McGufficke v Building Professionals Board
[2013] NSWADT 296
•20 December 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: McGufficke v Building Professionals Board [2013] NSWADT 296 Hearing dates: 29 November 2013 Decision date: 20 December 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President
P Friedmann, Non-judicial MemberDecision: The decision of the Board is affirmed.
Catchwords: PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction and occupation certificates - Board finding of unsatisfactory professional conduct - those allegations found proven - 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 2000Cases Cited: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181
Bennett v Building Professionals Board (No 2) [2011] NSWADT 238
Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206
Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28; (1998) 194 CLR 355Category: Principal judgment Parties: Scott McGufficke (Applicant)
Building Professionals Board (Respondent)Representation: Counsel
C O'Neill (Applicant)
J Callaghan, Lee & Lyons (Applicant)
A Grey, Building Professionals Board (Respondent)
File Number(s): 133221
reasons for decision
This is a review application brought by Mr Scott McGufficke, an accredited certifier. 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.
The Building Professionals Board has taken disciplinary action against him pursuant to s 31 of the Building Professionals Act 2005 (the BP Act).
On 23 May 2013, the Board found proven all three allegations made against him in relation to the issuance of a construction certificate (the first two allegations) and the issuance of a final occupation certificate (the third allegation). It found him guilty of unsatisfactory professional conduct within the meaning of s 19 of the BP Act, and imposed a reprimand and a fine of $13,000.
On 23 July 2013 he applied under s 33 of the BP Act to the Tribunal for review of the determination. 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 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.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal convened on 29 November 2013 to hear the application. The panel was constituted in the usual way for disciplinary proceedings involving accredited certifiers - one presidential judicial member of the Tribunal, and a non-judicial member with relevant expertise (on this occasion, Mr Peter Friedmann, a registered surveyor of standing).
The material before the Tribunal included the investigation report of the Board, the decision of the Board and submissions from both parties. Mr O'Neill appeared for Mr McGufficke, Mr Grey appeared for the Board.
Background
The case relates to a residential development involving the building of six residential villa units on a site at 5 Maitland Street, Branxton ('Maitland Street' is the local street name for that part of the New England Highway). The general site received subdivision consent in 2004. The terms of the development consent affecting the site upon which the villa units have been built are found in an agreed order of the Land and Environment Court dated 7 April 2008 made in settlement of an appeal.
Mr McGufficke states that he was engaged in or about February 2011 to provide certification services to the Dickinson Property Group. He issued the construction certificate on 23 June 2011. He issued the final occupation certificate on 22 February 2012. The Council raised concerns with the developer in March 2012 over compliance with conditions of the development consent. On 18 November 2012 the Board notified Mr McGufficke that it was investigating his conduct. On 21 August 2012, following application by the Council, the Land and Environment Court declared the occupation certificate invalid and of no effect: Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 (Pain J). Mr McGufficke made a submitting appearance. The declaration was not opposed by any of the respondent parties.
The development consent had 44 conditions, divided by the following headings: 'General' (1-6), 'Prior to Issue of Construction Certificate' (7-21), 'During Construction' (22-35) and 'Prior to Occupation' (36-44).
Two of those under the heading 'Prior to Issue of Construction Certificate' (7 and 15) related to road works connecting the site to the New England Highway. All three allegations have these conditions as their background.
PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE
Condition 7
Access, Car Parking & Loading Arrangements
The applicant shall obtain at its own cost the concurrence of the Roads and Traffic Authority (RTA) to the proposed road works and opening onto the New England Highway. Evidence verifying the RTA's concurrence to the proposed road works and all road concurrence to proposed road work and road opening shall be submitted to Council prior to the release of the Construction Certificate. All conditions of the RTA's approval must be complied with prior to issue of the Occupation Certificate.
Reason
To ensure a safe and efficient access is provided to the New England Highway to and from the proposed development.
