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 not meet the prescribed standard about unsewered rural land. Over a year later, in May 2002, Mr Hans issued a complying development certificate in relation to the installation of lights on a tennis court in Kangaloon. To be a complying development the tennis court was not permitted to be illuminated.

3 Review of disciplinary findings. The Building Professionals Board, which regulates the activities of accredited certifiers, decided that the issuing of each of the complying development certificates constituted “unsatisfactory professional conduct”. The Board’s view at that time was that Mr Hans did not issue the certificates knowing that the developments were non-complying. Rather, he was careless. The Board reprimanded Mr Hans and ordered him to pay fines of $500, $1,000 and $500 respectively in relation to the Exeter, Bundanoon and Kangaloon properties. Mr Hans applied to the Tribunal for a review of these disciplinary findings: Building Professionals Act 2005, section 33. He agreed with the reprimands but said that the fines were harsh and unreasonable, serve no substantive purpose and relate to activities that took place several years ago. He said he has already been reprimanded and penalised in relation to 25 similar incidents, which occurred between 2003 and 2005. The Board says that the penalties were appropriate to the conduct in which Mr Hans had engaged.

Issues

4 No issue as to unsatisfactory professional conduct. The issue for determination is whether the Board’s disciplinary findings are the “correct and preferable” decisions: Administrative Decisions Tribunal Act 1998 (Tribunal Act), section 63. Because Mr Hans agreed to the reprimands, he has conceded that his conduct constituted unsatisfactory professional conduct. That is because the Board has no power to reprimand an accredited certifier unless it makes such a finding: Building Professionals Act 2005, section 31(4). When a concession of this kind is made the Tribunal should ordinarily accept it and there was no reason to question it in this case. The relevant principles in relation to accepting concessions were recently enunciated by the Supreme Court in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 (8 December 2006) at [57] to [59]. The only issue in dispute is whether the reprimands and the fines were the correct response to the Board’s finding of unsatisfactory professional conduct. Before considering that issue, we outline briefly below the nature of unsatisfactory professional conduct and make a formal finding in relation to Mr Hans’ conduct.

5 Unsatisfactory professional conduct. That term is defined in the (now repealed) section 109R of the Environmental Planning and Assessment Act 1979 as follows:

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.

6 The Board’s decision was that the conduct constituted unsatisfactory professional conduct as defined in paragraphs (a) and (e). In our view a member of the public is entitled to expect that an accredited certifier would have sufficient competence and diligence to understand the nature and extent of their role when issuing complying development certificates. We find in terms of (a) that Mr Hans’ conduct fell short of the ‘the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier’. Having made that finding, we do not need to consider whether it also contravened the Environmental Planning and Assessment Act 1979.

Previous proceedings

7 Tribunal’s decision. This is not the first time that Mr Hans’ conduct as an accredited certifier has been the subject of proceedings in this Tribunal. The Board applied to the Tribunal for a disciplinary order in relation to the issuing of 25 complying development certificates during the period from January 2003 to January 2005. Unlike the current proceedings in which Mr Hans applied to the Tribunal for a review of the merits of the Board’s decision, the previous proceedings involved an application by the Board to the Tribunal for an original decision. The Board said that the developments did not comply with the Wingecarribee Shire Council’s LEP, clause 6B(3)(i) relating to developments on unsewered rural land. At first instance, the Tribunal found Mr Hans guilty of unsatisfactory professional conduct, reprimanded him and imposed a fine of $2200. The Tribunal also ordered that for a period of one year Mr Hans’ accreditation should be subject to a prohibition on issuing complying development certificates: Building Professionals Board v Hans [2007] NSWADTAP 83. The Board appealed to the Appeal Panel against this decision on questions of law and also applied to introduce fresh evidence.

