James v Building Professionals Board

[2010] NSWADT 154

CITATION:	James v Building Professionals Board [2010] NSWADT 154
DIVISION:	General Division
PARTIES:	APPLICANT Raymond Wallace James RESPONDENT Building Professionals Board
FILE NUMBER:	093267
HEARING DATES:	26 February 2010
SUBMISSIONS CLOSED:	26 February 2010
DATE OF DECISION:	21 June 2010
BEFORE:	O'Connor K - DCJ (President); Hayward P - Non-Judicial Member
CATCHWORDS:	Accredited Certifier – Renewal of Accreditation subject to conditions – Application for review – Renewal decision affirmed
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ombudsman Act 1974
REPRESENTATION:	APPLICANT In person RESPONDENT A Grey, legal officer
ORDERS:	Decision under review affirmed

1 The Building Professionals Board is established by the Building Professionals Act 2005 (BP Act). It deals with the accreditation and discipline of private certifiers. By original decision made 11 August 2009, and affirmed after internal review on 9 September 2009, the Board renewed Mr James’ accreditation for the year 2009-2010 – building surveying grade 1 (A1), and made it subject to the same 5 conditions that had been imposed on his previous accreditation.

2 Mr James now applies under s 18 for review of that decision, with a view to the Tribunal setting aside the Board’s decision and substituting a decision that he be granted an unconditional accreditation. The Board opposes the application.

3 He has held accreditation as a private certifier since 2002, at the grade 2 level under the old scheme, and at the A1 level with conditions since the new scheme commenced in 2007.

4 Condition 1 restricts his area of practice. It prevents him from certifying alternative solutions involving fire safety in relation to class 2 to 9 buildings. These classes cover all buildings except simple dwellings (class 1) and ancillary structures (such as sheds, pergolas etc, class 10).

5 Conditions 2 to 5 go to integrity concerns, and have as their background a disciplinary order made against Mr James some years ago. See further the last part of these reasons.

6 The terms of the five conditions are:

1. The accredited certifier must not issue certificates for class 2 to 9 buildings where an alternative solution involving fire safety is proposed to achieve compliance with the relevant performance requirements of the Building Code of Australia.

2. Certifiers accredited under Building Professionals Act 2005 (BP Act) must at all times adhere to the requirements and principles outlined in:

(a) Sections 66, 67, 68, 69 and 70 of the BP Act.

(b) The Independent Commission Against Corruption Act 1988, particularly in relation to the definition and roles of public officials.

(c) The Ombudsman Act 1974 particularly in relation to the definition and roles of public authorities.

(d) Practice Note “When is There a Conflict of Interest for an Accredited Certifier” (DIPNR, August 2001).

(e) “Strategies for Preventing Corruption in Government Regulatory Functions” (ICAC, March 1999).

(f) “Public Sector Agencies Fact Sheet No 3 – Conflict of Interest” (NSW Ombudsman, July 2003).

3. Only be appointed to act as the principal certifying authority (PCA) by the land owner/s or the person/s with the benefit of the development consent.

4. When acting as a PCA or accredited certifier for a particular development, in relation to that development, only:

(a) Determine applications for Part 4A Certificates;

(b) Determine applications for complying development certificates;

(c) Accept appointment as the PCA;

(d) Carry out inspections, including mandatory critical inspections;

(e) Issue notices requiring work to be carried out; and

(f) Liaise with the consent authority, the local council and the public on matters pertaining to the development.

(g) Carry out any further functions as required, to fulfil his statutory obligations as an accredited certifier or PCA for the particular development.

For the purpose of this document, (a) & (g) above are referred to as “certification work”.

5. Not provide additional advice or services (“consultancy work”) in relation to a particular development for which he is the PCA or is acting in the capacity of an accredited certifier. This includes:

(a) Administrative assistance such as:

(i) Designing and/or preparing plans or specifications;

(ii) Signing or preparing the application for Development, Construction or Occupation certificates; and

(iii) Collecting and/or paying development application fees and long service levy payments.

(b) Design of solutions for particular non-compliance issues with respect to the Building Code of Australia, the development consent, construction certificate and/or applicable regulations.

Application for Review

7 Mr James applied to the Tribunal for review on 14 October 2009. In the application Mr James criticised the Board’s decision in these respects:

- Not adequately addressing his experience.

