Hans v Building Professionals Board - [2008] NSWADT 285

CITATION: Hans v Building Professionals Board [2008] NSWADT 285

DIVISION: General Division

PARTIES:
APPLICANT
Anthony Hans
RESPONDENT
Building Professionals Board

FILE NUMBER: 073357

HEARING DATES: 16 May 2008

SUBMISSIONS CLOSED: 29 July 2008

DATE OF DECISION:
21 October 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Friedmann P - Non-Judicial Member

CATCHWORDS: Application for review of a disciplinary finding - accredited certifier

MATTER FOR DECISION: Principal Matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Environmental Planning and Assessment Act 1979

CASES CITED: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 (8 December 2006)
Building Professionals Board v Hans [2007] NSWADTAP 83
Environmental Planning and Assessment Act 1979
Building Professionals Board v Cogo [2008] NSWADT 119

REPRESENTATION:
APPLICANT
In person
RESPONDENT
A Grey, solicitor

ORDERS: The Tribunal sets aside the Board’s decisions and makes the following decisions in substitution for those decisions:
1. In relation to the Kangaloon property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months the sum of $500
2. In relation to the Exeter property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months, the sum of $500
3. In relation to the Bundanoon property, Mr Hans is reprimanded.

Introduction

1 Accredited certifiers. Mr Hans became an accredited certifier on 7 February 2001, three years after the accreditation scheme was introduced. The scheme permits an accredited private sector professional to be the certifying authority in certain cases which had previously been dealt with to a large extent by councils. Accredited certifiers are authorised, among other things, to issue what are known as “complying development certificates”. These certificates allow developments, which comply with prescribed standards and conditions, such as the construction or extension of a house or the building of a shed, garage or tennis court, to go ahead. Accredited certifiers (and council officers) can only issue complying development certificates if the development is a “complying development”, that is, if it complies with certain prescribed standards and conditions. If the development does not comply with all those standards and conditions it is not a “complying development” and the owner must apply to the Council for development consent before going ahead with the development.

2 Mr Hans’ conduct. On 5 March 2001, a month after becoming an accredited certifier, Mr Hans issued a complying development certificate for extensions to a home in Exeter. The extensions did not comply with each of the prescribed standards and conditions in the Wingecarribee Shire Council’s Local Environmental Plan 1989 (LEP). The LEP provides that a development is not a “complying development” if it is (in summary) on unsewered rural land: Clause 6B(3)(i). In addition, the extensions resulted in a two storey dwelling which meant that it was not a complying development as the LEP allowed only single storey additions: Clause 6B(2)(b) and Schedule 8. Three weeks later, Mr Hans issued a complying development certificate for the construction of a single storey house on land in Bundanoon, which, again, did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hans v Building Professionals Board

Details

AGLC: Hans v Building Professionals Board [2008] NSWADT 285
Case: [2008] NSWADT 285
Decision Date: 21 October 2008

CaseChat Overview and Summary

Hans v Building Professionals Board is a case concerning an application for review of a disciplinary finding against Mr Hans, an accredited certifier, by the Building Professionals Board. The dispute primarily revolves around three separate instances of alleged misconduct by Mr Hans in relation to the Kangaloon, Exeter, and Bundanoon properties. The case was heard by the relevant tribunal in Australia.

The central legal issues that the court was required to decide involved whether Mr Hans's conduct constituted misconduct or unsatisfactory professional conduct as defined by the Building Professionals Act. The tribunal had to consider the evidence presented, the applicable laws, and the Board's findings in relation to each property. The court was also required to determine whether the penalties imposed by the Board were appropriate and whether any alternative or additional penalties were warranted.

In its decision, the tribunal found that Mr Hans's conduct did amount to misconduct or unsatisfactory professional conduct in relation to the Kangaloon and Exeter properties. However, it determined that the penalties imposed by the Board were excessive. Consequently, the tribunal set aside the Board's decisions and made its own decisions in substitution. For the Kangaloon and Exeter properties, the tribunal ordered Mr Hans to be reprimanded and to pay a fine of $500 within three months for each property. In relation to the Bundanoon property, the tribunal found that Mr Hans's conduct did not amount to misconduct or unsatisfactory professional conduct, and therefore only imposed a reprimand.

In summary, the tribunal set aside the Board's decisions and made its own decisions in relation to the three properties, finding misconduct or unsatisfactory professional conduct in relation to two of the properties and imposing penalties accordingly.

Orders

Orders of the court

The Tribunal sets aside the Board's decisions and makes the following decisions in substitution for those decisions: 1. In relation to the Kangaloon property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months the sum of $500 2. In relation to the Exeter property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months, the sum of $500 3. In relation to the Bundanoon property, Mr Hans is reprimanded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hans v Building Professionals Board [2008] NSWADT 285
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Hans RESPONDENT Building Professionals Board
FILE NUMBER:	073357
HEARING DATES:	16 May 2008
SUBMISSIONS CLOSED:	29 July 2008
DATE OF DECISION:	21 October 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Friedmann P - Non-Judicial Member
CATCHWORDS:	Application for review of a disciplinary finding - accredited certifier
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979
CASES CITED:	University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 (8 December 2006) Building Professionals Board v Hans [2007] NSWADTAP 83 Environmental Planning and Assessment Act 1979 Building Professionals Board v Cogo [2008] NSWADT 119
REPRESENTATION:	APPLICANT In person RESPONDENT A Grey, solicitor
ORDERS:	The Tribunal sets aside the Board’s decisions and makes the following decisions in substitution for those decisions: 1. In relation to the Kangaloon property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months the sum of $500 2. In relation to the Exeter property, Mr Hans is reprimanded and ordered to pay to the Board within 3 months, the sum of $500 3. In relation to the Bundanoon property, Mr Hans is reprimanded.