Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) - [2004] NSWADT 70

No judgment structure available for this case.

CITATION: Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70

DIVISION: General Division

PARTIES: APPLICANT
Director General, Department of Infrastructure, Planning & Natural Resources
RESPONDENT
Robert Mark Stapleton

FILE NUMBER: 033126

HEARING DATES: 16 & 17/02/2004

SUBMISSIONS CLOSED: 02/17/2004

DATE OF DECISION:
04/13/2004

BEFORE: O'Connor K - DCJ (President); Friedmann P - Member

APPLICATION: Accredited Certifier - unsatisfactory professional conduct - Environmental Planning and Assessment Act - Accredited Certifier - unsatisfactory professional conduct

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment Act 1997
Environmental Planning and Assessment Regulation 2000
Independent Commission Against Corruption Act 1988
Local Government Act 1993
Ombudsman Act 1974

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] QBD 750
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151

REPRESENTATION: APPLICANT
M Leeming, counsel
RESPONDENT
R de Meyrick, counsel

ORDERS: 1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct:; (i) by contravening s 109ZG(1)(c) of the Environmental Planning and Assessment Act 1979 (the Act) in that he signed the application for a construction certificate for the development and then issued the construction certificate applied for.; (ii) by contravening s 109D(2) of the Act in that he did not issue the occupation certificate for the development when he was the principal certifying authority.; 2. Application to be relisted for determination of any Disciplinary Order.

1 The Environmental Planning and Assessment Act 1979 (the Act) regulates the professional conduct of accredited certifiers. The Director-General, Department of Planning, Infrastructure and Natural Resources (the Director-General) has applied to the Tribunal for disciplinary findings and orders to be made against an accredited certifier, Robert Mark Stapleton (Mr Stapleton).

2 The application was filed on 15 May 2003. It was heard on 16 and 17 February 2004.

3 A Tribunal hearing may be constituted by one or more members of the Division to which the function concerned is allocated: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 22(1); subject to the provisions for constitution of the Tribunal in relation to specified classes of matters set out in Schedule 2: Tribunal Act, s 22(4). This matter is allocated to the General Division of the Tribunal by virtue of Tribunal Act, Sched 2, cl 2(2). Ordinarily matters in the General Division are conducted by one judicial member or one presidential judicial member. After preliminary applications were dealt with, the Tribunal was constituted as a two person body for the purpose of the present hearing, having regard to the nature of the matter (see generally Tribunal Act, s 22(3)). The bench comprises a presidential member and a non-judicial member who is a registered surveyor of standing and an accredited certifier, Mr Peter Friedmann.

4 The power to make the application for disciplinary findings in these proceedings is conferred by s 109U(4) (now repealed, effective 1 March 2004). Once made, it is the Tribunal’s duty to determine ‘whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct’: s 109ZA(1). If the Tribunal finds that the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct it must dismiss the application: s 109ZA(3). If the Tribunal finds the accredited certifier guilty of either unsatisfactory professional misconduct or professional misconduct, there are a range of decisions that it may make: there are 8 categories of order, ranging from caution to withdrawal of the certifier’s accreditation: s 109ZA(2).

5 This decision contains the Tribunal’s determination as to guilt. As there is a finding of guilt of unsatisfactory professional conduct, there will be a further hearing to consider what sanctions should be imposed pursuant to s 109ZA(2).

6 The accreditation scheme that has given rise to these disciplinary proceedings was introduced by amending legislation, the Environmental Planning and Assessment Amendment Act 1997 which inserted Parts 4A and 4B into the Act. The amendments commenced operation on 1 July 1998.

7 The amendments were major ones. They sought to streamline the processes adopted by consent authorities in dealing with development applications and building approvals. They permitted an accredited private sector professional to be the certifying authority as to certain matters in circumstances where historically such powers had been confined to consent authorities, commonly local councils. The office of ‘accredited certifier’ was created to give certain consents formerly restricted to consent authorities. The new scheme also created another officer relevant to these proceedings, that of ‘principal certifying authority’ (PCA). Only an accredited certifier could be a PCA. Commonly privately practising building consultants and registered surveyors have been granted accreditation as accredited certifiers. It was said in the course of the proceedings that there are 130 accredited certifiers in New South Wales. The scheme was administered initially by the Building Surveyors and Allied Professions Accreditation Board (the BSAP Accreditation Board). Detailed requirements were issued relating to required competencies. There was also a gradated hierarchy defining the levels and types of decisions a certifier was accredited to make.

8 Part B of the Act makes provision for the discipline of accredited certifiers.

9 Section 109R defines ‘unsatisfactory professional conduct’ and ‘professional misconduct’. The definition of ‘professional misconduct’ depends on the definition of ‘unsatisfactory professional conduct’. Section 109E states: ‘“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 an accredited certifier’s accreditation.’

10 ‘Unsatisfactory professional conduct’ is defined in s 109R as follows:

“unsatisfactory professional conduct”

(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:

(ii) any other Act or law prescribed by the regulations, or

11 While, as counsel for the Director-General noted, it is for the Tribunal, not for the parties, to decide whether or not there has been conduct which amounts to either unsatisfactory professional conduct or professional misconduct (s 109ZA(1)), the Director-General did not press, if any or all of the allegations were established, for a finding of professional misconduct. The submission was that the conduct amounted in the circumstances to unsatisfactory professional conduct.

12 As noted earlier, the Director-General makes the present application following consideration of the report of a statutory audit conducted by a Departmental inspector pursuant to s 109U of the Act (as then in force, now repealed), which provided:

109U Auditing of accredited certifiers

(1) The Director-General may authorise any person (referred to in this section as a Departmental inspector) to carry out an investigation into the work and activities of an accredited certifier.

(2) For the purpose of carrying out the investigation, the Departmental inspector may exercise the same functions under sections 431 and 432 of the Local Government Act 1993 as may be exercised by a Departmental representative referred to in those sections.

(3) The Departmental inspector must report to the Director-General on the results of the investigation.

(4) If satisfied that the report indicates that the accredited certifier is or may be guilty of unsatisfactory professional conduct or professional misconduct, the Director-General:

(b) may furnish a copy of the report to the relevant accreditation body and any person prescribed by the regulations, and

(c) may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any matter arising from the report.’

13 The circumstances of concern, all of which are admitted by Mr Stapleton, are as follows.

Circumstances

14 Mr Stapleton practises in the Tweed Heads area. He is the principal director of the firm of Mark Stapleton and Associates Pty Ltd (holding a 60% share), which describes itself as ‘Building Consultants and Accredited Private Building Inspectors’. He has substantial relevant qualifications and experience. For many years he worked as a building inspector at the Tweed Shire Council. Around 1996 he moved to the private sector, and became a registered building surveyor. When the new scheme of accredited certifiers was established, he obtained accreditation.

15 He regularly did work for Mr Errol Bonnor, a local builder, and G T Simmonds Pty Ltd, a local developer.

16 In June 2001 Mr Bonnor approached Mr Stapleton’s firm and asked it to take all the required steps to obtain the development consent and other necessary approvals for a proposed development at 30 Flemington Street, Banora Point (formally, Lot 189, DP 1018795). The site was occupied by a single dwelling. The developer was to be G T Simmonds Pty Ltd. The circumstances that gave rise to the present application were as follows.

17 (1) On 12 June 2001 Mr Stapleton signed the development application (single dwelling redevelopment) and it was lodged by his firm with the Tweed Shire Council (the consent authority for this development). Mr Stapleton or his staff filled out the various particulars sought. It named Mr Bonnor as the applicant. Elsewhere in the form it described G T Simmonds Pty Ltd as the owner of the land.

18 In the space headed ‘Consent of All Owners’ under which an authority is given to permit Council officers to enter the land for the purpose of inspections, he inserted his initials under the words ‘As the owner of the above property, I/we consent to this application’ and wrote under the initials the name ‘G T Simmonds P/L – see consent’.