Condition 15
The registered proprietor of the land shall construct:-
a. A new sea-gull intersection on the New England Highway at the driveway to the adjacent property (Part 11, DP 238139) to allow for all turning movements. The intersection shall provide a left turn in deceleration lane, a right turn deceleration and storage lane and right turn out holding lane. The sea-gull intersection should be contained within the eastbound overtaking lane. The intersection shall be designed and constructed in accordance with the RTA's Road Design Guide to RTA/Council requirements.
b. A service road/driveway from this intersection to connect to the proposed development and the existing residences immediately to the west and east of the subject property, to RTA/Council requirements.
c. All works shall be to RTA and Council requirements and constructed at full cost to the developer with no costs to the RTA or Council.
d. Place an AC seal on new works in accordance with the RTA's requirements.
e. Construct drainage works as necessary.
f. The abovementioned works are to be undertaken in accordance with Council's 'Engineering Requirements for Development' and set out on a set of plans, four (4) copies of which are to be submitted and approved by Council and the RTA prior to release of the Construction Certificate.
Reason
To ensure public road facilities are upgraded to an appropriate standard as a result of additional requirements of the development.
The Construction Certificate Issues
Clause 146 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) provides:
146 Compliance with conditions of development consent
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with: ...
(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
MATTER 1
The accredited certifier, Mr McGufficke, issued construction certificate no. CC 11-504 dated 23 June 2011, prior to condition 7 of development consent 8/2004/596/1 dated 7 April 2008 being complied with. Accordingly, in these circumstances as Mr McGufficke issued construction certificate no CC 11-504 dated 23 June 2011 he contravened clause 146(c) of the Environmental Planning and Assessment Regulation 2000 [EPA Reg].
MATTER 2
The accredited certifier, Mr McGufficke, issued construction certificate no. CC 11-504 dated 23 June 2011, prior to condition 15 of development consent 8/2004/596/1 dated 7 April 2008 being complied with. Accordingly, in these circumstances as Mr McGufficke issued construction certificate no CC 11-504 dated 23 June 2011 he contravened clause 146(c) of the EPA Reg.
There is no dispute that the condition had not been complied with by the developer at the time the construction certificate issued. The Board found the allegations proven.
Nature of Accredited Certifier's Responsibilities in issuing a Construction Certificate
Mr McGufficke made submissions to the Board as to the interpretation of the conditions of the development consent and as to the interpretation of the law governing his functions. The Board's reasons rejected the submissions without giving any reasons. He has repeated these submissions to the Tribunal.
The construction certificate is a standard 1 page one, and appears at p 69 of the Board's folder of documents. There is nothing on the face of the construction certificate to indicate that at the time of its issuance Mr McGufficke held the view that it was not certifying comprehensively as to all matters the subject of the development certificate.
Nonetheless as a matter of law, Mr McGufficke contends that he can only breach cl 146 if he has breached a condition of the consent in relation to 'building work' or 'subdivision work' (the latter is not relevant to this case). He maintains that conditions 7 and 15 are not about 'building work', therefore there is no breach in having issued a construction certificate with conditions 7 and 15 not fulfilled.
His submission notes that building work is not defined in the EPA Reg, but there is a relevant definition in the Environmental Planning and Assessment Act 1979 (EPA Act). 'Building work' is defined (s 4) as 'any physical activity involved in the erection of a building'. Further, 'Building' is defined (s 4) as follows:
building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.
The submission is that the proposed road works to which conditions 7 and 15 refer are 'civil works', a term sometimes used in development consents (as seen for example in cl 14 of the present development consent), and which we understand to refer to works of an infrastructure kind affecting the public domain of the development (for example, sewerage works, electrical and utility connections).
In our view, cl 146 does not use the term 'building work' in the limited sense suggested by Mr McGufficke. It is used as a compendious expression that applies to all of the activity that has as its ultimate purpose the building of the approved development. Further, a construction certificate is to be understood as certifying to all the matters the subject of the development consent unless there are express indications to the contrary on its face, or there are circumstances that demonstrate that it is a certificate of limited scope.
The critical provisions appear in Part 4A of the EPA Act.
In reaching this view, we begin with the breadth of meaning given by the law to the word 'development'. It is defined (s 4) as:
development means:
(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.