- Not taking a holistic view of his recent practical experience in relation to administrative solutions involving fire safety. In particular it does not acknowledge the methodology and approach to fire upgrading assessment of buildings and its relationship to performance based solutions.

- Not acknowledging the purpose and value of ‘continuing professional development’.

- Not acknowledging the current minimum industry standard for years of experience in assessment of fire-engineered alternative solutions and is thereby needlessly discriminatory.

- Failing to deal with the need for or purpose of imposing conditions 2, 3, 4 and 5.

8 The Tribunal heard Mr James’ application on 26 February 2010. The Tribunal was constituted for the purpose by a presidential judicial member and a non-judicial member with special expertise, Mr Philip Hayward, a registered surveyor of standing with relevant experience in the issues raised by the case.

9 The fundamental dispute in this case is over the imposition of Condition 1. We will deal with that dispute first, and turn later to the case as it relates to Conditions 2 to 5.

Condition 1 and the Experience Requirement

10 The Board publishes from time to time its Accreditation Scheme, and does so pursuant to the BP Act. The Scheme requirements, as at November 2009, were placed before the Tribunal (see Mr Halstead’s statement, tab G). The Scheme provides for 18 categories of accreditation, divided by the letters A, B, C and D. Category A covers the building surveying grades (A1 to A3). Category B has one grade (B1, subdivision certificate). Category C has 16 grades each going to specialist subject matters such as ‘private road and drainage compliance’ (C1), ‘structural engineering compliance’ (C7), ‘fire safety engineering compliance’ (C10). Category D has one grade (D1, strata certification).

11 The Scheme requires all applicants to satisfy the general criteria – ‘core performance criteria’ – and specifies in ‘accreditation statements’ the additional criteria to be satisfied for accreditation in each of the categories and grades mentioned.

12 A certifier accredited within Category A1 – Accredited certifier – building surveying grade 1 has a wide authority. He or she is permitted to issue complying development certificates for building work or change of use, construction certificates for building work and occupation certificates for buildings involving all classes and sizes of buildings under the BCA. The authority allows the carrying out of inspections required under section 109E(3)(d) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and the carrying out of inspections under clauses 129B and 143B of the Environmental Planning and Assessment Regulation 2000 (EP&A Reg).

13 It is accepted that Mr James satisfies all the general and specific accreditation criteria but for the experience requirement as it relates to fire safety in respect of class 2 to 9 buildings. The experience requirement is:

A minimum of three years recent practical experience relevant to this category of accreditation to the satisfaction of the Board. This can include assessing plans and specifications of an appropriate range of buildings and inspecting an appropriate range of buildings during construction and upon completion to determine compliance with the relevant provisions of the EP&A Act and the EP&A Regulation, relevant development standards, relevant development consent conditions and the Building Code of Australia (BCA).

Board Process

14 We will first set out the history of Mr James’ application before the Board.

15 Mr James is 60 years old, with a 40-year work history related to building inspections and approvals.

16 His application for renewal dated 26 March 2009 attached a CV, and other required information such as evidence of professional indemnity insurance.

17 The CV showed that he had held senior inspection positions during his career in local government (Fairfield, Blue Mountains, Burwood, spanning 1971 to 2002). More recently he has worked as a private certifier. His studies include: health inspection certificate, 1970; health inspection post certificate (environmental sciences strand), 1972; associate diploma in applied science (health and building surveying conversion), 1993; and graduate diploma (building surveying and assessment), 1993. He holds certificates of qualification as a health inspector, building surveyor, as well as the private certifier accreditation under notice in this case, first issued to him in 1999.

18 The CV referred in general terms to experience in connection with fire safety, for example, as fire upgrading officer at Burwood Council, 1996-2002, and in relation to fire upgrading as a private certifier for a range of buildings (churches, nursing homes, places of public entertainment, factories, shops, as well as dwellings). It referred to his work in connection with the restoration and redevelopment of a number of famous historic buildings in the Blue Mountains.

19 Attached to the application were two lists of projects for which he had been responsible as principal certifying authority (‘PCA’). The first list dealt with those where he had issued the construction certificates in the year 2008. He listed 47. 26 of the jobs had a value under $25,000. 14 were in the range up to $200,000. The remaining 7 jobs included a $4.76 million project (class 3, 5 and 7b), a $2 million project (class 7b and 5), a $1.87 million project (class 2 and 7a) and a $1 million project (class 5 and 8). The second list referred to the 57 occupation certificates he had issued during that year. All but three of the occupation certificates fell in the 1a and 10b classes. All but 12 of the jobs had a value under $25,000.

