Dix v Building Professionals Board

[2009] NSWADT 46

CITATION:	Dix v Building Professionals Board [2009] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT Lyall Dix RESPONDENT Building Professionals Board
FILE NUMBER:	083289
HEARING DATES:	6 February 2009
SUBMISSIONS CLOSED:	6 February 2009
DATE OF DECISION:	3 March 2009
BEFORE:	Handley R - Deputy President; Hayward P - Non-Judicial Member
CATCHWORDS:	Disciplinary finding (Accredited Certifier) – unsatisfactory professional conduct
LEGISLATION CITED:	Buildings Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Building Professionals Board v Cogo [2008] NSWADT 119 Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 Director General, Department of Infrastructure Planning and Natural Resources v Boulle [2006] NSWADT 43 Briginshaw v Briginshaw (1938) 60 CLR 336 Craig v Medical Board of South Australia [2001] SASC 169 Moy v Warringah Council [2004] NSWCA 77 Building Professionals Board v Boulle [2008] NSWADT 80
REPRESENTATION:	APPLICANT K Lovegrove, solicitor RESPONDENT A Grey, solicitor
ORDERS:	The Tribunal affirms the decision to find Mr Dix guilty of ‘unsatisfactory professional conduct’, but sets aside the decision to caution him in respect of that conduct, substituting a decision to take no further action against him.

1 Lyall Dix has applied to the Tribunal for the review of a decision of the Building Professionals Board (‘the Board’) dated 31 July 2008 to caution Mr Dix for unsatisfactory professional conduct.

Background

2 Mr Dix is an experienced engineer and building surveyor who is an accredited building certifier and runs a building certification practice in NSW - Dix Gardner Pty Ltd.

3 On 13 February 2002, Strathfield Municipal Council (‘the Council’) granted development consent for a residential development at 83 Chalmers Road, Strathfield. On 15 July 2002, Mr Dix issued a construction certificate for this development, approving architectural plans for a dwelling, swimming pool and outbuilding at the property.

4 On 12 April 2003, an application was lodged with the Council (pursuant to section 96 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’) seeking approval for a number of variations to the development consent, including in relation to the construction of the outbuilding. The Council notified adjoining owners of the application, two of whom made written submissions. Peter Conroy, Manager, Development Assessment for the Council, provided a report to the Council on the application, which was considered at a Council meeting on 3 June 2003. Mr Conroy subsequently wrote to Mr Dix on 16 June 2003 concerning the Council’s resolution on the application, which included “serious concerns” over Mr Dix’s certification of the development on 15 July 2002. Mr Dix responded by letter dated 20 June 2003.

5 On 11 November 2003, Mr Conroy wrote to Engineers Australia complaining of Mr Dix’s conduct in issuing a construction certificate when the development had not been carried out in accordance with the original development consent. The complaint identified six specific matters, including one in relation to an outbuilding at the rear of the premises.

6 On 30 June 2004, Engineers Australia wrote to Mr Conroy stating:

“Engineers Australia has now analysed the substantive documentation provided by both the Council and the referent on each of the issues raised and has concluded that adequate particulars do not exist on any of the complaints lodged as a basis to proceed investigation under the Disciplinary Regulations at this stage ...

For Engineers Australia to take action under the Disciplinary Regulations you would have to provide additional evidence that the changes endorsed in the Construction Certificate created a building that is so substantially different that those changes constitute professional misconduct or unsatisfactory professional conduct.

The evidence you have provided in this particular case does not demonstrate that the professional conduct of the PCA [Principal Certifying Authority] in this matter was unsound. There is no evidence that the PCA:

has conducted himself in an unsatisfactory manner or serious nature.

has been incompetent, not diligent or not acted with integrity.

has acted in a partial manner.

has disregarded matters to which he is required to have regard.

has failed to comply with the Engineers Australia’s Code of Ethics.

has failed to comply with the law.”

