Dix v Building Professionals Board

[2010] NSWADT 160

CITATION:	Dix v Building Professionals Board [2010] NSWADT 160
DIVISION:	General Division
PARTIES:	APPLICANT Lyall Dix RESPONDENT Building Professionals Board
FILE NUMBER:	093265
HEARING DATES:	24 and 25 February 2010
SUBMISSIONS CLOSED:	25 February 2010
DATE OF DECISION:	28 June 2010
BEFORE:	O'Connor K - DCJ (President); Hayward P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Disciplinary decision of Board – Application for Review – Decision affirmed
LEGISLATION CITED:	Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 Environmental Planning and Assessment Amendment Regulation 2000 Local Government Act 1993
CASES CITED:	Building Professionals Board v Boulle [2008] NSWADT 80 Building Professionals Board v Cohen [2010] NSWADT 62 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 I Hemmings, counsel / Lovegrove and Lord RESPONDENT A Grey, legal officer
ORDERS:	Decision under review affirmed

1 Mr Dix, the review applicant, holds accreditation as a private certifier under the Building Professionals Act 2005 (BP Act). He has an unrestricted A1 accreditation. His curriculum vitae records that he has a degree in engineering and a diploma in urban and regional planning, and that he has held senior positions in major councils, senior positions in industry and regulatory bodies, including as chief executive officer of the Australian Building Codes Board, and is the principal assessor of building certifiers for the Institution of Engineers Australia. He was a principal of Dix Gardner Pty Ltd.

2 By decision made 13 August 2009, the regulator, the Building Professionals Board, found proven five allegations of incompetence in his certification of a residential flat development. The Board found him guilty of unsatisfactory professional conduct, and took the following action under s 31(4) of the BP Act: administered a reprimand and fined him the sum of $5000 payable within 28 days of the notice of decision.

3 Mr Dix has applied to the Tribunal pursuant to s 33 for review of the disciplinary finding and the action taken by the Board.

4 In line with usual practice for disciplinary proceedings of this kind, the Tribunal is constituted by a presidential member and a non-judicial member with relevant expertise, Mr Philip Hayward, a registered surveyor of standing and substantial experience.

The Development

5 The development under notice is a 72-flat residential complex made up of two buildings, each four storeys in height, located at 1-5 Durham Street, Mt Druitt. There is a below ground car park with 90+ spaces. Blacktown Council granted the development consent on 3 July 2003. Mr Dix issued the construction certificate on 25 August 2004, and the occupation certificate on 15 September 2005. The development belonged to the class 2 and class 7 categories under the BCA.

6 In December 2005, the New South Wales Fire Brigade (NSWFB) inspected the adequacy of the fire safety measures at the building after two instances of fires in the basement car park area (lit by vandals). Their inspector considered that there were a number of shortcomings in the fire safety measures. The inspector raised them with Council, giving rise to a joint inspection and consultation with Mr Dix and the owner.

Council Complaint

7 In November 2006 Blacktown Council lodged with the then accreditation body a complaint against Mr Dix, expressing concern as to the care he took in certifying as to compliance, especially in relation to fire safety measures.

8 The BP Act took effect on 1 March 2007. The BP Act established the Board as the new accreditation body. It took over the investigation of the complaint. One of its senior investigators, Dr Gabrielle Wallace, conducted the investigation and reported to the Board. Her report dealt with 20 matters. As previously noted, the Board entered adverse findings in relation to five matters.

Summary of Adverse Findings

9 For convenience in these reasons we will use the allegation number to refer to an adverse finding.

10 Allegation 5 went to Mr Dix’s failure to supply to Council a copy of elevation plans referencing the specifications as part of the construction certificate documentation. Mr Dix admits the omission identified by allegation 5, but submits that it was a mere administrative mistake, and should not have given rise to an adverse disciplinary finding.

11 The remaining allegations related to the adequacy of the occupation certificate issued by Mr Dix.

12 Allegations 8, 9 and 10 assert a failure by Mr Dix to ensure that the fire safety measures required for the basement car park area were met, in respect of the building occupant warning system (allegation 8), connection of alarm system to an approved NSW Fire Brigades monitoring provider (commonly known as a back-to-base system) (allegation 9), and safe enclosure of the sprinkler alarm valve system (allegation 10). Allegation 14 related to the adequacy of the door handles fitted to egress doors leading to required exits for evacuation due to fire. Four of these doors had tulip style door handles, and should, it was asserted, have had downward lever action handles.

