Director, Building Professionals Branch, Department of Planning v Dwyer
[2007] NSWADT 53
•9 March 2007
CITATION: Director, Building Professionals Branch, Department of Planning v Dwyer [2007] NSWADT 53 DIVISION: General Division PARTIES: APPLICANT
Director, Building Professionals Branch, Department of Planning
RESPONDENT
Simon DwyerFILE NUMBER: 063377 HEARING DATES: 6 February 2007 SUBMISSIONS CLOSED: 6 February 2007
DATE OF DECISION:
9 March 2007BEFORE: O'Connor K - DCJ (President); Hayward P - Non Judicial Member CATCHWORDS: Accredited Certifier - professional misconduct - Accredited Certifier - unsatisfactory professional conduct - Environmental Planning and Assessment Act - Accredited Certifier - professional misconduct - Environmental Planning and Assessment Act - Accredited Certifier - unsatisfactory professional conduct MATTER FOR DECISION: Principal application LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000CASES CITED: Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70 REPRESENTATION: APPLICANT
RESPONDENT
A Grey, solicitor
K Lovegrove, solicitor, Lovegrove Lord & JohnstonORDERS: 1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct, by issuing a construction certificate prior to the commencement of development consent and in excess of a condition of the development consent.; 2. The respondent is:; (a) reprimanded; and; (b) ordered to pay a fine of $5000.
1 The Environmental Planning and Assessment Act1979 provides for the accreditation and regulation of private certifiers (see especially Division 10, Part 4B). The accreditation body may apply to the Tribunal for disciplinary findings and orders to be made against accredited certifiers. The origins and nature of this jurisdiction have been outlined in other decisions of the Tribunal: see, for example, Director General, Department of Infrastructure, Planning & Natural Resources -v-Stapleton (No 2) [2004] NSWADT 70 at [7] ff.
2 In this instance the applicant, as the accreditation body, seeks a finding that the respondent, an accredited certifier, is guilty of either unsatisfactory professional conduct or professional misconduct in respect of two matters, which are particularised in the application to the Tribunal. The Tribunal has been constituted so as to include a non-judicial member who is a registered surveyor of standing, and has relevant expertise.
3 The material text of the application follows:
- Disciplinary finding/s sought:
1. (First disciplinary finding sought)
Pursuant to sections 109Z(2) and 109Z(3) of Environmental Planning and Assessment Act 1979 (the Act) Neil Cocks, Director, Building Professionals Branch, Department of Planning, makes application for a disciplinary finding against Mr Simon Dwyer, being a finding of unsatisfactory professional conduct or professional misconduct, in respect of the matters set out below.
General description of conduct:
A. A complaint was made pursuant to s.109V of the Act by South Sydney Council (the Council) to the Director General, Department of Planning on 4 March 2003 against Mr Simon Dwyer (the Respondent) in relation to the issue of a construction certificate by the Respondent for a development at 494-504 Gardeners Road, Alexandria (the development).
B. The Respondent, trading as DLM Certification, is accredited as an accredited certifier and principal certifying authority pursuant to s.109T of the Environmental Planning & Assessment Act 1979 (the Act).
The Respondent is accredited under the Building Surveyors & Allied Professions Accreditation Scheme (the BSAP Scheme) and Neil Cocks, Director, Building Professionals Branch, Department of Planning (the Applicant), has been appointed by the Minister under Clause 199(3)(a) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) to administer the BSAP Scheme.
C. The complaint has been investigated pursuant to sections 109W and 109X of the Act by the Department of Planning on behalf of the Applicant.
D. By issuing the construction certificate in respect to the development, 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 Act.
A. Relevant legislative provisions
Section 80(3) of the Act provides:
A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
Clause 95 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides:
95 Deferred commencement consent
(1) A “deferred commencement” consent must be clearly identified as a “deferred commencement” consent (whether by the use of that expression or by reference to section 80(3) of the Act or otherwise).
(2) A “deferred commencement” consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.
(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.
(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.
(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.
(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
Section 109F(1)(a) of the Act provides:
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 81A(5) have been complied with.