7 On 23 September 2004, Mr Conroy wrote to Engineers Australia in response to its letter.

8 On 5 August 2005, Mr Dix and Dix Gardner Pty Ltd entered into a Deed of Settlement with the Mayor of the Council, the Council and Channel Seven whereby Mr Dix and Dix Gardner Pty Ltd agreed to release the other parties from all claims, demands and liabilities arising out of the proceedings or the subject matter of the proceedings then in train, and the other parties agreed to release Mr Dix and Dix Gardner Pty Ltd in the same way. The other parties agreed to pay a “settlement amount” to Mr Dix and Dix Gardner Pty Ltd, and the Mayor and the Council agreed to provide Mr Dix and Dix Gardner Pty Ltd with a letter of apology.

9 On 17 August 2006, Engineers Australia wrote to Mr Dix and the Council notifying them that, following the investigation of the Council’s complaint, the Convenor of the Complaints Board had determined that five of the six aspects of the complaint should be dismissed. However, the Convenor had decided that there were reasonable grounds for the establishment of a Complaints Panel in respect of one aspect of the complaint concerning the construction of the outbuilding at the rear of the premises. Engineers Australia invited submissions in relation to that aspect of the complaint, noting that with the impending change in the process for investigating complaints, if the investigation of the complaint was not completed under current arrangements, the matter would be taken over by the Board.

10 On 1 March 2007, changes to the Building Professionals Act 2005 (‘the BP Act’) took effect and the Board took over the investigation of the complaint in relation to the outbuilding. On 31 July 2008, the Board found that Mr Dix’s conduct in issuing the construction certificate approving the outbuilding constituted unsatisfactory professional conduct in that it fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, and in that it also contravened clause 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (‘the EPA Regulation’). The Board therefore determined to caution Mr Dix. Mr Dix was notified of this decision by letter dated 28 August 2008, received by Dix Gardner Pty Ltd on 1 September 2008. On 29 September 2008, Mr Dix lodged an application for review with the Tribunal.

The Relevant Legislation

11 Section 31 of the BP Act provides that if after completing the investigation of a complaint against an accreditation holder, the Board is satisfied that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, it may take specified action against the accreditation holder, including issuing a caution or reprimand. At the time of the conduct in issue in July 2002, the applicable standards of conduct were set out in the EPA Act. ‘Unsatisfactory professional conduct’ was defined in section 109R of the EPA Act:

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

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

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

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

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

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited, or

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

(e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.

12 With the change in the scheme regulating the conduct of accredited certifiers, section 109R was repealed and replaced by a new provision in the BP Act, with effect from 1 March 2007. ‘Unsatisfactory professional conduct’ is now defined in section 19(1) of the BP Act and includes a contravention of regulations made under the EPA Act. However, it is section 109R that is applicable in this matter.

13 Clause 145 of the EPA Regulation states relevantly:

(1) A certifying authority must not issue a construction certificate for building work unless:

(a1) ...

(a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and

(b) ...

14 Section 33 of the BP Act states:

A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for a review of that finding and any action taken by the Board.

‘Disciplinary finding’ is defined in section 19(1) as meaning “a finding of unsatisfactory professional conduct or professional misconduct”.

15 Section 96 of the EPA Act provides for the modification of development consents in response to an application. Relevantly, and subject also to other requirements being met, a consent authority may modify a consent if “satisfied that the development ... is substantially the same development as the development for which consent was originally granted” (s 96(2)(a)).

Particulars of Conduct

16 The development consent granted by the Council on 13 February 2002 for a residential development at 83 Chalmers Road, Strathfield was in respect of architectural plans for a house showing a small outbuilding to the rear of the premises. The outbuilding was shown as adjacent to the north-western corner of the block, to the north of and alongside an in-ground lap pool, and noted as being for “pool equipment”. The dimensions of the outbuilding were shown as 2500 mm by 1600 mm, a total of 4 square metres, and, in terms of height, a Reduced Level (‘RL’) of 23.00, 200 mm higher than the top of the pool coping and 500 mm higher than the finished ground level. In terms of structure, the outbuilding was shown as having 200 mm walls, but no details were provided for the slab, roof or footings.