13 As to these matters, Mr Dix’s case is essentially that he acted competently in relying on the fire safety certificates provided to him by the installers and the owner. He says that he was entitled to do so in accordance with industry practice at the time. In those instances where the fire safety schedule he prepared did not specify the most specific relevant building standard, there was no real deficiency as the standard to which express reference had been made subsumed the more specific standard.

14 His ultimate submission is that to the extent that there were omissions on his part, none were of the degree of significance or gravity to justify a finding of unsatisfactory professional conduct.

Meaning of Unsatisfactory Professional Conduct

15 At the material times (25 August 2004, 15 September 2005) ‘unsatisfactory professional conduct’ had the following meaning (under the legislation then in force, Environmental Planning and Assessment Act 1979 (EP&A Act), s 109R):

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.

Primary Statutory Obligations of a Certifier

16 Part 4A of the EP&A Act creates the office of accredited certifier, and regulates the role and responsibilities of holders of that office. The provisions commenced in 1998. As originally enacted, before issuing an occupation certificate the principal certifying authority had to be ‘satisfied’ that a development consent was in force, that a construction certificate had been issued with respect to the plans and specifications, that the building was ‘suitable for use in accordance with the classification under the Building Code of Australia’, and that such other matters as are required by the regulations were met (EP&A Act, s 109H).

17 There was no precise direction in the law as to whether any physical inspections need take place. It is plain from the parliamentary report of 2002, referred to later in these reasons, that there was concern on the part of councils (previously exclusively responsible for certification) that many private certifiers had issued final occupation certificates without ever engaging in any intermediate or final inspections.

18 The parliamentary report gave rise to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, inserting a new s 109E into the principal Act, which included the following requirement:

(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:

(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work.

19 In turn, pursuant to the above provision, a new clause, cl 162A, was inserted into the Environmental Planning and Assessment Amendment Regulation 2000 (EP&A Reg), which remains in force. It provides for various ‘critical stage inspections’. While it is possible to have another certifier with the appropriate level of accreditation carry out the pre-final inspections, cl 162A(3) provides:

(3) The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.

20 The issues in contest in this case go mainly to the standard of performance to be expected of a certifier in 2004 and 2005, in particular as at the date of the occupation certificate, 15 September 2005.

Material before the Tribunal

21 In accordance with usual practice, the Board filed a folder of its documents, which included the formal notice of complaint issued by the Board dated 19 May 2008, the background material (the interaction that occurred between Council officers, the NSWFB and Mr Dix in the 2006 period over alleged non-compliances), Mr Dix’s correspondence and submissions in reply, the investigation report and the Board’s disciplinary proceedings.

22 Dr Wallace gave evidence and was cross-examined. She has substantial industry experience, significant experience in inspectorial and regulatory roles, as well as numerous relevant academic qualifications, at Bachelor’s, Master’s and Ph D level. Her Ph D is in Political Economy (Building Regulation). She was challenged as to her expertise on the basis that she does not hold accreditation as a certifier. Her CV includes experience as a Council inspector. We are satisfied that she has substantial relevant expertise.

23 In relation to all five matters, Mr Dix relied on an independent expert report obtained by him from Mr Brendan Bennett, A1 accredited certifier, unrestricted; B App Sc (Env Health), UWS, 1989; Grad Dip, Building Surveying and Assessment, UTS, 1993.

24 On the door handle issue (allegation 14), and in reply to Mr Bennett on this point, the Board relied on an independent expert report obtained by it from Mr Hamish MacLennan, Holmes Fire & Safety, B Bldg, UNSW, M Sc in Building, UNSW, Grad Dip House and Neighbourhood Planning, UNSW, Cert of Inclusive Design, U of Salford UK.

25 Mr Bennett gave evidence and was cross-examined. Mr MacLennan was not required for cross-examination.

26 Mr Grey for the Board filed written preliminary submissions, and a chronology. Mr Hemmings for Mr Dix filed written submissions.

Allegation 14 (Egress Door Handles)

27 We will turn to this allegation first, as it illustrates, in an easily-understood way, the nature of the contest in the case over whether Mr Dix behaved competently in relying on certificates as to fire safety compliance.