19 There is a further box in the form headed ‘Signed by applicant or other person’. He inserted his initials on the relevant line and wrote below it ‘Agent – see consent’. The words ‘see consent’ were intended to refer to the ‘Letter of Consent’ attached to the ‘Application for Construction Certificate’ (see next para).

20 (2) On the same day he or his staff completed a form headed ‘application for construction certificate’, naming Mr Bonnor as applicant and G T Simmonds Pty Ltd as owner. It attached a letter of consent addressed to the Tweed Shire Council signed on behalf of G T Simmonds Pty Ltd stating that Mr Stapleton was permitted to ‘1 Sign and lodge all development related applications on my/our behalf 2 Issue the Construction Certificate 3 Carry out building inspections.’ It is signed with the handwritten words ‘G T Simmonds Pty Ltd’ and has a full signature below, which appears to read ‘per G Simmonds’.

21 At the time of events (1) and (2) neither G T Simmonds Pty Ltd nor Mr Bonnor owned the property. G T Simmonds Pty Ltd did ultimately acquire the land. Contracts of sale were exchanged on 29 June 2001. Mr Stapleton acknowledged that he had not dealt with the company that was the owner of the land at the time the application for development consent was made, but said that he had wrongly assumed that Mr Bonnor and G T Simmonds Pty Ltd were acting in good faith, and did own the property. He said that it was not usual for firms such as his when approached by developers to check the ownership particulars by, say, doing a title search.

22 Mr Stapleton stated that he assumed from regular dealings with Mr Simmonds that the land the subject of the development consent application was being purchased on ‘builder’s terms’, i.e. a 180 day contract.

23 (3) Prior to granting the application the Council had queried the information given by Mr Stapleton in his documentation describing Mr Bonnor and G T Simmonds Pty Ltd variously as the owner of the land subject of the application. By letter dated 29 June 2001 he informed the Council that the position as at that day was that the owner had entered into a contract of sale to his client.

24 (4) The contract of sale is dated 29 June 2001 between G T Simmonds Pty Ltd as purchaser and Metricon Qld Pty Ltd and Lanlex No 49 Pty Limited as vendor, consideration $94,000. The special conditions permitted the purchaser to construct works prior to completion. The completion term was 180 days. The vendor’s solicitors also contacted the Council confirming that it was in order for the development and construction certificate application to be lodged.

25 (5) The Tweed Shire Council issued the development consent on 29 June 2001. The consent was subject to 29 conditions, conditions of a conventional kind.

26 (6) As the accredited certifier for the development, Mr Stapleton issued the construction certificate on 3 July 2001. Under ‘details of applicant’ the name of Mr Bonnor is given.

27 (7) Also on 3 July 2001 Mr Stapleton issued the form ‘Notice to Commence Building or Subdivision Work and Appointment of a Principal Certifying Authority’. The construction work was scheduled to commence on 6 July 2001. It gave Mr Bonnor’s name as that of ‘the applicant’, and in the signature clauses at the end Mr Stapleton placed his initials. Next to the box, ‘Name (if you are not the applicant)’, he inserted the name ‘Mark Stapleton’ and under ‘In what capacity you are signing if you are not the applicant’ he inserted the word ‘Agent’. In the body of the application the following boxes were ticked:

‘I have appointed a principal certifying authority.’

28 Under the name of the principal certifying authority appeared the words ‘Mark Stapleton & Associates’ with address, and next to the words ‘accredited certifier’ and ‘accreditation’ appeared the words ‘Mark Stapleton’ and ‘BSAP NSW Scheme 2816’.

29 (8) On 6 September 2001 an employee, Mr Scott Oakes, who was also an accredited certifier, issued the final occupation certificate on the firm’s letterhead. Under ‘details of applicant’ the name of Mr Bonnor is given. As previously noted, Mr Stapleton had been appointed to undertake that task. Mr Stapleton said it had been a mistake for Mr Oakes to issue the certificate, a situation that had arisen due to his inadvertence.

Allegations

30 At the heart of the case is concern on the part of the Director-General that accredited certifiers should have an ‘arms length’ relationship with an applicant for a statutory certificate; and in particular should not be involved in the process of preparing the various applications to consent authorities which form part of the usual building and planning approval process.

31 Mr Stapleton strongly denied the primary charge, that of having a conflict of interest due to providing on the one hand building consultancy services (filling out the applications and lodging them with council) and providing regulatory services (exercising the statutory discretions conferred on accredited certifiers).

32 His reply, in essence, was that it was common practice for building consultants such as himself to combine these roles, and in effect to provide a ‘one stop shop’ for their clients in dealing with legal requirements. He rejected the criticism that a conflict between his duty to his client and his duty to the community had arisen of such a degree as to warrant an adverse disciplinary finding.

33 The Director-General’s allegations follow, together with the relevant statutory provisions. There are five allegations which divide into three alleging contraventions (see item (e) of the definition of ‘unsatisfactory professional conduct’); one alleging failure to meet the standards expected of a reasonably competent accredited certifier (see item (a) of the definition); and one alleging failure to comply with a code of conduct (see item (d)(i) of the definition).

34 The allegations are contained in paragraph 7 of the filed application and were numbered (c)(i), (c)(ii), c(iii), (d) and (e). They have been renumbered below as 1 to 5; with joint common words included within each allegation. (Note that the references to statutory provisions are to those in force as at the time of the conduct in issue, June to September 2001.)

1. Mark Stapleton has engaged in conduct by which he has contravened the Act in that he signed the application for a construction certificate for the development and then issued the construction certificate applied for, in breach of section 109ZG(1)(c) of the Act.

35 Because of the significance of the provision to this case, the whole of s 109ZG follows. The particular provisions seen by the Department as relevant to this case are highlighted in italics:

109ZG Conflicts of interest

(1) An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development:

(b) if he or she has been involved in the carrying out of work on that aspect of the development, or

(c) if he or she is the applicant for the certificate or is related to the applicant for the certificate, or

(d) if he or she is associated with the council of the area in which the development is to be carried out, or

(e) if he or she has a pecuniary interest in that or any other aspect of the development.

(1A) Despite subsection (1), an accredited certifier who is an employee of a council may issue a Part 4A certificate in relation to development that is to be carried out in the area of the council if:

(b) the accredited certifier issues the certificate in the course of his or her employment with the council.

An accredited certifier is related to another person for the purposes of this section if the accredited certifier:

(b) is a spouse, de facto partner (whether of the same or the opposite sex), sibling, parent or child of the other person, or

(c) has a contractual arrangement with the other person that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.

(b) is related to a councillor or employee of the council, or

(c) has a contractual arrangement with the council that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.

2. Mark Stapleton has engaged in conduct by which he has contravened the Act in that he signed the notice of commencement and appointment of a principal certifying authority in relation to the development when he was himself the principal certifying authority, in breach of section 81A of the Act.

36 The Director-General referred to the requirement of s 81A(2), in particular sub-para (b).

81A Effects of development consents and commencement of development

(1) …

(2) The erection of a building in accordance with a development consent must not be commenced until:

(i) the consent authority, or

(ii) an accredited certifier, and

(b) the person having the benefit of the development consent:

(i) has appointed a principal certifying authority, and

(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and

(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.’

3. Mark Stapleton has engaged in conduct by which he has contravened the Act in that he did not issue the occupation certificate for the development when he was the principal certifying authority, in breach of section 109D(2) of the Act. Further, Mark Stapleton allowed an employee to issue the occupation certificate in September 2001 when that employee was not the principal certifying authority and no approval was obtained under section 109E(3) of the Act to replace Mark Stapleton as the principal certifying authority.

