Director General, Department of Infrastructure, Planning and Natural Resources v Boulle

[2006] NSWADT 43

CITATION:	Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Directior General, Department of Infrastructure, Planning and Natural Resources RESPONDENT Ivan Boulle
FILE NUMBER:	043399
HEARING DATES:	3/08/2005
SUBMISSIONS CLOSED:	08/03/2005
DATE OF DECISION:	02/09/2006
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Non Judicial Member
CATCHWORDS:	Disciplinary Finding (Accredited Certifier)
MATTER FOR DECISION:	Principal Application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning & Assessment Regulation 1994 Environmental Planning and Assessment Act 1979
CASES CITED:	Director General, Department of Infrastructure, Planning & Natural Resources v Stapleton (No 2) [2004] NSWADT 70 Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159
REPRESENTATION:	APPLICANT D Mallon of counsel instructed by Crown Solicitor's Office RESPONDENT In person
ORDERS:	1. The respondent is found guilty of unsatisfactory professional conduct; 2. The matter is to be relisted for determination of the appropriate disciplinary order

1 Section 109Z(2) of the Environmental Planning and Assessment Act 1979 (the Act) provides:

‘(2) The accreditation body may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier.’

2 By application filed 10 December 2004 the Director General of the Department of Infrastructure, Planning and Natural Resources, in his capacity as an accreditation body, has applied to the Tribunal for a disciplinary finding against a person holding the office of accredited certifier under the Act, namely Mr Ivan Boulle.

3 The Tribunal has been constituted as a two person panel, having regard to the nature of the matter (see generally Administrative Decisions Tribunal Act 1997, s 22(3)). It comprises a presidential judicial member, the President, and a non-judicial member, Mr Peter Friedmann, who is a registered surveyor of standing and an accredited certifier.

4 The charges and particulars all concern the propriety of Mr Boulle’s conduct in respect of one event – the issuance by him on 13 June 2000 of a construction certificate in respect of building works at 53 Cairo Street, Cammeray.

5 At the relevant time Mr Boulle was accredited under the Act as an accredited certifier, grade 3; and as a principal certifying authority, grade 3. He continues to hold an accreditation, now at the grade 1 level in relation to each of these offices.

6 The complaint giving rise to this application was made by the North Sydney Council on 4 August 2000 to the then accreditation body (the Building Surveyors and Allied Professions Board (BSAP)) pursuant to s 109V. The long delay in bringing the matter before the Tribunal is connected with the procedures required to be observed under the Act before complaints are referred to the Tribunal.

7 The Tribunal convened to hear the application on 3 August 2005. Mr Mallon of counsel appeared for the Director General and Mr Boulle appeared in person.

8 Mr Boulle has not sought in any way to resist the Director General’s application.

9 He has co-operated in the preparation of a statement of agreed facts and issues. He conceded many of the criticisms, and disagreed with some. This attitude contrasts with his initial response to the criticisms (letter dated 7 August 2000), to which we will return at the next stage of these proceedings.

The Disciplinary Provisions

10 The legislative history relating to the creation of the office of accredited certifier and the relevant provisions has been dealt with in some detail in previous decisions of the Tribunal, and will not be repeated here: see for example, Director General, Department of Infrastructure, Planning & Natural Resources v Stapleton (No 2) [2004] NSWADT 70 at [6] to [12].

11 The Tribunal’s duty, under s 109ZA(1), ‘is to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct’. Section 109ZA(3) provides that ‘[i]f the Tribunal finds that the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct, it is to dismiss the application’. The difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is dealt with in the definition section, s 109R, in this way:

‘ 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.’

12 In this case the conduct in issue is said to fall under category (a) of the definition of ‘unsatisfactory professional conduct’ and the Tribunal is to determine, if there is an adverse finding, whether it possesses the degree of seriousness sufficient to lift it to the level of ‘professional misconduct’.

13 The most notable feature of the above definitions, so far as conduct falling into category (a) is concerned, is that they do not adopt the standard found in the common law formulations of ‘professional misconduct’ – competence as judged by one’s peers in the profession or occupation – but instead provide for competence, diligence and integrity to be assessed by reference to what ‘a member of the public is entitled to expect of a reasonably competent accredited certifier’. See further Stapleton No 2 at [62] to [66] and Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159 at [28].