20 The Board wrote to him on 13 May 2009 requesting further information. Relevantly to this dispute, it expressed concern over the lack of particulars of recent experience in fire safety issues relating to class 2 to 9 buildings. It said:

In the Annotated resume you have provided information regarding the positions held and a broad description of your experience. However, you have not provided sufficient information demonstrating how this experience is relevant to the category of accreditation to demonstrate that you satisfy the experience requirement of the Scheme. It does not contain specific details of projects you might have worked on and your specific roles and responsibilities on those projects. In particular you have not provided any information to demonstrate your experience in relation to the assessment of alternative solutions involving fire safety.
You need to submit additional information demonstrating that you have three years practical experience relevant to the role of a category A1 accredited certifier. This includes demonstrating your experience in relation to assessing applications for the issue of complying development certificates and construction certificates for building works, carrying out the role of principal certifying authority for building works including conducting inspections and assessing applications for the issue of an occupation certificate.

21 By reply dated 13 June 2009 he asked the Board to consider the lists of projects previously supplied including for earlier years. He included a ‘Practical Experience Report’ referring to projects relevant to A1 status. As to his experience in alternative fire safety solutions, he said that he had been carrying out this function since 1979. He referred back to his CV and major achievements mentioned there. He said that he as a fire upgrading officer had dealt only with buildings that had not met the deemed-to-satisfy provisions at the time of first assessment. He referred to his academic qualifications relevant to fire safety, and substantial buildings for which he had had responsibility as inspector during his time at Burwood Council (1996-2002). He referred to a current factory building project where he had been dealing in conjunction with another A1 certifier with alternative solutions relevant to fire safety for several years.

22 It will be apparent that this reply did not focus to any degree on the immediate past three years. It mainly relied on his earlier experience as a senior council officer. It did include descriptions of 8 projects involving fire safety issues. Projects 1 to 4, and 6 predated 2006. The dates for project 5 were 2004-2006, project 7, 2005-2006, and project 8, 2006-2008. Project 8 was described as a Warehouse Building (2 storey), floor area, 4,247m2, class 3, 5, 7a and 7b. He gave a dot point list of assessment tasks performed. None referred specifically to fire safety.

23 Nonetheless, the internal assessment committee (team leader, Jonathan Lynch) recommended to the Board’s Accreditation Committee that the special condition be lifted, and that he have an unconditional accreditation in respect of fire safety solutions. The recommendation expressed satisfaction in respect of all criteria, in particular as to three years recent relevant practical experience. At its meeting on 30 June 2009, the Board’s committee rejected the recommendation. It stated:

- The applicant needs to provide additional information demonstrating his recent experience in relation to alternative solutions involving Fire Safety Engineering

- The applicant needs to provide a statement as to the number of alternative solutions that he has recently been involved in across class 2-9 buildings

- The applicant needs to provide examples of recent work he has carried out and details of his specific involvement in relation to alternative solutions across class 2-9 buildings.

24 In the absence of better information within 14 days, it recommended renewal subject to the conditions mentioned above. Mr James replied by letter dated 20 July 2009.

25 He gave as a recent example of experience in Fire Safety Engineering his work on the ‘Yabba Yabba’ boarding house, class 3, at Blackheath.

26 In respect of the second and third items, he referred to four recent assessments of alternative solutions relating to class 2-9 buildings: the ‘Yabba Yabba’ boarding house (report to council dated 4 June 2009 dealing with smoke separation, with deemed to satisfy solution accepted 9 July 2009); warehouse, offices and sleeping accommodation at Minchinbury, classes 3, 5 and 7b, construction certificate, 31 January 2008, alternative solution in relation to natural lighting for class 3 portion; child care and family recreation centre at Building C at Allambie Heights, construction certificate 13 May 2003, alternative solution for deemed to satisfy provisions in relation to natural light; and alterations and additions to warehouse building at Smeaton Grange, assessment of the original Fire Safety Engineering Brief, no further details as to date or specifics given.

