Leech v NSW Architects Registration Board

[2007] NSWADT 30

CITATION:	Leech v NSW Architects Registration Board [2007] NSWADT 30
DIVISION:	General Division
PARTIES:	APPLICANT Denis Leech RESPONDENT NSW Architects Registration Board
FILE NUMBER:	063254
HEARING DATES:	17/10/2006
SUBMISSIONS CLOSED:	17 October 2006
DATE OF DECISION:	5 February 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); O'Carrigan P - Non Judicial Member; Watts P - Non Judicial Member
CATCHWORDS:	Architect - review of disciplinary finding - Architects Act - Architect - review of disciplinary finding
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 2004 Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 Architects Act 2003 Architects Regulation 2004
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154
REPRESENTATION:	APPLICANT M Ashurst, barrister RESPONDENT P Griffin, barrister
ORDERS:	1. The decisions of the Respondent, made on 20 February 2006, that the Applicant was guilty of unsatisfactory professional conduct and should be reprimanded are set aside; 2. Any application for costs by the Applicant is to be made, with supporting submissions, within 28 days of the date of this decision. The Respondent will have a further 28 days in which to file and serve its submissions. The Applicant must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing

Introduction

1 In this matter, the Applicant, Mr Denis Leech, is a registered architect. On 4 July 2006, he applied to the Tribunal for a review of a finding of unsatisfactory professional conduct that had been made against him on 20 February 2006 by the Respondent, the NSW Architects Registration Board (‘the Board’).

2 The Board further determined on 20 February 2006 that he should be reprimanded, but it has not acted on this determination pending the outcome of these proceedings.

3 The Board’s decisions were set out in a letter dated 3 March 2006 from its Registrar to Mr Leech. They were based on the Board’s investigation of a complaint that it had received in a letter and accompanying statutory declaration dated 8 July 2005.

4 The complaint, as reformulated by the Board, comprised two allegations. The Board found one of them to have been established in part by the evidence before it.

Relevant statutory provisions

5 The Board made its finding of unsatisfactory professional conduct pursuant to subsection (4) of s 43 of the Architects Act 2003 (‘the Act’). Section 43, so far as relevant, states:

43 Decision after investigation of complaint

(1) After the Board has completed an investigation into a complaint against an architect, the complaint is to be dealt with in accordance with this section.

(2) The Board may apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4).

(3) However, the Board must apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of professional misconduct.

(4) If the Board is satisfied that the architect is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions:

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect’s practice of architecture as it considers appropriate be imposed on the architect’s registration,

(d) order that the person complete any educational course or courses specified by the Board,

(e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 15 penalty units …

6 The Act’s definitions of professional misconduct and unsatisfactory professional conduct, set out in s 32, are as follows:

professional misconduct means:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect’s registration, or

(b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act.

unsatisfactory professional conduct means any of the following:

(a) any contravention by the architect of the conditions of the architect’s registration,

(b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7,

(c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court,

(d) any failure without reasonable excuse by the architect to properly supervise the provision of architectural services by an architect corporation or architect firm while the architect is a nominated architect responsible for the provision of those services,

(e) any failure by the architect to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures) Act 2002,

(f) any contravention by the architect of this Act or the regulations,

(g) any conduct of the architect that demonstrates that the architect is not a fit and proper person to be registered as an architect,

(h) any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture,

(i) any other improper or unethical conduct of the architect in the course of the practice of architecture,

(j) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act.

7 In addition, Clause 8 of the Architects Regulation 2004 states: ‘Conduct of an architect that involves a substantial or consistent failure to reach reasonable standards of competence and diligence for an architect is declared to be professional misconduct for the purposes of the Act.’

8 Under s 44 of the Act, any person against whom the Board has made a ‘disciplinary finding’ – i.e., a finding of professional misconduct or unsatisfactory professional conduct – may apply to the Tribunal for a review of that finding and of any action taken by the Board under s 43(4). By virtue of s 8 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the Board’s finding and any consequent action is in each case a ‘reviewable decision’.

9 Further provisions of the ADT Act relating to review proceedings such as these should be noted here.

10 First, s 55(1)(b) of this Act states that an application for review of a reviewable decision cannot be made to the Tribunal unless an internal review of the decision under s 53 has first been ‘finalised’ (within the meaning of s 53(9)). But a further provision (s 53(11)(b)) authorises the making of regulations to exclude any class of reviewable decision from the operation of the section. Clause 11(c) of the Administrative Decisions Tribunal (General) Regulation 2004 expressly does this with respect to decisions falling within the scope of s 44 of the Architects Act.

11 Secondly, s 55(1)(d) states that any application to the Tribunal for review of a reviewable decision must be made ‘within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised.’ (The point of time on which an internal review is taken to have been ‘finalised’ is specified in s 53(9).) The period specified for this purpose in the rules is 28 days (see Administrative Decisions Tribunal (Interim) Rules 1998, Rule 15(3)), though it may be extended by the Tribunal under s 57 of the ADT Act.

12 Somewhat remarkably, however, no time limit appears to be indicated by the legislation for cases, like the present, where the process of internal review has been excluded by regulations made under s 53(11)(b). This is probably due to an oversight by the legislature, which could usefully be remedied.