37 Relevant parts of s 109D follow:

‘109D Certifying authorities

(1) Subject to subsections (2) and (3), the following kinds of Part 4A certificate may be issued by the following kinds of persons:

(b) a construction certificate may be issued by a consent authority or accredited certifier,

(c) an occupation certificate may be issued by a consent authority or accredited certifier,

(d) …

(3) …

(4) In this section:

new building includes an altered portion of, or an extension to, an existing building.’

Relevant parts of s 109E follow:

‘109E Principal Certifying Authorities

(1) A person who proposes to carry out development involving building work or subdivision work pursuant to a development consent or complying building certificate may appoint the consent authority or an accredited certifier as the principal certifying authority for the development.

(2) …

(3) An accredited certifier who has been appointed as a principal certifying authority must not be replaced by another accredited certifier except with the approval of the relevant accreditation body.

(4) Such an approval may be given only if the relevant accreditation body is satisfied that replacement of the accredited certifier is appropriate in the circumstances of a particular case’.

4. Further and in the alternative Mark Stapleton engaged in conduct in connection with the exercise of his 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 namely: (i) he signed the development application for the development as the applicant without having the written consent of the owner of the land, in breach of clause 49 of the

Environmental Planning and Assessment Regulation 2000

(the Regulation) and/or in the alternative, in breach of clause 283 of the Regulation.

‘49 Who can make a development application?

(cf clause 46 of EP&A Regulation 1994)

(1) A development application may be made:

(b) by any other person, with the consent in writing of the owner of that land.

(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.

(4) In this clause, public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.’

Clause 283 provides:

‘283 False or misleading statements

(cf clause 115 of EP&A Regulation 1994)

A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with a consent authority or certifying authority for the purposes of the Act or this Regulation.’

5. Further and in the alternative Mark Stapleton engaged in conduct by which he failed to comply with the Building Surveyors and Allied Professions Accreditation Board Scheme Code of Conduct.

38 Though the Director-General has superseded the BSAPAB as the relevant accreditation authority, the BSAPAB Code of Conduct remains operative. The Code of Conduct includes the following statement:

Do not breach public trust in the profession to which they belong or the specific trust of their clients and employers. Observance of accepted norms of honesty and integrity must underlie all their professional decisions and actions;

Are objective, impartial and free of any conflict of interest in the performance of their professional duties; …’. [emphasis added]

Director-General’s Case

39 In support of the application, the Director-General relied on the affidavit and oral evidence of Mr Ronald Patrick Rodgers, the departmental inspector who undertook the audit giving rise to the application. A bundle of documents was placed before the Tribunal (the Tender Bundle, Ex C) which included the following material: details of the accreditation scheme established by the original accreditation body, the BSAP Accreditation Board, dated December 1998; Ministerial Guidelines issued under cl 198 of the Regulation, dated 31 May 2002; Mr Stapleton’s history of accreditations as a building surveyor and as an accredited certifier; guidelines relating to the exercise by the Director-General of the audit powers; documents relating to the activities of Mr Stapleton giving rise to concern, and ultimately the present application; recommendations made by Mr Rodgers, and record of the decisions taken by the Director-General giving rise to this application. There was also affidavit and oral evidence given by Mr Michael Wynn-Jones, an accredited certifier, and Mr Allan Harriman, an accredited certifier, concerning the question of whether Mr Stapleton’s conduct amounted to unsatisfactory professional conduct.

Reply

40 Mr Stapleton denied that his conduct gave rise to any contravention of professional standards. He gave affidavit and oral evidence, and also placed before the Tribunal a bulletin from the Department dated 22 December 2003 and a letter from the Tweed Shire Council dated 9 August 2000, which he saw as bearing on the bona fides of the present application.

General Matters

41 (1) Applicant v Agent. There was a dispute between the Director-General and Mr Stapleton as to how his relationship to the applications should be characterised. In the audit report Mr Stapleton was described as the ‘applicant’ for the various approvals. The two experts called by the Department in the proceedings, Mr Wynn-Jones and Mr Harriman, both stated that their written reports filed in the proceedings proceeded on the assumption that Mr Stapleton was the applicant. Mr Stapleton vigorously contested the proposition that he was the applicant. Mr Stapleton contended that he was merely acting as agent for the developer.

42 In the various application forms, authorisation forms and certificates, he had sometimes given the name of the builder, Errol Bonnor, as his principal and in others the name of the developer/purchaser, G T Simmonds Pty Ltd.

43 The Tribunal is satisfied that it was not appropriate to describe Mr Stapleton as the applicant in the sense of a principal in respect of the development.

44 It was not a case where he was pursuing a development which he had initiated or in which he had a material investment interest. He was consulted by a regular developer client, initially through the developer’s builder, and proceeded to put forward the required applications.

45 He rendered a bill on 19 June (Ex J) which describes a series of professional services – what we have described earlier as his building consultancy services and his regulatory services. The material details of the bill were as follows:

Erection of a Single Dwelling – G T Simmonds Pty Ltd

Lot 189 DP 1018795 Flemington Street Banora Point

Completion of Council Development Application

Site Inspection and evaluation

Preparation of Statement of Environmental Effects

Preparation of Energy Efficiency Scorecard

Lodgment of Development Application at Council

Liaise with Council as necessary

Issue of Construction Certificate

Registration of Compliance Certification to Council

Building Inspections

Issue of Final Compliance Certificate $649.00

46 In the Tribunal’s view Mr Stapleton is more properly described as the agent of the applicant; and this characterisation, we note, was adopted in closing submissions by counsel for the Department.

47 On the other hand what we believe Mr Rodgers, Mr Wynn-Jones and Mr Harriman were seeking to convey in describing him at ‘the applicant’ was that from the council business point of view Mr Stapleton was the applicant in the sense that it was to him they should turn for any additional information and the resolution of queries.

48 (2) Awareness of true ownership. In his affidavit Mr Stapleton said at para 6 that he had been informed by Mr Bonnor that Simmonds owned the site. At hearing under cross-examination he said that ‘I probably didn’t even see Mr Bonnor at the time when he come into the office’ (ts104). He said ‘He would have come into the office to lodge the applications and we would have asked who the owner was and he would have left them with us and they would have been sent to the council.’ At hearing he said that he had assumed from what Mr Bonnor told him that at least a ‘builder’s terms’ contract had been signed. He said that it was not uncommon for building consultants to proceed to lodge applications with councils without doing formal title checks.

49 (3) Issuance of Occupation Certificate. Mr Stapleton and his counsel, Mr de Meyrick, sought to emphasise that the relevant laws do not require occupation certificates for single dwelling approvals. This was seen as a factor which exculpated Mr Stapleton in relation to the issuance of this certificate. On the other hand the evidence was that it was common for builders to ask for them to be issued, as they are often sought by prospective purchasers and their solicitors. This was not disputed by Mr Stapleton. Mr Stapleton acknowledges, as the various forms reflect, that he had been appointed as the PCA for the purpose of issuing the occupation certificate.

50 In fact one of his employees, Mr Scott Oakes, also an accredited certifier, did the final inspection and issued the certificate. Mr Stapleton acknowledged that no formal consent had been obtained from the accreditation body (the Director-General), as required by the Act, to have Mr Oakes act as the PCA instead of Mr Stapleton. He also acknowledged that he had not done the pre-certification inspection. Mr Oakes had done that. He attributed these events to lax administration in his office, and referred also to how busy his office was.

Consideration of Allegation 1

51 The charge here is that Mr Stapleton has engaged in conduct by which he has contravened the Act in that he signed the application for a construction certificate for the development and then issued the construction certificate applied for, in breach of s 109ZG(1)(c) of the Act.

52 The Director-General refers in particular to the following elements of s 109ZG:

An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development:

… (c) if he or she is the applicant for the certificate or is related to the applicant for the certificate…

(2) An accredited certifier is related to another person for the purposes of this section if the accredited certifier:

… (c) has a contractual arrangement with the other person that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.’