8 Appeal Panel’s decision. The Appeal Panel decided to extend the appeal to the merits of the Tribunal's decision and admit new evidence: Building Professionals Board v Hans (GD) [2008] NSWADTAP (12 March 2008). The Appeal Panel heard the merits of the proceedings a few days before the Tribunal heard the present matter. We agreed to delay handing down our reasons for decision until the Appeal Panel had determined the appeal as it related to similar conduct. The Appeal Panel handed down its decision on 29 July 2008: Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48. The Appeal Panel varied the Tribunal’s decision, finding that Mr Hans had engaged in professional misconduct, not merely unsatisfactory professional conduct. Professional misconduct was defined in section 109R of the Environmental Planning and Assessment Act 1979 to mean ‘conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or withdrawal of the accredited certifier’s accreditation’. The Appeal Panel reprimanded Mr Hans and increased the fine to a total of $11,000 for the 25 instances in which he had wrongly issued complying development certificates. The Appeal Panel did not place any conditions on Mr Hans’ certificate of accreditation nor did it suspend or cancel his accreditation. However, it was mindful of the existing conditions on his accreditation outlined below.

Current conditions on accreditation

9 With effect from 27 April 2007, the Board imposed a condition on Mr Hans’ certificate of accreditation. The condition was that that Mr Hans not issue complying development certificates. That condition came into effect on 27 April 2007. When issuing Mr Hans with an accredited certifier’s certificate covering the period from 8 February 2008 to 7 February 2009, the Board imposed the same condition. Mr Hans did not apply to the Tribunal for a review of either of these decisions and in those circumstances we have no jurisdiction to review them. When the current condition expires Mr Hans will have been unable to issue complying development certificates for 22 months.

Legal framework

10 Issuing complying development certificates. We repeat here the explanation of the legal provisions relating to complying development certificates that we outlined in our previous decision Building Professionals Board v Hans [2007] NSWADTAP 83, at [5]-[6]. The references to statutory provisions relate to the Environmental Planning and Assessment Act 1979:

5 A person wishing to erect a building or carry out other work such as installing a swimming pool, needs consent from a relevant authority before doing so: section 76A. In particular, if an environmental planning instrument, such as an LEP, provides that specified developments may not be carried out except with development consent, a person must obtain that consent before proceeding with the development: 76A(1). The Wingecarribee LEP provides that development in that shire will be a complying development if it meets certain standards, including the sewerage requirement: 76A(5). If the development is a complying development, an accredited certifier may issue a complying development certificate. If the development does not comply with all the standards, then the person seeking the consent must apply to the relevant council for development consent: section 76A(2). Council officers will then determine whether or not consent should be given.

6 Under section 85A(3) of the Act, when an accredited certifier receives an application for a complying development certificate, he or she must consider the application and determine:

(a) whether or not the proposed development is complying development, and

(b) whether or not the proposed development complies with the relevant development standards, and

(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.

11 Penalty provisions. Under section 31(4) of the Building Professionals Act 2005, if the Board finds that an accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, it may make any one or more of the following actions:

(a) caution or reprimand the accreditation holder,

(b) by order impose such conditions as it considers appropriate on the accreditation holder’s certificate of accreditation,

(c) order that the accreditation holder complete such educational courses as are specified by the Board,

(d) in the case of an accredited body corporate, order an accredited certifier who is a director or employee of the body corporate to complete such educational courses as are specified by the Board within the time specified by the Board,

(e) order that the accreditation holder report on his, her or its practice as an accredited certifier or building professional at the times, in the manner and to the persons specified by the Board,

(f) order the accreditation holder to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order,

(g) order the accreditation holder to pay to the complainant such amount (not exceeding $20,000) as the Board considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,

(h) suspend the accreditation holder’s certificate of accreditation for such period as the Board thinks fit,

(i) cancel the accreditation holder’s certificate of accreditation,

(j) disqualify the accreditation holder from being an accredited certifier director of, or otherwise being involved in the management of, an accredited body corporate or a specified accredited body corporate for such period (including the period of his or her lifetime) as may be specified by the Board,

(k) in the case of an accredited body corporate, disqualify an accredited certifier director of the body corporate from being an accredited certifier director of, or otherwise involved in the management of, the body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, but only during any period when the body corporate holds a certificate of corporate accreditation,

(l) order that the accreditation holder cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Board,

(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.