A 'development consent' is defined (s 4) as:
development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.
Part 4A is headed 'Certification of Development'. All of the provisions of this Part (with one exception relating to Crown works (s 109R)) belong to Division 1 of Part 4A (ss 109C-Q). Section 109C sets out and defines the four types of certificate (compliance certificate, construction certificate, occupation certificate and subdivision certificate).
Section 109D stipulates the authorities that may grant these certificates. In the case of a construction certificate or an occupation certificate it can be a consent authority, a council or an accredited certifier. Section 109D provides:
109E Principal certifying authorities
(1) The person having the benefit of a development consent or complying development certificate for development:
(a) is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development, and
(b) may appoint only the consent authority, the council or an accredited certifier as the principal certifying authority for the building work or subdivision work, and
(c) may appoint the same principal certifying authority for both types of work or different certifying authorities.
(1AA) The council must, if appointed under subsection (1), accept that appointment.
(1A) Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.
(2) Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority.
(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and
(b) that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989, before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and
(c) that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and
(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and
(e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.
(4) A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.
Note. Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.
It will be seen that the responsibility vested in a certifier is very broad, and on its face relates to all aspects of the development consent.
In our view, these and the remaining provisions of Part 4A of the Act and Part 8 of the regulations manifest a clear intention that accredited certifiers must deal comprehensively with the terms of the development consent when deciding whether to issue a certificate.
The reference to 'physical activity' in the definition of 'building work' is not to be read down so as to confine itself to the principal built elements, as this submission would tend to suggest. It is to be viewed widely as all the physical activity that bears on the principal works.
This approach, we consider, accords with the well-known guidance given by the High Court in interpreting provisions in regulatory statutes in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ said, at [69] and [78].
The submission is rejected.
Clarity or Otherwise of Development Consent
The next submission argues that the development consent as a whole is difficult to construe because while some clauses refer to 'the' construction certificate, some refer to 'a' construction certificate and others refer to 'a' or 'the' construction certificate for differently described activities, for example, condition 12 speaks of 'the' construction certificate for the 'building/s' while condition 14 speaks of 'the' construction certificate for 'the civil works'. Variations in terminology of this kind are taken up in support of the submission 'it is generally unclear from the development consent which type of construction certificate was required in respect of each condition. This uncertainty made the process facing the applicant unworkable.'
We have had regard to the guidance given in relation to the interpretation of the terms of development consents given by Pain J in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181 at [116]. Her Honour said:
The well established principles concerning the construction of development consents are:
(i) the object of construction is "to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions" of the development consent; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69];
(ii) development consents are not statutes and construction of conditions of consent need to be "rationalised, in a practical and effective way"; Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149;
(iii) a development consent "is not personal to the applicant, but enures for the benefit of subsequent owners and occupiers"; Royal Ryde Homes;
(iv) "Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject"; Royal Ryde Homes.
In our view, and mindful of the sound warning that development consents are not statutes, we consider that conditions 7 and 15 speak clearly to the matters with which they were concerned.
Some reliance was placed on the Tribunal's decision in Bennett v Building Professionals Board (No 2) [2011] NSWADT 238. In that case the certifier had issued construction certificates on a staged basis. There was a debate in the case as to whether that was acceptable practice. The shift in language in the terms of the development consent between the words 'the' and 'a' when describing a construction certificate requirement went to that issue.
This question does not arise in this case. Mr McGufficke proceeded in the usual way of dealing with all matters by means of the one construction certificate. There is nothing in the material before us that he had in mind the possibility of issuing staged construction certificates, and had made a conscious decision to defer dealing with the road works conditions until a later stage of the project.
Furthermore the development consent in the Bennett case was not as clearly divided as the present development consent. There the headings used were 'general conditions', 'matters relating to the issue of a construction certificate', 'pre-commencement conditions', 'construction conditions' and 'post-construction conditions'. The condition in issue (having to do with the state of a retaining wall already present on the site) fell into the category of 'matters relating to the issue of a construction certificate'.