13 This matter of time limits was not raised before us. Had the limit of 28 days set out in the Tribunal’s rules been applicable to the present proceedings, commencing from the date when the Board’s decision was notified to Mr Leech, he would have had to obtain an extension of time under s 57 in order to attract the Tribunal’s jurisdiction. The period of time between this notification to him and his application to the Tribunal was about four months.

14 Thirdly, s 63 of the ADT Act states in part:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision …

15 Fourth and finally, s 58(1) requires the relevant ‘administrator’ (in this case, the Board) to lodge the following documents with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

16 In the present case, the Board complied with the second part of this provision, but not the first. Mr Leech did not request a statement of reasons under s 49, so the Board was not required to give him one. But under s 58(1)(a), it should have lodged such a statement with the Tribunal. This statement should have set out the following matters, that are listed in s 49(3): (a) the Board’s findings on material questions of fact, referring to the evidence or other material on which these findings were based; (b) its understanding of the applicable law; and (c) the reasoning that led it to the conclusions that it reached.

17 The only outline made available to the Tribunal of the grounds of the Board’s was that contained in the Registrar’s letter of 3 March 2006 to Mr Leech. This outline did not set out all the matters listed in s 49(3). Mr Ashurst, who appeared for Mr Leech, indicated at the beginning of the Tribunal hearing that no objection of a formal nature would be raised to this aspect of the Board’s response to Mr Leech’s application. As will be apparent, however, the Board’s failure to lodge a statement of reasons under s 58(1)(a) has created some difficulties for the Tribunal in conducting this review of its decisions with respect to Mr Leech.

The conduct of Mr Leech giving rise to the complaint

18 The complaint against Mr Leech was made by Mr John Warburton, who was the Internal Ombudsman of Warringah Council (‘the Council’). It concerned aspects of Mr Leech’s dealings with the Council during 2002 with regard to a development application (‘the Development Application’) relating to a property at 28-32 Brookvale Avenue, Brookvale.

19 The events giving rise to the complaint all occurred during 2002, following Mr Leech’s lodgement of the Development Application in 2001, on behalf of a client, Mr Sam Mustaca. In the Application, approval was sought for the construction of a number of apartments.

20 On 27 March 2002, Mr Leech submitted four copies of amended drawings numbered SK-01 to SK-O9, in response to questions that the Council had raised. A note on these plans, which were dated March 2002 and had a capital ‘B’ in the lower right-hand corner, indicated that they had been revised ‘as per Council’s requests’. Mr Leech marked the covering letter for the attention of Ms Penny Goldin, an Assessment Officer who had been dealing with the Development Application.

21 It is useful to record here that in these proceedings Mr Leech submitted an affidavit, on which he was cross-examined, but Ms Goldin did not testify. Mr Griffin, counsel for the Board, advised that she had left the employment of the Council and that, on being contacted on the Council’s behalf, she declined to provide a statement. She indicated that she could not add anything of use to what was contained in her file-notes and correspondence on the Council’s behalf.

22 A relevant feature of the drawing of particular importance among the submitted plans, drawing SK-08, was that it showed the ground floor level of the rear apartments in the building (western elevation) to be RL (‘relative level’) 25.80. The plans depicted car parking space underneath the ground floor.

23 On 11 April, Ms Goldin wrote to Mr Leech indicating that Council had been made aware of areas of landfill on the site and requesting, among other things, that Mr Leech should ‘provide RLs of before and after fill in all areas of the site by a registered land surveyor’ and should ‘show these before and after fill RLs on all relevant plans associated with the amended plans’. She added: ‘You may wish to revise your plans in relation to this issue.’

24 By a letter dated 28 May, Mr Mustaca – not, it may be noted, Mr Leech – sent to Ms Goldin three copies of revised plans. The covering letter referred to a meeting on 19 May 2002, without indicating who attended it. The letter then stated that the plans were ‘for re-submission with changes to the design as discussed’ and that they addressed a number of issues, including ‘the natural ground level in relation to the RLs’.

25 On 14 June, Mr Leech and Ms Goldin held a meeting at the Council’s offices, during which they discussed among other things the question of fill and natural ground levels.

26 A letter dated 19 June from Ms Goldin to Mr Leech contained the following relevant passages:

I refer to our meeting on the 14th June with regard to your amended plans dated 30/5/02 … and the following information is required:
1 ...

2 RLs on all elevations are to be checked, as some RLs are incorrect.

3. RLs are to be shown on all plans including roof plans.

4. The plan appears to show three storeys. Please shade where this occurs or provide plans which are clearer in this respect.

5. Please check all ground lines shown on elevations, and also show clearly where fill is and the RLs below and on top of fill. Please also shade area on a plan extent of fill.

6 ...

Should you require any further information in this matter please contact the abovenamed officer who will be happy to assist.

27 It may be observed that Ms Goldin, in this letter to Mr Leech, referred to ‘your amended plans dated 30/5/02’, even though these plans had in fact been submitted by Mr Mustaca.

28 A handwritten file note relating to the meeting of 14 June, prepared by Ms Goldin, referred to the topics mentioned in the letter, but was too brief to provide further enlightenment on what was said at the meeting.