12 In Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48 the Appeal Panel summarised the main principles in relation to penalties in disciplinary proceedings at [155] to [156]:

155 As was said in the Tribunal’s judgment at [28], ‘the purpose of disciplinary proceedings is protection of the public, not to punish the person concerned, in a criminal sense’. This is a well-recognised principle. But it is also well recognised that deterrence, specific and general, is an objective of both punishment in criminal proceedings and the imposition of penalties in disciplinary proceedings. From the point of view of the respondent practitioner, such penalties may well ‘feel like’ punishment. But it does not follow that they should not be imposed in the interests of protecting the public.

156 As the Tribunal pointed out in Stapleton at [67], the ‘public’, in the context of disciplinary proceedings against accredited certifiers, is a ‘wide conception’, including ‘the local community directly affected by a development’ and the ‘wider community which has an interest in the general amenity of the community as well as the maintenance of consistent standards across the community’. We would add, for reasons just discussed, that ‘the public’ should be taken to include the present and future clients of accredited certifiers.

Appropriate penalty – unsewered rural land

13 Background. Mr Hans was reprimanded and fined $500 in relation to the issuing of a complying development certificate for the Bundanoon property and $1,000 in relation to the Exeter property. We understand that the $1,000 in relation to the Exeter property was comprised of $500 for the breach relating to unsewered rural land and $500 for breach of the single-storey standard. The Board’s decision to fine Mr Hans in relation to the unsewered rural land condition was made prior to the Appeal Panel’s decision to fine him a total of $11,000 for issuing 25 complying development certificates in breach of that condition. Those fines related to a more serious finding of professional misconduct. The Board submitted that the Tribunal should take into account the Appeal Panel’s findings when determining the appropriate penalty in this case.

14 The unsewered rural land condition. Clause 6B(3)(i) of the LEP states that:

Development is not complying development if it is carried out on land that:

(i) is not serviced by a reticulated sewerage scheme, or is unsewered land within a special area of hydrological catchment within the meaning of State Environmental Planning Policy No. 58 – Protecting Sydney’s Water Supply.

15 The aims of the State Environmental Planning Policy No. 58 (SEPP 58) are set out in Clause 3:

(a) to ensure that development in the hydrological catchment from which Sydney draws its drinking water supply does not have a detrimental impact on water quality, and

(b) to provide ... a concurrence or notification role for the Director-General of the Department of Urban Affairs and Planning in relation to development in the hydrological catchment that is likely to have an impact on water quality, and

(c) to ensure that there is a consistent approach to the assessment and control of development in the hydrological catchment that is likely to have an impact on water quality.

16 Clause 8 of SEPP 58 states that certain categories of development defined in Schedules 1 and 2 were not to be carried out without the consent of the ‘consent authority’, that is ‘the relevant council’.

17 Evidence. Although the issuing of the complying development certificates in relation to the Exeter and Bundanoon properties (on 5 and 26 March respectively) were not in issue before the Appeal Panel, the Panel examined what happened after the certificate in relation to the Bundanoon property was issued. The Appeal Panel’s summary of this evidence at [17] to [27] is also relevant in these proceedings:

17 At some time before 9 April 2001, Mr Hans issued a complying development certificate for the construction of a dwelling on a property owned by Mr and Ms Bargon at Bundanoon, within the area of the Wingecarribee Shire Council (hereafter ‘the Council’).

. . .

19 In a letter to Mr and Ms Bargon dated 9 April 2001, the Director, Environment and Planning, of the Council referred to their application to install a septic tank on their property. After mentioning various regulations, including the SEPP and the Wingecarribee LEP, he advised that no valid consent for the dwelling had been issued and that development consent by the Council was required. A copy of this letter was sent to Mr Hans.