17 Various conditions were attached to the development consent. Of relevance in relation to the in-ground pool is condition 77, which states:

“The filtration equipment shall be sited as far as practicable from adjoining dwellings. Such equipment shall be located in a suitable structure designed to direct noise away from adjoining properties. The filtration pump motor is to be mounted on suitable mountings, so as to minimise the transmission of noise.”

18 The architectural plans approved by Mr Dix with the issue of a construction certificate on 15 July 2002 showed the outbuilding located in the middle of the rear of the block near the western boundary and to the south of the in-ground lap pool. The dimensions of the outbuilding were shown as 3840 mm by 3950 mm, a total of 15.168 square metres, and, in terms of height, a RL of 26.77 (at ridge height), 3.77 m higher than that shown in the development consent approved plans. The outbuilding was shown with its own side elevations in these later plans, marked “pool equipment and shower elevations”, and the plans show a double shower, toilet, washbasin and porch in addition to an area for pool equipment. In terms of structure, the outbuilding is shown as having a pitched roof with terracotta tiles, three stairs, powder coated finish metal balustrade, pre-finished eaves, gutters and downpipes, powder coated finish aluminium window, and a combination of double and single skin brickwork.

19 A copy of a photograph provided by the Board for these proceedings shows the finished outbuilding as being of a substantial size, and standing well above the top of the fence at the rear (western side) of the block.

Mr Dix’s Submissions

20 Mr Lovegrove, for Mr Dix, said that Mr Dix’s reputation has already been damaged by the Board’s publishing its decision in this matter on its website. It is the finding of unsatisfactory professional conduct that concerns Mr Dix most. An examination of Mr Dix’s curriculum vitae shows that he has a high profile, having been involved in all facets of building control at a Local, State and Federal Government level. He has extensive experience and knowledge in all matters relating to the Building Code of Australia and related building legislation.

21 Mr Lovegrove drew the Tribunal’s attention to Engineers Australia’s letter to Mr Conroy dated 30 June 2004 which, Mr Lovegrove said, exonerated Mr Dix in every respect. While acknowledging that the letter was slightly ambiguous, Mr Lovegrove submitted that it should not be construed as an invitation to Mr Conroy to provide further evidence to Engineers Australia. However, if it is so construed, then, Mr Lovegrove contended, Mr Conroy did not provide additional evidence. Mr Conroy’s letter to Engineers Australia dated 23 September 2004 merely refers to the Council’s “comments” in response to Engineers Australia’s letter dated 30 June 2004. Mr Lovegrove said the appropriate course for Mr Conroy to follow should have been for him to appeal against Engineers Australia’s decision to its internal review body. The effect of the Board reopening the investigation of the complaint means that Mr Dix is being tried twice in respect of the same conduct – akin to ‘double jeopardy’ in law. However, in terms of the outcome, it should be noted that on 17 August 2006 Engineers Australia dismissed five of six aspects of the complaint and only established a Complaints Panel to examine one aspect, that relating to the outbuilding.

22 Mr Lovegrove submitted that Mr Dix’s conduct in this matter should be viewed in the light of professional understanding at the time of the relevant events: Building Professionals Board v Cogo [2008] NSWADT 119 (‘Cogo’), at [87]. As at July 2002, when the construction certificate was approved, the disciplinary procedures set up under the scheme created by the EPA Act were at an early stage in their development and there was a lack of departmental advice or practice notes available for the guidance of accredited certifiers. Mr Lovegrove submitted that the reasonably minded accredited certifier would have come to the same view as Mr Dix.