53 There is no dispute as to the primary facts. There is dispute as to whether the conduct constitutes a contravention.

54 The other provisions of s 109ZG deal with a number of more concrete instances of conflict of interest. The first matter dealt with is involvement in the preparation of the plans or specifications. The second is involvement in the carrying out of work on the development. The third is in issue in this case (para (c)) that of being ‘related to’ the development applicant. The fourth is having an association with the Council (see further sub-s (1A) and (3)). The fifth is having a ‘pecuniary interest’ in the development (see further sub-s (4)).

55 These provisions read as a whole have as their objective the establishment of an arms length relationship between a developer and the accredited certifier.

56 ‘Contractual Arrangement’. Mr de Meyrick for Mr Stapleton submitted that this agreement between Simmonds/Bonner and Stapleton was not a ‘contractual arrangement’ within the meaning of the Act. He submitted that the kind of ‘contractual arrangement’ that the Act sought to regulate was one where the accredited certifier had a material interest in the development the subject of the application as distinct from one involving the provision of professional services. The Tribunal considers that no qualification of this kind can be read into the expression ‘a contractual arrangement’. It is a broad term and is not used in any restrictive sense. The particular question of having a pecuniary interest in the development is addressed, as noted, by para (e).

57 There can be no doubt, in our view, that Mr Stapleton had a ‘contractual arrangement’ with either of, or both of, Mr Bonnor and Mr Simmonds’ company. His evidence is to the effect that his firm was engaged by them, initially through Mr Bonnor, to do the paperwork necessary for the development approval. The bill itself is clear evidence of a contractual arrangement. The arrangement had two components, as noted earlier - making the necessary applications to the Council (the building consultancy service) and exercising the discretions and making the decisions that were open to be made by an accredited certifier and PCA for those approvals that could be given (the regulatory service).

Does Mr Stapleton’s conduct fall within s 109ZG(2)(c)?

58 The key question is whether the arrangement is one ‘that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement’.

59 Actual Bias. Mr de Meyrick for Mr Stapleton submitted that there was no breach of the standard here because no actual bias on the part of Mr Stapleton had been demonstrated. The language of the Act is clearly wider. It speaks of conduct that ‘might reasonably be seen to give rise to a conflict’. This is a case about the perception of conflict of interest. Were it a case about actual partiality, a charge formulated under item (b) of the definition of unsatisfactory professional conduct would be open.

60 Conflict of interest provisions do not have as their prime focus situations of actual bias, or actual failures to be detached. As Finn J observed in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 263-264:

Public Duty and Private Interest

Report of the Committee of Inquiry,

Congress and the Public Trust,

City of London Electric Lighting Co v London Corporation

U.S. v Mississippi Valley Generating Co

R v Justices of Sunderland

61 Referring to the statutory provision in issue in that case (a provision addressing direct or indirect pecuniary interest on the part of directors of a public body) Finn J said that this provision was: ‘such an appearance based, risk avoidance provision. Its violation requires no proof that the "interested" member was in fact deflected from the duty of his or her office, or that the public interest was in any way actually sacrificed in the decision taken in the matter tainted by the conflict’ (at 264).

62 Nature of Objective Test. The submissions at hearing raised the question whether the notional arbiter used by the Tribunal in assessing compliance with this standard should be one’s peers in the profession or a member of the general public. Mr Stapleton frequently asserted that he had done nothing wrong having regard to practice among his peers in northern New South Wales and, he says, its acceptance by councils in the area. His contention, as we interpret it, is that the conduct should be assessed from the viewpoint of one’s peers in the profession. On the other hand the Director-General submitted that the relevant perception was that of an ordinary member of the general public.

63 While this allegation belongs to category (e) of the definition of unsatisfactory professional conduct in s 109R, we note that the primary category (a) of the definition of unsatisfactory professional conduct does expressly adopt the ‘general public’ standard.

64 The primary definition of unsatisfactory professional conduct found in para (a) is that it ‘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.’

65 It will be seen that this text avoids the traditional formulation of the standard for professional misconduct, i.e. conduct that would attract the disapprobation of one’s peers: see for example Allinson v General Council of Medical Education and Registration [1894] QBD 750 at 763: "in his conduct the Practitioner in pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency".

66 While it might be appropriate to have a standard connected to the expectations of one’s peers in good standing for matters of technical competence, the issue raised by this allegation goes to issues of integrity and probity in the practice of accredited certification. These are matters plainly of concern to the community of New South Wales as a whole. Accordingly, in our view the perception that should be brought to bear in determining whether there is an appearance of bias is that of a reasonable member of the general public with a general appreciation of the function and role of accredited certification.

67 This approach is consistent with the objective of professional discipline, i.e. protection of the public. In the context of development applications, the ‘public’ is a wide conception. It includes the local community directly affected by a development, and the wider community which has an interest in the general amenity of the community as well as the maintenance of consistent standards across the community. This approach is also consistent with the fiduciary concepts upon which the avoidance of conflict of interest is premised, as reflected in the American Bar Association statement cited by Finn J.

68 (Mr Stapleton’s solicitor Mr Lovegrove made a short contribution to the proceedings from the Bar table. Mr Lovegrove specialises in building law, is a lecturer to accredited certifier students at the University of Technology Sydney and was engaged by the Department as a consultant when the new scheme was being formulated. He basically affirmed that the relevant standard was that of a member of the general public; and contrasted the New South Wales standard with what he saw as the narrower peer-opinion standard used in the equivalent scheme in Victoria.)

69 The accredited certifier carries out an important public function – the certifier’s certificates provide a guarantee to the community that certain critical requirements in the building and development process have been satisfied. The community is concerned to ensure that the system of certification operates free from improper influence and more serious forms of corruption.

70 The publications of the Independent Commission Against Corruption (ICAC) reflect particular concern over the potential for improper influence and corruption in development related decision-making. See for example Strategies for Preventing Corruption in Government Regulatory Functions, March 1999; and Corruption Matters, Issue No 20, April 2002. As ICAC says in the latter publication: ‘The development application assessment and determination process has many features that make it highly susceptible to corrupt practice’. Among these factors ICAC lists the following: ‘Authority to determine applications can be delegated down to different levels within the council administration which make some officers vulnerable to inappropriate pressure, influence or temptation.’ This case deals with the approvals post-development-consent, and these are delegated beyond the confines of council administration. The concerns identified by ICAC in relation to in-council decision-making apply with even greater force to beyond-council decision-making.

71 Public Duties. The test posed by s 109ZG(2)(c) refers to ‘the accredited certifier’s duties as an accredited certifier’. The starting point in relation to ascertaining those duties is consideration of the role of the construction certificate. The construction certificate guarantees that the developer has met the requirements of the development consent. The certifier is expected to ensure that the specific conditions to which the consent is subject have been addressed by the developer. For example it may have been necessary to have the plans or designs varied, or other certificates obtained (such as those relating to electrical installations and fire protection). The certifier must be scrupulous and detached in his or her approach to those responsibilities. Similarly when giving the final occupation certificate the accredited certifier performing the responsibilities of a PCA must bring similar detachment and scrupulousness to bear. These are the duties, in summary, as we see them, of the accredited certifier.

72 Interests under the Arrangement. Under s 109ZG(2)(c) those duties have to be compared with the accredited certifier’s ‘interests under the arrangement’. Here the arrangement involved payment for two types of service, one of which we have called the ‘consultancy’ service, the other the ‘regulatory’ service.

73 In the case of the ‘consultancy’ service Mr Stapleton has a duty to his client to do the work competently and well, and attend to omissions and any queries raised by the council. He has an interest in putting forward an application that best meets his client’s needs. The application may therefore be one that tests the outer limits of what is permissible; it may seek to have council make special exceptions.