20 On 10 April 2001, Mr Hans wrote three letters in broadly similar terms, to the General Manager of the Council (Mr D J McGowan), the Department of Local Government and the Ombudsman respectively. He sent copies of these letters to Mr and Ms Bargon.

21 These three letters were headed ‘Complaint of unfair treatment by Wingecarribee Shire Council’. Having referred to the Council’s letter of 9 April 2001 (a copy of which he enclosed), Mr Hans requested an investigation of ‘the motives of the Council’ (or, in the case of the letter to the Council, of ‘the motives of’ a named officer). He stated that he had issued a complying development certificate for the erection of a dwelling, that there were no grounds for assuming that the development posed a risk to the environment or to public health and that Nolan & Associates Pty Ltd, an ‘accredited water management expert’, had conducted a water cycle management study of the site and had reported that the site met all the statutory requirements. He then claimed that the Council should ‘simply process the Septic Tank Application, as there are no ground to suggest any threat to public health or the environment’. He added: ‘Is it because the Complying Development Certificate has been issued by an Accredited Private Certifier, and not the Council, that the Septic Tank Application is being obstructed?’

22 On 11 April 2001, Mr and Ms Bargon wrote to Mr McGowan complaining about the stance adopted by the Council in its letter to Mr Hans and asking him to intervene in their favour in resolving the issue.

23 On or soon after 13 April 2001, Mr Hans faxed to the Sydney Catchment Authority (‘the SCA’) a letter, which after referring to a prior telephone conversation with an officer of the Authority, said: ‘It is requested that an effluent disposal system be assessed for your concurrence, as a Complying Development Certificate has already been issued for the erection of a dwelling.’ The letter enclosed a water management study prepared by Nolan & Associates Pty Ltd, consultant geologists, relating to the property owned by Mr and Ms Bargon at Bundanoon.

24 By a letter dated 17 April 2001, the Manager, Development Control, of the SCA replied to Mr Hans. The letter stated:

It is understood that you have issued a Complying Development Certificate for a dwelling on the property. However, the authority considers that this Certificate would not be legal under the Environmental Planning and Assessment Act as the property is unsewered rural land within one of Sydney’s hydrological catchments and, as such, development for residential purposes is subject to State Environmental Planning Policy Number 58 – Protecting Sydney’s Water Supply. Any development subject to SEPP 58 cannot be processed under the Complying Development provisions of Wingecarribee Council’s Local Environment Plan. Nor can the Authority consider any water cycle management proposal that has not been processed under the appropriate provisions of the LEP and the SEPP.

In the circumstances, it is recommended that a development application be lodged with Wingecarribee Council. This application should be accompanied by a copy of the wastewater management study prepared by Nolan & Associates Pty Ltd to assist Council and the Authority in assessing the likely impact of the development against the provisions of SEPP 58.

25 In a letter dated 20 April 2001, Mr Hans advised Mr and Ms Bargon that they should submit a new development application to the Wingecarribee Council and that their septic tank application would be processed together with this new application. Mr Hans expressed his regret at the inconvenience caused to them and enclosed a cheque refunding fees that they had paid to him.

26 In a letter to Mr Hans, also dated 20 April 2001, Mr McGowan, after referring to Mr Hans’s letter of 10 April, conveyed his understanding that ‘the issues raised in your correspondence have been explained to you and your client and now the matter has been resolved’.

27 In a letter to Mr Hans dated 2 May 2001, an Investigation Officer employed by the Ombudsman, after referring to his letter of 10 April 2001, indicated that the Council had advised that a development application was required for the dwelling on the property in question. The letter went on to say that the subject land was unsewered and within the catchment area, that the writer was aware of the relevant provisions of SEPP and the LEP and that, following a meeting between officers of the Council and the owners of the land, a development application had been lodged and would be assessed by the Council. The letter concluded: ‘The actions of the Council accord with its statutory responsibilities and in the circumstances no further action will be taken on your complaint.’