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:
- (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires,
(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,
(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).
(3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
Clause 146 of the Regulation provides:
146 Compliance with conditions of development consent
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with:
- (a) each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act),
(b) each condition requiring the payment of a monetary contribution before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act),
(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
1. Issue of construction certificate prior to commencement of development consent.
(a) The Council granted development consent in relation to the development by the issue of the Notice of Determination of a Development Application dated 18 April 2002 (the Notice).
(b) The development consent was a deferred commencement consent within the meaning of s.80(3) of the Act.
(c) Condition 1 of the Notice provides:
That pursuant to the provisions of s.80(3) of the Environmental Planning and Assessment Act 1979 (as amended) the consent shall not operate until the applicant has provided the following information for the approval of the Director of City Works and the Director of City Environment namely:
- (a) That the developer shall carry out a flood study to determine the 1 in 100 year storm event and set the habitable floor level 3000mm above the 1 in 100 storm level. Details of the study and the final floor level shall be submitted for the approval of the Director of City Works;
(b) That the proposed marked foot crossings at the driveway in O’Riordan Street shall be redesigned to comply with Council’s standard (a step-down driveway is not acceptable). A detailed plan shall be submitted to the Director of City Works for approval.
(e) On 6 August 2002 St Hilliers appointed the Respondent as the principal certifying authority for the development and made application to the Respondent for the issue of a construction certificate.
(f) On 9 August 2002 the Respondent issued a construction certificate in respect of the development.
(g) By letter dated 24 December 2002, the Council advised St Hilliers that the information submitted to Council and shown on drawings numbered 96/110/01 Issue 4 Sheets 1 to 12 satisfied the requirements of Condition 1 of the Notice, and that the consent became operative from the date of Council’s letter viz 24 December 2002.
(h) By issing [sic] the construction certificate on 9 August 2002 prior to the commencement of operation of the development consent, 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 Act.
(a) Condition 2 of the Notice of Determination of a Development Application provides:
- That a separate construction certificate relating only to demolition, excavation and piering works shall be submitted and only such work shall be carried out until such time as the remediation works required by the Environmental Assessment Report by Coffee Geo Sciences Pty Ltd have been completed and appropriately certified.
HBO EMTB Architects Pty Ltd
· Site Plan
· Carpark level
· Demolition and Bulk Excavation Plan
· OSD and Sprinkler Tanks
Van Der Meer Bosner Pty Ltd (Engineers)
· Bulk Earthworks
· General Notes Sheets 1 and 2
· External Pavement Plan
· Detention Tank Plans and Details
· Footing Plan
· Footing and Column Details
· Basement Slab on Ground Plan
· Slab on Ground Details
(c) The drawings referred to at (b) above depict work in excess of demolition, excavation and piering works.
(d) By issuing the construction certificate for works in excess of those referred to in Condition 2 of the Notice, 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 Act.
4 The respondent has pleaded guilty to unsatisfactory professional conduct and admits all particulars.
5 The proposed development – a bulk goods retail complex – was to be built on an industrial site in Alexandria that had once been the location of a tannery. Among the issues that arose in relation to the land were, one, the need to ensure that any flooring for the proposed building was not affected by flooding (using the measure of the one in a 100 year flood level), two, the unsatisfactory original design of the driveway crossing plans and, three, the presence of arsenic in the land which required remediation (tanneries used arsenic as part of their processes).
6 So far as the conduct itemised at 6.B.1 of the application is concerned (the flood and driveway crossings issues), the respondent received the required reports on 31 July, sent them to Council on 6 August and issued the construction certificate on 9 August. He should have waited until Council’s approval had been given.
7 As it happened the Council approval – which did not issue until over 4 months’ later – endorsed the reports. While it was wrong of the respondent to proceed ahead of the approval being granted, we note that the reports were provided by consultants of the highest standing in the respective fields. There was a low likelihood of rejection. No actual harm was caused by the error.
8 So far as the conduct itemised at 6.B.2 of the application is concerned, the development consent had only authorised limited works – demolition, excavation and piering – ahead of completion of remediation. ‘Piering’ refers to the installation of solid columns in the boundary areas of the excavation to help secure the excavation.
