Minister for Infrastructure and Planning v Conway (No.2)

[2004] NSWADT 159

CITATION:	Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159
DIVISION:	General Division
PARTIES:	APPLICANT Minister for Infrastructure and Planning RESPONDENT Bradley Conway
FILE NUMBER:	033215
HEARING DATES:	11/05/2004-12/05/2004
SUBMISSIONS CLOSED:	05/12/2004
DATE OF DECISION:	08/04/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Wren G - Non Judicial Member
APPLICATION:	Accredited Certifier - professional misconduct
MATTER FOR DECISION:	Prncipal matter
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Evidence Act 1995
CASES CITED:	Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70 Briginshaw v Briginshaw (1938) 60 CLR 336 Allinson v General Council of Medical Education and Registration [1894] QBD 750
REPRESENTATION:	APPLICANT M Leeming, counsel RESPONDENT J Whyte, counsel
ORDERS:	The respondent is guilty of professional misconduct

Introduction

1 In 2000, Mr Conway was a level 1 accredited certifier (the highest level of accreditation) and had been accredited since 23 June 1999. Part of his job was to issue Construction Certificates and Occupation Certificates in relation to developments. Those certificates were an assurance to the public that the development was not inconsistent with the conditions in the Development Consent and complied with the relevant requirements of the Building Code of Australia (BCA). In late 2000 Mr Conway issued certificates in relation to proposed backpacker accommodation in the Sydney CBD. On 20 February 2001 the City of Sydney Council (the Council) complained to the accreditation body under s 109V of the Environmental Planning and Assessment Act 1979 (the Act). The basis for that complaint was the Mr Conway had issued the certificates in circumstances where, among other things, some of the conditions in the Development Consent (the Consent) relating to fire safety had not been complied with.

2 The Minister for Infrastructure and Planning (the Minister) applied to the Tribunal for a disciplinary finding that Mr Conway was guilty of professional misconduct. Professional misconduct is unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension or withdrawal of the accredited certifier’s accreditation.

3 Mr Conway said he acted honestly and to the best of his ability at all times. He agreed that some of the requirements in the Consent had not been complied with when he issued the certificates but said that he had some discretion about those matters. According to Mr Conway his solution led to an increase in the overall fire safety of the building and, in addition, some of the requirements in the Consent were impractical or did not comply with the BCA. The BCA is a uniform set of technical provisions for the design and construction of buildings throughout Australia. A user may choose to comply with the “Deemed-to Satisfy” provisions or may use an “Alternative Solution” that satisfies “Performance Requirements.” Those terms are all explained in detail in the BCA.

4 This decision deals with the question of liability. If we find Mr Conway guilty of unsatisfactory professional conduct or professional misconduct we will have another hearing as to the appropriate disciplinary orders which should be made.

Background

5 The Development Application. On 15 March 2000 Bellstar Capital Pty Limited (Bellstar) lodged a Development Application with the Council to allow the existing building at 16-18 Quay Street Sydney and the rear portion of the ground floor of 781 and 783-787 George Street to be used for backpacker accommodation. The premises consists of a ground floor containing a convenience store and a corridor serving the backpackers accommodation, an “intermediate level” comprising a landing and an enclosed store-room and an upper level with bedrooms and bathrooms. Under Clause 93 of the Environmental Planning and Assessment Regulation 2000 (the Regulation), when assessing a development application the Council must take into consideration “whether the fire protection and structural capacity of the building will be appropriate to the buildings proposed new use.” Mr Dartnell, the Council’s Development Assessment Officer, inspected the premises and noted several deficiencies in fire safety. He arranged a meeting with a representative from Bellstar. Following that meeting, Bellstar submitted amended plans. On the basis of those plans Council approved the Development Application and issued the Consent subject to conditions.

6 Classification of premises. At the time Council issued the Consent, the Act required it to “identify the classification of the building in accordance with the Building Code of Australia.” In this case the Consent classified the building as Class 3 (backpackers) and Class 6 (retail). The retail section related to the convenience store on the ground floor and the backpacker’s accommodation was the uppermost level containing bedrooms and bathrooms. There was no separate classification for the intermediate level. The classification of a building determines, among other things, the level of fire resistance required and the requirements for access and egress under the BCA.