18 Although this chronology relates to the Bundanoon property, Mr Hans would have been mindful that he had issued a complying development certificate in very similar circumstances in relation to the Exeter property.

19 Appeal Panel’s findings. We set out below the Appeal Panel’s reasoning and conclusion in relation to the penalty that should be imposed having found Mr Hans guilty of professional misconduct:

159 In relation to these questions, Mr Hans submitted that, since the time when he obtained legal advice in January 2007, he has fully understood why his issuing of complying development certificates in breach of clause 6B(3)(i) of the LEP was wrongful and has regretted having acted in this way. But we agree with Mr Chin that Mr Hans ’s continued assertion that he ‘misinterpreted’ the legislation betrays a reluctance to come to terms with what we have held to be wilful behaviour in disregarding the express words of the clause and ignoring the official pronouncements as to how it affected his activities as an accredited certifier. By claiming in his submissions to us that until he obtained legal advice he considered himself entitled to act as he did because there was at the time no ‘authoritative’ interpretation of the clause, and by ascribing his actions to ‘misinterpretation’, he has endeavoured, it would seem, to depict the clause as one whose scope of operation has been difficult to determine. But this is not at all the case. The applicability of the clause to the developments which Mr Hans purported to certify is quite evident from its wording.

160 In this connection, we agree with Mr Chin that Mr Hans ’s attempt to justify his wrongful issuing of certificates by claiming that the Council did not provide adequate maps showed that at this earlier stage also he did not want to come to terms with the matters raised by the complaint against him. It was a lame and unconvincing excuse, for which (to his credit) he expressed regret during the appeal hearing.

161 In our opinion, the fact that Mr Hans, during 2006, issued five more complying development certificates in breach of clause 6B(3)(i) does not, in itself, count heavily against him. It simply shows that during this period he did not change his attitude regarding his authority to do so. The more significant aspect of his behaviour at this time was, for reasons already explained, his delay in seeking legal advice.

162 However, his issuing of these certificates (as well as his wrongful issuing of five certificates in 2001-02) did provide the basis for events which we must take into account, namely, the Board’s decisions, on 27 April 2007 and 8 February 2008 respectively, to impose and to renew a condition on his certificate of accreditation prohibiting him from issuing complying development certificates for periods of one year. These disciplinary measures form part of his disciplinary history.

163 We take into consideration, as we must, the impact that any order that we make is likely to have on Mr Hans ’s economic circumstances and those of his family and his firm. But even if these consequences were serious, and were such as to ‘feel like’ punishment, this would not be enough to debar us from imposing the penalty or penalties that we believed to be appropriate.

164 While noting the competing evidence and submissions put forward by the Board, we accept Mr Hans ’s evidence (outlined above at [56]) that certifications have represented the bulk of the work conducted by Advanced Building Certifiers and that he has been the person responsible for them. It follows that the restriction imposed on his accreditation by the Tribunal, prohibiting him from issuing complying development certificates between April 2007 and April 2008, has had a serious impact upon the firm’s business. The same must be said of the restriction that the Board subsequently imposed. This restriction has effect until February 2009.

165 We also take into account the strain imposed on Mr Hans by these proceedings, which for reasons outlined above have been unusually prolonged.

166 In the light of all these matters, we have determined that, despite our conclusion that the matters pleaded and proved against Mr Hans in these proceedings warranted a finding of professional misconduct by him, the public interest considerations that must guide our decision on penalty do not call for his accreditation to be cancelled or suspended, or indeed for any further restriction to be placed on his accreditation. When the restriction currently in force expires in February 2009, he will have been prohibited from issuing complying developing certificates for some 22 months. It is to be hoped that his future conduct in this regard will not necessitate any further restriction of this nature.