27 It will be seen that this answer is not very detailed, and provides little evidence of any substantial activity in recent years in developing alternative fire safety solutions for class 2 to 9 buildings. Perhaps conscious of this perception, Mr James went on to say the following in his letter:

I wish to point out that the purpose of having restrictions lifted and thereby enabling me to determine alternative solutions relative to fire safety, is not to pursue work on major fire-engineered buildings. It is to lift the impediment of being engaged to assess deemed-to-satisfy building, commence the assessment, determine non-compliances and then being advised by the client that an alternative solution is to be sought. Applicants have been disadvantaged because of ‘low level’ (for want of a better term and without diminishing the potential impacts on fire safety that can follow) alternative solutions such as shop fitouts in fire-engineered buildings and fire separation in lieu of providing active fire suppression systems. Applicants have been restricted by matters such as hose reel coverage and deemed-to-satisfy design restrictions of fire hydrant systems.

28 He then referred to recent continuing education courses he had undertaken on ethics and only doing work within the scope of one’s competency.

29 He continued:

I will therefore only deal with work which is appropriate and I will continue to seek advice and guidance from peers so as to ensure that my knowledge and skills meet those required.

To this end I have spoken to two un-restricted private certifiers to ascertain what changes in the approach to dealing with fire-engineered solutions and have been advised that there have been a number, including the introduction of the International Fire Engineering Guidelines in 2005, but by and large they are not dramatic. In particular the types of active systems forming the basis of alternative solutions have remained constant.

In the absence of a documented methodology for sole traders to enhance their experience with fire-engineered alternative solutions I request the Committee and the Board accept that peer review approach I am adopting is appropriate and I will be accredited at category A1 without conditions.

30 The last paragraph is an allusion to the difficulty for a certifier who works alone in acquiring major commercial project fire safety experience, ordinarily the province of big, multi-disciplinary practices or specialty fire safety practices.

31 His reply went to the meeting of the Board’s Accreditation Committee on 22 July 2009. The Committee was not satisfied with the response, noting that in relation to alternative building solutions involving fire safety ‘he has not demonstrated sufficient experience across a range of buildings’. Secondly, it concluded that the response only provided two examples of recent work related to fire safety ‘and in relation to those examples no information in relation to his specific involvement in alternative solutions was provided’.

32 These reasons were adopted in the original decision issued 11 August 2009, and the internal review decision issued 9 September 2009.

Material before Tribunal

33 In preparation for the hearing, the Board filed pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (ADT Act) the documents from which the above narrative has been drawn.

34 Mr James filed submissions on 13 January 2010. He attached a large number of documents divided into 13 bundles (called ‘addendums’). They comprised: material relating to his original application for accreditation in 1999 and the grant of a grade 2 certificate (within the system of classification prevailing at that time, report prepared by him as a council officer in 1988 in relation to bush fire safety, his position description as a fire upgrading officer, local government handbooks he held from 1995 (on fire safety), from 1993 (on residential smoke alarms), an alternative solution report on spread of fire from boundary to dwelling prepared by him (9 December 2009), a handbook on concrete wall panel buildings, relating to fire performance (undated, with internal date references no later than 1992), an assessment report on a smoke control system for factories prepared by him dated 1994 and 1995, an assessment report for installation of a hydrant system in a warehouse dated 1997, certificate of attendance at courses relating to fire safety engineering between April 2008 and October 2009 (with four CPD points for each), Building Professionals Board Council Accreditation, A1 Guidelines for Building Surveying Grade 1, current version, and fire safety assessments prepared by him for residential flat building (2002), community function/meeting room (2006), a bowling club (2004).

35 The Board filed, 23 February 2010, a statement from Mr Nathan Halstead. Mr Halstead is a qualified fire engineer, and has held a certifier accreditation, grade 1, unconditional, for six years. He is a member of the Board Accreditation Committee and was the maker of the internal review decision on behalf of the Board.

36 Mr James objected to Mr Halstead on conflict-of-interest grounds. It is not usual for the Tribunal to have before it giving evidence in review proceedings the underlying decision-maker, though it sometimes occurs (most commonly, in our experience, in Freedom of Information cases on, for example, judgements as to the public interest). In our view, it is open to the administrator, for the purpose of assisting the Tribunal in its task of making the ‘correct and preferable decision’ (ADT Act, s 63), to make available the internal decision-maker especially in cases where there is a significant degree of specialist or technical expertise involved. The Tribunal sits as a fresh decision-maker. It is not bound in any way by the decision-maker’s prior reasoning.

37 We indicated to Mr James that we would have regard to the possibility of partiality in the way that Mr Halstead gave evidence, and indicated that we would consider any challenges he made to the expertise of Mr Halstead.

