Greenwood and Building Services Board - [2018] WASAT 125

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011 (WA)
CITATION:   GREENWOOD and BUILDING SERVICES BOARD [2018] WASAT 125
MEMBER:   MS D QUINLAN (MEMBER)
MR C MARSH (SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)

HEARD:   15 OCTOBER 2018
DELIVERED          :   12 NOVEMBER 2018
FILE NO/S:   VR 72 of 2018
BETWEEN:   JOHN GREENWOOD
First Applicant
WESTERN AUSTRALIA BUILDING CERTIFIERS & ASSESSORS PTY LTD
Second Applicant
AND
BUILDING SERVICES BOARD
Respondent

Catchwords:

Building surveying practitioner Building surveying contractor Whether disciplinary matters exist Signing and issuing certificate of design compliance when swimming pool barrier still required approval of permit authority Misleading conduct Failure to properly manage and supervise

Legislation:

Building Act 2011 (WA), s 3, s 19, s 19(3), s 20, s 119, s 144, Pt 2, Div 2
Building Regulations 2012 (WA), reg 3, reg 31A(2)(a), reg 31C(1), reg 50, reg 50(1B), reg 51
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 4A(1)(a)
Building Services (Registration) Act 2011 (WA), s 3, s 53, s 53(1)(e), s 53(1)(f), s 53(1)(g), s 53(1)(j)(ii), s 57(2)(d), s 58, s 58(1), s 58(1)(i), s 64(2)
Building Services (Registration) Regulations 2011 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i), s 87(2)

Result:

Disciplinary matters exist
Fines imposed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	Mr J Greenwood (as sole director)
Respondent	:	Mr E Homan

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Department of Mines, Industry Regulation and Safety - Building and Energy Division

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Building Services Board and West [2016] WASAT 143
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 7 May 2018, Mr John Greenwood (Mr Greenwood) and Western Australia Building Certifiers and Assessors Pty Ltd (WABCA) (collectively, the applicants) lodged an application with the Tribunal seeking a review of the decision of the Building Services Board (Board) on 10 April 2018 where it determined that disciplinary matters exist in relation to both of the applicants. The Board imposed a fine of $2,500 on each applicant under s 57(2)(d) of the Building Services (Registration) Act 2011 (WA) (BSR Act). The applicants seek a review in the Tribunal of that decision pursuant to s 64(2) of the BSR Act.
Under the provisions of the State Administrative Tribunal Act 2004 (WA), review proceedings are not appeal proceedings and no appealable error need be shown on the part of the Board in order for either of the applicants to succeed. In review proceedings, the Tribunal reviews the decision afresh, standing in the shoes of the original decisionmaker with all the powers and duties of the Board.
These proceedings arise in relation to the facts and circumstances surrounding a Certificate of Design Compliance issued on 24 May 2018 (the CDC) signed by Mr Greenwood as a building surveying practitioner and issued by WABCA as a building surveying contractor. The specific issue that arises in relation to the CDC concerns the proposed renovations to the main bedroom including new double doors which had a child resistant doorset opening directly into the existing outdoor pool area (the pool barrier doors).

Issue for determination

The primary issue for determination by the Tribunal is whether disciplinary matters exist in respect of each of the applicants under s 53 of the BSR Act.
In the respondent's statement of issues, facts and contentions the respondent has identified a number of sub-issues to the primary issue which arise for determination by the Tribunal involving allegations and possible findings of fact and law. Those sub-issues, as modified by the Tribunal, can be described as follows:
(a)Whether disciplinary matters exist against the applicants under s 53(1)(e) of the BSR Act, namely whether they were both negligent or incompetent in connection with carrying out a building service, because:
(i)Mr Greenwood, in making a declaration in part six of the CDC, was declaring that the pool barrier doors would comply with applicable building standards when they could not as they were not compliant with the Building Code of Australia (BCA) by way of a deemed to satisfy solution (DTS solution) or an 'approved barrier solution' as defined in reg 3 of the Building Regulations 2012 (WA) (Building Regulations) that had been approved by the permit authority as required under reg 51 of the Building Regulations (approved barrier solution);
(ii)Mr Greenwood failed to adequately document an alternative solution for compliance of the pool barrier doors then apply for and obtain the approval of the permit authority prior to issuing the CDC;
(iii)WABCA issued a CDC in circumstances where the pool barrier doors did not comply as a DTS solution or an approved barrier solution; and
(iv)WABCA did not have adequate systems or processes in place to verify that the building surveying work carried out by Mr Greenwood was accurate and the pool barrier doors would comply with the applicable building standards or was otherwise approved by the permit authority in accordance with the Building Regulations and the BCA.
(b)Whether a disciplinary matter exists under s 53(1)(f) of the BSR Act against WABCA, as a building service contractor, because it failed to ensure that the building service provided as outlined in (a) above had been properly managed and supervised.
(c)Whether a disciplinary matter exists under s 53(1)(g) of the BSR Act against Mr Greenwood, as a nominated supervisor, because he failed to properly manage and supervise the building service provided as outlined in (a) above carried out by employees of WABCA that resulted in Mr Greenwood signing the declaration in the CDC and WABCA issuing the CDC.
(d)Whether a disciplinary matter exists under s 53(1)(j)(ii) of the BSR Act against Mr Greenwood because he made a statement on a CDC that was likely to mislead and did mislead a permit authority.
Secondary to the primary issue is, if the Tribunal does find that disciplinary matters exist in respect of each of the applicants, what is the appropriate penalty under s 58 of the BSR Act.
The Tribunal will utilise the term 'alternative solution' throughout these reasons. This was the relevant legislative term at the material time. However we acknowledge that the relevant legislative term 'alternative solution' is now known as a 'performance solution'.