7 Conditions of Consent. One of the conditions of the Development Consent was that:

The unauthorised use of the premises for backpacker accommodation must cease within fourteen days of the date of this consent. Use of the premises must not recommence until the building has been upgraded to provide adequate levels of fire safety for the occupants of the building, and the Principal Certifying Authority issues an Occupation Certificate. (Emphasis added.)

8 Further conditions were set out in Schedule 1B to the Consent which was headed “Conditions to be complied with prior to issue of Construction Certificate to the satisfaction of the Certifying Authority.” (Emphasis added.) Condition 17 related to fire safety and amenity of the occupants. It begins with these words:

The following works must be included in the design for the building to ensure that there is adequate provision for fire safety and amenity of the occupants of the building (Emphasis added.)

9 Nineteen conditions are then set out in mandatory terms. The following conditions were in issue:

(a) The proposed automatic sprinkler system complying with AS 2118.4 must be installed in the premises at 16-18 Quay Street, Sydney.

(b) The public corridor and path of travel to the exit from the accommodation rooms at 16-18 Quay Street, Sydney must be enclosed in fire resisting construction to comply with Part C of the Building Code of Australia.

(k) The existing stairs at 16-18 Quay Street, Sydney must be reconstructed so that the treads and risers comply with D2.13 of the Building Code of Australia and the width complies with D1.6 of the Building Code of Australia.

(l) The unobstructed height of the exit or path of travel to the exit at 16-18 Quay Street, Sydney must comply with D1.6 of the Building Code of Australia.

10 On 19 October 2000 Mr Conway issued a Construction Certificate in relation to the premises. He made the following statement in that certificate:

I certify that the work if completed in accordance with these plans and specifications will comply with the requirements of s 81A(5) of the Environmental Planning and Assessment Act 1979.

11 On 1 December 2000 Mr Conway issued an Occupation Certificate in relation to the premises. He made the following statement in that certificate:

The building is suitable for occupation or use in accordance with its Classifications under the Building Code of Australia.

12 Sprinkler system. Condition 17(a) required the “proposed automatic sprinkler system complying with AS 2118.4” to be installed. The sprinkler system was proposed by Bellstar, the owners of the building, in the amended plans. Note 2 on the ground floor plan reads “Provide sprinkler system to all guest rooms, sitting, public areas and corridors to AS 2118.4.” No sprinkler system was ever installed. Instead, the plans attached to the Construction Certificate noted as follows “Provide fire rated ceilings to all guest rooms, sitting, public areas and corridors and tenancy.”

13 Mr Conway maintained that the AS 2118.4 specified was not the correct standard. He said that AS 2118.4 delivers deficient discharge for the hazard associated with the classification and that if a sprinkler system was required, it should have been to the higher standard AS 2118.1. The fact that Mr Conway did not install any kind of sprinkler system makes it irrelevant to determine whether or not Council specified the correct standard.

14 Fire resisting construction. Condition 17(b) required that the public corridor and path of travel to the exit must be enclosed in fire resisting construction to comply with Part C of the BCA. Mr Conway says that he attempted to comply with the “deemed to satisfy” provisions of the BCA by requiring the owner to install FRL -60/60 lightweight construction to bounding walls of sole occupancy units and corridors. Fire resisting construction to enclose the public corridor and path of travel to the exit from the accommodation rooms was not completed. For example, the walls bounding the public corridors were in contravention of the specifications in C1.1 of the BCA.

15 Stairs. Condition 17(k) required the stairs to be reconstructed so that the treads and risers and the overall width of the stairs complied with the BCA. According to Mr Conway, because of the structure of the building, any new stairs would have the same limitations as the existing stairs. In those circumstances, he could not see the benefit of reconstructing them and did not do so. The existing stairs had variable and non-compliant treads and risers. For example, the minimum tread width for public stairs in the BCA is 250 mm. Some treads were only 200m.