Charge

14 The Director General has laid the following Charge, which is supported by four Particulars:

Mr Boulle 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 certifier; and/or

(b) by which he failed to comply with the BSAP Code of Conduct; and/or

(c) by which he failed to comply with the Building Code of Australia.

Particulars

(i) Mr Boulle did not comply with cl 79G(1)(a) of the Environmental Planning & Assessment Regulation 1994 (the EP&A Regulation) in that he issued a construction certificate when the proposed building works were not consistent with the council’s consent for development

(ii) Mr Boulle did not comply with cl 79G(1)(b) of the EP&A Regulation in that he issued a construction certificate when the proposed building works did not comply with the relevant requirements of the Building Code of Australia

(iii) Mr Boulle did not comply with cl 79I of the EP&A Regulation in that he issued a construction certificate which was not in accordance with Form 11

(iv) Mr Boulle did not comply with cl 3.7.10 ‘Roof Lights’ of Volume 2 of the Building Code of Australia.

Background

15 The development at 53 Cairo Street, Cammeray had been the subject of controversy. Under their original application the owners proposed to convert a large timber home with heritage features to separate dwellings with substantial demolition of the existing building. That application had been refused. A revised application was made under which the appearance to the street of the existing dwelling was to be maintained but works would be undertaken which divided the interior into two separate attached dwellings. These dwellings are described in the relevant documentation as Lot A and Lot B. The plans that were the subject of the development consent were lodged with the North Sydney Council in December 1999. By decision made 23 February 2000, the Council approved the revised application subject to numerous specific and general conditions: Development Consent No D545/00. The specific conditions included a number which sought to preserve the external appearance of the existing dwelling, affecting such areas as the presentation to the street, the appearance of the roof and the roof profile, as well as the rear of the dwelling.

16 The first term of the consent stated:

‘ Development in accordance with Plans

1. The development being carried out generally in accordance with drawings numbered 1 & 2 dated December 1999, drawn by Owen Haviland Pty Ltd and received by Council on December 1999, except where amended by the following conditions.’

17 Particular (i): Mr Boulle did not comply with cl 79G(1)(a) of the Environmental Planning & Assessment Regulation 1994 (the EP&A Regulation) in that he issued a construction certificate when the proposed building works were not consistent with the council’s consent for development.

18 The Particular refers to the 1994 regulations, now repealed, as they were in force as at 13 June 2000. Clause 79G provided:

‘ 79G 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:

(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 79B) are not inconsistent with the development consent.’

19 In the construction certificate Mr Boulle nominated as the plans to which he had regard as those prepared by Haviland Pty Ltd dated March 2000. These could not have been the endorsed plans, as the development consent had issued on 23 February 2000 in relation to the plans submitted in December 1999.

20 Mr Boulle accepts that he based his decision to issue the construction certificate on plans which post-dated the consent. He accepts that he did not have regard to the endorsed plans. He appears to have proceeded on the assumption that the architects’ new plans sought to show the effect of the development consent. Mr Boulle now accepts that the plans of March 2000 did not in certain respects accurately reflect the terms of the development consent. He disputes whether in all instances relied upon by the Director General the plans to which he had regard involved changes or variations that were inconsistent with the development consent.

21 The statement of agreed facts acknowledges as accurate the contents of an affidavit of a Departmental Inspector, Mr Wunsch, who had carried out the investigation of the council’s complaint. The applicant filed a document headed ‘Particulars of Breach’. This document is used as the framework for the Tribunal’s findings.

22 Mr Wunsch identified 25 points where the construction certificate because of its reliance on the March 2000 plans involved inconsistencies with the December 1999 plans. Ultimately at hearing the Department has relied on 14 of these matters in these proceedings, as follows. (The original numbering is retained.) As to the significance of these matters, the Department relied on the expert evidence of Mr Nathan Halstead, accredited certifier. Mr Halstead gave affidavit and oral evidence and was cross-examined.