9 The applicant explained at hearing that it was important that works be limited until completion of remediation to ensure maintenance of a clear site if noxious substances had to be treated or removed. This task could be compromised if major works (such as the laying of foundations and concrete slabs) proceeded ahead of completion of remediation.
10 In this instance the first difficulty lay in the terms of the certificate issued. While it properly authorised ‘demolition’ and ‘excavation’, it went too far in permitting ‘in-ground works’. ‘In-ground works’ is a term with a broader connotation than ‘piering’, and created the possibility of compromise of the remediation program.
11 In the applicant’s view, the inappropriateness of the use of the wide term ‘in-ground works’ has also to be seen in the context of the plans attached to the construction certificate. The plans covered the broad array of usual in-ground works in a development of this kind.
12 We agree that the plans do deal with works that go beyond demolition, excavation and piering. However, in our view, some at least of those plans provided information relevant to demolition, excavation and piering. The architect’s four plans all contained information of that kind. The site plan is required for these purposes, the carpark level could be useful to define the limits of piering, the demolition and bulk excavation plan is critical and the OSD and sprinkler tanks plan would assist in indicating where deeper excavation should occur.
13 A similar point can be made in relation to several of the engineer’s plans. The bulk earthworks plan is critical. The General Note Sheets 1 & 2 contained relevant information. For example, Note G11 on Sheet 1 states that: ‘The contractor is to employ a qualified geotechnical engineer as required for all geotechnical aspects of the building works. Refer to foundation, groundwork and retention/shoring notes. Refer also to the geotechnical report for this project’.
14 On the other hand, the six remaining engineer’s plans had no relevance to demolition, excavation and piering. In that regard, we note that they were all incomplete plans. Moreover, every one of the engineer’s plans had markings which would have led a competent builder, we believe, not to act upon them. They were marked ‘revision in progress’ and clearly marked with the warning, ‘information not to be used for construction’.
15 While we accept that the certificate expressed itself too broadly in purporting to authorise ‘in-ground works’, and there were plans attached (the final six engineer’s plans) which had no connection to the scope of works permitted by the development consent, we think that the risk of any excessive works occurring ahead of completion of remediation was extremely low.
16 As it happened, there were no works ahead of completion of remediation. In particular, no building work occurred of a kind which might have required removal (such as the laying of the concrete slab flooring of the development) had it been found that the flood level had to be pitched higher than the usual limit.
17 We think that this item of misconduct was minor, viewed in context.
18 However, we are satisfied that the two errors which the respondent has admitted, independently and together, constitute ‘unsatisfactory professional conduct’. We are also satisfied that a disciplinary order should be made.
- Appropriate Order
19 At hearing the respondent was represented by Mr Lovegrove. Most of the submissions on behalf of the respondent were made by Mr Lovegrove, including as to his history and any order. The respondent participated directly in the hearing at two points – in giving an explanation as to a technical building matter, and in responding to enquiries from the Tribunal about what measures he had taken to avoid the recurrence of offences, and changes he is presently making in the direction of his career.
20 The respondent is a Grade 1 certifier. This is the highest accreditation that can be granted to a certifier. At hearing the Tribunal was informed that there were about 15 Grade 1 certifiers in the State. A Grade 1 accreditation allows a certifier to exercise the decision-making powers conferred by planning laws in relation to any kind of building or building work. This is to be contrasted with accreditations at the Grades 2 and 3 levels where restrictions apply.
21 The respondent holds numerous certificates and qualifications. His curriculum vitae records formal qualifications in building, health inspection and fire safety. His first qualifications were attained when he was 26 years old (in 1980), and he has steadily accumulated more since that time. He became an accredited private certifier in 1999, soon after the private certification system was introduced. For the previous 10 years (1989-99) he had worked as a consultant with the firm of Trevor Howes and Associates. In the period 1986-89 he worked for the Department of Local Government reviewing ordinances and codes. At the time of his appointment as a private certifier, he had no recent regulatory decision-making experience. His only experience in a regulatory role occurred in his early career (1974-84) when he occupied junior and more senior positions as a health and building surveyor with councils in Sydney.