16 Height of path of travel. Condition 17(l) requires that the unobstructed height of the exit or path of travel to the exit must comply with D1.6 of the Building Code of Australia. The required height is 2 metres. Because addressing the height issue would involve major structural changes, Mr Conway considered that the most reasonable alternative was to provide some form of protective covering to the steel beams in case someone bumped their head on the beam. Mr Conway agreed that when he issued the Construction Certificate and the Occupation Certificate Condition 17(l) had not been complied with.

Nature of professional misconduct

17 The Minister alleged that Mr Conway engaged in three types of professional misconduct under s109R of the Act namely conduct:

(a) occurring in connection with the exercise of an accredited certifiers functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, or

. . .

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited,

18 The misconduct allegedly involved breaches of clauses 145(1)(a), 145(1)(b) and 146(c) of the Regulation.

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,

(b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made). (Emphasis added)

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 it is satisfied that 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.

19 In particular, the Minister alleged that:

1) Bradley Conway did not comply with Clause 145(1)(a) of the Regulation in that he issued a construction certificate when the proposed building works were not consistent with the Council’s consent for the development (the development consent), in particular condition 17 of consent.

2) Bradley Conway did not comply with clause 145(1)(b) of the Regulation in that he issued a construction certificate when the proposed works did not comply with the relevant requirements of the Building Code of Australia for the relevant building type classification of the development.

3) Bradley Conway did not comply with s 146(c) of the Regulation in that the conditions of the development consent were not met prior to the issuing of the construction certificate.

4) Bradley Conway issued an occupation certificate for the development in circumstances where the construction was not consistent with the development consent.

20 Particulars 1, 2 & 3 relate to the issuing of the Construction Certificate while particular 4 relates to the issuing of the Occupation Certificate.

Issues

21 Factual issues. The only significant factual issue in dispute was whether the premises had two or three storeys. Mr Harriman, a Building Regulation Consultant and Fire Safety Engineer, expressed an opinion about this and other issues. Mr Whyte, Mr Conway’s legal representative, submitted that the Tribunal should give that evidence no weight.

22 Legal issues. The legal issues relate to:

· the nature and extent of Mr Conway’s obligations as a certifying authority when issuing construction and occupation certificates; and

· whether Mr Conway’s conduct amounts to either unsatisfactory professional conduct or professional misconduct.

Burden of proof

23 The Minister bears the burden of proving the factual basis of the complaint. The Tribunal must reach a comfortable level of satisfaction that the conduct was professional misconduct or unsatisfactory professional conduct, having regard to the seriousness of the allegations and the gravity of the consequences flowing from making a particular finding. (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and Evidence Act 1995 s 140(2)).

Factual issues

24 Challenge to Harriman’s evidence. Mr Whyte challenged the reliability of Mr Harriman’s evidence on four grounds:

· that he applied the wrong test in relation to unsatisfactory professional conduct or professional misconduct;

· that he had not read a recent Tribunal decision, Director General, Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70;

· that he had not visited the premises prior to preparing his expert report, even though he has since done so; and

· that he gave evidence to the Campbell Inquiry to the effect that if councils made a mistake in relation to the issuing of conditions, it would blame the certifier.

25 Wrong test? In the conclusion to his report, Mr Harriman says:

In conclusion, as a result of the information provided and the research carried out I am of the opinion that the conduct of Mr Conway falls far short of the ordinary standards of conduct of the profession.

26 In the final paragraph he says:

In my view the conduct of Mr Conway which I have referred to above warrants the reprobation of his peers at the strongest level.

27 According to Mr Whyte, these are not the relevant tests for determining whether Mr Conway’s conduct amounts to unsatisfactory professional conduct or professional misconduct under s 109R of the Act. He quoted a recent Tribunal decision in Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70 in support of a submission that the relevant test was “the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier”. By applying a standard relating to the expectations of peers, rather than the general public, Mr Whyte submitted that Mr Harriman had applied the wrong test.