74 From a business perspective, the accredited certifier who also offers consultancy services (as here) will, naturally, want to maintain and expand his or her customer base. He or she will want to keep a client, especially developer clients who bring in regular work or have major projects that generate substantial fees. These interests are present in this case.

75 There may be a point reached where a firm or individual is so dependent on a particular client (or group of related clients) for work that their circumstances are not far removed from that of an employee. In the case of actual employees there is a clear proscription in the Act: see s 109ZG(2)(a). Mr Stapleton said he did 40 or 50 jobs a year for this client. This is a substantial level of ‘employment’ using that word broadly.

76 Moreover, the notion of ‘interests’ under a contractual arrangement goes further than merely earning the amount of the fee (which, we accept, in this case was a modest one for the services performed). There may be cases where the ‘interests’ include an investment interest in the development. This was not a case of that kind, and there are other provisions dealing with pecuniary interest to which we have referred elsewhere.

77 Unavoidable Conflict. Mr de Meyrick submitted that there was necessarily a conflict of interest arising from a legislative scheme which required private payment for the regulatory service, and that it was not reasonable to condemn that. Mr de Meyrick submitted that that situation necessarily cuts across the kind of detachment that existed when council officers did this work. They were paid by the council not by the person who stood to benefit from their exercise of discretion.

78 In that regard, we have noted that there is some continued controversy over the desirability in principle of any consent authority functions being outsourced in the way this legislation permits. Mr Wynn-Jones and Mr Harriman, accredited certifiers called by the Director-General, both referred to the controversy.

79 Parliament clearly intended that that level of conflict should be tolerated in order to achieve the efficiencies that were seen as flowing from outsourcing this regulatory function.

80 A properly-informed reasonable member of the community would, we consider, not see a contractual arrangement simply limited to an engagement to perform the regulatory service, and payment of an appropriate professional fee, as infringing the standard set by s 109ZG(2)(c).

81 Application of Test to Present Circumstances. But as we have noted the services performed by Mr Stapleton went further than that. Not only on the occasion in issue did he provide an agency service to the developer in respect of all aspects of the approvals process, but he had done that on many prior occasions - for that developer and other developers.

82 In respect of the single, isolated occasion a question would arise, we consider, in the mind of a reasonable member of the public as to whether Mr Stapleton could be trusted to undertake the regulatory task objectively and without succumbing (consciously or unconsciously) to improper influences. That concern would be magnified by knowledge that Mr Stapleton regularly conducted himself on this basis. In the present instance the concern would be further magnified by the lack of attentiveness to the seriousness of these responsibilities suggested by Mr Stapleton’s office arrangements: another certifier had done the inspection and issued the construction certificate when Mr Stapleton had been appointed as the PCA. Mr Stapleton had, on his evidence, little to do with Mr Bonner’s original attendance at the office and all documents had been completed by staff.

83 In our view a reasonable member of the community would, reasonably, suspect that there was a real danger that Mr Stapleton’s judgment would be influenced by the closeness of his association with the developer and by the role of his firm in the prosecution of the development application.

84 Mr Stapleton was, we acknowledge, candid in his testimony about his firm’s practices. He did not consider that his integrity in determining whether to grant a statutory certificate was in any way compromised by this degree of involvement with the client/applicant. As noted earlier, he has throughout these proceedings asserted that his firm simply followed usual practice in the northern New South Wales area. He provided no evidence other than his own as to that matter. He stated that when the new scheme started there were 7 accredited certifiers in his region, 2 (one being himself) with his firm. Now he said there were about 14 accredited certifiers, of whom 4 are with his firm. It will be seen that about one-third of the accredited certifiers on the far North Coast belong to Mr Stapleton’s firm.

85 Even if it is the case that his practice represents usual practice, that does not mean that standard required by the law is being observed.

86 He also asserted that he had been assured by a Departmental officer that, provided he did not actually sign off on the applications made by clients, he and his office could continue to take them forward to local councils and other authorities (i.e. provide the consultancy service) and continue to perform the responsibilities of accredited certifiers (i.e. the regulatory service). There was no evidence other than his own on that matter.

87 Again, even if it is the case that he received such an assurance, that does not mean that he is observing the standard required by the law.

88 Degree of Discretion Involved. One of Mr Stapleton’s contentions was that the task to be performed by an accredited certifier was a relatively mechanical one. The point being made, as we saw it, was that this bore on the extent to which any conflict of interest could be said to arise.

89 Mr Stapleton initially sought to depict the task in that way. But he conceded ground in cross-examination. His evidence was as follows:

THE WITNESS: Once a development approval is issued, we have then got an obligation to issue the construction certificate. Sometimes you may need further information to issue the construction certificate, but once the development is approved, it basically automatically allows a construction certificate to be issued.

Q: Do you say that you have no discretion in issuing a construction certificate once development consent has been granted?

A: Well, it leads you into the construction certificate phase, and we certainly check the plans before we issue the construction certificate.

Q: And of course, if there’s non-conformity with the plans, or if Council imposes a condition that, to your knowledge, hasn’t been satisfied …

A: Yes.

Q: - - - then you wouldn’t issue a construction certificate?

A: That’s correct.

Q: So if you were suggesting that it was just that you had no discretion at all, you would recant from that now?

A: If the development approval has conditions on it that prevent us from issuing the construction certificate without further work being – taking place – we couldn’t issue it until that work was done; things like payment of contributions, long service levy, provision of home owner’s warranty insurance, all preclude the issue of the certificate until they’re provided.

Q: And do you say that you carefully look at all of those conditions, make sure that they’re all satisfied, fairly assess the application that’s before you, before determining whether or not to issue a construction certificate?

A: Definitely.

Q: How long does that take?

A: It depends on the complexity of the project.

Q: In average, if you can?

A: Oh, a single dwelling – a half, three-quarters of an hour.

Q: You see, Mr Stapleton, I’m just thinking that if you’re issuing 300 certificates a year, and all these inspections are taking place each day, you’re not going to have very much time to attend to individual construction certificate applications.

A: Well, there’s nothing to say that - my employees carry out most of the inspections.’

90 Public Official/Regulator. Mr Leeming for the Director-General noted that the office of accredited certifier is a public office within the meaning of the Ombudsman Act 1974, s 5. The Ombudsman Act’s definition of ‘public authority’ is given in full below:

public authority

(a) any person appointed to an office by the Governor,

(b) any statutory body representing the Crown,

(c) any Department or any public servant employed in a Department,

(d) any person in the service of the Crown or of any statutory body representing the Crown,

(e) any person in relation to whom or to whose function an account is kept of administration or working expenses, where the account:

Public Finance and Audit Act 1983

(ii) is required by or under any Act to be audited by the Auditor-General,

(iii) is an account with respect to which the Auditor-General has powers under any law,

(iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts where requested to do so by a Minister of the Crown,

(f1) any accredited certifier within the meaning of the Environmental Planning and Assessment Act 1979,

(g) any holder of an office declared by the regulations to be an office of a public authority for the purposes of this Act,

(g1) any local government authority or any member or employee of a local government authority, and

(h) any person acting for or on behalf of, or in the place of, or as deputy or delegate of, any person described in any of the foregoing paragraphs.’

91 The ‘accredited certifier’ is listed at category (f). The surrounding categories give some insight into the significance with which the office is viewed by the Parliament. Similarly an accredited certifier is defined as a ‘public official’ for the purposes of the Independent Commission Against Corruption Act 1988, see s 3.

92 The office of accredited certifier, Mr Leeming submitted, must be seen by the public to be carried out with the utmost probity and free of any suggestion of corruption. We agree with those observations. They are consistent with the guidelines issued by ICAC, see Strategies for Preventing Corruption in Government Regulatory Functions (March 1999).