28 The allegation found proven was that Mr Dix failed to ensure, prior to issue of the occupation certificate no. 288/05 dated 15 September 2005, the door handles within the egress pathway leading to required exits complied with clause D2.21 of the BCA (in that the handles did not have a single-handed downward action).

29 D2.21 of the BCA provides, relevantly:

(a) Except as required by (b), a door in a required exit, forming part of a required exit or in a path of travel to a required exit must be readily openable without a key from the side that faces a person seeking egress, by a single handed downward action or pushing action on a single device which is located between 900mm and 1.1m from the floor, …

30 The exceptions in (b) are not applicable to this case.

31 In its letter to Council dated 22 February 2006, the NSWFB advised that it had issued an order for certification for the operation of latch door handles that demonstrate compliance.

32 Dr Wallace made an inspection on 19 January 2009. She found that some of the doors leading to the fire stairs from passageways were furnished with door handles that did not comply with cl D2.21(a). She expressed the opinion that the handles on the side of the doors facing a person seeking egress were round, requiring the employment of a grasping and twisting action, rather than a single handed downward action.

33 Dr Wallace noted that in reply to the initial concerns expressed by the NSWFB, Mr Dix had pointed to a fire certificate of compliance he had obtained on 14 September 2005. We agree with Dr Wallace’s assessment of this document as inadequate.

34 The document was issued by the installer, KTM Pty Ltd trading as Complete Fire Door Specialists. It simply states:

We certify that the FIRE DOOR SETS supplied by us and installed in this project comply with the following AUSTRALIAN STANDARDS

AS 1530 part 4, FIRE RESISTANCE TESTS of STRUCTURES

AS 1890 Thermally Released Link (applicable/not applicable)

AS 1905, part 1 FIRE DOORS

All (72) seventy two, unit entry doorsets supplied by Complete Fire Door Specialists, to the above address have been installed to the above standards.

35 It does not refer to D2.21(a), raising at the least the possibility that the installer did not turn its mind to that requirement.

36 In any event, an accredited certifier would in our opinion be expected to be sceptical of the reliability of a certificate presented by a trade supplier and installer. Such a document is clearly affected by the possibility of lack of detachment and partiality. As Mr Grey submitted, such a document is more in the nature of a brief written assurance of compliant completion designed to justify payment for work completed.

37 That some certifiers did uncritically rely on trade supplier’s statements as to compliance in the early years of the new private certification scheme, without undertaking any direct physical inspections or examinations of their own, was widely known. It was the subject of adverse submissions to the parliamentary committee that reported in July 2002 (Report of a Parliamentary Committee, Report upon the Quality of Buildings, Joint Select Committee on the Quality of Buildings, Parliament of NSW, July 2002).

38 In his submissions, Mr Grey referred to relevant passages from the review, and its recommendation, no 35, for legislation to require certifiers to undertake mandatory critical stage inspections, and the further comment of the committee at p 122 of its report: ‘The Committee’s concern is that the PCA is not remote and simply a post box collecting pieces of paper at the end of the building process.’ We have referred above to the legislative changes that followed and took effect on 1 January 2004 – mandatory critical stage inspections, with the final inspection to be undertaken personally by the principal certifying authority.

39 Minimum professional standards of competence are not set by ‘industry practice’. The benchmark in this legislation is the standard of competence, diligence and integrity a member of the public is entitled to expect of a reasonably competent accredited certifier. In our view, a member of the public, with an understanding of the statutory role performed by an accredited certifier, would not have regarded it as acceptable at least as at 2004 and 2005 for a certifier to rely, blindly, on the word of an installer, without having formed an independent view of what standards should be referenced, making enquiries if the applicable standards were not referenced, and, wherever practical, performing simple, independent checks (for example, visual inspection of items externally exposed) to corroborate the sign-off provided. We doubt whether it would have been regarded as ever being acceptable practice for a certifier to sign off without ever having undertaken a careful site inspection of the finished works. We have in another recent decision referred to and rejected similar contentions as to acceptable certifier practice in the early 2000s: Building Professionals Board v Cohen [2010] NSWADT 62 at [191].