General principles in disciplinary proceedings

The allegations against the applicants must be established on the balance of probabilities to the Briginshaw standard. The Tribunal must feel an actual persuasion of the occurrence of events or the existence of the relevant facts before being satisfied that an allegation against a person has been made out: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361363 and Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [64]-[65].
The object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of those standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [25].

Background facts

The basic background facts were not contentious amongst the parties and were as follows. The factual matters which were contentious between the parties are considered by the Tribunal later in these reasons.
On 1 February 2013, Mr Greenwood was granted registration as a building surveying practitioner (a class of building service practitioner) and to date maintains his registration which will expire on 1 February 2019 if not renewed. Between 29 March 2012 and 29 March 2013, Mr Greenwood was registered as a building surveying contractor in his personal capacity.
On 15 March 2013, WABCA was granted registration as a building surveying contractor and to date maintains that registration which will expire on 15 March 2019 if not renewed. Mr Greenwood was, at all material times, WABCA's nominated supervisor.
On 24 May 2016, Mr Greenwood signed, and WABCA issued, a CDC in relation to proposed building work to be carried out at 5 Atlantic Avenue Iluka (the property).
Section 3 of the CDC headed 'Plans specifications and other documents' refers to the following drawings and technical documents:
(a)'Approval by Design Contract Drawings, ((Sheets 1-7) as marked 'WABCA Approved documents Page No' at top of page)';
(b)'Dorian Engineering Details (Sheets 1-2)'; and
(c)'Certified Energy Assessments Energy Documents, (Sheets 1-10)'.
Relevant to these proceedings, in part 6 of the CDC Mr Greenwood made a signed declaration that:
(a)the building the subject of the CDC, which includes the pool safety barrier shown in the plans, will comply with each applicable building standard if completed in accordance with the plans, specifications and technical documents; and
(b)each alternative solution relied upon to establish compliance with a building standard is shown on the plans and specifications specified in part 4 of this certificate.
The Tribunal notes the reference to part 4 of the CDC is a typographical error in the pro forma CDC in use at the material time, and is intended to be a reference to part 3 of the CDC.
A swimming pool had been installed at the rear of the property in or after February 2003 and was the relevant swimming pool for the purposes of the CDC. The rear wall of the property, including a window, formed part of the pool safety barrier to the pool following its installation and construction. The safety barrier to the pool was inspected by the City of Joondalup (City) on 17 December 2012 and was found to be compliant at that time.
In 2016, part of the building work proposed to be carried out involved altering the wall of the property which formed part of the pool barrier. Specifically, it was proposed to replace the window with a set of double doors that opened from the property directly into the pool area. The proposed doors were shown on the site plans, proposed floor plan and the elevations attached to the CDC: see pages 78 and 80-81 of the hearing book. The references to the proposed double doors are not directly referred to as a pool barrier and include depictions of the double doors, and a note in a box with an arrow pointing to the doors as follows:
(a)'new 820 doors to AS1926.1-2007' on the site plan notation (see page 78 of the hearing book); and
(b)'new 2x820 doors with self closing hinge & handle @ 1600AFL to AS 1926.1-2007' on the notation for both the proposed floor plan and elevations (see pages 80-81 of the hearing book).
On 8 July 2016, Glenn James from Albec Constructions applied to the City for a building permit to carry out the proposed building work at the property. The application for a building permit was on a form headed 'Application for Building Permit Certified' and was a certified application because it included the CDC signed and issued by the applicants: see pages 74-84 of the hearing book. Part 6 of the building permit application is a statement to the effect that the applicant has provided details of each alternative solution not shown on the plans and specifications.
On 20 July 2016, the City granted building permit BPC16/0796 in relation to the proposed building work (building permit). The building permit included conditions requiring the barrier to the existing pool, including any temporary barrier, to be maintained in compliance with AS 1926.1 at all times during construction. The conditions further stated that it is the 'property owners' responsibility to ensure the swimming pool/spa safety barrier is in strict accordance with AS 1926.1 at all times'.
Following the issue of the building permit, the building work at the property was carried out. In relation to the doors leading from the property directly into the pool area, the building work was carried out in accordance with the CDC.
On 15 May 2017 the City inspected the pool barrier at the property pursuant to the statutory inspection regime that requires inspections of pool safety barriers every four years. As a result of the inspection, the City produced a Swimming Pool/Spa Security Inspection Notice (First Inspection Notice). The First Inspection Notice indicates that the gates, presumably in the pool fence, do not self-close and self-latch from all positions. As a result, by way of shaded boxes near the bottom of the form the permanent security barrier is indicated as non-compliant. In the other comments section of the First Inspection Notice there are notes that the 'Double doors opening onto pool area' [are] 'To be investigated'.
On 20 December 2017, the City inspected the pool barrier again. As a result of the inspection the City issued a further Swimming Pool/Spa Security Inspection Notice (Second Inspection Notice). The Second Inspection Notice indicates that the City takes the view that the pool barrier is non-compliant. In the other comments section of the Second Inspection Notice, there are notes that the 'DD locking mechanism disabled' and 'Handles remain on door'.