23 The question of what type of deviation from an endorsed plan constitutes an inconsistency will involve the exercise of informed professional judgment by building professionals applying a detached, fair-minded view; or, if a case reaches this level, by the Tribunal. If the view is formed that there is an inconsistency of the relevant degree then it is necessary to reapply to the Council for approval. This procedure is known as a ‘Section 96 modification’. In the case of the issuance of a construction certificate the judgment is that of a trained building expert who is expected to be independent and impartial – the accredited certifier.

24 In forming his opinion as to whether a deviation was of a kind that amounted to an inconsistency with the consent, Mr Halstead had regard to Development Practice Notes issued by the Department. We think that this is appropriate, and we did not understand Mr Boulle to dispute that it was appropriate to have regard to official guidance notes of this kind. It is also appropriate and often necessary to have regard to the provisions of major instruments affecting building practice such as the Building Code of Australia (BCA).

25 We agree with Mr Halstead that the following statements found in the Department’s practice note (issued September 1999) under the heading ‘When is a Section 96 Modification Required?’ provide appropriate guidance.

‘You will need to modify the consent where you change your plans so that:

· The external envelope of the building is changed – where the windows are moved, heights are changed or plant rooms are added

· Rooms are moved or enlarged

· A specific requirement or condition of consent has not been met.’

26 We also agree that the following statement found in the Department’s practice note (issued September 1999) under the heading ‘Construction certificates for building work’ provides appropriate guidance.

‘A construction certificate cannot be issued if the design details are inconsistent with the development consent, however the following points should be noted:

· Plans and specifications relied upon for the purpose of obtaining a construction certificate will invariably contain a greater level of detail than that submitted with the development application (DA)

· Some variations to the design, siting and construction of the building may have occurred either to comply with a specified condition of development consent or with the BCA, or to improve the efficiency and functionality of the building – compliance with the BCA is a prescribed condition of development consent and a prerequisite to the issue of a construction certificate

· The regulations recognise the fact that variations may occur when proceeding to this level of detail, by not requiring that the design and construction of the building be strictly in accordance with the development consent.

In all cases this judgement will depend on the terms of the development consent – the detail on the plans and the requirements imposed as conditions of the consent. They should be carefully considered. As an example, changes to plans such as the following be consistent with the development consent:

· Changes to comply with conditions of development consent

· Additional details to show compliance with the BCA, generally within the external envelope of the building – such as kitchen detail, moving doors or partitions.

The following would be inconsistent with the development consent:

· Altering the external envelope – relocating windows, adding plant rooms where not shown

· Moving rooms around – changing locations of bedrooms and living rooms, increasing number of rooms

· Design not satisfying the conditions of development consent, for instance, conditions requiring modification to plan drawings such as reducing heights or setbacks.

In these circumstances a section 96 modification to vary the development consent would be required. If there is some doubt about the extent of the changes, it should be discussed with council.’

27 There will always be some room for difference when seeking to apply a generally expressed standard, and it will be seen in the discussion which follows that we do not agree that all fourteen items upon which the Director General has ultimately relied constituted inconsistencies of the kind to which cl 79G is addressed.

Alleged Inconsistencies with Development Consent

28 The fourteen points on which the Director General ultimately relied go to the following aspects of the plans as approved by the construction certificate:

(a) relocation of skylights and addition of a skylight, raising issues in relation to proximity to the boundary wall between the two lots A and B, and, in the case of the additional skylight, neighbour amenity (items 1, 2, 11)

(b) omission of roof ridgeline levels, seen as a matter of importance in light of raising of floor levels or other alterations (items 3, 7)

(c) raising of floor levels (item 4)

(d) roofing: replacement with new material (item 5)

(e) additional structure: timber pergola to the rear (item 6)

(f) increase in size of roof storage area, with consequential reductions on size of fenestrations and of a bedroom (item 8)

(g) change in eaves location and height (item 9)

(h) change in fenestrations off living area, from fixed sidelight windows with French doors to full length bi-fold doors (item 15)

(i) new timber decking and new portion of porch (item 16)

(j) new loft storage areas in both dwellings (item 20), with incorporation of new stairs and need to reconfigure ensuites (item 21).