In the present case the road work conditions clearly appear under the heading 'Prior to Construction Certificate', and there is not the degree of uncertainty that arose in Bennett as to the point of time in the progress of the project that the condition was to be addressed.
There was some discussion at hearing as to whether all the road works contemplated by conditions 7 and 15 could reasonably be expected to be completed ahead of issuance of a construction certificate.
As we see it the obligation imposed by conditions 7 and 15 required the developer to deal with the relevant authorities (RTA in the case of condition 7 and the RTA and Council in the case of condition 15). It was open to the relevant authorities to negotiate with the developer over the extent of the works and the timing of the works, with a view to ensuring appropriate and safe methods of entry to and egress from the site during the project.
Consideration
As the material before the Board and the Tribunal shows, in February 2011 when he was first consulted, Mr McGufficke appraised the terms of the development consent, and did so methodically. As Mr Grey noted in his submissions he dealt appropriately with the matters raised by conditions 7 and 15, and noted that the developer would need to provide the required authorisations and demonstrate satisfaction of the authorities' requirements (RTA in the first instance, RTA and Council in the second instance).
The formal application for the construction certificate was lodged by the developer on 18 June 2011, and the certificate issued only five days later. This rushed turnaround may explain Mr McGufficke's omission to follow through on the good advice he had given in February. When he became aware of Council's concerns (following the issue of the final occupation certificate) he acknowledged his errors both at the construction certificate stage and the occupation certificate stage, but shifted position to his present submissions at the Board stage. Mr Grey noted these matters.
In our view Mr McGufficke failed to address compliance with conditions 7 and 15 when he issued the construction certificate.
Occupation Certificate Issues
MATTER 3
The accredited certifier, Mr McGufficke issued final occupation certificate dated 22 February 2012, prior to condition 7 of development consent 8/2004/596/1 dated 7 April 2008 being complied with. Accordingly, in these circumstances as Mr McGufficke issued occupation certificate dated 22 February 2012 he contravened s 109H (2) of the EPA Act.
Section 109H(2) provides:
109H Restrictions on issue of occupation certificates
(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.
Mr McGufficke's defence is that he relied on assurances received from a member of staff of his client advising that the relevant authorisations required by condition 7 had been obtained. He did not check her advice, and did not call for documentary proofs. Yet in his very first appraisal of the terms of the consent (in February 2011) he had noted to his client the need to provide proofs. He submitted to the Tribunal that it was sufficient for an accredited certifier in deciding whether to issue a final occupation certificate to rely on assurances on matters of this kind.
As Mr Grey noted, an accredited certifier is reasonably to be expected to do a final view of the site before issuing a final occupation certificate, and it would have been immediately obvious that condition 7 had not been met. There is no evidence from Mr McGufficke before the Tribunal as to what view or inspection he undertook. Nor was there any reply at hearing either from him or via his counsel as to this point.
After the Land and Environment Court hearing that led to the occupation certificate being declared invalid, he did, we accept, move to rectify the situation and issued a new acceptable occupation certificate. This conduct was raised as demonstrating the genuineness of his desire to deal practically with the situation.
The submissions on this issue drew attention to s 109E(3)(a) of the EPA Act:
(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site,
The submission was that as Mr McGufficke had 'satisfied' himself that condition 7 had been met, he had therefore satisfied s 109E(3)(a). It is submitted: 'This satisfaction must have meant that he also complied with s 109H(2), otherwise the sections would operate inconsistently.'
This submission is rejected. The requirements that appear at s 109E(3) are mainly procedural in nature. There are a number of matters that must be checked by the principal certifying authority. The key substantive obligation appears at para (g):
[must be satisfied] that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.
This obligation is reinforced by the terms of s 109H(2):
(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.
More generally, these submissions raise concerns about Mr McGufficke's understanding of his professional responsibilities. It plainly can not be enough for a certifier to rely in relation to matters to which the terms of a development consent have given close attention on the word of a client without seeing the appropriate official documentation, at the least. His laxness in this regard is borne out by the email he sent on 29 March 2012 where he said 'I should have checked to ensure that all conditions of the RTA's approval had been complied with prior to the issue of the occupation certificate ... however I was under the impression that Dickson's [the developer] had obtained all of the required approvals and had completed the works in accordance with Council's approval of Road Works'.