Legislative framework

Building surveyor

A 'building surveyor' is defined in s 3 of the Building Act 2011 (WA) (Building Act) to mean a building service practitioner as defined in the BSR Act.
By virtue of s 3 of the BSR Act and s 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), building surveying work is prescribed to be a building service.
'Building surveying work' is defined in reg 4A(1)(a) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations), relevant to those regulations, to mean:
the examination of plans and specifications for a building or incidental structure to assess the safety, accessibility and energy efficiency of a building or incidental structure if the building or incidental structure is built in accordance with the plans and specifications[.]
In relation to Mr Greenwood the building service carried out was the examination of plans and specifications and culminated in his declaration in part six of the CDC. In relation to WABCA the building service was the issue of the compliance certificate as prescribed in reg 4 of the Building Services (Registration) Regulations 2011 (WA) (BSR Regulations).

CDC process

A CDC is issued pursuant to s 19 of the Building Act and must contain a signed statement by a building surveyor to the effect that if the building or incidental structure that is the subject of the application for a building permit is completed in accordance with the plans and specifications they will comply with each applicable standard. Relevant to these proceedings, this signed statement is to be found as part of the declaration in part six of the CDC.
In Miller and City of Melville [2012] WASAT 156 (Miller), the Tribunal considered the CDC and building permit approval process in the Building Act which at that time had only recently introduced the provisions allowing for private certification. The principal finding in Miller was that the Building Act undoubtedly places primary responsibility for determination as to the question of compliance with building standards upon the building surveyor who provides the CDC under s 19, however, the permit authority had a residual discretion to refuse to approve a building permit where the permit authority had formed a view contrary to the certification in the CDC.
The Tribunal in Miller explained its findings in conclusion at [34]-[36]:
In our view, there is no need to read down the natural meaning of the word 'error' in order to meet the statutory scheme of the Building Act. The Act undoubtedly places primary responsibility for determination as to the question of compliance with building standards upon the building surveyor who provides the certificate of compliance under s 19. It can be accepted that the Act contemplates that is not the function of the permit authority to review a certificate of design compliance, and that in the normal course no such review will be undertaken. There is, however, a power given to the permit authority to refuse the grant of a building permit where an error is detected in information provided for the application. It is difficult to accept that, no matter how blatant an error of opinion contained in a certificate of design compliance may be, a permit authority is obliged to issue a building permit knowing that the building must be constructed in accordance with the plans and specifications the subject of the certificate of design compliance.
The Attorney General argued that, where such an error of opinion is detected by a permit authority, the practical reality is that the permit authority is likely to bring the error to the attention of the certifying building surveyor who would then be likely to withdraw the certificate. While that may be so, it does not provide a basis for depriving the permit authority of its power to refuse to issue a building permit where it believes information provided to it contains an error, including an error in the nature of opinion. We do not accept that an opinion expressed in a certificate of design compliance should not be considered 'an error in information provided for the application or in a document that accompanies the application' for the reason that information or documents cannot hold opinions. The information provided for an application includes the certificate of design compliance, and there is, in our view, no reason why an erroneous opinion contained within that information cannot be said to be an error the purposes of s 22 of the Building Act.
The fact that s 20 of the Building Act makes no provision for the permit authority to consider whether the proposed building will comply with all relevant building standards is not surprising. Undoubtedly the Building Act contemplates that applications for the issue of the building permit will not be subjected to more than one analysis to ascertain compliance with relevant building standards. The provisions of s 144 of the Building Act make that position quite clear. Mostly, therefore, the terms of a certificate of design compliance will not be subjected to review, and a permit authority will confine itself to considering whether it is satisfied of those matters of which s 20 requires it to be satisfied before the obligation to grant the building permit arises. Where, however, in the course of that analysis, for any reason the permit authority forms a genuine belief that there is an error as to compliance, we do not consider it inconsistent with the scheme of the Act that the power under s 22 to refuse to grant the application is enlivened. Mostly that is likely to occur where the non-compliance is clear and might be corrected by the certifying building surveyor when it is drawn to his or her attention. But where there is simply a difference of opinion between the permit authority and the certifying building surveyor, the matter can be determined by review by this Tribunal under s 119. The Building Act is clearly designed to ensure adherence to applicable building standards, and that objective is better served by resolution of differences of opinion through an orderly review system, rather than by a requirement that obliges a permit authority to grant a permit notwithstanding a belief that the structure to be constructed will not comply with the required standards Pollution.