29 It will be seen that changes of the kind alleged involved alterations to the external appearance of the dwelling, as well as some significant internal changes.

30 We now turn to each of the alleged inconsistencies, retaining the original numbering.

Northern Elevation

1. The location of the skylights in the roof space of the northern elevation has been altered significantly.

2. An additional skylight has been added within the roof space of the northern elevation adjacent to the chimney.

These are related items, and also form the basis for Particular (iv). Mr Boulle said in evidence at hearing that he had been aware that these changes did not comply with the development consent.

As to 1, the Department initially had concerns over the location of three skylights, but at hearing its concern was confined to two skylights. One had been approved at a distance of 3.5 metres from the allotment boundary but was relocated in the plans the subject of the construction certificate to a distance of 2 metres from the boundary. It was noted that another skylight was placed at 500mm from the boundary wall in the plans submitted in December 1999, and this had not been addressed in the development consent. Nonetheless a location this close to the boundary wall is not permitted by the BCA which specifies a minimum distance of 900mm.

As to 2, this was not approved by the development consent or shown in the December 1999 plans. According to Mr Wunsch’s affidavit Mr Boulle had responded, ‘[we] fail to see how a skylight with dimensions of 600mm x 350mm in a non habitable room (loft/storage) and being of such a minor nature and location would impact on the privacy or detrimentally impact on the amenity of the surrounding area.’

As to this matter, we agree with the comment of Mr Wunsch in his report dated 10 March 2003 (Ex B to his affidavit) that there is here an admitted inconsistency with the development consent. In our view, the introduction of any new aperture in the nature of a window is a significant matter requiring, at the minimum, discussion with the council. The size is not a significant consideration. The skylight relocation could have amenity concerns with neighbouring properties. The neighbours did not have the ability to comment on the skylight relocation.

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 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.

3. The reduced levels indicated on the endorsed development consent plans have been deleted from the construction certificate plans so there is no indication of the proposed height of the roof ridgeline.

A comparison of the endorsed plans and the March 2000 plans approved by the construction certificate show this to be the case. Clearly the risk existed that the building works would proceed by reference to those levels that were shown in the construction certificate plans, such as floor levels, and there was a possibility that the ultimate roof level might increase to a greater height than was shown in the development consent plans. Mr Boulle was careless in not ensuring that the construction certificate plans showed roof levels. Mr Boulle noted at hearing that at the end of the project a surveyor’s certificate would have been submitted, in which it would have been necessary to certify that the roof height complied with the development consent.

We would not go as far as Mr Halstead went in relation to the significance of this omission. Mr Halstead noted the changes in some of the floor levels (they were raised), and asserted that these would have led inevitably to a different and higher ridgeline. The changes in floor levels were small (discussed further under item 4, which follows). The Tribunal, as did Mr Boulle, notes that the development consent clearly requires a registered surveyor to check the final roof height and issue a report to that effect. Non-judicial Member Friedmann notes that the overall building height could remain as per the development consent even if the internal floor heights have to be adjusted.

4. The floor level of part of the middle/rear additions to the dwelling have been increased from RL 84.25 to RL 84.36 an increase of 110mm.

Mr Boulle’s evidence was that he did not realise that there was any change from the development consent. Mr Halstead was of the opinion that such a change at the floor level could contribute to an overall increase in height at the ridge. We are not satisfied that this would necessarily be the case. The construction certificate plans should have shown the roof ridgeline height. Clearly a risk existed that the ridgeline might be built to a higher line in the absence of a specified level. But we do not think that an alteration of such a small degree in the floor level height would ordinarily, in itself, be seen as an inconsistency of the kind that would give rise to a contravention of the standard set down in cl 79G.

5. A notation has been added to the construction certificate plans to the effect that ‘existing roof sheeting to be replaced with new’. The roof area of the front portion of the dwelling was to remain unaltered on the endorsed development consent plans.

Mr Boulle agreed that this was an omission, and that there might be concern over a certificate issuing in these circumstances. In our view, this was a change of sufficient importance in the context of this development to warrant being treated as an inconsistency, at least requiring reference of the matter to Council, as suggested by the Department’s practice note.