40 The law does not leave it to certifiers to decide what is professionally appropriate by reference only to what other certifiers might chose to do or what many, or most, of them might chose to do (‘industry practice’). The standard set under the law applicable to this case is one that gives emphasis to the expectations of a reasonably informed member of the public. Even the more narrowly expressed, traditional formulation for measuring the minimum acceptable standard for professional conduct speaks of conduct acceptable to peers of ‘good repute and competency’, not just the practices of peers in general or what a majority of them may chose to do. See further Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70 at [40] and [62] to [66]; and Minister for Infrastructure and Planning v Conway (No. 2) [2004] NSWADT 159 at [28].

41 It is likely, we think, that Mr Dix did not turn his mind to the question of whether tulip style door handles gave rise to any problem of compliance. Mr Dix’s primary submission was that the fitting of tulip style door handles to egress doors, as at 2005, remained permissible and compliant. He says that, in his experience, tulip door handles have commonly been used for egress doors over the period 1984-2010, and were acceptable.

42 Mr Dix was not supported in this opinion by Mr Bennett. Mr Bennett agreed with the assessment of Dr Wallace and Mr MacLennan that tulip style door handles were no longer regarded as acceptable, and this had been the case for many years. Mr Bennett dated the change in thinking as belonging to the early 1990s (see his report at p 16). He undertook a site inspection on 3 February 2010. In agreement with the Board’s position, he noted that four exit doors had turn knob handles and did not comply with cl D2.21 of the BCA.

43 He continued (p 16):

[H]owever, I am of the opinion that in the current circumstances they do not represent a meaningful increase of the risk to life safety in the event of fire. The subject car park is afforded sprinkler protection which would reduce the fire severity due to suppression and natural ventilation which would provide unlimited tenability due to smoke and heat venting. Both of these components are frequently used to justify increased egress times from a building in instances such as extended travel exit distances or distances between alternative exits.

44 This comment does not address the particular concern that has led to lever type downward handles being preferred. Mr MacLennan refers in his report to explanatory comments attached to the international best practice standard issued in 2004 relating to this subject. It refers to the desirability of the egress door mechanism being one capable of being operated by a single hand, and openable in an emergency by people with a hand or arm related disability, or by people who are fully abled in that regard but may be affected by burns to their hands or are perspiring and have wet hands.

45 In our view, the response of Mr Bennett to this explanation is unsatisfactory, as is Mr Dix’s reliance on that response. Mr Bennett seeks to diminish the force of the concerns relating to disability access by the following statement:

The design of the subject building is not friendly to people with disabilities as access from the street is via stairs and no lifts are provided to service the four levels of residential apartments.

46 This comment alludes to the unlikelihood of people with mobility difficulties being in the affected area. It does not address the situation of a person, otherwise mobile, who has a hand or arm disability, or for example older or frailer people who may have hand grip difficulties. It does not address the possibility of an ordinarily able person having a fire induced disability.

47 Finally Mr Dix submits that if it is now the case that downward action handles should be used in this situation, his error should be seen in the wider context of the many compliant fire safety features in the basement area. He referred, for example, to the sprinkler system and the major roller doors. He submitted that the omissions were minor, viewed in totality.

48 In our opinion, Mr Dix should have brought an independent judgment to bear on this issue. In our opinion, he did not bring a competent understanding of what was required by way of compliant door handles to his role as certifier in respect of this development. The choice made in relation to the door sets was visually observable. The choice reflected a mistaken understanding on the installer’s part. By 2005 the debate was settled in favour of single handed downward action handles. In our view, the words of D2.21(a) clearly enough expressed that preference.

49 This is not a case where it might reasonably be held that the ability and knowledge to be expected of a general building certifier meant that he or she must rely wholly on a provided certificate, as can occur with, for example, major electrical lay-outs or engineering installations, to which the specialist accreditation categories (the C group in the accreditation scheme) are relevant. Similarly, this is not a case where an independent expert has been employed to give a certificate. As Mr Grey noted, referring to the BCA provisions on Evidence of Suitability, professional certificates, such as a certificate from an engineer, must demonstrate that the author is appropriately professionally qualified, must provide reasons and must identify all specifications, rules, codes of practice and the like relied upon.

50 In our view the omission identified by allegation 14 was a basic one of an obvious kind that a competent certifier would have recognised on an ordinary inspection. It concerns us that, as recently as 3 February 2010 (Mr Bennett’s inspection), the defect had gone unremedied.

Allegations 8 and 9

51 These allegations, and allegation 10, all concern the state of the fire safety measures in the car park basement area. We will deal with allegations 8 and 9 together.