167 We consider, however, that in addition to the reprimand ordered by the Tribunal, he should be required to pay a significantly larger fine than the fine of 20 penalty units ($2,200) imposed by the Tribunal.

168 The maximum fine permitted by section 34 of the BP Act is 1,000 penalty units ($110,000). In our judgment, the appropriate fine in the present circumstances is 100 penalty units ($11,000).

20 Submissions. Mr Hans’ submission in relation to penalty can be summarised as follows:

(a) he had only been an accredited certifier for about a month when he issued these certificates and he was under a misconception at that time that any development could be approved by way of a complying development certificate. In relation to the meaning of the unsewered rural land condition, he thought that the management of effluent would be assessed under a septic tank application lodged after the issuing of the complying development certificate;

(b) no harm resulted from the issuing of the complying development certificates and council subsequently approved a development application for the construction of the house at Bundanoon;

(c) he has already been reprimanded and fined by the Tribunal (the penalty has now been increased by the Appeal Panel) in relation to the issuing of 25 complying development certificates in similar circumstances; and

(d) any further monetary penalty would have an adverse effect on his business and on his ability to provide for himself and his family.

21 Knowledge and understanding of the condition. The Appeal Panel has rejected Mr Hans’ assertion that it was not until he obtained legal advice in 2007 that he became aware that if developments did not comply with the standards, development consent from the Council was required. We agree with that conclusion. The Appeal Panel found at [82] that:

In our judgment, there is a clear preponderance of evidence to show that during the relevant period (January 2003 to January 2005), Mr Hans knew what clause 6B(3)(i) of the LEP required him to do when a client was seeking the requisite consent, approval or certification for a development falling within its terms. He knew that the clause, in its ‘literal’ meaning, excluded such a development from the complying development provisions of the EP Act. He knew also that, even if it was a ‘minor’ development (such as the construction of a shed) that posed no risk to the Sydney hydrological catchment, there was no express provision in SEPP 58 or in any other legislative or regulatory provision bearing on the matter, that overrode clause 6B(3)(i) or in any other way prevented it from being operative. He knew in addition that the opinions expressed by officers at different levels of three relevant government authorities – the Council, Planning NSW and the SCA – were unanimously to the effect that he was bound to abide by the terms of clause 6B(3)(i), as ‘literally’ interpreted.

22 This finding does not relate to the period in March 2001 before Mr Hans received correspondence from any government authority about the scope of his powers as an accredited certifier. The earliest correspondence Mr Hans received on this subject was on 17 April 2001 from the Sydney Catchment Authority. The most significant piece of evidence in relation to Mr Hans’ state of mind when he issued the certificates on 5 March and 26 March 2001 is his letter of complaint of “unfair treatment” by the Council dated 10 April 2001. His view at that time was that the development posed no threat to public health or the environment. He asked rhetorically whether the application for the Septic Tank had been “obstructed” because the complying development certificate had been issued by an Accredited Private Certifier and not the Council. Although both Council officers and accredited certifiers are authorised to issue complying development certificates, it is apparent from this comment that Mr Hans felt that if the owners had applied to the Council a complying development certificate would have been issued. In our view, Mr Hans understood the nature and extent of his role as an accredited certifier but was not happy with the limited role that he was permitted to play. He saw council officers as having more discretion and flexibility than accredited certifiers and believed he should have the authority to assess the impact of developments and determine, as a matter of principle, whether complying development certificates should be issued. Mr Hans’ relatively short experience as an accredited certifier does not explain his conduct. The accreditation scheme had been in operation for 3 years in 2001 and Mr Hans had had previous experience as a Council officer himself.