23 Mr Lovegrove said the issue concerning the outbuilding should be viewed in the context of the overall development comprising a two storey residence totalling 625 square metres in which the outbuilding as constructed accounted for 15.168 square metres (as opposed to 4 square metres shown in the development consent plans), and in the light of the clause 77 condition to the development consent requiring filtration equipment for the in-ground pool to be sited as far as practicable from adjoining dwellings and to be located in a suitable structure designed to direct noise away from adjoining premises.

24 Mr Lovegrove noted the fact that the architect employed by the owner of the property did not consider the changes in respect of the outbuilding to be a significant deviation from the development consent approved plans, lends weight to the argument that Mr Dix’s decision to issue the construction certificate was not unreasonable. Moreover, when Mr Dix inspected the property, he considered the changes in relation to the outbuilding improved amenity for the subject property and also for adjoining owners: construction of the outbuilding in brick reduced noise and provided a visual match with the house; moving the outbuilding away from the boundary, further reduced the noise impact on adjoining properties; there was a similar outbuilding structure on an adjoining property; the outbuilding was single storey and did not detract from visual or other amenity in any way; amenity was improved by the addition of a toilet in the outbuilding; and the small change had no adverse environmental impact when considered in he context of the development consent issued by the Council.

25 Mr Lovegrove noted that at no stage has the Council required a Building Certificate for the outbuilding or required that it be demolished, rectified or changed in any way, suggesting that Mr Dix’s decision to approve the construction certificate was not unreasonable.

26 Mr Lovegrove noted that in Cogo, the Tribunal emphasised that the accredited certifier has a discretion in deciding whether the test in clause 145 of the EPA Regulation has been satisfied. It is not enough that some other person or body disagrees with that opinion. The possibility of some inconsistency is contemplated by the legislation: Lesnewski v Mosman Municipal Council & Anor [2004] NSWLEC 99 (‘Lesnewski’), at [32]. In that case, Justice Pain said, at [34]: “I consider that provided the development consent and construction certificate plans are largely similar so that they depict substantially the same development they are not inconsistent.”

27 Mr Lovegrove also referred to the Tribunal’s decision in Director General, Department of Infrastructure Planning and Natural Resources v Boulle [2006] NSWADT 43 (‘Boulle’), at [24], where the Tribunal agreed that it was appropriate to have regard to Practice Notes issued by the Department. The September 1999 Practice Note recognised that the construction certificate plans will invariably contain a greater level of detail than the development consent plans, and that some variations may be necessary in order to comply with conditions attached to the development consent or with the Building Code of Australia, or to improve the efficiency and functionality of the building. Moreover, the regulations recognise that some variations may occur by not requiring strict compliance with the development consent.

28 Mr Lovegrove submitted that the “Ministerial Guidelines NSW Accreditation Scheme for building surveyors and allied professionals” recognise that to constitute unsatisfactory professional conduct (Appendix A, p 15):

“Where there is a discretion it will need to be demonstrated that use of the discretion was either inappropriate or incorrect (from a professional sense). Demonstration of an incorrect decision will need to identify the decision, the implications of the decision and how it deviates from accepted professional practice.”

To demonstrate poor professional practice requires evidence of “how the practice deviates from the accepted professional practice of other certifiers or experts” (Appendix A, p 16).

29 Mr Lovegrove submitted that even if an arguable breach of clause 145 of the EPA Regulation has occurred, which is denied, it would be inappropriate to make a finding of unsatisfactory professional conduct given the use of a certifier’s subjective professional discretion and the effect of such a finding on reputation and livelihood. Pursuant to Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), the finder of fact in disciplinary proceedings needs to have ‘reasonable satisfaction’ that a charge is proven – to be ‘comfortably satisfied’. Moreover, as recognised in Craig v Medical Board of South Australia [2001] SASC 169, the object of disciplinary proceedings is the protection of the public and not to punish a person in the criminal sense.

30 Mr Lovegrove submitted that in Mr Dix’s case, there is insufficient proof of the charge of unsatisfactory professional conduct and there is no need for such a finding in order to protect the public. The decision made by the Board was one which was disproportionate to what occurred and should be set aside.