28 In Department of Infrastructure, Planning & Natural Resources -v- Stapleton (No 2) [2004] NSWADT 70 at [62] to [66], the Tribunal found that s 109R(a) “expressly adopts the general public standard” as distinct from the standard that a person’s professional peers might expect. The Tribunal noted that this test “avoids the traditional formulation of the standard for professional misconduct, i.e. conduct that would attract the disapprobation of one’s peers: see for example Allinson v General Council of Medical Education and Registration [1894] QBD 750.” Although s 109R(a) refers to a member of the public, in our view the test is not necessarily to be determined by reference to the opinion of a member of the public. Rather, the test to be applied is what a member of the public is entitled to expect from a reasonably competent accredited certifier. The relevant standards are those which a reasonably competent accredited certifier should exhibit in their dealings with the public. Those standards can be determined by reference to the practice and opinions of reasonably competent accredited certifiers, such as Mr Harriman. In fact, Mr Harriman specifically provides the opinion that the conduct of Mr Conway falls far short of the ordinary standards of conduct of the profession. His further opinion that it warrants the reprobation of his peers at the strongest level, is not directly relevant to a finding of the Tribunal pursuant to s 109R(a), but that opinion does not make his evidence unreliable.

29 Failure to read a decision. Mr Harriman prepared his report on 22 October 2003. The Tribunal handed down its reasons in Stapleton on 13 April 2004. Mr Harriman is not a lawyer, he is an expert witness on the role of accredited certifiers and fire safety issues. His failure to read that decision prior to giving his evidence does not reflect adversely on the relevance or reliability of his evidence.

30 Failure to visit the site. Mr Harriman is accustomed to reading and interpreting plans. In the circumstances of this case he did not need to inspect the premises in order to give reliable evidence.

31 Evidence to the Campbell Inquiry. What Mr Harriman said to the Campbell Inquiry does not affect the relevance or reliability of his evidence.

32 Conclusion. Given these findings we reject Mr Whyte’s submission that Mr Harriman’s evidence should be discounted in any way.

Two or three storeys?

33 Mr Conway said he assumed from the way Council classified the premises that it was regarded as having two storeys, the ground floor and the floor containing the bedrooms and bathrooms. If the Council considered the “intermediate storey” containing a landing and an enclosed storeroom to be a storey, Mr Conway says Council would have given it a separate classification, that is Class 7 (storage). On the assumption that it was classified as two storeys Mr Conway understood that it was to be of Type B construction as set out in the BCA and that a sprinkler system was not required. After seeing the evidence of the expert witnesses, Mr Conway now concedes that the building is a three storey building.

34 Mr Harriman gave evidence that the building plans indicate three distinct storeys, and when assessed in accordance with Clause Cl.2 of the BCA, had a rise in storeys of three. The intermediate storey is not a mezzanine level because it is fully enclosed. In Mr Harriman’s view it could be assumed that Council classified the intermediate level as Class 6 because it was associated with retail. If in doubt, Mr Harriman says that Mr Conway should have clarified the matter with Council. Mr Kip, a fire safety engineer and building surveyor, gave evidence that, in accordance with the definitions of “storey” and “mezzanine” in the BCA, the building is three levels. Mr Dartnell supported that view.

35 Contrary to Mr Conway’s assumption, the fact that the Council only classified two of the storeys, does not mean that they regarded the building as only comprising two storeys. In the opinion of three expert witnesses (Mr Harriman, Mr Kip and Mr Dartnell) the building comprised three storeys. We are comfortably satisfied that this is correct. Being three storeys, it is required to be of Type A construction. The construction was not Type A in several respects.

Legal requirements in relation to the issuing of Construction and Occupation Certificates

36 Introduction. Mr Conway submitted that he had a degree of discretion in relation to the conditions in the Consent, especially in circumstances where, in his view, he was increasing the overall fire safety of the building and where some of the requirements in the Development Consent were impractical or did not comply with the BCA. The first question for the Tribunal is whether Mr Conway has any discretion in relation to the conditions in the Consent and whether his conduct was in accordance with legislative and other requirements.