52 Allegation 8, found proven, was that Mr Dix failed to ensure, prior to issue of the occupation certificate, dated 15 September 2005, that the building occupant warning system was connected to the sprinkler system in accordance with clause 8 of Specification E1.5 of the BCA.

53 Clause 8 provides that a ‘required sprinkler system must be connected to and activate a building occupant warning system complying with Clause 6 of Specification E2.2a’. Clause 6 provides that ‘a building occupant warning system must comply with Clause 3.22 of AS 1670.1 to sound through all occupied areas’ of a building subject to certain exemptions (not relevant to this case). The occupied areas include the car park.

54 Allegation 9, found proven, was that Mr Dix failed to ensure, prior to the issue of the occupation certificate dated 15 September 2005, that the installed sprinkler system, which protects the basement car parking area (90+ car parking spaces), was connected to an approved NSWFB monitoring provider in accordance with clause 3.2 of Australian Standard (AS) 2118.1, Transmission of Alarm Signals to Fire Brigades.

55 Residents reported after the two fires had occurred in the basement area that both of the systems mentioned in the above allegations had failed. The NSWFB at its inspection found both systems not operative.

56 The Board’s findings note that in respect of the back-to-base omission (allegation 9), NSWFB issued an emergency order under s 121ZC of the EP&A Act requiring connection to a NSWFB authorised accredited automatic fire alarm service provider.

57 Mr Dix contended as to both these matters that the Board did not establish that the systems were not working at the time of issuance of the occupation certificate. The inference is that vandalism may have disabled the systems. It is accepted that the two fires were caused by vandals.

58 Mr Grey noted that the allegations were cast in terms of a ‘failure’ on Mr Dix’s part ‘to ensure’ that the systems were compliant. The Board, he said, was not interested in the question of what the working state of the two systems was at the date of the occupation certificate. Its interest is in the procedures followed by Mr Dix ‘to ensure’ that problems of the kind that later occurred were guarded against. The Board’s submission is that Mr Dix relied on inadequate documentation and assurances in making the decision to certify that the two systems were compliant, and failed to make simple checks.

59 We agree with Mr Grey that the allegations are cast in those terms. We will proceed to assess them on that basis. We therefore think it unnecessary to make a factual finding as to whether appropriate systems were in place on the date of the occupation certificate, and if so, whether they were operative. Accordingly, we do not regard it as necessary to consider or adopt as a material finding of fact the Board’s finding that the occupation certificate was issued without the building occupant warning system having been connected to the sprinkler system.

60 EP&A Reg cl 147(2) requires that the construction certificate be accompanied by a fire safety schedule. Clause 145(1)(b) requires that a construction certificate not issue unless the proposed building complies with relevant requirements of the BCA.

61 Dr Wallace noted that the purpose of a fire safety schedule is to list the fire safety measures to be included in a building as required by the BCA and any relevant consultation with NSWFB. Clause 168(3) of the EP&A Reg, as in force in September 2005 provided relevantly:

168 Fire safety schedules

(cf clause 80C of EP&A Regulation 1994)

(1) When: …

(c) issuing a construction certificate for proposed building work (other than a certificate that relates only to fire link conversion), …

the person doing so must issue a schedule (a fire safety schedule ) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises.

(2) …

(3) A fire safety schedule:

(a) must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and

(b) must include:

(i) such of the fire safety measures currently implemented in the building premises, and

(ii) such of the fire safety measures proposed or required to be implemented in the building premises,

as are statutory fire safety measures, and

(c) must distinguish between:

(i) the fire safety measures currently implemented in the building premises, and

(ii) the fire safety measures proposed or required to be implemented in the building premises, and

(d) must identify each measure that is a critical fire safety measure and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council in respect of each such measure, and

(e) must specify the minimum standard of performance for each fire safety measure included in the schedule.

(4) A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate.

(5) An earlier fire safety schedule is superseded by a later fire safety schedule, and ceases to have effect when the later fire safety schedule is issued.

62 Dr Wallace’s first criticism is that Mr Dix failed to refer to the building occupant warning system in the fire safety schedule. She notes that the schedule did reference smoke detector and heat detectors. She notes that while smoke alarms are not required for the class 2 portions of the buildings, the car park area was a class 7a portion for which alarms are required.