The Board’s Submissions

31 Mr Grey, for the Board, noted that pursuant to section 39 (1) of the BP Act, there is an obligation on the Board to publicise disciplinary action taken against an accreditation holder and, pursuant to section 40, the Board must keep a register of disciplinary action taken against accreditation holders, to be available free of charge to the public. Section 41(1) states that if disciplinary action is quashed or varied on appeal or review after the action was publicised by the Board, the result of the appeal or review is to be publicised with equal prominence by the Board.

32 Mr Grey noted that in this matter the Tribunal stands in the shoes of the Board and may exercise its powers under section 31 of the BP Act.

33 Mr Grey submitted that Engineers Australia’s letter to Mr Conroy dated 30 June 2004 includes an invitation to provide additional information in relation to the complaint against Mr Dix. Mr Conroy responded to that invitation by letter of 23 September 2004 commenting on Engineers Australia’s analysis of the complaint and seeking clarification as to what plans were sighted by Engineers Australia in the course of its deliberations.

34 Mr Grey provided a copy of a letter dated 27 January 2006 from Mr Dix to Engineers Australia referring to “correspondence of 7 December, 2005”. Mr Grey noted that at p 3 of this letter, Mr Dix refers to Mr Conroy stating in his letter to Engineers Australia of 23 September 2004 that he “does not agree with the interim decision by Engineers Australia”.

35 Mr Grey drew the Tribunal’s attention to the differences in location, size, height, structure and use between the outbuilding shown on the development consent plans and that shown on the construction certificate plans. Dr John Hutcheson was appointed by Engineers Australia to investigate the complaint against Mr Dix and prepared a report dated 6 June 2006. Dr Hutcheson concluded that there were reasonable grounds for the establishment of a complaints panel to consider Mr Dix’s conduct in relation to the outbuilding, but recommended that the other five aspects of the complaint be dismissed. He found the public would be satisfied that Mr Dix “had acted with competence, diligence and integrity in accordance with EPA Reg 109R except with regard to the issue of the outbuilding”.

36 Mr Grey provided copies of two letters from the owners of property adjacent to 83 Chalmers Road, received by the Council on 6 May 2003 and 15 May 2003. One of these letters specifically complains about the height and position of the outbuilding. The other letter refers in more general terms to the impact of the development on the privacy of her property.

37 Mr Grey provided copies of relevant Practice Notes published by the Department of Urban Affairs and Planning (‘the Department’) in September 1999. The Practice Note “When is a section 96 modification required?” states:

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

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

rooms are moved or enlarged

a specific requirement of a condition of a consent has not been met.”

38 The Practice Note “Construction certificates for building work” provides that a construction certificate for building work cannot be issued unless, amongst other things, “the design and construction of the building as depicted in the plans and specifications, are not inconsistent with the development consent”. Among the examples of what would be inconsistent with the development consent is “altering the external envelope – relocating windows, altering heights, adding plant rooms where not shown”.

39 Mr Grey drew attention to the decision in Moy v Warringah Council [2004] NSWCA 77 (‘Moy’), decided on the same day as Lesnewski so that Pain J would not have had the benefit of considering the Court of Appeal decision. In Moy, Sperling J, with whom Sully and Simpson JJ agreed, said:

“79 ... s 96 and cl 145 have different functions in the scheme of the legislation. The function of cl 145 is to ensure that the development as built will be in accordance with the development consent. The function of s 96 is to allow modification of the development consent (albeit with a threshold limitation). In this context, the kind of variation contemplated by s 96 and by cl 145 may be quite different in character. Variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as "inconsistent with" the development consent within the meaning of cl 145. On the other hand, s 96 may be seen as contemplating relief from strict compliance with such limitations under the formula "substantially the same development".

