McGufficke v Building Professionals Board

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McGufficke v Building Professionals Board [2013] NSWADT 307
Hearing dates:	2 December 2013
Decision date:	31 December 2013
Before:	Judge K P O'Connor, President P Friedmann, Non-judicial Member
Decision:	Board's findings and orders affirmed
Catchwords:	PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - three allegations found proven - Board finding of unsatisfactory professional conduct -- orders of reprimand and fine - decision of Board affirmed: Building Professionals Act 2005, s 19
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Building Professionals Act 2005 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
Cases Cited:	McGufficke v Building Professionals Board [2013] NSWADT 296 Re Peat Resources of Australia Pty Ltd; ex p Pollock [2004] WASCA 122 Schmidt v District Council of Mt Barker [2001] SAERDC 30
Category:	Principal judgment
Parties:	Scott McGufficke (Applicant) Building Professionals Board (Respondent)
Representation:	Counsel D A Lloyd (Applicant) J Callaghan, Lee & Lyons (Applicant) A Grey, Building Professionals Board (Respondent
File Number(s):	133175

reasons for decision

1. The applicant, Mr Scott McGufficke, an accredited certifier, has applied for review of a disciplinary determination made by the Building Professionals Board under s 31 of the Building Professionals Act 2005 (BP Act). He holds a Category A2 accreditation, with conditions, registration no BPB 0083. He is director of the business, AcroCert Pty Ltd, based at Maitland NSW.

1. By decision made 28 February 2013 the Board found him guilty of unsatisfactory professional conduct in relation to the issuance of a construction certificate and a final occupation certificate for a development at Lot 100, Headlam Road, Moss Vale, described as an 'equine agistment facility', with an estimated building cost of $5.4m. In summary, Mr McGufficke was found, one, to have issued a construction certificate which gave the development the wrong classification; two, to have repeated the error in relation to the occupation certificate; and three, to have issued the occupation certificate when a pre-condition of the development consent relating to waste management had not been complied with.

1. The Board made the following disciplinary orders:

A. Mr McGufficke is reprimanded.

B. Mr McGufficke is ordered to pay a fine of ten thousand dollars ($10,000) to be paid to the Board within 28 days of the date of the decision on the complaint.

C. Mr McGufficke undertake in 2013, successfully complete, and provide suitable evidence to the Board upon successful completion of the following course:Advanced Building Regulation, offered by UTS Centre for Local Government.

1. The Tribunal's review jurisdiction is conferred by s 33 of the BP Act. The review goes to the merits of the decision, both in respect of the primary finding of unsatisfactory professional conduct and the disciplinary orders. The Tribunal's powers are conferred by the Administrative Decisions Tribunal Act 1997 (ADT Act), the primary provision being s 63. It provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of…