Applicable building standards for private swimming pool barriers

Regulation 31C(1) of the Building Regulations prescribes the applicable building standards for swimming pools.
Pursuant to the table to reg 31C(1) and reg 31A(2)(a) of the Building Regulations applicable at the material time a certifier could certify compliance of proposed building work utilising the edition of the Building Code in effect at the time of the application for a building permit or the requirements of reg 50 of the Building Regulations. However, item (b) in the 'building standard column' in the table also provided that any alternative solution under the applicable Building Code must be approved by the permit authority under reg 51 of the Building Regulations.
It was common ground in these proceedings that the pool barrier doors were a proposed alternative solution and that this required approval by the permit authority under reg 51 of the Building Regulations. Where the parties differ is when in the building approval process and by what particular mechanism that approval is obtained.
The Building Code is defined in reg 3 of the Building Regulations as meaning:
the Building Code of Australia which is volumes 1 and 2, as amended from time to time, of the National Construction Code series published by, or on behalf of, the Australian Building Codes Board[.]
The edition of the Building Code of Australia that was in effect when the relevant building permit application was made was the 2016 edition (BCA 2016) which came into effect on 1 May 2016. Volume 2 of BCA 2016 is of relevance to these proceedings as it concerns class 1 buildings and private swimming pool barriers.
In relation to swimming pool barriers, compliance with BCA 2016 is demonstrated by meeting performance requirement P2.5.3 which states:
A barrier must be provided to a swimming pool and must -
(a)be continuous for the full extent of the hazard; and
(b)be of a strength and rigidity to withstand the foreseeable impact of people; and
(c)restrict the access of young children to the immediate pool surrounds; and
(d)have any gates and doors fitted with latching devices not readily operated by young children, and constructed to automatically close and latch.
There are two methods of meeting performance requirement P2.5.3 in BCA 2016. One method is by meeting a design specified in BCA 2016, known as a DTS solution. Under BCA 2016, compliance with the terms of a DTS solution is taken to be compliance with performance requirement P2.5.3. Alternatively, BCA 2016 provides that compliance with performance requirement P2.5.3 can be demonstrated by the certifier developing a performance solution, that is a design or proposal that has not been specified in BCA 2016, but nevertheless meets the performance requirement.
In relation to the swimming pool barrier relevant to these proceedings, the DTS solution was Part 3.9.3 of BCA 2016 which provides that performance requirement P2.5.3 is satisfied if barriers are installed in accordance with AS1926 parts 1 and 2. The applicable versions of AS1926 parts 1 and 2 are set out on page 45 of BCA 2016. In accordance with the table on page 45, the applicable version of AS1926.1 is the 2012 edition. For AS1926.2 the applicable version is 2007.
Relevant to these proceedings, in relation to meeting performance requirement P2.5.3 by a DTS solution AS1926.1-2012 provides at clause 2.7 that child-resistant doorsets shall only be installed for access to indoor pools and the indoor part of an indoor/outdoor pool and AS1926.2-2007 provides at clause 4.2, that a child resistant doorset shall not be installed in a barrier for an outdoor pool. Consequently, as the relevant pool was an outdoor pool, a DTS solution was not available to certify compliance of the pool barrier in question. The only avenue to certify compliance was an alternative solution.

Applicants' submissions

The applicants deny that disciplinary matters exist concerning their conduct in signing and issuing the CDC for the proposed renovations, in particular, the pool barrier doors.
The applicants submit that the CDC did make it clear that an alternative solution was proposed in relation to the pool barrier doors. This is because, the applicants submit, all competent building surveyors know that those pool barrier doors could never be a DTS solution, therefore they must be an alternative solution which required approval from the permit authority.
The applicants submit that they considered the CDC provided to the permit authority as part of the application for a building permit to also be an application for approval from the permit authority for the pool barrier doors. The applicants submit that the drawings included as part of the CDC clearly referred to the double doors opening onto the existing outdoor pool area with such doors well known not to comply with the DTS solution in the BCA such that it was obvious that approval was being sought for an alternative solution.
Therefore, the applicants submit, that the onus was on the City to consider that alternative solution and seek further information or approve the building permit with any such approval of the building permit also being implied approval of the alternative solution.

Board's submissions

The Board submits that, historically, certification that proposed building work would comply with applicable standards and the grant of a building permit were a single process with a single application. The commencement of the Building Act in 2011 made it possible for nonlocal government entities to certify compliance with building standards. For the first time, certification could be carried out by private certifiers as well as permit authorities. The Board submits this was done in order to reduce waiting times for the grant of a building permit. Applications for a building permit where a private certifier had already certified the compliance of the proposed work and had issued a CDC would enable permit authorities to process the applications in shorter timeframes (certified application). The Board submits that, with a certified application, a permit authority's role is basically administrative. However, the option still remains of applying to a permit authority for a building permit without the certification having already been carried out (uncertified application). In that case the permit authority would carry out the certification (by referring the application to a building surveyor) and issue the CDC in the course of granting the building permit.
The Board submits that the processes of private certifiers and permit authorities should essentially be the same. Both are required to state on a CDC that the proposed work will comply with the applicable standards if it is built in accordance with the plans and specifications that are specified in the CDC.
The Board submits that once a CDC has been issued by either a private certifier or a permit authority, subject to other aspects of the application, the grant of a building permit is administrative. No further certification of compliance with building standards or approval is required: see s 20 and s 144 of the Building Act. Notwithstanding there being no obligation to assess a CDC, the Board submits that a permit authority can consider the content of a CDC if it so chooses: see Miller.
Consequently, submits the Board, any CDC signed and issued by a private certifier must have resolved all issues with any aspect of the certification of the proposed work with the applicable standards including the obtaining of any required approvals. On this basis, the Building Regulations necessarily imply that a permit authority must have approved a proposed door direct from a property to an outdoor pool prior to either it or a private certifier signing and issuing a CDC.
The Board submits that, this being the case, private certifiers must apply to the relevant permit authority for approval of a door direct from a property to an outdoor pool as part of its assessment of compliance with applicable standards and must not sign and issue a CDC until the required approval is obtained. The Board submits that a certifier cannot rely on the building permit application process to perfect a CDC that does not contain the required approval.
Therefore, in the facts and circumstances of these proceedings, the Board submits that disciplinary matters exist as against both applicants as alleged.