22 The respondent has some disciplinary history. At hearing the applicant drew to our attention two disciplinary findings and orders that had been made in the internal disciplinary process overseen by the accreditation body (see s 109Z(4)) – one giving rise to a caution, the other to a reprimand. The first matter related to two offences which occurred in 2000. One concerned issuance of an occupation certificate for a commercial development when fire hydrants were insufficient to meet fire-fighting requirements. The other concerned issuance of a construction certificate and occupation certificate for the same building that extended over the title boundary. The second matter in 2002 also involved fire safety. An occupation certificate was issued without adequate fire safety measures and without having first issued a modified construction certificate in respect of those measures. These are all quite serious offences, in our view.
23 As to the matter before us, we note that it is common for land in old industrial areas (as in this case) to be at risk of such problems as noxious residues deriving from noxious industry. It is not uncommon for land to be flood-prone. A competent and experienced person responsible for certification would have realised, we think, that care must be taken not to grant a construction certificate prematurely. The certificate in this instance was premature on two counts – allowing work to proceed ahead of satisfaction of the deferred consent condition and allowing for a scope of works that was excessive prior to completion of remediation.
24 Private certifiers, who depend for their fees on the clients who have engaged them to give the statutory certificates, are more than usually vulnerable to pressure to bypass required steps (in this case the obtaining of further Council consents). Repeated conduct of this kind must give rise to some concern in the public mind that the respondent may be vulnerable to this kind of pressure.
25 The respondent advised at hearing that he will be reducing his involvement in high-level certifications over the next year. As we understood his evidence, he will continue his connection with his employer since he became accredited, DLM Certification, but on a reduced basis. He has in mind undertaking consultancy work and a smaller proportion of accreditation work in the northern New South Wales/southern Queensland area.
26 The respondent tendered some testimonials. We accept that he is regarded well by those that gave the testimonials. But they were of limited relevance to our task.
27 The Tribunal was not impressed by the respondent’s explanation of what steps he might take in future to avoid a recurrence of the kind of problems identified by the previous two disciplinary findings against him and by this case (other than ‘slowing down’). We accept that all of the events that have come under notice occurred in the early period of the new scheme.
28 The respondent sought some allowance for having entered a guilty plea at hearing, and not putting the applicant to the delay and expense that might have been occasioned by a contest. The applicant acknowledged that the respondent had been co-operative with its enquiries.
29 Disciplinary processes have as their object the protection of the public. An early plea of guilty may be seen as consistent with a degree of contrition and acknowledgement of error. That may be relevant to the assessment of the extent of any restriction that should be placed on the regulated person in the future practice of the regulated occupation. However, we would not agree with Mr Lovegrove’s suggestions that a ‘discount’ of the kind that is afforded in criminal sentencing for an early plea (say 20% of the otherwise appropriate sentence) should be incorporated into this area.
30 The respondent has already been the subject of a caution and a reprimand. As this is a third offence, a fine is appropriate, as well as a reprimand.
31 The maximum fine permitted by the legislation is 1000 penalty units (i.e. $110,000).
32 There was some debate at hearing as to where the present matter might fit within the ‘scale’ set by the (few) other accredited certifier cases where the Tribunal has imposed a fine. In those cases the orders have fallen in the range $2000 to $15000.
33 We think that the figure suggested by the applicant is appropriate – $5000.
34 We note the applicant’s advice that the accreditation body recently renewed the respondent’s accreditation at the Grade 1 level. While we do not make a formal order to this affect, we would see value in the accreditation body giving consideration to instructing the respondent to develop documented risk management procedures or quality assurance. In our view, consideration should be given to not continuing the respondent at the Grade 1 level if he is found guilty of any further disciplinary offences of any seriousness.
- Order
1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct, by issuing a construction certificate prior to the commencement of development consent and in excess of a condition of the development consent.
2. The respondent is:
(a) reprimanded; and
(b) ordered to pay a fine of $5000.
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