29 According to Mr Leech, Mr Mustaca instructed him to investigate the question of landfill on the site but not to concede to the Council that any landfill was present. Mr Leech then calculated from such survey evidence as was available to him what he thought would be the natural ground levels in the areas of landfill. He said in cross-examination that he tried to depict ‘the worst case scenario’. Using these calculations, he prepared plans showing amended natural ground levels and fill lines.

30 On 21 June, Mr Leech sent three copies of these plans, dated June 2002, to Ms Goldin. The amended version of drawing SK-08 indicated that the natural ground level should be regarded as lower than was earlier believed. An accompanying handwritten memorandum stated: ‘3 copies of drawings SK-01 to SK-09 plus survey in response to your letter dated June 19, 2002.’ The Council received this material on 21 June.

31 On 26 June, the two of them met again at the Council’s offices. So far as relevant, her file note said:-

Met with DL re his plans 21/6/02 & fill extent. He took all plans back and & will alter plans if necessary to show where fill is + nat. g. level.

32 According to Mr Leech, Ms Goldin was satisfied that the modified plan addressed the ground level issue. Under the rear apartments (western elevation), it showed a natural ground level of RL 24.36. But she pointed out that as a consequence of carrying out excavations down to this level, the floor of the lowest level of apartments in the building, if it remained at RL 25.80, would protrude more than one metre above the ground itself. This change would be deemed to add one storey to the building, making it a three-storey building, and would thereby breach the Council’s planning controls.

33 Mr Leech said that his response was to suggest lowering the floor of these apartments from RL 25.80 to RL 25.26, while leaving unchanged the height of their ceiling. The result would be that the floor would protrude by only 0.9 metres. Ms Goldin then asked him to take away the plans and mark them up in accordance with this proposal.

34 A handwritten note on the Council’s copy of Ms Goldin’s letter of 19 June suggests that on 26 June she sent the plans to the Council’s drainage engineer for his comments.

35 On 3 July, Mr Leech sent a copy of the plans (i.e. the June 2002 version, at least so far as SK-08 was concerned) to Ms Goldin, with markings as requested. Drawing SK-08 contained an added line altering the ground floor of the rear apartments (western elevation) from RL 25.80 to RL 25.26.

36 An accompanying handwritten note from Mr Leech, headed ‘Answers to specific questions’, included the following passage:

The amended plans concede fill over the block extending to the rear boundary in the N.W. sector, and this fill is clearly marked on the plans and elevations to ensure that any resultant problem may occur with a section of the car parking being over 1m above natural ground, the relevant F.L of a lower level unit in this area is lowered accordingly (with a higher floor to ceiling clearance).

37 On 5 July, Ms Goldin wrote to Mr Mustaca. She referred first to a revised proposed stormwater drainage design that had been prepared by Northern Beaches Consulting Engineers. It should be pointed out that this design was based on the version of the plans that had been submitted along with the Development Application itself. This version had become outmoded in a number of respects.

38 Ms Goldin said in the letter that what she called ‘the amended plans’ had not addressed two points regarding on-site stormwater detention which she had included in a letter dated 3 May 2002 (this letter was not in evidence). With reference to one of these points, she stated that ‘the finished floor levels for the development are to have a freeboard of 500mm above the 1 in 100 year ARI water surface level’.

39 According to Mr Leech, this requirement was incompatible with the changes that he had proposed to Ms Goldin at their meeting on 26 June. He stated as follows in his affidavit: ‘That letter meant to me that my proposed amendment to the floor levels was not accepted.’ In cross-examination, he said that while ultimately the freeboard requirement proved not to create any problems, at the time it put his proposed changes into abeyance.

40 On 12 July, Mr Mustaca, without informing Mr Leech, forwarded to the Council a stormwater inundation report prepared by Northern Beaches Consulting Engineers. The opening paragraph of the report stated that it had been prepared in response to the Council’s letter of 5 July and that the proposed development was ‘detailed in the architectural plans prepared by Dennis Leech and Associates Pty Ltd March 2002 Revision B’. Its conclusion was that ‘the architectural plans’ adequately met the requirement of a 500mm freeboard ‘during a 1:100 yr ARI storm event’. One of its explicit assumptions in reaching this conclusion was that at the north-western corner of the development site the ground floor level was 25.80.

41 On or about 22 July, Ms Goldin asked Mr Leech for further copies of drawings SK-07 and SK-08. There is no record of this request having been made in writing and no file note relating to it.

42 On 22 July, Mr Leech complied with this request. An accompanying handwritten memorandum addressed to her simply stated: ‘3 Copies SK07/SK08. 1 Copy perspective.’

43 In his affidavit, Mr Leech said: ‘As I had not heard back from Ms Goldin concerning whether or not my proposed resolution of the floor levels was acceptable I forwarded the unamended plans … to her.’

44 On 5 August, in response to a further request from Ms Goldin, Mr Leech sent two sets of other drawings (described by him as ‘SK02B’, ‘SK03B’, ‘SK04B’ and ‘SK05B’) relating to the Development Application. They were again unamended versions and were again accompanied by a brief handwritten note.

45 On 8 and 14 August, Mr Leech sent further documents relating to the Development Application (for example, an arborist’s report) to the Council.

46 On 17 September, the Council granted conditional approval to the Development Application. General Condition 1 stated that the development must be generally in accordance with versions of the various drawings that were identified according to date. It referred in this connection to ‘plans numbered SK-07B, SK-08B, dated 13/3/02, submitted 5/8/02’. General Condition 78 stated that the on site detention plans and associated drainage works were to accord strictly with the drainage plan that Northern Beaches Consulting Engineers had prepared.