Factual witnesses

Both parties called witnesses in support of their case and provided witness statements or reports.
The Board provided factual evidence from Ms Heather Hoskisson, Coordinator of Compliance and Regulatory Services at the City. Ms Hoskisson provided factual evidence concerning private swimming pool barrier compliance and inspections in the City. Ms Hoskisson stated that the City has five swimming pool inspectors and in excess of 22,000 private swimming pools. Ms Hoskisson stated that 34 children had died from drowning in Western Australia over a six year period.
Ms Hoskisson, in making compliance enquiries regarding the pool barrier doors after they had been installed, had a telephone conversation with Mr Greenwood on 30 August 2017 documented at paras 20 to 23 of her statement as follows:
He advised that he thought long and hard about this situation and as his home had a similar layout with doors opening onto a post 2001 pool he could not see any reason why this method was not acceptable. He had small children and was happy with this solution.
He advised that he should have included a performance solution and would look to make sure they do in the future.
He advised that he also made an error on the plans by stating doors complied with AS1926.1-2007 he had quoted the wrong standard but still considers that the doors comply.
He asked should he now send in a performance solution to the City.
Ms Hoskisson did not provide oral evidence as the Tribunal had no questions and the applicants did not require her for crossexamination on her evidence. Having considered the evidence of Ms Hoskisson, the Tribunal accepts her factual evidence in its entirety.
Ms Tanya Scarce, Senior Building Surveyor at the City provided, predominantly, factual evidence to the Tribunal regarding the processes adopted at the City in assessing certified applications and uncertified applications for building permits. Ms Scarce explained the checklist exercise that her team undertakes in dealing with certified applications and that they do not assess these applications for building permits as they are accompanied by a CDC.
Ms Scarce was crossexamined on her evidence. Ms Scarce conceded that occasionally the City does request further information for certified applications with an example given by her of applications that also required development approval. Ms Scarce answered in crossexamination that the City does not refer certified applications that include or involve a swimming pool to the City's swimming pool compliance section. Ms Scarce also stated in crossexamination that the City did not at the relevant time, and does not have now, any formal, or prescribed, process in place for approval of alternative solutions for swimming pool barriers.
Having considered the evidence of Ms Scarce and observed her oral evidence at the hearing, the Tribunal finds her to be a forthright and honest witness and we accept her evidence in its entirety. In particular, the Tribunal finds that we concur and rely on her explanation as to the checklist exercise undertaken by the City for certified applications. We consider that the processes explained by Ms Scarce accords with the statutory intent for certified applications for building permits under the provisions of Pt 2, Div 2, in particular, s 19 and s 20 as well as s 144 of the Building Act and the Tribunal decision in Miller.
Mr Greenwood also gave factual evidence as to his views, actions and state of mind at the relevant time when supervising staff of WABCA, causing enquiries to be made and signing the declaration in the CDC. Mr Greenwood was of the view that the pool barrier doors proposed at the property was a 'tricky one' due to the rule changes that had recently occurred. Mr Greenwood caused a staff member to contact the City to make enquiries and he also personally made enquiries with the Building Commission. Mr Greenwood stated that his staff member was told by the City to 'put in a design proposal' in relation to the pool barrier doors. Mr Greenwood's view was that the CDC and application for a building permit was also an application for approval of the pool barrier doors. Mr Greenwood expected the City would internally refer the matter to their pool barrier compliance section and seek further information if required, or otherwise approve the pool barrier doors as part of the application for the building permit. Mr Greenwood explained he approached the approval process in this way because he was trying to be cost effective. His view was that formally working up an alternative solution would be costly for his client. Mr Greenwood stated further that 'we need to provide a solution for the customer'.
Whilst, the Tribunal found Mr Greenwood to be an honest witness as to matters of fact, in particular we accept and rely upon his, albeit hearsay, evidence that the City told his employee to 'put in a design proposal' regarding the pool barrier doors. However, as will be apparent from our further reasons below, the Tribunal does not accept as a matter of fact and law that the CDC could be reasonably considered to be that 'design proposal' and/or an application for approval of the pool barrier doors. Moreover, the Tribunal does not accept Mr Greenwood's views as to the reasonableness for his course of action in supervising employees of WABCA and making his declaration in the CDC.

Expert witnesses

The Tribunal heard concurrent expert evidence from building surveyors Mr Alan Meikle and Mr Ron Sherar. Mr Meikle, called by the Board, is a principal building surveyor in the audit branch of the Building and Energy Division of the Department of Mines, Industry Regulation and Safety. Mr Sherar, called by the applicants, holds the position of Executive Director Special Projects at JMG Building Surveyors. Both gentleman possess the relevant qualifications and experience to provide expert evidence. Both hold registration as building surveying practitioners, have appropriate qualifications and each have extensive experience as building surveyors.
Mr Meikle provided an expert witness statement and Mr Sherar provided a letter dated 3 September 2018 which contains his expert opinion. Mr Meikle and Mr Sherar provided concurrent evidence to the Tribunal where they were asked questions by the Tribunal and crossexamined by the parties.
The Tribunal finds that much of Mr Sherar's letter is irrelevant to the issue before the Tribunal. Further, the letter is somewhat partisan to the applicants' case and appears designed to support the applicants' submission that the onus is on the permit authority to check certified applications for building permits. Mr Sherar misunderstands the decision of the Tribunal in Miller when he quotes the submissions made by the Attorney General as intervenor which were expressly not accepted by the Tribunal in Miller.
Mr Sherar gave oral evidence that was more appropriately impartial. It was his view that, until recently in 2018, there had been no clear process or advice as to how private certifiers should seek approval of alternative solutions for private swimming pool barriers. However, Mr Sherar outlined an informal process that his firm went through with a separate permit authority where they wrote a covering letter to a CDC seeking approval. This letter clearly brought to the attention of the permit authority that the certifier, whilst they had signed the CDC, knew approval was required and they were seeking approval of an alternative solution swimming pool barrier.
Mr Meikle's view, in short, was that as the pool barrier doors were an alternative solution requiring approval of the permit authority under the Building Regulations, this approval must be sought prior to completion of the CDC. Mr Meikle's view is reasonable and well founded in fact and law. Mr Meikle's opinion accords with the evidence provided by Ms Scarce as well as the Tribunal's view of the legislative regime.
Consequently, to the extent that the opinions of Mr Meikle in any way differ with those of Mr Sherar, the Tribunal prefers the expert opinion of Mr Meikle.