23 Harmful effect. There was no evidence of any harmful effect on the environment as a result of Mr Hans’ decisions. The only adverse effect was on Mr Hans’ clients who were wrongly issued with complying development certificates in circumstances where they needed to apply to the council for development consent. In relation to the Bundanoon property, council subsequently granted development consent but only because the matter came to council’s attention through the process of applying for approval for the septic tank. In Minister for Infrastructure and Planning v Conway (No 2) [2004] NSWADT 159, [66] - [69] the Tribunal found an accredited certifier guilty of professional misconduct on the ground that he had issued certificates when fire safety conditions had not been satisfied. It was significant to the Tribunal’s decision that issuing the certificate exposed the public to lower standards of fire safety than the legislature had deemed appropriate for such premises. In Building Professionals Board v Cogo [2008] NSWADT 119, the Tribunal also took into account that at [58], ‘no harm of any great significance’ resulted from this conduct of the respondent.

24 Previous penalty. As detailed above, the Appeal Panel found Mr Hans guilty of professional misconduct, reprimanded him and fined him a total of $11,000 in relation to the issuing of 25 complying development certificates. At the time these certificates were issues Mr Hans had been told by the relevant authorities that his role was not as he had represented it to be. The Appeal Panel viewed Mr Hans’ conduct as a whole rather than fining him for each individual breach. Mr Hans is also subject to a condition that he not issue complying development certificates until February 2009.

25 Economic effect. We also need to take into account the effect of any further fines on Mr Hans’ economic circumstances and those of his family and his firm. We adopt the findings of the Appeal Panel at [164] that certifications have represented the bulk of the work conducted by Mr Hans’ firm and that he has been the person responsible for that work. The condition imposed by the Board has had, and will continue to have, a serious impact on the firm’s business. When that condition expires in February 2009, Mr Hans will have been unable to issue complying development certificates for over 22 months.

26 Conclusion. Taking into account all the evidence and submissions, in our view, while a reprimand is appropriate, it is not appropriate to impose a further fine on Mr Hans in relation to conduct which is less serious than the conduct for which he has already been fined a total of $11,000. Had the Appeal Panel also had before it the two complying development certificates in relation to the Bundanoon and Exeter properties, we consider it unlikely that an additional amount of $1,000 would have been imposed. Mr Hans should not be disadvantaged by the fact that the Board has brought separate proceedings at this stage in relation to incidents that occurred in 2001. The interests of the public have been protected by the fine already imposed for more serious conduct and by the fact that a condition has been imposed on Mr Hans’ accreditation that he not issue complying development certificates until February 2009.

Appropriate penalty - single storey standard

27 Background. Mr Hans was reprimanded and fined $500 (half of the $1,000 amount) for issuing a complying development certificate in relation to the two-storey extension of the home in Exeter. The Board has imposed a condition that Mr Hans not issue complying development certificates until February 2009.

28 Single storey standard. Clause 6B(2)(b) of the Council’s LEP states that development is complying development if “it will comply with the requirements and achieves the outcomes listed under the heading “Development standards” in Schedule 8 for the development.” Schedule 8 permits “single storey alterations and additions to a detached single storey dwelling house . . .”

29 Evidence and submissions. Mr Hans’ submission in relation to penalty can be summarised as follows:

(a) he had only been an accredited certifier for about a month when he issued this certificate he was not required to undergo any particular training before becoming and accredited certifier; he said that he had formal training as an Environmental Health and Building Surveyor from 1976 to 1979;

(b) while he had a cursory look at the LEP he was not very familiar with it; his focus was on evaluating the site and determining the effect of the addition on the street scape; the extensions were only 1/5 of the size of the existing house and were set back over 60 meters from the road; (he tendered a photograph taken in March 2008 from the roadside which showed that the house was totally obscured from view by trees);

(c) no harm resulted from the issuing of the complying development certificate;

(d) any further monetary penalty would have an adverse effect on his business and on his ability to provide for himself and his family.