93 ICAC uses the term ‘regulators’ to describe public officials who perform regulatory work for government at the state or local level; and notes in the above publication that the term ‘includes private sector individuals and organisations known as ‘accredited certifiers’’ (p 1). At p 6 of the report it gives an illustration of the risk of a regulator having ‘misplaced loyalties’ that affect the judgment required of a regulator. This is the kind of risk that the present case most clearly manifests.

94 Conclusions. In the Tribunal’s view what is required by the conflict of interest standard is a separation of the consultancy role and the certification role sufficient to satisfy a reasonably-informed member of the general public that there is no likelihood that the accredited certification might be influenced by the performance of the consultancy role and might lack the necessary objectivity.

95 The public would expect, we consider, that the rendering of a professional opinion and the making of a professional judgment that involves the exercise of a statutory responsibility would occur free from any personal interest in the outcome. The public would expect, we consider, high standards of objectivity to be observed. There is clearly a risk of pre-judgment of the question of compliance in circumstances where the accredited certifier has also been responsible for framing the application and possibly having to advocate its acceptance to the council.

96 In the present circumstances the Tribunal considers that such an objective observer would have concluded that there was such a risk. Mr Stapleton had paid little or no attention to the application when it was received. His firm had on the other hand been active in preparing a statement of environmental effects statement and an energy efficiency scorecard. After his client had received the development consent, he had issued the construction certificate. An objective observer would not, in the Tribunal’s opinion, be confident that he would not tend to be influenced by his and his firm’s involvement in putting forward the applications and his loyalty to his client’s interests.

97 These comments relate specifically to the present case. We accept that as a practical matter a builder or developer will often have to turn to a professional experienced in the field (a building surveyor, a building consultant, an architect, for example) to undertake the paperwork requirements connected with lodging development applications, and then attending to queries from the council, objections and the making of submissions. It will often be very convenient if when the major hurdles are passed (such as the development consent) the applicant can have the further statutory certifications done (where permitted by law) by the same professional or at least by another professional in the same firm.

98 The Tribunal’s non-judicial member, Mr Friedmann, referred at hearing to his experience since the scheme was instituted in 1998. His experience has been that it has not been unusual for some accredited certifiers, or at least the firms to which they belong, to have an involvement with developer or builder clients broadly of the kind that has given rise to the present proceedings. For example, the firm would assist in putting together and checking the documentation required by the relevant authorities, deal with technical issues that arose, undertake necessary inspections and in due course another member of the firm with accredited certifier status would deal with the issuance of certificates.

99 Whether arrangements of this kind which involve the erection of ‘Chinese walls’ are sufficient to overcome a conflict of interest objection is not the subject of the present application, or of this decision. (Nor is it necessary on this occasion to assess possibly extreme situations that might arise. There could possibly be circumstances where there was no practical option for a builder/developer than to go to a consultant who is also the most appropriate certifier, because for example of unavailability of alternative certifiers due to factors such as remoteness of location or the specialist nature of the accreditation required.)

100 The ‘Design Process’. The question of Mr Stapleton’s degree of involvement in the ‘design process’ received some airing in the case because of an opinion given by Mr Wynn-Jones to the Director-General in the course of the Director-General considering whether to place the matter before the Tribunal.

101 Mr Wynn-Jones gave a very wide meaning to the concept of the ‘design process’. We see the design process as an activity that involves some continuing technical or creative input in particular at the stage of developing plans, drawings and specifications. We acknowledge on the other hand that the consultant charged with making the applications to council may have some involvement in the final stages of the process through recommending changes to meet council requirements, or making applications for exemption from council requirements (there was an example in this case, with Mr Stapleton seeking exemption for his client from solar energy requirements).

102 Under cross-examination Mr Wynn-Jones agreed that he only meant that Mr Stapleton could be said to be involved in the design process ‘inasmuch as getting the documentation to the point where a construction certificate can be issued’.

103 Mr Wynn-Jones went on to explain that in his view a conflict of interest arose because Mr Stapleton had been involved ‘in the decision-making process by signing applications, lodging applications, carrying out some of the duties that you would expect are part of getting the documentation to the stage where an accredited certifier can issue a construction certificate’. Mr Wynn-Jones described what Mr Stapleton did as ‘an approvals management service’. He said ‘In my view, an accredited certifier cannot provide that approvals management service, and I – and it’s my opinion in this case Mr Stapleton has provided both an approvals management service and then acted as an accredited certifier to issue a construction certificate.’ It will be seen that we have agreed with that view.

104 We do not see this as a case in which Mr Stapleton could be said to have been involved in any significant way in the ‘design process’; though he or his firm did do two things, at least, that went beyond organising the supporting material, filling out the applications and submitting them to council. He or the firm did prepare the statement of environmental effects and the energy efficiency scorecard.

105 Departmental Guidelines. Mr de Meyrick drew attention to a Departmental circular issued on 22 December 2003 (Exhibit G) which described the PCA as a ‘project manager’. Mr Wynn-Jones said that in his view what the term had sought to reflect was the PCA’s role in the final construction stage of being a kind of overseer of the project and the adequacy of its compliance with the various requirements to which it was subject. He did not see it as seeking to describe the PCA as an operational manager of the project aligned to the developer. Mr Harriman was forthright in his criticism of this aspect of the circular. He was particularly concerned at the suggestion that a PCA is in any way responsible for the quality of the building work submitted to him or her for certification. He saw the role of the PCA as one of being satisfied that relevant requirements had been met, and if necessary giving feedback in that regard. But the builder/developer remained responsible for the quality of the work. He was most concerned over what he saw as inept use of the term ‘project manager’.

106 Based on the documentary material tendered in these proceedings, there appears to the Tribunal to have been very limited official guidance given as to how the provisions relating to conflict of interest were meant to operate at the practical level. None of the materials contained any specific examples or suggestions; in contrast for example to the bulletins put out by ICAC to which we have referred already.

107 Mr Harriman referred in his affidavit and oral evidence to a Practice Note issued under the aegis ‘AIBS (NSW) [Australian Institute of Building Surveyors] and Lovegrove Solicitors’ as representing what he considered to be the only guidance that has been issued that descends below the level of generalities. He referred to a passage in that document which states (see ts74): An accredited certifier under no circumstances can be the applicant for any part 4A certificate being a development application, complying development certificate or construction certificate, nor can any other person within their company be the applicant.

108 In the Tribunal’s view neither this statement nor the rest of the document directly addresses the circumstances revealed by this case. It is implicit, we consider, that this document saw no fundamental problem in a situation where the same person could be both consultant and accredited certifier if he or she had no material, family relational or employment-type involvement with the applicant. There is no advice specifically directed to the applicability of para (c); nor the practice that Mr Stapleton says he has now moved to - whereby he ensures that the developer signs all the relevant forms but the way he carries out the roles of consultant and accredited certifier remains unchanged.

109 We could find nothing in the accreditation guidelines issued initially by the BSAP Accreditation Board, and now applied by the Director-General, which set out the Department’s views in relation to the way para (c) was intended to operate. If Mr Stapleton is right, the existence of practices like his have been known to the industry and to officers of the Department for some time (we make no finding in those regards).

110 Finding 1. We are satisfied that the Director-General’s allegation is established, and a contravention is shown. We deal with the issue of whether it should be treated as unsatisfactory professional conduct or professional misconduct later in these reasons.

Consideration of Allegation 2

111 The charge is that Mr Stapleton has engaged in conduct by which he has contravened the Act in that he signed the notice of commencement and appointment of a PCA in relation to the development when he was himself the PCA, in breach of s 81A of the Act. The Director-General referred to s 81A(2)(b) which provides that: ‘The erection of a building in accordance with a development consent must not be commenced until: … (b) the person having the benefit of the development consent:

(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and

(c) the person having the benefit of the development consent has given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.’