47 The approval, as so formulated, allowed the floor of the lowest level of apartments in the north-western sector of the building to be constructed at RL 25.80. This follows from the fact that both in drawing SK-08B, in the version dated 13 March 2002, and in the drainage plan, this level was stated to be RL 25.80. The consequence was that the floor of the lowest level of apartments in this sector would protrude more than one metre above ground level and the Council’s limit on the number of storeys in a building of this nature would be exceeded.

The investigations carried out by the Internal Ombudsman and by the Board

48 During 2004 and 2005, Mr Warburton, the Council’s Internal Ombudsman, carried out a detailed investigation of the conduct of Council staff in relation to the Development Application.

49 In the course of this investigation, he interviewed Mr Leech on 18 October 2004. His notes of their conversation show that the issues that he raised with Mr Leech included the following: (a) the fact that in the approved plans the floor of the lowest level of units protruded more than one metre above ground level; (b) the absence of any request for exemption from the Council’s limit on the number of storeys in the building; (c) the existence of three versions of the plans within the Council’s files showing the ground floor level at RL 24.36 (in the first version) and at RL 25.80 (in the two later versions); and (d) the accuracy of Mr Leech’s calculations of the natural ground level. Mr Warburton’s notes on these topics concluded with the comment that Mr Leech ‘could not … explain the various anomalies discussed above’.

50 In a letter dated 18 May 2005, Mr Stephen Blackadder, who was the Council’s General Manager, notified the Board that Mr Warburton had completed his report for the Council, that in this report he had reached certain conclusions regarding Mr Leech’s conduct with respect to the Development Application and that he had recommended that the Council make a formal complaint to ‘the relevant architectural professional body’ regarding this conduct.

51 Enclosed with this letter was a copy of Mr Warburton’s report. It contained a finding that Ms Goldin had made an error in assessing the Development Application ‘by accepting and failing to check incorrect information provided by architect Dennis Leech in relation to the position of natural ground level’ on the western portion of the property.

52 In a brief letter of reply to Mr Blackadder dated 3 June 2005, the Registrar provided information regarding the making of complaints to the Board.

53 Mr Warburton’s complaint against Mr Leech, verified by statutory declaration as required by the Act, was dated 8 July 2005. It contained an allegation that Mr Leech had been guilty of unsatisfactory professional conduct in relation to the submission of plans in support of the Development Application ‘by reason that he, …’

(b) Demonstrated incompetence or a lack of adequate knowledge, skill, judgement or care in the practice of architecture when he represented to Warringah Council that he had lowered the floor level of the ground floor of the western side of Block 2 to bring the height above natural ground level below the relevant control (must be less than 1 metre above natural ground level) when this was not the case.

54 The complaint also contained an allegation, in paragraph (a), that on the western elevation plan Mr Leech had misrepresented to Council the extent of fill on the site and had shown the natural ground level to be higher than it actually was.

55 In addition to these two allegations, the complaint set out relevant findings forming part of Mr Warburton’s report to the Council.

56 Having been sent a copy of the complaint, Mr Leech forwarded written submissions by way of response to the Registrar on 3 August 2005. His letter included the following passages that are of relevance in these proceedings:-

Site levels

Council had now advised that an adjoining resident was strenuously objecting to the level rear yard along the western boundary being accepted as natural ground height as he believed, and Council agreed, it was filled material. Equally, our Client strenuously disagreed. I attended a meeting on the site where the vendor of the existing house claimed the level yard dated back ‘decades’.

With no agreement, I became pro-active, encouraging my Client to reach a reasonable compromise, suggesting that he accept the fill theory and re-design the building accordingly.

I prepared a marked-up drawing, interpolating between the two points on the site on which there was agreement by all parties as natural ground, …

These interpolated levels were marked up on the Development Application drawings (elevation and site plans) at Council in the presence of the Town Planning staff at their request.

These levels were accepted, and further at Council’s request I marked up a lowered level of Units in the South West corner of the rear block to ensure that the carparking did not protrude more than a metre above the natural ground.

These changes were agreed by Council officers as solving the issue and in fact I was thanked for being pro-active….

Development Application Approval

With all matters finally resolved (Council’s advice to my office), I was specifically asked by Council to lodge for development approval stamping, 3 copies of the amended Drawings – exactly the same as the Drawings I had marked up at Council showing the changes of levels and contours.

I was specifically instructed not to lodge amended Drawings as Council wished to clearly show the marked-up changes on the stamped Approval.

I understood that Council officers would mark-up, or condition or both, the specific changes to ensure that the approved drawings were exactly the same as the drawings notified to objectors with the changes clearly marked.

I could understand their reasoning at the time, and I still do, as there were so many amended drawings lodged, they wanted no possible further confusion.

The Development Approval was granted….

Some Matters I Believe Are Crucial To the Board’s Investigations…

(e) Within the Ombudsman’s Report there are very troubling claims and innuendo that, after agreeing to the lowering of part of the floor level of the rear block from 25.80 to 24.6 (sic), I knowingly submitted drawings with the original level. I have already explained the reasons for this.