38 The hearing was held on 26 February 2010. Mr Halstead gave oral evidence and was cross examined by Mr James. In our view, Mr Halstead’s evidence was satisfactory, explanatory in tone, and was not affected by partiality.

39 At hearing Mr James handed up two references, one dated 19 February 2010 from Mr Brian Olsen, Manager, Building and Development at Burwood Council, the other from Mr Steve Barratt, practising Health and Building Surveyor, dated 24 February 2010.

40 While no directions were given at the hearing for the parties to file any further material, the parties engaged in a round of correspondence after the hearing, arising from an indication given by Mr Grey for the Board that it had received a document from Mr Olsen, mentioned above, during its decision making process, that had not been filed.

41 The Board filed and supplied Mr James (25 March 2010) with a copy of a questionnaire relating to Mr James’ application filled in by Mr Olsen, and received 4 September 2009. Mr James questioned whether he had been given all the questionnaire responses, and mentioned three persons. The Board filed and supplied Mr James (23 April 2010) with a further questionnaire it had located from one of the persons mentioned, Mr Colin Wood. The Board’s filing included brief submissions on the weight to be given to this material, which took the form of a set of tick box responses to a standard form questionnaire relating to an applicant. On 4 May 2010 Mr James filed detailed submissions in reply. As the decision was still reserved at this point, the Tribunal advised the parties on 11 May 2010 that it would take these filings into account, but would not consider any further material.

Assessment of the Decision to Impose Condition 1

42 It is clear, we think, from the account we have given of his submissions to the Board that Mr James recognises to some degree the difficulty he faces in satisfying this requirement. In his work career in local government, he had a good deal of experience in inspecting, recommending solutions and giving approvals in respect of a wide range of buildings.

43 But he can point to little equivalent experience in the period since 2002. The particular problem that the Board has been concerned about is his suitability for certifying to alternative solutions in respect of fire safety.

44 He acknowledged in his letter of 20 July 2009 to the Board that he faced difficulty in demonstrating relevant experience in connection with fire safety as it applies to larger commercial projects, typical of the classes 2 to 9.

45 In our view, his application showed little significant recent experience in dealing with commercial projects. The lists of projects he furnished with his application for renewal were dominated by small domestic projects.

46 He tabled at the Tribunal material from his local government days seeking to redress that difficulty. In our opinion, it is too dated to be given any weight in addressing the above requirement. The other material he filed, additional to that which had been before the Board, did not in our view remedy that gap to any extent. The responses to the questionnaires from Mr Olsen and Mr Wood provide no insight on this issue. They are simply pro forma responses.

47 Mr Halstead, we consider, persuasively explained the nature of the accredited certifier’s task in assessing fire safety solutions. He acknowledged that Mr James had a good deal of experience over many years in designing solutions especially in respect of dwellings, old apartment blocks and the like. He explained that the critical task of the certifier is one of assessment, and that requires a thorough knowledge of current legislation, the building code, attention to the specifics of the development consent, and a good understanding of current standards and practices. In his material he appended the pro forma for an assessment of an alternative solution used in his practice to demonstrate the complexity of the task (tab D). At tabs E and F he gave examples of the kind of fire engineering reports that are prepared in respect of major commercial projects. These were exhaustive and detailed documents with significant, complex technical content. He noted that the requirements as to fire safety in respect of class 2 to 9 buildings were far more complex than those applying to class 1 and 10 buildings. He referred to major changes that had been made to the BCA around 2004 which required all relevant performance requirements in any part of the code be taken into account in assessing a fire safety solution. He noted that Mr James relied largely on projects with which he had been involved in the mid-1990s.

48 In our view, there was nothing in the case presented by Mr James which assured us that he would be able to certify as to alternative solutions of the complexity reflected in respect of modern, major commercial projects.

49 Mr James has been accorded the highest level of accreditation subject to one restriction. It is apparent that there has been an increasing emphasis on fire safety issues in recent years. The attendance by Mr James at continuing professional development courses on contemporary standards can not, of itself, repair the practical experience gap presented by the absence of any significant involvement with class 2 to 9 assessment work.

50 We acknowledge Mr James’ concern that he is in a difficult position in ever being able to acquire the required experience, especially at this stage in his work life. In our view, the complexity of commercial projects is usually such that the only likely work environment in which the relevant experience can be acquired is the larger multi-disciplinary, multi-person practice. While Mr James remains a sole practitioner he will remain, we think, faced with an insuperable difficulty in meeting the Board’s requirement.