Consideration

Ordinarily, the BCA allows for alternative solutions to be developed by certifiers to certify compliance with applicable building standards. In general, there is no obligation on a certifier to involve a permit authority in developing or approving a performance solution. A certifier would simply develop the solution and include the required detail of it in the CDC and attached documents, thereby certifying that the proposed solution would comply with the relevant standard. This is the usual process that the Tribunal outlined in Miller where it found that the permit authority retained a residual discretion to refuse a building permit if it formed a genuine belief that there was an error as to compliance. As suggested in Miller, if there remained a difference of opinion between the certifier and the permit authority, an avenue of review in the Tribunal is provided for under s 119 of the Building Act.
Where the facts of the present proceedings significantly differ from the usual process outlined above, and by the Tribunal in Miller, is that, when certifying a 'Building Code pool barrier requirement' (as defined in reg 3 of the Building Regulations), reg 50(1B) of the Building Regulations prohibits an alternative solution unless that alternative solution is an approved barrier solution. An 'approved barrier solution' is defined in reg 3 of the Building Regulations to mean an alternative solution that has been approved in accordance with reg 51 of the Building Regulations by the permit authority for the swimming pool.
The Tribunal finds that the operative effect of item (b) to the table in reg 31C(1) of the Building Regulations was that, unlike the case of any other alternative solution, a certifier must have approval from a permit authority for any alternative solution for a pool barrier before they could be in a position to certify in a CDC that the pool barrier will comply with the applicable standards.
Mr Greenwood submitted that, as they was no formal prescribed process for seeking approval, he considered the CDC to be the only avenue to make an application for approval of the pool barrier doors under reg 51 of the Building Regulations. Mr Greenwood was expecting the permit authority to revert to him or WABCA with any queries if the approval was not to be given. As found above, the Tribunal accepts this evidence as truthful of the state of mind of Mr Greenwood at the material time. However, we find that Mr Greenwood's state of mind is not based in reason nor logic in relation to the pre-requisite need for an approval by the permit authority. A CDC cannot, as a matter of fact and law (and common-sense) be an application for approval. A CDC is a certification that, if the work the subject of the building permit application is completed in accordance with the listed plans and specifications, it will be built to the applicable standard.
When Mr Geenwood stated that 'we need to provide a solution for the customer', it was revealed to the Tribunal that Mr Greenwood's perspective, and through him WABCA's, was not in proper alignment with the applicants' legislative obligations and duties.
Mr Greenwood and WABCA do not act for the client when completing a CDC under s 19 of the Building Act. Mr Greenwood and WABCA act under duties imposed on them by the Building Act as a registered building surveying practitioner and building surveying contractor respectively. Mr Greenwood nor WABCA can abrogate their duties and obligations in completing the CDC to the City with their unreasonable expectation, in fact and law, that the City will check the CDC. The applicants submit that the City has a duty to check their CDC when a swimming pool is involved. However, as expressly found in s 144 of the Building Act, the City does not have such a duty imposed on it.