Notwithstanding, my Client was a party to the reduced level, as were the Town Planning staff. The reduced level was accepted by all, as was the Council’s stated procedure for ensuring record of the reduction. Everyone involved knew and agreed. Had my Client continued with the project, and the Approval was activated, were we then advised of a problem in the stamped drawings, we would have had no case or desire to subsequently demand the original levels. A Council error, over which I had no control, would have been sorted out immediately and everyone knows this to be the case.

57 Having been sent a copy of Mr Leech’s response to the complaint, Mr Warburton made the following relevant observations in reply, in a letter to the Board dated 12 September 2005:

Site levels …

It is accepted that Mr Leech marked up a plan that showed a lowered floor level in the rear block ground floor. Unfortunately this marked up plan was not the plan that Mr Leech submitted as correct modified consent plan (sic) ...

Development application approval

Mr Leech asserts that he was asked by Council not to provide marked up copies of the plans for the stamped approval.

Council records do not support this assertion. The stamped plans show all the correct markings with the exception of the lowered floor level. When I interviewed Mr Leech he could not explain how the lowered floor did not make it to the stamped approval plans. He did not state that Council Officers had instructed him to provide non-amended Drawings.

I have interviewed Council staff in relation to this matter and they categorically deny that Mr Leech was “instructed not to lodge amended Drawings”. This is totally against normal Council practice. Town Planners require all marked up amendments to be completed by the architect who has the information required to mark up the Drawings. Quite simply it is not the job of Council’s Development Assessment Officers to mark up Drawings submitted as part of a Development Application.

Some Matters I Believe Are Crucial To the Board’s Investigations…

(e) Mr Leech is correct when he asserts that Council Officers agreed with the lowering of the floor height. It is irrelevant to claim that the “error” would have been sorted out later. The reality is that the stamped plans are a legal authority to build. Council would have had no ability to compel the developer to build according to the originally agreed lowered floor height.

58 In a letter dated 14 October 2005 responding to further queries from the Board, Mr Warburton reiterated the findings made in the last two paragraphs of the material just quoted from his letter of 12 September. He added that Ms Goldin had been ‘adamant’ that Mr Leech had not been asked to submit unamended plans for the Development Application in order that the Council could mark them up. He claimed also that there was ‘not a skerrick of evidence to support Mr Leech’s assertion’ regarding this matter.

59 In response to these submissions by Mr Warburton, Mr Leech wrote to the Board on 31 October 2005. His letter included the following observations relating to the ‘marked up elevations’ that he had sent to the Council:-

With Council in possession of these marked up elevations, I would have expected one of the following:
a. The Council would ultimately ask for a number of copies of amended Drawings for D.A. stamping, a common request.

b. The DA would ultimately be approved either with red notations confirming amendments required, again quite common, or approve Drawings together with relevant written Conditions of Approval.

c. The Council would refuse the Application, advising the reasons that they were not supporting the submission…

After protracted negotiations, culminating in the reduction of floor levels, it was Council who then determined the course of the Approval, and which of the myriad versions in the submission to stamp up. This decision is not in the control of the Architect, and I fail to see how an Architect can influence actions to which he is not a party.

60 On 9 December 2005, the Registrar notified Mr Leech by letter that the Board proposed to uphold what it described as ‘Allegation Two’ in an amended version of the complaint and to make in consequence a finding of unsatisfactory professional conduct. Allegation Two was in the following terms:

That the architect knowingly submitted plans that did not accord with the agreement he admits he made on behalf of his client with Council officers during the course of a site meeting.

61 The Registrar indicated to Mr Leech that, pursuant to s 43(5) of the Act, he was entitled to make written submissions within 28 days relating to this proposed course of action by the Board.

62 In a letter dated 25 January 2006 to the Registrar, Mr Leech made a number of submissions, of which two should be noted.

63 First, he asserted that it was on 21 June 2002 that Ms Goldin asked him to mark up ‘the current drawings’ with ‘new levels’, including the lowering of the floor level. This was, he said, ‘to avoid any further confusion’, since these drawings had been notified to adjoining owners.

64 Secondly, Mr Leech claimed that there never was any agreement by the Council to his ‘marked up’ suggestions. As evidence that throughout July and August 2002 the Council was still assessing the Development Application, he referred in this context to Ms Goldin’s letter of 5 July, raising the issue of flood levels, and to his own delivery of further documents to the Council on 8 and 14 August.

65 In a letter dated 3 March 2006, the Registrar notified Mr Leech that the Board, having considered his letter of 25 January, had resolved on 20 February 2006 to confirm its decision regarding Allegation Two and its finding of unsatisfactory professional conduct. The letter also stated:

The Board considers that a competent architect would have confirmed in writing the discussions and the agreement between the architect and Council staff regarding the site levels in order to give Council the opportunity to challenge his understanding; or that the architect would have submitted amended plans in accordance with agreements made between the architect and Council staff.

The Board confirms that your failure to amend the resubmitted drawings in accordance with the agreements reached was unsatisfactory professional conduct…

66 As already indicated, this letter stated that the Board had decided to reprimand Mr Leech, but in a subsequent letter, dated 27 April 2006, the Registrar said that this action would not be implemented pending the determination of these proceedings.