51 We also acknowledge that Mr James has indicated that he does not wish to extend his practice into the area of large commercial projects. The concern he raised at hearing and in his written submissions is that he is not able to allow minor alternative solutions in respect of smaller projects, which he tended to equate with the exercise of the deemed-to-satisfy discretion.

52 Mr Halstead accepted that a certifier subject to a condition in respect of the approval of alternative solutions might lose a job to a certifier free of that condition even though the alternative fire safety solution was of a relatively minor nature within the project viewed as a whole. He gave as an example hose reels installed in a building that do not comply with deemed-to-satisfy provisions, but could be the subject of a simple alternative solution which would adequately meet the fire risk concern.

53 He felt that it would be undesirable to seek to draft a condition which crossed beyond the point of deemed-to-satisfy into non-compliance and allowed for the grant of minor alternative solutions. He said that apparently simple matters of this kind often involved the identification and consideration of many parts of the BCA.

Conditions 2 to 5

54 In our opinion, the Accreditation Committee of the Board proceeded on the basis in making its recommendation, which was adopted by the Board’s delegate, Mr Cocks, that the only matter seriously in contest was the continuation of Condition 1. In its recommendation it reiterated Conditions 2 to 5 without making any specific comment on Mr James’ case. In his application for internal review, Mr James requested that Conditions 2 to 5 be removed. He said the conditions stemmed from two complaints lodged regarding his signing of development applications in 2003. He said that this occurred at a time when there was some uncertainty about conflicts of interest. He said his company is no longer involved in development applications, and that there have never been any further complaints against him.

55 In response the internal reviewer (Mr Halstead) simply said:

In relation to conditions 2 to 5 on Mr James’ certificate of individual accreditation these were not imposed as part of the determination of the Board to renew Mr James’ certificate. These conditions were imposed by the accreditation body having completed an investigation into a complaint against Mr James on 13 November 2006 …

56 Mr James, in his written submissions, states that the investigation occurred in 2004 in relation to a complaint made in 2003. He submitted that continued imposition of these conditions was unreasonable and affected his prospects of getting business from people who consulted the register.

57 In closing submissions, Mr Grey for the Board expressed doubt as to whether the Tribunal’s review jurisdiction extended to applications for removal of conditions imposed by disciplinary orders of the past.

58 Under s 9(2) of the BP Act, the Board has a broad power with respect to conditions:

(2) The Board may, at any time, vary any term of, or condition imposed by the Board on, a certificate of accreditation or may impose a new condition on a certificate of accreditation.

59 The relevant power of the Tribunal to review any such decision is conferred by s 18(e):

A person may apply to the Tribunal for a review of any of the following decisions of the Board under this Part:

(e) to vary a term or condition of, or impose conditions on, the person’s certificate of accreditation (other than conditions prescribed by the regulations).

60 In this instance, the conditions flow, as noted, from a disciplinary proceedings. The imposition of conditions on accreditation is a class of ‘disciplinary action’ allowed for under the previous Act as well as the present Act (see now BP Act s 31(4)). There is a separate review provision permitting persons the subject of disciplinary findings or disciplinary action to apply to the Tribunal for review of the findings or action, see s 33. That provision is time-limited in the usual way that applies to all review applications.

61 We understand Mr Grey’s submission to be that such conditions, after the time period has expired, operate in perpetuity subject only to the discretion of the Board. We are not inclined to agree. Our provisional view is that on each round of renewal the Board’s decision to continue such conditions involves a fresh imposition of those conditions, and attracts the review jurisdiction in s 18(e).

62 However, in this case we are disinclined to pursue the matter to a conclusion. We have little information about the original decision and its background. We doubt whether in making his original application for an ‘unconditional’ renewal, Mr James drew to attention that his concern extended beyond Condition 1.

63 On their face, Conditions 2 to 5 are in the nature of general statements that would apply to the conduct of any accredited certifier. It may be that general codes of ethics and guidelines as they have now developed have the same effect.

64 In our view, the question of whether the conditions should remain attached to his accreditation is an issue best left to the Board to consider, if Mr James presses it, in the next renewal round or in response to a special application from him. It seems to us that it is always open to the Board to remove conditions imposed by a disciplinary order, especially where there is no time limit set as part of the original order. We did not understand Mr Grey to disagree with that proposition, whatever the position in relation to external review of a decision not to remove them.

Order

Decision under review affirmed.