80 There is also, the degree of variation which the respective provisions will accommodate. Clause 145 is proscriptive. It prohibits the issue of a construction certificate unless the certifier is satisfied of the matter specified. Section 96, on the other hand, is a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision: ReKearney; Ex parte Jurlama (1984) 52 ALR 24, 28; Zangzinchai v Millanta [1994] FCA 1361; (1994) 125 ALR 265, 272.

81 It is unnecessary to decide whether cl 145 is to be applied strictly although that argument is available. It is sufficient that s 96 is to be construed liberally on grounds which do not apply to cl 145. It follows that s 96 may accommodate a greater degree of variation in the proposed development referrable to the development consent than cl 145 will accommodate.”

40 Mr Grey also referred to the decision in Boulle where, at [23], the Tribunal said:

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

Mr Grey noted that in Boulle, the addition of a timber pergola to the rear elevation of the building constituted a significant inconsistency and a section 96 application was required.

41 Mr Grey concluded that the Tribunal should confirm the Board’s decision to impose a caution or, in the alternative, while finding Mr Dix to be guilty of unsatisfactory professional conduct, order that no further action should be taken pursuant to section 31(4)(m) of the BP Act.

Discussion

42 The issue in this case is whether Mr Dix is guilty of unsatisfactory professional conduct and, if so, whether the Tribunal should exercise the Board’s power under section 31(4) of the BP Act to take action as a consequence of this. As stated above, at the time of the conduct in issue, ‘unsatisfactory professional conduct’ was defined in section 109R of the EPA Act, relevantly, as including 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, [and]

(d) by which an accredited certifier fails to comply with ... (ii) any other Act or law prescribed by the regulations”

43 Clause 145(1)(a) of the EPA Regulation states that a certifying authority must not issue a construction certificate for building work unless:

“the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent”

44 The principal question in relation to the conduct is, therefore, whether the design and construction of the building shown in the plans approved by Mr Dix on 22 July 2002 was not inconsistent with the development consent granted by the Council on 13 February 2002.

45 The parties have referred to the case law dealing with the meaning of the word ‘inconsistent’ in this context. We note that in Lesnewski, at [34], Pain J said:

“It is difficult to precisely qualify the meaning of ‘inconsistent’. Each case needs to be decided on its own facts. A single minor difference between the construction certificate plans and the development consent plans is likely to be acceptable ... A major difference is likely to give rise to an inconsistency.”

46 We also note that in Moy, the Court drew a distinction between the meaning of the words “substantially the same” used in section 96 of the EPA Act and “inconsistent with” used in clause 145. As the Tribunal recognised in Boulle, the type and/or degree of deviation in the design or construction of a building necessary to make it ‘inconsistent with’ the development consent plans is a matter of professional judgement. The Tribunal said in Cogo, at [73]:

“ A certifier must be vigilant in not infringing the standard set by cl 145, even though, we accept, its application to any particular situation leaves much to the professional judgement of the certifier. An accredited certifier, when deciding to approve variations to CC plans without resubmitting them to the consent authority, is performing a public function involving immense trust. Council officers, Council members and the wider community are not given an opportunity to consider the changes proposed.”

47 As in Cogo, the Tribunal recognises that Mr Dix’s conduct should be viewed in the light of professional understanding at the time of the relevant events. At that time, some guidance was available in the form of the “Ministerial Guidelines NSW Accreditation Scheme for building surveyors and allied professionals” which recognise that to establish unsatisfactory professional conduct will require that it be demonstrated that the exercise of the person’s discretion was professionally inappropriate or incorrect.

48 Two relevant Practice Notes had been published by the Department in September 1999, referred to above. The Practice Note “When is a section 96 modification required?” requires a section 96 application to modify the development consent where, for example, the height of the building shown in the plans is changed, “plant rooms are added” or “rooms are moved or enlarged”. The Practice Note “Construction certificates for building work” states that among the examples of what would be inconsistent with the development consent is “altering the external envelope – relocating windows, altering heights, adding plant rooms where not shown”.