The Tribunal finds that Mr Greenwood and WABCA have both failed to properly understand their significant duties and obligations as a registered building surveying practitioner and building surveying contractor respectively under the Building Act. The Tribunal finds that Mr Greenwood should not have made a declaration in the CDC and WABCA should not have issued the CDC in circumstances where it was known that the permit authority had not approved the pool barrier doors. Where the pool barrier doors had not been approved under the Building Regulations by the permit authority, there was nothing that could be certified in the CDC under s 19(3) of the Building Act in relation to the pool barrier doors meeting the applicable standard.
However, we do acknowledge that Mr Greenwood and through him, WABCA, did make some attempt to find out the appropriate process to seek approval under reg 51 of the Building Regulations by making enquiries with the permit authority and the Building Commission. Albeit, these attempts were ultimately insufficient and failed to properly comprehend what the permit authority meant when it advised WABCA to submit a 'design proposal'. It is abundantly clear to the Tribunal as a matter of fact and law that this general advice to submit a 'design proposal' could never reasonably be construed to be advice to make a declaration and issue a CDC. Where there was no formal prescribed process, the Tribunal considers a reasonable and logical approach would have been (prior to the completion of the CDC), to submit a design proposal consisting of a covering letter or email explaining the approval sought under reg 51 of the Building Regulations and the merits of the alternative solution proposed as well as attaching relevant plans and specifications of the type attached to the CDC.
We consider that the CDC could only be issued once approval was given by the permit authority of the alternative solution for the pool barrier doors. As similarly outlined in Miller at [36], if approval was not given by the permit authority for the pool barrier doors in circumstances where the building surveying practitioner remains of a different view to the permit authority, and should an owner wish to pursue such approval, that the avenue for doing so would be to lodge an uncertified application for a building permit. This would be expected to be refused by the permit authority and then a review could be sought in the Tribunal under s 119 of the Building Act.
Whilst we find that the conduct of Mr Greenwood and WABCA in relation to the CDC falls short of what should be done by a building surveying practitioner and building surveying contractor respectively, we consider that the facts as found by the Tribunal do not substantiate a finding of negligent or incompetent conduct in connection with the carrying out of a building service. Therefore, in applying the Briginshaw standard to the evidence presented, we find that the allegations made by the Board under s 53(1)(e) of the BSR Act against both Mr Greenwood and WABCA are not proven.
Whilst, the Tribunal does not find that Mr Greenwood sought to deliberately mislead the permit authority, we do find that he did engage in conduct that was in fact misleading to the permit authority. The CDC certifies, by way of declaration made by Mr Greenwood and issued by WABCA, that the pool barrier doors will be compliant with the applicable standard when built when they cannot possibly be as they were not an approved barrier solution under the Building Regulations. Mr Greenwood knew that an approval was required and he knew that the approval had not yet been given when he signed part six of the CDC which led to the issue of the CDC by WABCA. We find this conduct by Mr Greenwood to be misleading. Therefore, we find that the allegation made by the Board under s 53(1)(j)(ii) of the BSR Act against Mr Greenwood is proven to the requisite Briginshaw standard.
Mr Greenwood misled the permit authority by failing to take appropriate steps (for instance, by way of a covering letter requesting approval of the identified alternative solution) to clearly bring to the attention of the permit authority his mistaken understanding that the completed CDC was a form of application for approval of an alternative solution under the Building Regulations.
The respondent also alleges disciplinary matters exist of failing to properly manage and supervise a building service against Mr Greenwood under s 53(1)(g) of the BSR Act and failing to ensure that a building service has been properly managed and supervised against WABCA under s 53(1)(f) of the BSR Act. We concur with the respondent's submission that supervision in the relevant sense is not limited to the examination of the relevant documents. We find that proper supervision must necessarily extend to any processes the supervised building surveyor or other employee must engage in to reach necessary conclusions about compliance with applicable standards.
We find in all of the facts and circumstances that the allegation that Mr Greenwood has failed as a nominated supervisor under s 53(1)(g) of the BSR Act to properly manage and supervise a building service is proven to the requisite Briginshaw standard.
We also find in all of the facts and circumstances that the allegation that WABCA has failed as a building service contractor under s 53(1)(g) of the BSR Act to have adequate systems or processes in place to ensure that a building service carried out by WABCA has been properly managed and supervised is proven to the requisite Briginshaw standard.
Whilst we have found that Mr Greenwood's actions fall short of the standard expected of a building service practitioner and nominated supervisor (and those findings support our findings elsewhere in these reasons), we do find that these actions do not satisfy the criteria for negligence under the BSR Act. We find that Mr Greenwood's, and through him WABCA's, conduct was unsatisfactory, but not negligent. The unsatisfactory conduct was failing to adequately document an alternative solution for compliance of the pool barrier doors then apply for and obtain the approval of the permit authority prior to issuing the CDC. It is clear from Mr Greenwood's oral evidence that Mr Greenwood, and through him WABCA, considered documenting an alternative solution would not be as cost effective for the owners as simply completing the CDC and awaiting a request for further information from the permit authority. This approach by Mr Greenwood (and through him WABCA), whilst we find not to be negligent, does represent a misunderstanding of the applicants' individual roles and obligations under the Building Act when making a declaration under a CDC and the issue of the CDC by WABCA. This misunderstanding by Mr Greenwood, and through him WABCA, contributed to the other disciplinary matters that the Tribunal has found to exist.
When the Tribunal has found that disciplinary matters exist in relation to the applicants, the Tribunal may do one or more of the actions listed in s 58(1) of the BSR Act with regard to imposing a penalty.

Penalty general principles

The principles relevant to the determination of an appropriate penalty in the context of disciplinary proceedings under the BSR Act were succinctly set out in Building Services Board and West [2016] WASAT 143 at [8]-[9].
In short, the object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards, rather than to punish the person who is disciplined. Accordingly, the Tribunal needs to be satisfied that the penalty will achieve protection of the public both by reference to the specific effect of those penalties on the applicants, and also by reference to the general deterrent effect that the penalties will have with respect to other registered building service providers.
An interrelated list of considerations were previously identified by the Tribunal as being relevant to the imposition of penalty in Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) at [20].
The Tribunal notes the significant difference in maximum fine available in proceedings determined by the Board in comparison to the Tribunal. The maximum fine that can be imposed by the Board under s 57(2)(d) of the BSR Act is $5,000. Whereas, the maximum fine that can be imposed by the Tribunal under s 58(1)(i) of the BSR Act is $25,000. This difference is, in many respects, akin to a 'modified penalty' process incorporated into numerous legislation where people can choose to pay the modified penalty (i.e. an infringement notice) or litigate the alleged offence where higher penalties are available to be imposed by a decisionmaker if they are found to have breached the relevant law.
As noted above, these proceedings are review proceedings with the Tribunal determining the allegations afresh and is not bound, or limited, by the decision of the Board. The purpose of the review by the Tribunal is to make the correct and preferable decision at the time of the review. Therefore, in relation to the penalty imposed by the Board on both applicants, the Tribunal will set those to one side and determine itself within its applicable penalty provisions as to what the appropriate penalty will be.