63 Mr Dix’s position is that he was entitled to rely on the marked plans and certificates provided by the specialist contractor, Viscona Pty Ltd (see, for example, certificate 12 July 2005), by Master Mobile Electrical Contractors (19 July 2005) and Pro Fit Plumbers (1 August 2005). All the electrical contractor’s letter said was: ‘Emergency lighting and the exit signs and smoke alarms installed in the building … and all electrical work has been done in accordance with AS3000 Wiring rules of Australia’.

64 Dr Wallace referred to the fire protection plan supplied by Viscona at the construction certificate stage. It did refer to an occupants warning system located within the services area to the south eastern entry of the car park. She noted that there is no other reference to such a system, and specifically to the relevant standard AS1670.1. Dr Wallace noted that the Viscona certifications given prior to the construction certificate should have been referenced on the certificate, and on the plans, and were not.

65 She reviewed the other certifications upon which Mr Dix relied, including at the occupation certificate stage. She noted that none of them referred to the building occupant warning system for the car park, or referred to the relevant standard.

66 We acknowledge that Viscona’s documentation is fuller in that it references standards and Pro Fit’s certificate also refers in some detail to standards. Dr Wallace acknowledged that at the relevant times s 109P of the EP&A Act entitled a certifier to rely upon a construction certificate or other Part 4A certificate when issuing the occupation certificate but this concession did not (and does not) extend to a certifier who issued the Part 4A certificate upon which he relied. She referred to s 109P as in force on 15 September 2005.

67 Mr Dix also relied on the fire safety certificate required to be provided by the owner. The fire safety certificate is the foundation for the annual fire safety checking process mandated by the EP&A Reg, Pt 9, Div 1. The owner issued one certificate on 14 September 2005 and, after concerns expressed by Mr Dix, a replacement the next day, 15 September 2005. The owner filled in a pro forma, with a list of items attached, against which appeared a mark or are left blank (see 256-261 of the Board’s folder). The ‘tick a box’ markings are in the hand of the owner, plainly raising doubts as to what expertise he brought to bear.

68 The certificate references ‘automatic fire detection and alarm system’ with BCA Spec E2.2a and AS 1670-2004 alongside, and ‘automatic fire suppression system (sprinklers)’ with BCA Spec E1.5 and AS2118.1-1999 alongside.

69 As we observed in relation to allegation 14, in our view, it is incumbent on the certifier to rely on installer certificates. In our view, the same caution should be applied to owner fire safety certificates.

70 At the least, the certifier should form a view as to what fire safety requirements would be expected to be referenced and identified. If there is an omission to reference a relevant requirement (the essence of the Board’s case in respect of these allegations), the certifier should take steps to ascertain why it is not referenced.

71 In any event, even with properly referenced certificates, our view is in line with questions put by Mr Grey to the expert witnesses. It is that the certifier should also engage in basic practical checks, wherever possible, to be satisfied that the required systems have been installed and are working. This is a duty of high importance in relation to fire safety matters.

72 Mr Bennett’s view (p 9 of his report) is that, in a development of this kind, identification of a building occupant warning system would not be standard industry practice as it is a sub-system of the required ‘automatic fire suppression system’ which has been correctly identified.

73 In our view, Dr Wallace’s evidence should be accepted. We do not consider that the expression ‘automatic fire suppression system’ can be read as assuring that a proper building occupant warning system has been included. This is because the extent and nature of the ‘automatic fire suppression’ requirements varies with the size, scale and nature of the affected development. This is a residential complex with 72 units, with the possibility that 200 or so people might be present in the complex at peak occupancy times. The car park was a major one. It fell into a different class for fire protection purposes from other parts of the building. This difference, we think, should have been obvious to a senior accredited certifier. In these circumstances, we would expect the schedule and certificates to extend to issues going beyond smoke detection and smoke alarms, and deal expressly with warning systems.

74 Moreover, we agree with the line of Mr Grey’s questioning to the effect that a competent certifier dealing with a development of this scale would have made any visual inspection that was possible or run simple tests to assess whether the warning system had been installed, had been connected to the sprinkler system, and was operative. There is no evidence from Mr Dix to that effect, and we infer that he made no such checks.

75 Similar problems arise in relation to allegation 9. The Board found that the certification relied upon by Mr Dix did not reference the alarm signal installation.

76 In our view, it would have been a simple matter for Mr Dix to test for the existence and operability of a back-to-base system, and to make contact, if necessary, with the provider of the service. Again we infer that Mr Dix did no such checks.