37 Construction Certificate. A construction certificate is defined in s 4 of the Act to mean a certificate referred to in section 109C(1)(b). Construction certificates are issued pursuant to s 109C of the Act which, so far as is relevant, states that:

(1) The following certificates (known collectively as "Part 4A certificates") may be issued for the purposes of this Part:

(b) a "construction certificate", being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5)

38 Clause 81A(5) of the Regulation states that:

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

39 Reference to “the erection of buildings” and “the sub division of land” relates to the definition of “development” in s 4, which is:

(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,

40 The “erection of a building” is defined in s 4(2)(b)(i) of the Act to include:

the rebuilding of, the making of alterations to, or the enlargement or extension of, a building

41 Section 81A of the Act which relates to the erection of a building, includes the kind of work being carried out on the premises, namely alterations involving the widening of corridors, rebuilding of stairways and installation of a sprinkler system.

42 Clauses 145 and 146 of the Regulation set out the matters about which a certifying authority, such as Mr Conway, must be satisfied before issuing a construction certificate. The Minister submitted that Mr Conway was in breach of Cl 145(1)(a) and (b) and Cl 146(1)(c). Those provisions are set out above at [18]. The effect of the provisions in Cl 145(1)(a) and (b) is that the accredited certifier must be satisfied both that the design and construction of the building is not inconsistent with the Development Consent and that the proposed building will comply with the relevant requirements of the BCA.

43 According to Mr Conway, he tried to bring the building up to a standard reflected by the “deemed to satisfy” provisions of the BCA. He says he attempted to rectify what he saw as deficiencies in the Consent without impairing or compromising the fire safety integrity of the development. For example, Mr Conway submitted that under the BCA, a sprinkler system is not required for a two storey building. While that may be so, we have found that the building was three storeys. Consequently the fire-rated ceilings that Mr Conway recommended did not comply either with Condition 17(a) or the BCA for a three storey building.

44 According to Mr Harriman, the Construction Certificate plans issued by Mr Conway, did not comply with the “deemed-to-satisfy” provisions of the BCA and no “alternative solution” that satisfied the “performance requirements” was prepared. According to Mr Harriman and Mr Dartnell Condition 17 is to be read as a fire safety “package” and not as individual items which were interchangeable with individual requirements in the BCA. In Mr Harriman’s experience it is not unusual for a council to impose such conditions in relation to an existing building that does not comply with the BCA. He said that existing buildings often cannot be upgraded to fully comply with the deemed-to-satisfy provisions of the BCA, and therefore it is common practice to require only works to be carried out that are achievable and commercially available. According to Mr Dartnell, Condition 17 is a mix of different requirements from the BCA and the Australian Standards and each condition cannot be evaluated in isolation. We accept these expert opinions.

45 Summary of requirements. The legislative requirements that applied to Mr Conway when issuing a Construction Certificate for the premises are clear. Before issuing such a certificate, Mr Conway should have been satisfied that:

· the design and construction of the building as depicted in the plans and specifications were not inconsistent with the development consent;

· the proposed building will comply with the relevant requirements of the Building Code of Australia; and

· each condition of the development consent that must be complied with before a construction certificate may be issued has been complied with.

46 Mr Conway submitted that it was sufficient if the design and construction of the building is “not inconsistent” with the development consent as depicted in the plans and specifications. Even if the words “not inconsistent” allow some room for variation to the design and construction of the building, that term, in the context in which it is used, does not permit an accredited certifier to replace the Council’s conditions with his own understanding as to how the issue of fire safety should be addressed. That is what Mr Conway did in this case and it cannot be said that his plans were “not inconsistent” with the development consent.

47 Mr Conway also relied on the wording in the Consent to support his view that he was acting within its parameters. He maintained that the words “to the satisfaction of the certifying authority” in the heading to Schedule 1B of the Development Consent mean that it was up to him as to whether he was “satisfied” that the conditions as to fire safety had been met. He acknowledged that the Council’s main concern was fire safety and that Condition 17 was of central importance.