30 Knowledge and understanding of the condition. The relevant provisions in the LEP in relation to single-storey dwellings are unambiguous. Despite the lack of any specific training Mr Hans referred to the LEP and could have had no doubt that a complying development certificate could not be issued in relation to two storey dwellings. The impact of the development was not his concern and he should have been well aware that his role was limited to determining whether or not the development complied with the LEP.

31 Harmful effects. Mr Hans’ decision to issue the complying development certificate put his clients in the position of having to lodge a development application or taking the risk of proceeding with a development for which they lacked legal authorisation.

32 Economic effects. We need to take into account the effect of any fine on Mr Hans’ economic circumstances and those of his family and his firm. We adopt the findings of the Appeal Panel at [164] that certifications have represented the bulk of the work conducted by Mr Hans’ firm and that he has been the person responsible for that work. The condition imposed by the Board has had, and will continue to have, a serious impact on the firm’s business.

33 Conclusion. The issuing of this certificate discloses a fundamental disregard for the unambiguous provisions in the LEP. As far as we are aware no penalty has previously been imposed on Mr Hans for a similar matter. Despite the existing condition on Mr Hans’ accreditation, the protection of the public warrants a reprimand and a fine of $500 so that accredited certifiers are deterred from engaging in such conduct.

Appropriate penalty - illumination standard

34 Background. In May 2002, Mr Hans issued complying development certificates for alterations to a tennis court despite the fact that to be a complying development the tennis court was not permitted to be illuminated. He placed a condition on the consent that it not cause a nuisance to neighbouring properties. Mr Hans was reprimanded and fined $500 for issuing this certificate. The Board has imposed a condition that Mr Hans not issue complying development certificates until February 2009.

35 Illumination standard. The Council’s Development control Plan 44 permits complying development certificates in respect of certain developments, subject to certain restrictions including:

Group E: Recreational facilities- tennis courts

Privacy and security

The tennis court is not illuminated.

36 Evidence and submissions. Mr Hans’ submission in relation to penalty can be summarised as follows:

(a) Mr Hans said that he read the LEP but he did not see the provision relating to lighting. He said he overlooked that particular clause in the LEP although he was aware that lighting was an issue. He took into consideration the design of the lighting which was concentrated onto the tennis court with minimal spill onto adjacent properties. He said he did not realise that he had no authority to impose the condition that the lighting be operated in a manner that would not cause any nuisance to adjoining properties;

(b) no harm resulted from the issuing of the complying development certificate;

(c) any further monetary penalty would have an adverse effect on his business and on his ability to provide for himself and his family.

37 Knowledge and understanding of the condition. The complying development certificate was issued in May 2002 when Mr Hans should have been well aware of the nature and scope of his role as an accredited certifier. It is fundamental when issuing complying development certificates that an accredited certifier reads the relevant standards and conditions.

38 Harmful effects. Mr Hans’ decision to issue the complying development certificate with a condition that he did not have power to impose, put his clients in the position of having to lodge a development application or take the risk of proceeding with a development for which they lacked legal authorisation.

39 Economic effects. We need to take into account the effect of any fine on Mr Hans’ economic circumstances and those of his family and his firm. We adopt the findings of the Appeal Panel at [164] that certifications have represented the bulk of the work conducted by Mr Hans’ firm and that he has been the person responsible for that work. The condition imposed by the Board has had, and will continue to have, a serious impact on the firm’s business.

40 Conclusion. By May 2002, the Sydney Catchment Authority, the Council and the Ombudsman had all written to Mr Hans clarifying his role as an accredited certifier. The issuing of this certificate discloses a fundamental disregard for the unambiguous provisions in the LEP. As far as we are aware no penalty has previously been imposed on Mr Hans for a similar matter. The protection of the public warrants a reprimand and a fine of $500 so that accredited certifiers are deterred from engaging in such conduct.

41 Time to pay. The Board gave Mr Hans 1 month to pay the fines. In view of the fact that Mr Hans has recently had to pay fines of $11,000, we consider it appropriate to give him 3 months to pay.

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.