77 We are not satisfied that Mr Dix took the steps required of a competent certifier to ensure that the back-to-base system was installed or was operative at the time the occupation certificate was issued.

Allegation 10 (Secure Enclosure for Sprinkler Alarm Valve)

78 Allegation 10 was that Mr Dix had failed to ensure that the location of the sprinkler alarm valve enclosure complied with cl 6 of Specification E1.5 of the BCA in that the enclosure is located in the garbage waste area and access to the valve sets is obstructed and was inadequate for the NSWFB to perform its operational requirements in an effective and safe manner; and further, that the enclosure is not sufficiently secure to prevent unauthorised use of the system.

79 The findings note that the sprinkler valves were secured in an enclosure suitable for use by the NSWFB (allegation 10) after the issue of the occupation certificate and intervention by the Blacktown City Council.

80 Clause 6 of Specification E1.5 of the BCA provides:

6. Sprinkler valve enclosures

(a) Sprinkler alarm valves must be located in a secure room or enclosure which has direct egress to a road or open space.

(b) All sprinkler valve rooms and enclosures must be secured with a system suitable for use by the fire brigade.

81 The assembly in issue served the needs of the basement car park. It was accessible to the street, as required (second part of para (a)).

82 Dr Wallace explained that the valve is not used as part of the process of fighting the fire. Its function is to shut off the sprinkler system. The Fire Brigade may wish to do that as an initial step once it arrives at a fire scene to deal with the fire by other means or to shut off the system if the sprinkler system has led to the effective containment of the fire.

83 An unexplained oddity of this part of the case is that Viscona’s plans for the construction certificate located the valves in a compliant way. They were to be in a secure Services Room off the eastern driveway. We have had no explanation as to why the plan was not implemented in that way. Instead the enclosure was placed in the area marked on the plans as Garbage Room. Plainly that change raised the possibility of an impact on the system’s security and accessibility, given the level of resident and waste collection activity generated by garbage disposal in such a big complex.

84 NSWFB undertook an inspection of the enclosure on 7 December 2005 after being informed by residents of the two fires. In a letter to Council on 22 December 2005, NSWFB expressed the opinion that the location of the sprinkler valve enclosure ‘does not comply with the intent’ of cl 6. It stated:

The location is not adequate for the NSWFB to perform their operational requirements in an effective and safe manner and recommends that an enclosure is provided as per the BCA which is separate from the garbage waste containers to provide a secure and safe enclosure for the attending NSWFB.

85 Mr Dix’s position is that as at the date of issue of the occupation certificate the valve was in an appropriate secure, unimpeded enclosure. He submits that it was the later use to which the enclosure was put by the building’s owners corporation as a garbage holding and collection area that militated against adequate fire brigade access. In our view this submission is not tenable. The plans always described the area where the valves were ultimately located as a Garbage Room.

86 After NSWFB expressed its concern, a security cage was built around the valves to assist in ensuring that they would not be blocked by vehicles or garbage containers. In his comments to the Board dated 26 June 2008, Mr Dix said the area had two separate entrances, and that the NSWFB had their own designated key. He noted further that the NSWFB had requested that a small wire enclosure be built around the valve room to prevent wheelie bins encroaching on the NSWFB ‘access space’ and, in addition, ‘painting a delineation line on the ground’. He said that the builder agreed to undertake this work, and it was subsequently inspected by the PCA.

87 Dr Wallace stated that the breach in this instance lies in the fact that other people are allowed access to the area, such as unit holders or members of the public. She agreed with NSWFB’s view that the area for the valve system should be one that is in a public free zone. In his evidence, Mr Bennett expressed similar concerns.

88 Mr Dix submitted that cl 6 does not require that an area be set aside exclusively for the housing of the sprinkler alarm valve provided the intent of the standard in relation to access is met. In any case, if there is a breach, it could not, in his submission, reasonably amount to unsatisfactory professional conduct.

89 In our view, Mr Dix should have been alert to the access issue at the time of issuance of the occupation certificate, and taken steps to ensure that there was no mixed use of the location in which the sprinkler valve was set up.

90 In our view, the Board’s case is established, that Mr Dix ‘failed to ensure’ that the valve system was placed in an area that provided secure, unimpeded access for NSWFB fire vehicles and personnel. He breached the minimum standard that a reasonably-informed member of the public would have expected of a competent certifier.