49 While as the Tribunal recognised in Cogo, at [65], the practice notes provide limited guidance, it is in our view clear enough that changes affecting the external appearance of the development may mean construction certificate plans are inconsistent with the development consent. Ultimately, of course, it is a matter of the degree of variation and the Tribunal must be guided by what constitutes the professional judgement of a reasonably competent accredited certifier, in accordance with the section 109R definition.

50 In this case, in determining whether to investigate the complaint, Engineers Australia relied on a report dated 6 June 2006, by Dr John Hutcheson, who is a highly qualified engineer and accredited certifier. He recommended that five aspects of the complaint should be dismissed, but that there were reasonable grounds to establish a Complaints Panel to consider Mr Dix’s conduct in relation to the complaint that the outbuilding as shown in the construction certificate was not consistent with the development consent. Engineers Australia followed these recommendations. On 17 August 2006, it notified Mr Dix that five of the six aspects of the complaint had been dismissed but there were reasonable grounds to refer the complaint relating to the outbuilding to a Complaints Panel.

51 Following the Board’s taking over the disciplinary functions of Engineers Australia, Mr Dix and his solicitors made submissions to the Board in relation to the complaint in June 2008. On 31 July 2008, the Board determined that Mr Dix’s conduct in issuing the construction certificate approving the outbuilding constituted unsatisfactory professional conduct in that it fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier and also contravened clause 145(1)(a) of the EPA Regulation.

52 The Tribunal does not accept Mr Lovegrove’s submission that Engineers Australia, by its letter dated 30 June 2004, had previously exonerated Mr Dix in respect of all aspects of the complaint made by Mr Conroy, the Manager, Development Assessment, for the Council. While we agree that the wording of the letter is somewhat ambiguous, the third paragraph on page 3 indicates that it is still open to Mr Conroy “to provide additional evidence” in support of his complaint. Later correspondence indicates that this is what Mr Conroy understood the letter to mean, and Mr Dix’s letter to Engineers Australia dated 27 January 2006 refers to Mr Conroy not agreeing with Engineers Australia’s “interim decision”.

53 The Tribunal has reviewed the development consent approved plans and the construction certificate approved plans with particular reference to the variation in respect of the outbuilding. We note the substantial differences in the location, size, height, structure, and use of the outbuilding shown in the two sets of plans. In the development consent plans, the outbuilding is a small, low structure of four square metres, located in the north-western corner of the block and intended for “pool equipment”. In the construction certificate plans, the outbuilding is a substantial structure of 15.168 square metres located in the middle of the rear of the block near the western boundary, standing 3.177 m higher than the outbuilding shown in the development consent plans, well above the level of the rear fence, with about 25% of the floor space shown as being for pool equipment and the remainder of the floor space being for a toilet, shower, hand basin and entry porch. The walls are of brick (two skins of brick around the toilet, shower, and hand basin, and one around the pool equipment), apparently matching those of the house, there is a window in one wall, and the roof is ridged and laid with terracotta roof tiles. The construction certificate plans show three steps up to the floor level of the outbuilding and a handrail beside the steps, but the steps and handrail are not shown in the photographs of the completed building.

54 We also note the clause 77 condition to the development consent requiring the pool filtration equipment to be sited as far as practicable from adjoining dwellings, with the structure of the outbuilding to be designed to direct noise away from adjoining properties.

55 In the Tribunal’s view, while the outbuilding houses the pool equipment, its principal function is to provide a toilet, shower, and hand basin for use in conjunction with the in-ground pool. While this may provide improved amenities for the subject property, and the change in location means that the noise generated by the pool filtration equipment may be less apparent for adjacent properties, the outbuilding will be clearly visible above the fence line from those properties.