67 In a letter dated 27 February 2006, which the Board received on 6 March 2006, Mr Leech sought to supplement his submissions of 25 January. He asserted that the Council marked up plans ‘as a matter of procedure’, that it had marked up many of his ‘development approvals’ recently and that ‘only last week’ it had forwarded to his office a development approval which was ‘yet again “marked up” in red, not in my presence and not with my formal agreement’. He enclosed copies of the relevant areas of this approved plan.

The onus and standard of proof in disciplinary proceedings

68 It is useful at this point to refer to a well-established principle relating to professional disciplinary proceedings. As the Tribunal said recently in Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154 at [17], ‘allegations of misconduct are to be proven on the balance of probabilities to a level of satisfaction commensurate with their seriousness and mindful of the consequences for the practitioner – the so-called Briginshaw principle: Briginshaw v Briginshaw (1938) 60 CLR 336’.

69 This principle applies equally when the finding sought against a practitioner is one of unsatisfactory professional conduct rather than professional misconduct. It is of particular significance where, as here, there is a shortage of evidence, or at least of evidence that can be tested by cross-examination, on questions of primary importance.

The Board’s decision

70 It will be recalled that the Board formulated Allegation Two in the following terms:

That the architect knowingly submitted plans that did not accord with the agreement he admits he made on behalf of his client with Council officers during the course of a site meeting.

71 With regard to this Allegation, the Board arrived at a finding of unsatisfactory professional conduct based on a conclusion of ‘failure’ by Mr Leech ‘to amend the resubmitted drawings in accordance with the agreements reached’.

72 In claiming on Mr Leech’s behalf that this finding should be set aside, Mr Ashurst submitted that the evidence did not support at least three significant aspects of Allegation Two. These were (a) that Mr Leech had ‘submitted’ the plans in question (i.e. the plans sent to the Council on 22 July and 5 August 2002), (b) that these plans were contrary to an ‘agreement’ between him and the Council, and (c) that he had ‘knowingly’ submitted plans that were not in accord with this agreement.

73 Was there a ‘submission’ of the plans? As to the first of these matters, Mr Ashurst challenged the Board’s conclusion that in sending copies of plans to the Council on 22 July and 5 August 2002, Mr Leech was ‘submitting’ them. He argued that the only plans to have been ‘submitted’, in a formal sense, to the Council were the plans, dated 13 March 2002, that accompanied the Amended Development Application made by Mr Mustaca on 28 May 2002. While altered versions of these plans were sent to the Council on 21 June and 3 July 2002 (with markings in the later of these versions depicting proposed changes to the earlier version), Mr Leech never tried to amend the Development Application in accordance with either of these versions. It followed, in Mr Ashurst’s submission, that on 22 July and 5 August 2002 Mr Leech did no more than to supply copies, as requested, of plans that had already been ‘submitted’.

74 Mr Griffin, who appeared for the Board, argued in response that Mr Leech’s sending of the plans on 22 July and 5 August 2002 amounted ‘in substance’ to a ‘submission’ of what the Council could reasonably be expected to treat as the current version of the plans, taking account of recent proposals made by Mr Leech and discussions between him and Ms Goldin.

75 In the Tribunal’s opinion, Mr Ashurst’s arguments on this matter should be preferred. The Tribunal sees as the most compelling consideration the fact that there is no evidence as to what Ms Goldin expected to receive from Mr Leech. If the evidence showed that she had asked for the ‘current’ or ‘latest’ or ‘marked up’ version of the plans and that therefore she did not expect to receive copies of the plans that had been formally submitted in March and again in May 2002, it would have been open to the Board to treat Mr Leech’s despatch of plans to her as a new ‘submission’. But having regard to the principles governing the onus and standard of proof in professional disciplinary matters, no inference of this nature can be drawn. It may well be, in fact, that Ms Goldin’s request for copies of the plans was expressed in such a manner as to indicate clearly that what she wanted was the earlier version of the plans. In these circumstances, the inference that the Board drew would not have been warranted.

76 Was there an ‘agreement’? As to the second matter, Mr Griffin agreed with Mr Ashurst that there was no evidence to indicate that a formal agreement regarding Mr Leech’s proposals was concluded between him and the Council, either at or after the meeting of 26 June 2002.

77 Mr Griffin claimed however that the Tribunal could and should infer that an implied agreement was reached. This agreement was to the effect that the levels shown on the plans dated June 2002 were acceptable to both sides and that the proposal to lower the ground floor level from RL 25.80 to RL 25.26 would bring the plans into conformity with the Council’s rules limiting the number of storeys.

78 Undoubtedly, as Mr Ashurst acknowledged, Mr Leech, in his submissions dated 3 August 2005 to Mr Warburton (see [56] above), gave Mr Warburton and indeed the Board good reason to believe that some sort of agreement of this nature had been reached. With reference to the changes suggested by Mr Leech at his meeting with Ms Goldin on 26 June 2002, these submissions included the following assertion: ‘These changes were agreed by Council officers as solving the issue …’ Mr Leech also asserted that his proposed reduction in the level of the ground floor ‘was accepted by all’. These assertions provide a foundation for the claim in Allegation Two that Mr Leech admitted to having made an agreement of some sort with the Council.