The appearance of the roof may well be a matter upon which neighbours might wish to comment. It may be it was essential that some roofing be replaced, and that a solution could be found that maintained sympathy with the previous appearance. We agree with Mr Halstead that an alteration to the external appearance of the dwelling as compared to the consent may be of importance, especially in a conservation area – the case here.

Eastern Elevation

6. A timber pergola has been added to the rear elevation of the dwelling (east elevation). It is not clear from the construction certificate plans if this pergola is to be roofed or not.

This was clearly, we consider, that the addition of any new structure involves an inconsistency of significance. Here it was to the rear of the dwelling, and clearly a s 96 application, at least, was required.

7. The proposed new ridge height of the rear addition has been increased in height and has been shifted towards the southern boundary. Because there are no reduced levels on the plan it is estimated from scaling that it is proposed to increase the ridge height of the additions by approximately 200mm.

Mr Boulle accepted this criticism. This criticism is based on a deduction by Mr Halstead (as was the case in respect of item 3) from the information shown on the construction certificate plans. In our view Mr Boulle should have ensured that an actual ridge height was shown. It was careless to approve the plans in circumstances where that was not shown. On the other hand, as in the instance of item 3, we do not agree that it necessarily follows that the ridge height as shown in the construction plans is in fact higher than that shown on the endorsed plans. Mr Halstead has relied on scaling techniques to reach his conclusion. These techniques may involve error due to such factors as the scales involved, paper shrinkage or expansion, copy machine scaling factors. Here the conclusion is that the ridge height may have been about 100mm higher than the consent plans showed; in our view a small variation of this kind can not reliably be drawn from the plans as presented to us, given the factors we have mentioned.

8. The overall size of the fenestrations to the upstairs bedrooms has been decreased to accommodate an increase in the width of the roof storage area adjacent to the balcony of bedroom 1 on proposed lot B. The roof storage has been increased in width from 1600mm to 2195mm as identified from dimensions on the two sets of floor plans.

Mr Boulle acknowledged that he was aware that the windows were reduced, but he saw this as an acceptable variation. Mr Halstead said his main concern was that the external appearance of the building had been altered, and not covered by development consent. We agree with Mr Halstead.

9. The eaves of the proposed addition adjacent to the southern boundary have been altered to accommodate the increased roof ridge height and altered roof form. These eaves appear to be located slightly closer to the property boundary and may be set at a higher level.

Mr Boulle accepted that these criticisms were available, but he felt that any impacts of this kind fell within the area of what was acceptable. Mr Halstead said that he regarded the change as a minor one, but that an extension of the eave could have overshadowing issues for neighbours and loss of amenity. In his view any changes to the precise position and coverage of the eave should have been made known at the consent stage. We have similar difficulties with this area of the case to those already canvassed in relation to items 3 and 7. We are not satisfied that there would necessarily be any alteration to the eave position, as it is possible to leave the ridge height unaltered and consequently the eave position unaltered, even though the floor level is raised.

10. [Not pursued]

11. The proposed skylight in the roof space adjacent to the chimney on the front portion of the building has been relocated.

Mr Boulle accepted that this was an omission of significance. Mr Halstead noted that the moving of windows was a matter specifically mentioned in the Department’s Practice Note of September 1999. As noted in discussing items 1 and 2, we regard this as a significant omission.

12. [Not pursued]

13. [Not pursued]

14. [Not pursued]

15. The proposed fenestrations for the living areas on the southern elevation are shown on the construction certificate plans as full width bi-fold doors. These openings were approved as French doors with sidelight windows on the endorsed development consent plans.

Mr Halstead noted that this change altered the external appearance of the building. Mr Boulle’s view was that such a change was in the back yard and out of view of neighbours, and therefore was in accordance with the consent. This response is similar to the one given by him in relation to item 2 (new skylight) and, for similar reasons, we reject it. This alteration in appearance should have been made known as part of the planning process.