112 We are not satisfied that, strictly construed, this provision applies to the present circumstances. It is the case that Mr Stapleton signed the notice of appointment, but in our view he did so as agent for a principal. We accept that it follows from the above provision that it would be improper for ‘the person having the benefit of the development consent’ to appoint himself or herself as the PCA. Mr Stapleton was not in our view a person who had the ‘benefit’ of the development consent.

113 On the other hand we acknowledge that the provision lends further support to the view that the roles of developer and PCA are to be strictly separated. The agent of a developer can stand for many purposes in the shoes of the developer. There should also be strict separation in the relationship between the agent and the PCA, but this provision does not, as we construe it, deal with that issue.

114 Finding 2. This contravention is not established.

Consideration of Allegation 3

115 There are two charges under this heading. The first is that Mr Stapleton contravened s 109D(2) of the Act by not issuing the occupation certificate for the development when he was the appointed PCA, in breach of s 109D(2) of the Act.

116 As to this matter, s 109D(2) as noted earlier provides: ‘An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.’ Section 109D(4) provides that: ‘In this section: new building includes an altered portion of, or an extension to, an existing building.’

117 Mr de Meyrick submitted that this provision did not impose any duty on his client. A contravention occurred if the certificate was issued by the incorrect person, and the liability fell on the incorrect person (in this instance that would be Mr Oakes not Mr Stapleton). We accept Mr Leeming’s submission that the use of the passive tense does not affect the import of the provision.

118 In our view a duty is cast on the PCA personally to determine whether to issue an occupation certificate, and that in the present circumstances there was a contravention of that duty by Mr Stapleton. Mr Stapleton recognised the existence of such a duty in the course of his evidence.

119 Finding 3.1. This contravention is established.

120 The second charge is that Mr Stapleton allowed an employee to issue the occupation certificate in September 2001 when that employee was not the PCA and no approval was obtained under s 109E(3) of the Act to replace Mark Stapleton as the principal certifying authority.

121 Section 109E (as it stood at the relevant times), provided in sub-s (1): ‘A person who proposes to carry out development involving building work … pursuant to a development consent … may appoint … an accredited certifier as the principal certifying authority for the development.’ In this instance Mr Stapleton had been appointed. Mr Oakes carried out the task.

122 Sub-section (3) provided: ‘An accredited certifier who has been appointed as a principal certifying authority must not be replaced by another accredited certifier except with the approval of the relevant accreditation body’. Sub-s (4) provided: ‘Such an approval may be given only if the relevant accreditation body is satisfied that replacement of the accredited certifier is appropriate in the circumstances of the particular case.’

123 We accept that the clear intent of the scheme is that the PCA nominated by the developer must do the work. Section 109E(3) is important in underlining that requirement. If a developer wants to replace the PCA he or she must go to the ‘accreditation body’ not simply, say, to the local council. This is a strict standard. The Department would have to be satisfied in the circumstances that replacement is appropriate and that the replacement has the skills appropriate to doing the kind of inspection and certification required.

124 Read as a whole, the Tribunal considers that s 109E seeks to place responsibility on the person who proposes the development for ensuring that the nominated PCA performs the appointed function. The developer would have to make the application to the accreditation body. In this case that was G T Simmonds Pty Ltd or Mr Bonnor as builder. As their agent and knowing that he in fact had been appointed as the PCA, Mr Stapleton should have been more conscientious, and ensured that he fulfilled his appointment. Mr Stapleton’s office procedures were so lax that Mr Oakes ended up performing that role instead of Mr Stapleton. But we are not satisfied, strictly construed, that the provision imposes any direct responsibility on Mr Stapleton.

125 Finding 3.2 We are not satisfied that Mr Stapleton has contravened s 109E(3), though clearly it was wrong for Mr Stapleton to fail to perform his responsibility as PCA.

Consideration of Allegation 4

126 The charge is that Mr Stapleton engaged in conduct in connection with the exercise of his 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 namely: (i) he signed the development application for the development as the applicant without having the written consent of the owner of the land, in breach of cl 49 of the Regulation and/or in the alternative, in breach of cl 283 of the Regulation.

127 Clause 49, as material, provides:

(b) by any other person, with the consent in writing of the owner of that land.’

128 There was a clear contravention of this standard in this case, because neither Mr Bonner nor G T Simmonds Pty Ltd was the owner (either in law or equity) at the time, and the true owner had not furnished the consent required by cl 49(1)(b). The submission that is put by Mr de Meyrick is that nonetheless an adverse finding should not be made against Mr Stapleton. He says Mr Stapleton was merely acting as agent and had assumed that Mr Bonner or G T Simmonds Pty Ltd was the owner, at least in equity.

129 In this instance the charge is not one of direct contravention linked to category (e) of the definition of unsatisfactory professional conduct. It is one of engaging ‘in conduct in connection with the exercise of his 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’, by signing off the application as the applicant without having the requisite consent.

130 It is clear, we consider, that Mr Stapleton did not take even minimal steps to check the ownership position in relation to the land. He indicated under cross-examination that he could not recall having any direct involvement with the instructions from Mr Bonner. They were handled by staff in his office. It is not clear that he had any office procedures in place to check that ownership had passed to his client, at least in equity (such as sighting a contract or some form of agreement).

131 In our analysis of the conflict of interest issue, the Tribunal referred to two functions – that of ‘consultancy’ services, and that of ‘regulatory’ services. The office of accredited certifier has to do with performance of the regulatory function. At the point at which this contravention occurred, Mr Stapleton and his firm were engaged in the provision of what we have described as the ‘consultancy’ service.

132 The present allegation refers to Mr Stapleton’s ‘conduct in connection with the exercise of his 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.’ The activity of filling out applications for consents is not, in our opinion, the work of an accredited certifier. It may be part of the usual professional work of a registered building surveyor and amenable to discipline through the processes that govern registered building surveyors. But on our analysis of the functions and responsibilities of an accredited certifier, it is not part of that office’s role to be putting on applications. The role of the accredited certifier is to make the statutory determinations required after the application for the development consent has been successful; and to do so in a detached way free of any (reasonable) perception of conflict of interest.

133 It may be permissible to challenge a person’s competence to continue as an accredited certifier on the basis of conduct that is extraneous to the functions of an accredited certifier. That conduct could be connected with the exercise of another closely related professional capacity (as is the case here); or conduct of a private character (for example, serious offences of dishonesty or violence) that can reasonably be seen as bearing on the office-holder’s fitness to continue to hold the office (not the case here).

134 In the present instance, it might be argued that if Mr Stapleton has not got sufficient procedures in place to obtain reliable information in relation to present ownership of a property, he should not be trusted with the more demanding tasks assigned to an accredited certifier, which include the need for close analysis of technical documentation and supporting material. But the allegation, as we interpret it, is not put in that way. As we interpret it, it rests on an assumption that making applications for development consents is part of the work done by an accredited certifier. We do not agree with that premise.

135 Finding 4.1. In our view the allegation as formulated is not established, for the reason that the contravention identified does not concern the exercise of the responsibilities of an accredited certifier.

136 Clause 283 is relied upon in the alternative. Clause 283 makes it an offence for a person to make ‘any statement, knowing it to be false or misleading in an important respect, in or in connection with a document lodged with a consent authority.’ In this instance it is clear that the original application was misleading in failing to disclose who the owner of the land was. The statement was one made by Mr Stapleton. Under cross-examination he could not recall having any contact with Mr Bonner. We have already indicated that in our view his office procedures were very lax. His evidence was simply that it was the usual practice of his staff to check ownership, and he assumed that Mr Bonnor had told him or his staff that he owned the land. We note that Mr Harriman acknowledged in his evidence that it was not usual for building consultants preparing development consent applications to go so far as to do a title search to check that their client was actually the owner.