79 Mr Ashurst pointed out, however, that neither Ms Goldin, in her file notes, nor Mr Warburton, in his report, recorded any agreement between the Council and Mr Leech to the effect that these changes should be incorporated into the Development Application. Mr Leech, in his letter of 25 January 2006 to the Registrar, maintained, in apparent contradiction of what he had said earlier to Mr Warburton, that there never was any agreement by the Council to accept the suggestions that he had marked up on the plans.

80 There were, in Mr Ashurst’s submission, two further strong indicators that the Council never agreed, in a formal sense, to the proposals put by Mr Leech to Ms Goldin on 26 June 2002. One was the requirement, stated in Ms Goldin’s letter of 5 July 2002 to Mr Mustaca (see [37] above) that the finished floor levels for the development were to have a freeboard of 500mm above the 1 in 100 year ARI water surface level. The other was the assumption in the stormwater inundation report of July 2002 prepared by Northern Beaches Consulting Engineers (see [40]) that the ground floor level at the north-western end of the property would be RL 25.80. The Council did not question this assumption.

81 The Tribunal’s conclusion on this matter is more or less in line with Mr Ashurst’s submissions. It finds that there was ‘agreement’ between Mr Leech and Ms Goldin that the modified plan discussed at that meeting satisfactorily addressed the ground level issue and that his suggested lowering of the ground floor level would prevent it protruding more than one metre above ground, so as not to infringe the Council’s planning controls. But a shared opinion on these matters did not constitute an agreement between Mr Leech and the Council that the Development Application should be amended accordingly. The limited and provisional agreement between Mr Leech and Ms Goldin was negated (or at least appeared to Mr Leech to have been negated) by subsequent developments, notably the Council’s requirement of a 500mm freeboard and its acceptance, without raising any questions, of a stormwater report based on a conflicting assumption.

82 Did Mr Leech submit the plans in knowing contravention of his agreement with the Council? Mr Ashurst’s principal submission on this matter was that since no agreement as found by the Board was ever actually reached between Mr Leech and the Council, his delivery of plans to Ms Goldin on 22 July and 5 August 2002 could not have constituted a ‘knowing’ contravention of any such agreement.

83 In the Tribunal’s opinion, this submission does not entirely dispose of the Board’s conclusion, for the following reasons. A finding that no agreement actually existed between Mr Leech and the Council is compatible with findings that Mr Leech (a) believed at the time that such an agreement did exist and (b) nonetheless submitted plans that, on his understanding of the matter, were in conflict with this supposed agreement. If these two findings could be made against him, it could well be said that his conduct was improper to the same degree as it would have been if an agreement actually existed. There would be a sufficient basis for upholding, in a slightly modified form, the Board’s conclusion.

84 Mr Leech said in his affidavit, however, that the requirement of a 500 mm freeboard set out in Ms Goldin’s letter of 5 July 2002 ‘meant to me that my proposed amendment to the floor levels was not accepted’. He was not cross-examined on this assertion. His unchallenged account of what he believed at the time does not seem to the Tribunal to be inherently improbable. The Tribunal therefore accepts his evidence that at the time when he submitted the plans he believed that the Council did not wish to proceed on the basis of the provisional agreement that he and Ms Goldin had reached at their meeting on 26 June 2002.

85 The Tribunal accordingly holds, contrary to Allegation Two, that Mr Leech did not submit the plans in knowing contravention of any agreement, actual or supposed, between him and the Council.

86 Mr Griffin conceded that Allegation Two was incorrect in asserting that any discussions between Mr Leech and Council staff had occurred at the development site. The undisputed evidence of Mr Leech was that all relevant meeting with Council staff were held at the Council’s offices. The error would appear to have resulted from a misunderstanding of a statement made by Mr Leech in his submissions of 3 August 2005 to Mr Warburton (see the first paragraph of the extracts quoted above at [56]).

87 The Board did not, in express terms, find that Allegation Two was proved. Because, as outlined above, it did not provide detailed reasons for its decision, either to Mr Leech or to the Tribunal, it is difficult to discern precisely how it reached its conclusions. The best that can be said is that according to the Registrar’s letter of 3 March 2006 to Mr Leech, it based its finding of unsatisfactory professional conduct on his ‘failure to amend the resubmitted drawings in accordance with the agreements reached’.

88 In the Tribunal’s opinion, however, the foregoing rulings on issues arising from Allegation Two necessarily imply that Mr Leech’s decision on 22 July and 5 August 2002 to send copies of earlier versions of the plans to Ms Goldin could not be said to have involved a ‘failure’ of this nature. The Board’s finding of unsatisfactory professional conduct, being based on a conclusion that such a ‘failure’ occurred, must therefore be set aside.

The ‘correct and preferable decision’ on the material before the Tribunal

89 This conclusion regarding the Board’s decision does not wholly dispose of the present proceedings. The reason is that under s 63(1) of the Administrative Decisions Tribunal Act 1997 (see [14] above), the Tribunal’s task is ‘to decide what the correct and preferable decision is having regard to the material… before it’. As s 63(2) says, it may ‘exercise’ any ‘function’ that the Board was required or empowered to exercise in this matter.

90 This means, among other things, that if the Tribunal formed the view that the facts established in these proceedings warranted a finding that Mr Leech had been guilty of unsatisfactory professional conduct, it could and should make a determination to this effect, even though the grounds for this determination would differ from those on which the Board relied.