16. A notation has been added to the construction certificate plans to the effect that ‘New timber decking to existing and new portion of porch’. This alteration was not identified on the endorsed development consent plans, and this area is clearly shown on the development approved plans to be retained unaltered.

It may be that new decking was necessary, but it should at least we think have been exposed to the Council for comment. The reference to a ‘new portion of porch’ indicates additional building works, similarly to the timber pergola, and, clearly in our view, constituted an inconsistency of the kind to which cl 79G is addressed. Mr Boulle conceded that this was an inappropriate omission.

17. [Not pursued]

18. [Not pursued]

19. [Not pursued]

20. A new loft storage area has been incorporated into the roof space of both dwellings in the portion of the building that was to remain unaltered. The provision of this loft storage area also involved the addition of proposed new stairs to provide access to the loft area. This alteration was not identified on the endorsed development consent plans, and this area is clearly shown on the development application plans to remain unaltered.

These, in our view, were new building works of significance. Mr Boulle was of the view that these were not significant changes, and noted in particular that no windows were involved (limiting any possibility that the spaces might be used for habitation). While, so far as the Tribunal is aware, it is permissible for the roof area to be used as storage, the introduction of stairs may raise concerns that some more active use of the roof area may be contemplated, including habitation. This is more than a mere minor variation in the design as approved. It introduces a new design element, and should at least have been exposed to Council.

21. The inclusion of the loft area and stairs has required the reconfiguration of the ensuite facilities in both dwellings.

Mr Boulle accepted this criticism, but replied that the changes did not affect the external features of the house. In our view the introduction of this new design element had impacts on other significant features of the design, and the total picture should have been exposed to Council.

22. [Not pursued]

23. [Not pursued]

24. [Not pursued]

25. [Not pursued]

31 Conclusion: In our view the Director General has established in respect of all but three of the above items that they were inconsistencies of a kind that a competent accredited certifier would have regarded as deviating from the endorsed plans to a degree that should have prevented him from issuing a certificate. In the case of three items (items 3, 7 and 9) the Director General did not satisfy us.

32 Particular (ii): Mr Boulle did not comply with cl 79G(1)(b) of the EP&A Regulation in that he issued a construction certificate when the proposed building works did not comply with the relevant requirements of the Building Code of Australia.

33 While this Particular is expressed in general terms the Director General only referred to Mr Boulle’s conduct as it concerned the skylights. The Director General referred to cl 3.7.1.8 and 3.7.1.10 of the BCA, the text of which is set out in Mr Halstead’s affidavit and the circumstances in which an Alternate Solution to that required by the strict rules may be permitted.

34 We agree that it was not open to Mr Boulle, in the circumstances he was called upon to deal with, to issue a construction certificate that permitted the location of skylights less than 900 mm from the allotment boundary. The roof was required to be of non-combustible construction as it did not incorporate a parapet wall extending above the roof covering (see BCA 3.7.1.8) and the ordinary boundary in such circumstances is 900mm (BCA 3.7.1.10).

35 The BCA does allow for the possibility of variation by direct acknowledgment in the construction certificate that an Alternate Solution has been devised consistent with the Performance Requirements of the BCA. Mr Halstead noted (see further his affidavit at p 62) that this power was not available to Mr Boulle to exercise as it had not been given to a Grade 3 Accredited Certifier by the accreditation scheme as it was in force at the time. He was limited to endorsing any variation from the strict rules as to location by reference to the Deemed to Satisfy provisions of the BCA.

36 Particular (iii): Mr Boulle did not comply with cl 79I of the EP&A Regulation in that he issued a construction certificate which was not in accordance with Form 11.

37 Clause 79I provides:

‘A construction certificate is to be in the form set out in the relevant part of Form 11.’

38 Form 11 has 19 primary categories of required information, and has explanatory notes at the end.

39 We agree (see further affidavit of Mr Wunsch, annexure ‘D’) that the construction certificate is not satisfactory in the following respects:

(i) Under the heading, ‘development consent’ which appears at two points, the second item of information ‘date of determination’ is not completed.

(ii) Under the heading which requires the ‘certifying authority’ to be named the name of Mr Boulle’s business is given – Advanced BCA Solutions. This is followed by his name. Under the Act, accreditation is given only to individuals. There is no provision for business name or company accreditation. The individual’s name should appear at this point.