137 The requirement here is that the maker of the statement must ‘know’ that the statement is false or misleading. That the information was false is clear. Mr Leeming’s position is that the evidence clearly supports the conclusion that Mr Stapleton knew, on his own evidence, that neither Bonner nor Simmonds Pty Ltd was the ‘owner’ of the land. Mr Stapleton said his assumption was that it was a ‘builder’s terms’ deal under which settlement and transfer took place at the latest possible point. At best, his understanding was that contracts of sale must have been exchanged.

138 Mr Leeming’s submissions rest on a particular interpretation of the word ‘owner’, i.e. the owner at law, as revealed (ordinarily) by the registered instrument of transfer. There are no definitions of ‘owner’ in the Regulation. The Act defines ‘owner’ as follows:

owner

Local Government Act 1993

139 The Local Government Act 1993 defines ‘owner’ widely (see s 3, and the Dictionary) as follows:

owner

(a) in relation to Crown land, means the Crown and includes:

(ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown, and

whether at law or in equity

(ii) every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, and

(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996, and

(iv) in the case of land that is a community, precinct or neighbourhood parcel within the meaning of the Community Land Development Act 1989, the association for the parcel, and

(v) every person who by this Act is taken to be the owner, and

Mining Act 1992

(d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected.’

140 The definition covers an owner in equity. Mr Stapleton had a belief that his client was the owner in equity. Though, arguably, it was not a reasonably held belief, the evidence is in our view not sufficient to support a finding that when filling out the form he ‘knowingly’ made a false statement as to his client’s ownership.

141 Finding 4.2. We are not satisfied on the evidence that this alternative allegation is established.

Consideration of Allegation 5

142 The charge here is that further and in the alternative Mark Stapleton engaged in conduct by which he failed to comply with the BSAP Accreditation Board Scheme Code of Conduct. Though the Director-General has superseded the Board as the relevant accreditation authority the Code remains operative (see Ex C p 85). It is a half page document and, as noted earlier in these reason, it commences as follows:

Do not breach public trust in the profession to which they belong or the specific trust of their clients and employers. Observance of accepted norms of honesty and integrity must underlie all their professional decisions and actions;

Are objective, impartial and free of any conflict of interest in the performance of their professional duties; …’. [emphasis added]

143 The Code is a very short document consisting of a further six statements couched in the kind of language just cited. The language is aspirational or exhortatory in tone. There are no relatively specific rules. We doubt whether the Code as presently drafted has sufficient precision to support findings of breach of the Code.

144 As to the clause relied on in this case, while there can be no doubt that a certifier must be ‘objective’ and ‘impartial’, it is perhaps not possible for the certifier to be free of ‘any conflict of interest’. There is a conflict of interest inherent in the scheme, as Mr Wynn-Jones and, more emphatically, Mr Harriman observed; as too did Mr de Meyrick, in expatiation, for Mr Stapleton. That is the conflict that arises from the fact that the developer pays the accredited certifier for performing the function of certification. This is a necessary conflict given the nature of the scheme, and, as we have indicated earlier, is not one that would be seen by a reasonable member of the public as problematic. The standard set by the Act is a more qualified one as we have already explained.

145 We have found in respect of Allegation 1 that a conflict of interest within the meaning of the Act is established. That finding in our view is sufficient to dispose of the ‘conflict of interest’ issue in this case.

146 Finding 5. This allegation is not established.

147 Summary. The Tribunal is satisfied that the following allegations are established: Allegation 1 (contravention of s 109ZG(1)(c) – conflict of interest); and Allegation 3.1 (contravention of s 109D(2) – failure to issue occupation certificate).

Professional Misconduct versus Unsatisfactory Professional Conduct

148 The infringements constitute unsatisfactory professional conduct (see item (e) of the definition of unsatisfactory professional conduct in s 109R). The Director-General indicated through Mr Leeming that she saw the conduct as amounting to unsatisfactory professional conduct. Ultimately the question of whether the conduct is to be characterised as unsatisfactory professional conduct or professional misconduct is one for the Tribunal. Under s 109R ‘professional misconduct … means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation … or withdrawal of the … accreditation.’

149 We do not think the point has been reached where Mr Stapleton’s continued accreditation should be placed at risk, looking solely at the particular circumstances that have been the subject of charge. Mr Stapleton’s misconduct related to a small development. No actual harm was caused to any of the immediate parties to the development. His conduct did harm the community’s interest in having a certification system that is free from the taint of possible bias. His conduct has undermined the community’s expectation that statutory approvals connected with the development process will be given free of improper influence by developers. He did not have sound internal management systems, thereby leading to the undermining of another community expectation – that the certifier appointed as the principal certifying authority in respect of an occupation certificate will always perform that task.

150 More troubling is the evidence from Mr Stapleton that he has routinely adopted practices of the kind identified by this case. But they were not the subject of charge and are not taken into account for the purpose of assessing how the proven allegations should be categorised in relation to their degree of gravity.

Finding

151 The conduct proven amounts, in our view, to unsatisfactory professional conduct.

Further Proceeding

152 There was a short discussion at the close of the hearing on how to proceed in the event that adverse findings were made. With a view to minimising costs, the following directions were made: 1. Respondent is to file and serve any character statements that he relies on within 14 days. 2. Liberty to apply to either party. The Tribunal will reconvene to deal with submissions in relation to what, if any, further orders should be made. The Director-General in written submissions prior to the hearing recommended the following orders: in relation to the conflict of interest contravention - a reprimand accompanied by a low to mid level fine; imposition of a condition on Mr Stapleton’s accreditation that he be interviewed prior to renewing his accreditation; and an order that he undertake the Advanced Certifier course in the next 12 months; in relation to the other matters (described in that submission as ‘errors’, only one of which is now the subject of an adverse finding) – a reprimand; and the imposition of a condition on accreditation as set out above.

ORDER

Environmental Planning and Assessment Act 1979

(ii) by contravening s 109D(2) of the Act in that he did not issue the occupation certificate for the development when he was the principal certifying authority.

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Citations

Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70

Most Recent Citation

Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159

Cases Citing This Decision

6

Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48

Dix v Building Professionals Board [2010] NSWADT 160

Director, Building Professionals Branch, Department of Planning v Dwyer [2007] NSWADT 53

Cases Cited

2

Statutory Material Cited

7

Scott v Handley [1999] FCA 404

Hughes Aircraft Systems International v Airservices Australia [1997] FCA 1011

CITATION:	Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70
DIVISION:	General Division
PARTIES:	APPLICANT Director General, Department of Infrastructure, Planning & Natural Resources RESPONDENT Robert Mark Stapleton
FILE NUMBER:	033126
HEARING DATES:	16 & 17/02/2004
SUBMISSIONS CLOSED:	02/17/2004
DATE OF DECISION:	04/13/2004
BEFORE:	O'Connor K - DCJ (President); Friedmann P - Member
APPLICATION:	Accredited Certifier - unsatisfactory professional conduct - Environmental Planning and Assessment Act - Accredited Certifier - unsatisfactory professional conduct
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 1997 Environmental Planning and Assessment Regulation 2000 Independent Commission Against Corruption Act 1988 Local Government Act 1993 Ombudsman Act 1974
CASES CITED:	Allinson v General Council of Medical Education and Registration [1894] QBD 750 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
REPRESENTATION:	APPLICANT M Leeming, counsel RESPONDENT R de Meyrick, counsel
ORDERS:	1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct:; (i) by contravening s 109ZG(1)(c) of the Environmental Planning and Assessment Act 1979 (the Act) in that he signed the application for a construction certificate for the development and then issued the construction certificate applied for.; (ii) by contravening s 109D(2) of the Act in that he did not issue the occupation certificate for the development when he was the principal certifying authority.; 2. Application to be relisted for determination of any Disciplinary Order.