91 In this connection, the Tribunal has given consideration to two lines of argument that could, in the circumstances outlined above, provide a possible basis for a finding of unsatisfactory professional conduct against Mr Leech.

92 The first derives from a statement in the Registrar’s letter of 3 March 2006 to Mr Leech. This was that, in the Board’s opinion, ‘a competent architect would have confirmed in writing the discussions and the agreement between the architect and Council staff regarding the site levels in order to give Council the opportunity to challenge his understanding’.

93 This opinion of the Board was not said in the letter to have constituted a ground for the Board’s finding of unsatisfactory professional conduct. It evidently was, however, viewed by the Board as relevant in some way to this finding.

94 The Tribunal must of course attach significant weight to the Board’s expert opinion as to what a competent architect would be expected to do in any given situation. It notes also that subparagraph (h) of the definition of unsatisfactory professional conduct in s 32 of the Act reads ‘any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture’.

95 It does not consider, however, that at the relevant time – that is, in the period immediately following Mr Leech’s meeting of 26 June 2002 with Ms Goldin – a ‘competent architect’ would clearly be expected to confirm in writing their ‘discussions’ and ‘agreement’.

96 Its reasons for so ruling are that, as explained earlier (see [81] and [84]), no firm agreement was reached at that meeting, and furthermore a letter written by Ms Goldin some ten days later appeared to Mr Leech on good grounds to contradict any such agreement. To put it in broader terms, there was such a degree of fluidity in the continuing discussions between Mr Leech (and indeed his client) and the Council that Mr Leech could not be held to have been ‘incompetent’ merely on account of having thought it unnecessary to confirm in writing his provisional agreement on certain matters with Ms Goldin.

97 The second line of argument was put to the Tribunal by Mr Griffin. It was to the effect that, even if no significant agreement on the relevant matters was ever reached between Mr Leech and any representative of the Council, Mr Leech nonetheless acted so as to mislead the Council in a manner that he should have foreseen. He did so when on 22 July and 5 August 2002, in response to Ms Goldin’s requests for copies of the plans, he chose to send copies of the earlier versions in preference to the version of June 2002 supplemented by markings illustrating his proposals made at the meeting of 26 June.

98 Mr Ashurst objected to this submission by Mr Griffin, on the ground that Mr Leech had not received due notice that it might be put at the hearing. In the Tribunal’s opinion, however, this submission is not so far removed from the line of reasoning adopted by the Board that the Tribunal would be acting unfairly in considering it. The common feature of both ways of approaching the matter is that Mr Leech’s conduct is claimed to have contributed, in a manner that he should have foreseen, to the Council’s misunderstanding of a significant aspect of the Development Application, in the form in which it was presented for final consideration.

99 The Tribunal’s conclusion regarding this second line of argument is once again that it is undermined by a lack of crucial evidence. The missing evidence concerns the requests made by Ms Goldin to Mr Leech that resulted in his sending copies of plans to her on 22 July and 5 August 2002. Having regard to what she had written in her letter of 5 July to Mr Mustaca, these requests may in fact have been for copies of the earlier versions. Alternatively, she may have given no guidance at all as to which version she wished to receive. In this event, it might well be claimed that a competent and careful architect would have contacted her and asked for clarification. A third possibility is that it was evident from what she communicated to Mr Leech that she wanted the latest versions, duly marked up. Mr Leech may have been mistaken in believing otherwise. But as Mr Ashurst argued, even this last possibility does not necessarily warrant the conclusion that it was negligent or incompetent of Mr Leech to misconstrue her request.

100 In making these observations, the Tribunal takes into account Ms Goldin’s statements to Mr Warburton that the Council, as a matter of practice, never engaged in the task of marking up submitted plans (see [57] above). The Tribunal believes from its own knowledge that this may be broadly correct as a general description of current practice by local authorities in New South Wales. But Mr Leech’s statements to the contrary, relating specifically to the Council (see [67]) were not challenged in cross-examination. The Tribunal cannot treat Ms Goldin’s assertions as conclusive of the matter, particularly since, as mentioned earlier in this judgment, she was not called as a witness.

101 Having regard, therefore, to the principles governing the onus and standard of proof in professional disciplinary matters, the Tribunal is bound to conclude that this second line of argument, like the first, is insufficient to support a finding of unsatisfactory professional conduct against Mr Leech.

102 The Tribunal would comment finally that the error ultimately made by the Council, in approving plans that were in breach of its own planning controls, may have been attributable in part to failures by Mr Leech, and/or by those employed by him, to label his plans in a manner that, in accordance with good architectural practice, clearly differentiated between different versions of the same plan. The Tribunal itself found somewhat confusing the labelling of a number of the plans by Mr Leech that were tendered in evidence. This observation cannot, however, provide the basis for a disciplinary finding against him.

The Tribunal’s orders

103 For the foregoing reasons, the decisions of the Board, made on 20 February 2006, that Mr Leech was guilty of unsatisfactory professional conduct and should be reprimanded are set aside.

104 Any application for costs by Mr Leech is to be made, with supporting submissions, within 28 days of the date of this decision. The Board will have a further 28 days in which to file and serve its submissions. Mr Leech must file and serve any submissions in reply within a further 7 days. The matter will be decided ‘on the papers’, subject to the right of either party to apply, with supporting submissions, for a hearing.