We are satisfied that Mr McGufficke failed to address compliance with condition 7 when he issued the occupation certificate.
Whether Errors constituted Unsatisfactory Professional Conduct
In this case the parts of the definition in s 19 that might be relevant are these:
unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission):
(a) conduct occurring in connection with the exercise of the 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,
(b) a contravention of this Act, the Environmental Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention,
In our view Mr McGufficke clearly breached his obligations in respect of the matters raised by the Board. He did not show the competence and diligence that a reasonable member of the public who is reasonably informed as to the role and duties of an accredited certifier would expect of an accredited certifier.
Disciplinary Order
Some of Mr McGufficke's penalty submissions proceeded on the premise that he did not contravene cl 146 of the EPA Reg or s 109H(2), a premise that we have rejected.
Some emphasis was given in the submissions to Mr McGufficke's honesty and genuineness. These characteristics were not put in issue by the investigator, the Board in its reasons or by Mr Grey in his submissions. This is a case simply about competence and diligence.
Mr McGufficke's CV is impressive. He has six tertiary qualifications including a Bachelor of Applied Science and a Masters in Public Health. He has served in the regular Army and the Army reserve. Between 1987 and 2004 (17 years) he held senior positions in the health safety or building compliance sections of local councils - at Muswellbrook, Cessnock, Broken Hill, Christmas Island and Maitland. He is a member of relevant professional and industry associations. We have reviewed the personal testimonials attached to the affidavit from his solicitor, Mr Callaghan.
We have taken note of the submissions made to the Board by Mr McGufficke in relation to penalty (at p 9 of the Board's folder).
The Board in its reasons referred to its disciplinary penalty guidelines. Mr McGufficke's penalty submissions to the Board refer to one other matter, a determination notified 3 May 2013 in relation to his conduct with respect to a substantial development at Lot 100 Headlam Road, Moss Vale, described as an equine agistment facility. The Board imposed a reprimand, a fine of $10,000 and required him to undertake and complete a course in Advanced Building Regulation. The Tribunal heard Mr McGufficke's application for review on Monday 2 December 2013, the decision is pending.
As to the extent of the breach on this occasion, Mr McGufficke submitted that relatively minor works were required ultimately to bring about compliance with conditions 7 and 15.
He also submitted that no harm was caused by his error in issuing the construction certificate or the occupation certificate when there remained non-compliances with conditions 7 and 15. The subject conditions, it was submitted, did not go to the health and safety of the future occupants of the development.
We do not agree. This was an important residential development. It had already been surrounded by some controversy as signified by the terms of development consent being settled after appeal to the Land and Environment Court. Mr McGufficke should have been especially vigilant in dealing with the matter. The provision of safe and acceptable means of entry and egress to a building site adjacent to a busy highway was a matter of great importance from a public viewpoint. There should have been strict compliance, and Mr McGufficke should have been vigilant in that respect. He lacked vigilance in dealing with this issue.
He also referred to the financial penalty he had suffered in agreeing to contribute $10,000 towards the Council's costs of setting aside the occupation certificate at the Land and Environment Court. He referred also to the legal costs he personally had incurred in respect of the watching brief for those proceedings.
He referred in those submissions to the fact that his business AcroCert employs a number of certifiers. He expressed concern to retain his Grade 2 accreditation. He referred to the testimonials (see the attachments to his solicitor Mr Callaghan's affidavit in these proceedings).
In our view, this case involves a serious transgression of standards on the part of a certifier with substantial prior experience in the practice of certification, both as a private practitioner and previously as a senior council officer. His work career has been centred on the Hunter Valley region. We find it difficult to accept that an experienced certifier with this degree of familiarity with the region could have failed to give strict attention to conditions that regulated traffic movement between the site and the highway.
The penalty of reprimand was appropriate. We consider the amount of the fine also appropriate.
Order
The decision of the Board is affirmed.
Decision last updated: 08 January 2014
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