(iii) Finally the stamp placed on the drawings certified by the construction certificate showed the business name as the name of the accredited certifier, not his individual name as should have been the case.

40 We regard matters (ii) and (iii) as errors of lesser significance, though the practice adopted does point to a misunderstanding at that time on the part of Mr Boulle as to the emphasis given by the legislation to personal accreditation.

41 Matter (i) is of greater significance in the context of the case. It may well be that, had Mr Boulle turned his mind to obtaining the date, he would then have realised that he had been referring to plans which post-dated the consent date, and therefore that he may have had in front of him the wrong plans for the purpose of exercising his responsibilities.

42 The Director General has established each of these particulars.

43 Particular (iv): Mr Boulle did not comply with cl 3.7.10 ‘Roof Lights’ of Volume 2 of the Building Code of Australia.

44 This matter has already been considered under Particular (ii).

The Charge

45 To reiterate, the charge of which the above Particulars were given is:

Mr Boulle 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 certifier; and/or

(b) by which he failed to comply with the BSAP Code of Conduct; and/or

(c) by which he failed to comply with the Building Code of Australia.

46 As to (a), we are satisfied that the matters we have found proven together establish that Mr Boulle has engaged in conduct which falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent certifier. We did not understand Mr Boulle himself to dissent from that proposition. He confined his replies to expressing a different view to the Director General on some only of the fourteen points of criticism that were made of the adequacy of his construction certificate.

47 As to (c), it is also clear that Mr Boulle failed to comply with the BCA in respect of his approval of the location of the skylight within 900 mm of the boundary wall.

48 As to (b), we do not think it necessary in light of these findings to enter a finding in relation to compliance or otherwise with the BSAP Code of Conduct (then applicable to accredited certifiers) (see p 41 of Mr Halstead’s affidavit). This is a set of nine ethical principles expressed in general terms and in the language of exhortation. The findings in relation to paragraph (a) and paragraph (c) of the Charge are sufficient to deal with this case.

Classification of Conduct

49 The dichotomy drawn by the Act depends on the following test – whether the conduct 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’. This approach ties the classification of the conduct to penalty. In our view this is not a case where suspension or withdrawal of accreditation needs to be considered. We did not understand there to be any dissent from that view by counsel for the Director General.

50 In our view, for a single instance of unprofessional conduct to amount to professional misconduct it would have to possess a high degree of objective seriousness, involving, for example, conduct of a grave kind giving rise to significant harm to the interests of particular members of the public or involving significant harm to the public interest viewed generally.

51 The event which initially triggered complaint to the Council was demolition work undertaken so as to construct the new boundary wall within the original dwelling which was to separate the two Lots. Initially the Council thought that Mr Boulle may have granted a certificate permitting the demolition. Had that been proven, that may have been conduct at the graver end of the scale. The Council was subsequently satisfied that that was not the case. But its examination of the construction certificate then identified the other problems which are the subject of the particulars. Mr Boulle’s initial reaction (his letter of 7 August 2000 to the then accreditation body, the BSAP) was a defiant one. He subsequently moderated his views. The skylights issue was ultimately resolved by the section 96 procedure with the Council allowing building within 900 mm of the boundary wall.

52 Our finding is that Mr Boulle has engaged in unsatisfactory professional conduct of the kind referred to in paragraph (a) and paragraph (d)(ii) of the definition, as specified in this decision.

Order

1. The respondent is found guilty of unsatisfactory professional conduct.

2. The matter is to be relisted for determination of the appropriate disciplinary order.

[On 27 June 2006, the following orders were made:

Pursuant to s 109ZA of the Environmental Planning and Assessment Act 1979, having found the respondent guilty of unsatisfactory professional conduct, the Tribunal:

1. Reprimands the respondent; and

2. Orders the respondent to pay a fine of $2,000, payable within 28 days (by 25 July 2006).]

02/02/2007 - To include orders of Tribunal made on 27/06/2006 - Paragraph(s) Following Orders in reasons for decision