56 We have considered the two relevant Practice Notes published by the Department in September 1999. As we have stated, it is clear enough from the Practice Notes that changes affecting the external appearance of the structure, including relocating windows, altering heights and enlarging the structure may mean that construction certificate plans are inconsistent with the development consent plans and will require a section 96 modification. It is a matter of the degree of variation. In this instance, while we recognise that the outbuilding is a relatively small part of the overall development, it is a discrete entity, and the outbuildings shown in the two sets of plans were significantly different in terms of location, size and function. In our view, a section 96 modification was clearly required and, in terms of the degree of variation, we consider that in the professional judgement of a reasonably competent accredited certifier, the outbuilding shown in the construction certificate plans was inconsistent with that shown in the development consent plans. In forming this view, we have had regard to the state of professional understanding in relation to such matters in 2002, noting that the Tribunal panel includes a registered surveyor of standing who is familiar with the work of accredited certifiers: Cogo, at [61].

57 It follows from our finding as to there being an inconsistency, that in issuing the construction certificate, Mr Dix breached clause 145(1)(a) of the EPA Regulation. Having so determined, the Tribunal must now consider whether Mr Dix was guilty of ‘unsatisfactory professional conduct’. As stated above, at the relevant time ‘unsatisfactory professional conduct’ was defined in section 109R of the EPA Act as including conduct, relevantly:

(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 ...

(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, ...

58 The Tribunal notes that to make such a finding it must be ‘comfortably satisfied’ that the charge is proven, given that it is the exercise of a person’s subjective professional discretion that is under scrutiny, and the potential effect of a finding on a person’s professional reputation: Briginshaw. We note Mr Lovegrove’s submission as to Mr Dix’s standing and high profile in his profession, and that the object of disciplinary proceedings is the protection of the public and not the punishment of the offender. In relation to the protection of the public, we note, once again, the Tribunal’s comment in Cogo at [73], quoted above.

59 Having considered the significant degree of inconsistency involved in Mr Dix’s breach of section 109R, the Tribunal is satisfied that he did not exercise his functions as an accredited certifier to the standard of competence that a member of the public is entitled to expect of a reasonably competent accredited certifier. In our view, his conduct amounted to ‘unsatisfactory professional conduct’ in terms of both section 109R(a) and (d) of the EPA Act.

60 Having so found, the Tribunal must next consider whether action should be taken against Mr Dix pursuant to section 31(4) of the BP Act. This subsection enables the Board (and the Tribunal standing in the shoes of the Board when conducting a review) to take any one or more of the actions specified in paragraphs (a) to (m) against an accreditation holder guilty of unsatisfactory professional conduct or professional misconduct. In Mr Dix’s case, the Board decided to caution Mr Dix pursuant to paragraph (a). Mr Grey, in his submissions, while submitting that the Tribunal should confirm the Board’s decision to caution Mr Dix, said that, in the alternative, it was open to the Tribunal to take no further action pursuant to paragraph (m). This enables the Board to:

(m) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accreditation holder is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accreditation holder.

61 The Tribunal has examined Mr Dix’s curriculum vitae and notes his extensive professional experience in the building industry and involvement in developing appropriate standards, including legislative standards, at all levels of government. There is no evidence before us of other material complaints and we accept that, in terms of paragraph (m), he is “generally competent and diligent”. The Tribunal also recognises that in terms of objective gravity, the unsatisfactory professional conduct was relatively minor in the context of the overall development: see Building Professionals Board v Boulle [2008] NSWADT 80, at [41]. Moreover, as Mr Lovegrove noted, the conduct occurred relatively early in the life of the disciplinary scheme established by the EPA Act: Cogo, at [87]. While this does not excuse Mr Dix’s unsatisfactory professional conduct, in the particular circumstances of this case we have determined that the correct and preferable decision is that no further action should be taken against Mr Dix in relation to the proven complaint.

Decision

62 The Tribunal affirms the decision to find Mr Dix guilty of ‘unsatisfactory professional conduct’, but sets aside the decision to caution him in respect of that conduct, substituting a decision to take no further action against him.