Allegation 5 (Non-provision of Elevation Plans to Council with Notice of Construction Certificate)

91 The allegation found proven was that Mr Dix had failed to ensure copies of the approved plans for each elevation of the proposed building accompanied the notice of determination of the construction certificate forwarded to Council under cl 142(2) of the EP&A Reg.

92 Clause 142(2) of the EP&A Reg provided at the relevant date (emphasis added):

(2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of:

(a) the determination, together with the application to which it relates, and

(b) any construction certificate issued as a result of the determination, and

(c) any plans and specifications in relation to which such a construction certificate has been issued , and

(d) any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and

(e) any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140.

Note. See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.

93 Mr Dix acknowledged that he failed to supply the elevations to the Council in accordance with the requirements, but submits that it was a ‘minor administrative mistake’ and ought not be treated as unsatisfactory professional conduct.

94 The Council’s general manager made a written request to him to supply stamped approved copies of the building specifications and plans of each elevation of the building by its letter dated 21 April 2006 (folder 164-165). Mr Dix has not furnished the Board or the Tribunal with any record of his own showing that he did so. He asserted at hearing that he subsequently supplied them to Council, and he mentioned a s 96 modification of consent application. Mr Grey, in the course of the hearing, contacted Council officers, and said from the Bar table that he had been informed that there was nothing on their file. In closing submissions Mr Dix’s counsel said that his client could not now recollect sending the plans to Council. On the other hand it is accepted that he supplied Dr Wallace with copies of the elevation plans. Dr Wallace’s evidence, which we accept, is that they were not properly referenced with an endorsement or referral to the construction certificate number, the date the elevations were approved or by whom they were approved.

95 In our view, Mr Dix’s omission amounts to more than a mere administrative mistake. He was still in breach of the clear obligation imposed by cl 142(2) as at the date of hearing, over four years later. This is an instance of an omission which should have been rectified at the first opportunity once brought to notice.

96 Mr Hemmings for Mr Dix noted, in mitigation, that the elevation plans did not form part of the documents able to be scrutinised by members of the public because they are not among the Council documents listed in the open access regime imposed by s 12 of the Local Government Act 1993. However, the Local Government Act does not provide an exhaustive statement of a Council’s open documents responsibilities. As Mr Grey noted, the law is that a Council ‘must’ keep a range of documents to do with development applications and consents (EP&A Reg, cl 266(1)) including:

(i) a copy of the notification of the determination to issue a construction certificate relating to the consent and a copy of the certificate and any related plans, specifications and any other documents that were forwarded to the council,

97 The law requires Councils to make those documents available to the public free of charge: EP&A Reg, cl 268(1)(b).

98 In our view, these provisions, directly impacting on the work done by private certifiers, ought to be known to certifiers, especially one of the seniority and standing of Mr Dix. Mr Hemmings’ submission is rejected.

99 Clearly Mr Dix engaged in a contravention of the type referred to in paragraph (d)(ii) of the meaning of ‘unsatisfactory professional conduct’. The Tribunal has, in the past, indicated that some care should be taken before entering an adverse disciplinary finding in relation to contraventions that are trivial or have extenuating explanations: see, for example, Building Professionals Board v Boulle [2008] NSWADT 80 at [39].

100 A minor failure to comply with a time limit would not ordinarily justify any disciplinary action. The circumstances here are different. This omission has continued long-term, and no adequate explanation has been furnished by Mr Dix for that state of affairs.

Conclusions

101 In our view, the Board’s decision upholding all five allegations in issue was the correct one. We are of the view for the reasons given above that in all instances Mr Dix failed to adhere to the standards reasonably to be expected by a member of the public of an accredited certifier.

102 We note in that regard that this was a major residential development. The issue of fire safety is a key consideration. Mr Dix was a certifier holding the highest level of accreditation with substantial experience. As noted, as at the date of our hearing, Mr Dix had still not supplied the Council with the elevation plans properly endorsed, nor did the egress doors have compliant handles.

Disciplinary Orders

103 At hearing Mr Dix’s case concentrated on the substance of the allegations. In the event that the Tribunal was against Mr Dix in respect of that case, no issue was raised in relation to the disciplinary orders.

104 In our view, the disciplinary order was in the appropriate range, and we are not disposed to vary it.

Order

Decision under review affirmed.