concerned omissions bearing on fire safety.

47 He presented testimonials to Mr Johnson’s competence from the General Managers at two suburban Councils in Sydney, Canada Bay and Hurstville. He also presented a testimonial from an accredited building surveyor and accredited certifier of long experience.

48 Mr Lovegrove referred to the impact that any such step would have on the applicant’s domestic financial situation, his family responsibilities and the wider impact it would have on the operation of his business. He also referred to the effect any disciplinary order might have on his professional indemnity insurance exposure.

49 Mr Grey, for the Board, noted, and the Tribunal accepts, that the object of disciplinary proceedings is the protection of the public. In the event that a practitioner is found to have breached professional standards any order is to be made having regard to what is appropriate to the achievement of adequate protection of the public. We agree. We accept also that the goals of an order included specific deterrence and general deterrence.

50 Mr Grey submitted that the personal impact of a disciplinary order on the applicant is irrelevant. We would not go that far. Orders have variable impacts on individuals depending on their circumstances. This is particularly true of fines.

51 He said that the following matters stood against Mr Johnson, and ought to be taken into account. First, Mr Johnson should have been aware as early as June 2000, before the issuance of the construction certificate, that spandrels were an issue. The need for spandrels had been identified in the compliance report he prepared for his client in June 2000.

52 There was no explanation from Mr Johnson as to why he fell into error in circumstances where he had carefully documented only months before the need for his client to deal with the problem. There was no direct evidence from Mr Johnson as to the alleged conversation with the architect that is said to have led him astray, nor was the architect called.

53 Mr Grey was critical of the slowness with which the problems were addressed. Mr Johnson, he said, became aware that there was a need to address the issue in November 2002. There had been no rectification as at May 2003 (see photographs at p 230 ff of Folder, taken in May 2003). Only at some unspecified time between May 2003 and now had infill panels been installed, and that, he said, was in four of five non-compliant areas. Moreover, the balconies’ problem had not been attended to, now more than 5 years later. In his submission, there must be some doubt as to the value of the assurances now being given on Mr Johnson’s behalf by Mr Lovegrove.

54 He referred to Mr Lovegrove’s submission that the Tribunal should make an order short of one that interfered with Mr Johnson’s ability to continue in practice. Mr Lovegrove had referred in support of an order that did not interfere with his ability to carry on his business to the decision of the Tribunal in Conway (cited above). Mr Lovegrove had said, and we agree, that the conduct identified in that case was more egregious than that identified here.

55 The Tribunal found Mr Conway guilty of professional misconduct, as charged. It said:

‘69 In our view Mr Conway’s conduct is of a sufficiently serious nature to justify suspension or withdrawal of his certifier’s accreditation. That conduct, had it gone unchecked, would have exposed backpackers and staff occupying the premises to a significantly lower standard of fire safety than that which Council and the legislature has deemed appropriate for such premises.’
56 Nonetheless in its final orders it only imposed a reprimand and a fine of $5000. On its face, this is a very soft punishment for transgressions of the number and importance that were allowed to occur in that case. Mr Grey submitted that the explanation for the order made in Conway flowed from the law then in force. The respondent had surrendered his accreditation before the proceedings commenced. The Tribunal had no power to impose orders affecting his right to be reaccredited. The Tribunal held that its powers were limited to the lower-tier sanctions of caution, reprimand and fine.

57 As to the level of any fine, the Tribunal rejected the applicant’s submission for a fine at the high end of the relevant range. It said:

‘12 Amount of the fine . Although the Environmental Planning and Protection Act has now been amended, the maximum penalty that the Tribunal can impose on Mr Conway in relation to his conduct is $33,000. The Minister submitted that a fine at the mid to high end of the range should be imposed because of the seriousness of Mr Conway’s conduct and the fact that he has still not been able to give an adequate explanation for it. We do not agree with that submission. While Mr Conway’s conduct was serious, it can be explained by the fact that he did not adequately understand his role. There was no suggestion that his behaviour was dishonest or that he was motivated by profit. He acknowledges in hindsight that he should have behaved differently and now appears to understand his responsibilities. In those circumstances a fine in the lower range is appropriate. A fine in the lower range is also consistent with Mr Conway’s evidence about his financial situation. In deference to his financial situation, we give Mr Conway three months to pay, with liberty to apply for an extension of time to pay.’
58 Mr Lovegrove submitted that his client had similar characteristics, and he now understands better his responsibilities.

59 Another case raised by Mr Lovegrove was Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43. There a reprimand and a fine of $2000 was imposed. He was found guilty of unsatisfactory professional conduct in respect of 11 omissions connected with the grant of a construction certificate for the division of a single dwelling into two dwellings divided by an internal wall. One of the omissions bore on fire safety (relocation of a skylight towards the boundary wall. The Tribunal said at [30]:

‘At hearing in reply to the issue of the placement of a skylight within 900mm of the boundary wall, Mr Boulle accepted the basis for the relevant BCA requirement – the danger that such a placement might assist in the spread of fire – but replied that he had understood that it was intended to install a non-combustible skylight.

We agree with Mr Halstead [for the applicant] that no substantial justification was provided for the placement of the skylights within 900mm of the boundary. There is no detail on the plans to indicate the skylight was non-combustible. It should have been dealt with at the construction certificate stage as it was a potential non-compliance matter.’

60 As to the appropriate order in this case, we advised at the close of the hearing we did not think the matter warranted any action that would result in Mr Johnson having to cease practice. The sanction of suspension or accreditation should, normally, only be considered where there is a finding of professional misconduct. We do not rule out the possibility that suspension or cancellation might be ordered following a finding of unsatisfactory professional conduct (the BP Act allows for it) but it seems that this could only be justified if there was a significant prior disciplinary history.

61 The case is now a very old one. Had this conduct been brought to the attention of the Tribunal promptly after it occurred it may be that a reprimand would have imposed.

62 We have considered the imposition of a fine. A fine provides a measure of the seriousness of an offence along the range set by the maximum under the Act. It provides a signal to other practitioners as to how seriously particular conduct is viewed. While this case involves conduct more serious than the fire safety omission identified in the Boulle case and much less serious than the omissions identified in the Conway case, we have decided not to impose a fine having regard to the following factors.

63 The matter has taken five years to reach finality. In the meantime Mr Johnson has continued in practice, and the regulator has, it would seem, upgraded his accreditation. Mr Johnson attended the hearing. Mr Johnson’s demeanour at hearing suggested that the proceedings have taken a heavy toll on him. We accept Mr Grey’s point that one result of Mr Johnson deciding not to give evidence is that some matters remain unclear as to how the omission in respect of the spandrels arose, especially if there had been a conversation on the subject with the architect and the need for them had been noted in Mr Johnson’s preliminary report.

64 In our view the objective of public protection is adequately served on this occasion by administering a caution.

65 We are concerned that the problem at the balcony/window joins has not been fixed. The occupants of this apartment complex have been left in a situation where they do not have the level of protection that the Building Code and planning law seeks to guarantee to them. There was no evidence that any responsible authority had taken any enforcement action to obtain compliance.

66 It may be that a condition could be imposed on Mr Johnson’s licence which would assist in having this problem fixed. As the Tribunal did not canvass such a possibility at hearing, and as, in our view, it is not desirable to reconvene the hearing, we will simply recommend to Mr Johnson that he report to the Board not later than 31 March 2008 and again by 30 September 2008 on whether the problem has been rectified, and, if not, why not.

Order

1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct.

2. The Tribunal orders that Mr Johnson be cautioned.

03/04/2008 - Change of word from "occupation" to "occasion". - Paragraph(s) 64