Appropriate penalty

The Board submits that a fine is the appropriate penalty for both Mr Greenwood and WABCA. We agree with this submission.
Where the Tribunal has made findings in relation to Mr Greenwood under both s 53(1)(g) and s 53(1)(j)(ii), the Tribunal may impose a fine under s 58(1)(i) of the BSR Act not exceeding $25,000 for each finding, thereby totalling $50,000. As the conduct in both findings relates to the same series of events, the Tribunal considers that a global fine is appropriate in the circumstances.
Where the Tribunal has made a finding in relation to WABCA under 53(1)(f), the Tribunal may impose a fine under s 58(1)(i) of the BSR Act not exceeding $25,000. The Tribunal finds that, as the conduct in the findings against both Mr Greenwood and WABCA relate to the same series of events, that the fine imposed on Mr Greenwood should be commensurate with the fine imposed on WABCA.
Whilst Mr Greenwood may have misled the permit authority in making his declaration in the CDC and failed as a nominated supervisor to properly manage and supervise the building service, the WABCA also contributed significantly to the series of events by failing to ensure that the building service had been properly managed and supervised in that it failed to have procedures in place to seek approval of the permit authority for the pool barrier doors prior to issuing the CDC.
The misleading conduct engaged in by Mr Greenwood was not found by the Tribunal to be deliberate, however the Tribunal still considers specific and general deterrence to be a relevant factor in determining penalty. The object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards, rather than to punish the person who is disciplined. The Tribunal notes the importance that Parliament has placed in maintaining high standards in relation to pool barrier safety and the protection of young children from drowning as Parliament has chosen, unlike other alternative solutions under the BCA, to enshrine in legislation the requirement for approval of an alternative solution by the permit authority.
Mr Greenwood should not have made the declaration in the CDC and WABCA should not have issued the CDC prior to obtaining the approval of the alternative solution.
In the exercise of the Tribunal's discretion, the Tribunal considers that it is appropriate in the circumstances of this case, to impose a global fine in the amount of $4,000 on Mr Greenwood in relation to the two findings that disciplinary matters exist under both s 53(1)(g) and s 53(1)(j)(ii) of the BSR Act.
In the exercise of the Tribunal's discretion, the Tribunal considers that it is appropriate in the circumstances of this case, to impose a fine in the amount of $3,500 on WABCA in relation to the finding that disciplinary matters exist under s 53(1)(f) of the BSR Act.

Costs

The Board informed the Tribunal that it had expended approximately 87 hours on legal costs which, when applying the relevant scale, amounted to approximately $13,200. However, the Board only sought an order for its costs fixed in the amount of $3,000.
If they were unsuccessful in the review, the applicants agreed that the amount of costs sought by the Board are reasonable.
The Tribunal finds, in the exercise of its discretion to award costs, that the costs sought by the Board are reasonable in the circumstances. The Tribunal considers that it is reasonable to split those costs evenly between the applicants.

Orders

As the Tribunal has determined these disciplinary proceedings and made relevant findings differently than the Board, the Tribunal will set aside the decision of the Board and substitute its own decision as follows.
Accordingly, the Tribunal orders as follows:
1.Pursuant to s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal sets aside the decision of the Building Services Board on 10 April 2018 and substitutes its own decision as follows at orders 2 to 6.
2.The Tribunal finds that disciplinary matters exist in relation to each of the applicants in that:
(a)Pursuant to s 53(1)(j)(ii) of the Building Services (Registration) Act 2011 (WA) (BSR Act), Mr John Greenwood has engaged in conduct that was misleading in connection with the carrying out of a building service when he declared in a certificate of design compliance (CDC) that pool barrier doors would comply with applicable building standards in circumstances where he knew they were not compliant with the Building Code of Australia by way of a deemed to satisfy solution and he knew the pool barrier doors were not an approved barrier solution by the permit authority as required under reg 51 of the Building Regulations 2012 (WA).
(b)Pursuant to s 53(1)(f) of the BSR Act, as a building service contractor, Western Australia Building Certifiers and Assessors Pty Ltd (WABCA) failed to ensure that the building service had been properly managed and supervised.
(c)Pursuant to s 53(1)(g) of the BSR Act, as a nominated supervisor, Mr Greenwood failed to properly manage and supervise the building service carried out.
3.Within 14 days of the date of this order, pursuant to s 58(1)(i) of the BSR Act, Mr Greenwood is to pay the Building Commissioner a fine as a global penalty for his conduct referred to in order 2 in the amount of $4,000.
4.Within 14 days of the date of this order, pursuant to s 58(1)(i) of the BSR Act, WABCA is to pay the Building Commissioner a fine as a penalty for its conduct referred to in order 2 in the amount of $3,500.
5.Within 14 days of the date of this order, pursuant to s 87(2) of the SAT Act, the first applicant is to pay a contribution to the respondent's costs fixed at $1,500.
6.Within 14 days of the date of this order, pursuant to s 87(2) of the SAT Act, the second applicant is to pay a contribution to the respondent's costs fixed at $1,500.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
12 NOVEMBER 2018