48 The heading to Schedule 1B reads: “Conditions to be complied with prior to issue of Construction Certificate to the satisfaction of the Certifying Authority.” (Emphasis added.) Condition 17 then sets out the works which “must be included in the design for the building to ensure that there is adequate provision for fire safety.” The nineteen conditions are set out in mandatory terms. In the context of Condition 17, the certifying authority could not be satisfied in relation to the conditions to be complied with unless those conditions were met in full, or conditions which were “not inconsistent” with those conditions were implemented. That conclusion is supported by the wording of Cl 145(a) and Cl 146(c). In particular, Cl 146(c) prevents a certifying authority from issuing a construction certificate unless it is satisfied that each of the conditions of the development consent that must be complied, has been complied with. By using the words “Conditions to be complied with. . . ” in Schedule 1B and by using the word “must” in each part of Condition 17, Council was invoking Clause 146(c) of the Regulation.

49 Mr Conway’s next point was that the words “adequate levels of fire safety” in the Consent were not defined. As a result he says he had to assess the design and issue certificates without knowing the rationale for the development consent conditions. Mr Harriman made the point that Council is not required to define the term “adequate level of safety” and that it was open to interpretation as expressed in that condition. In our view, this phrase merely reflects the purpose of the requirements in Condition 17. It is not a separate requirement which Mr Conway was free to interpret according to his own understanding. In view of the detailed conditions as to fire safety, Mr Conway could not have been in any doubt as to what was expected in relation to fire safety.

50 Finally Mr Conway believed that he could exercise some discretion particularly given that the alterations he made to the Consent were internal, rather than structural. There is no factual or legal basis for such an assertion and we do not accept it. In addition, he maintained that the deviations from the development consent were made to increase the level of safety within the building and to rectify vague or impracticable conditions. That assertion is contrary to Mr Dartnell’s opinion that Mr Conway’s plans did not adequately provide for the safety of the occupants of the building in the event of fire. Mr Dartnell was not cross-examined about that opinion. Mr Harriman expressed the view that the departures from the conditions of the Consent were significant and materially affected the fire resistance of the building and the life safety afforded to occupants. Despite Mr Conway’s assertions to the contrary, we are satisfied on the basis of these expert views, that the level of fire safety was significantly less than it would have been had the design and construction complied with the Consent.

Section 96 amendment.

51 Under s 96 of the Act an applicant may apply to Council for a modification to the Development Consent. The modification may involve a minor error, misdescription or miscalculation, or it may involve more substantial changes. The weight of expert opinion was that rather than issuing certificates which were inconsistent with the Consent, Mr Conway should have advised the owner, Bellstar, to apply for a modification to the Consent, if the conditions were impractical or insufficient. Mr Conway now understands that that is what he should have done but says that at the time he was not aware of the existence of s 96. It was his understanding that internal alterations did not require Bellstar to lodge a s 96 modification.

52 A Practice Note entitled “When is a s 96 modification required?” issued in September 1999 states that:

You will need to modify the consent where you change your plans so that:

· the external envelope of the building is changed . . .

· rooms are moved or enlarged

· a specific requirement of a condition of consent has not been met.

53 In our view the Practice Note accords with the requirements of s 96 which make it clear that both minor and more substantive modifications to the Development Consent require approval by Council. Mr Conway purchased the Practice Note after the complaint against him was made.

54 Mr Harriman expressed the view, which we accept, that it was common knowledge among practitioners in June 2000 that they needed to seek a modification under s 96 in circumstances such as those Mr Conway says he faced. Despite the clear words of the legislation and the existence of the Practice Note, which is intended to provide guidance to those working in the area, Mr Conway issued a construction certificate without advising Bellstar that they needed to seek an amendment to the Consent before he could issue the Construction Certificate in the form he was proposing. He now concedes that that he should have advised Bellstar that they needed to seek an amendment to the Consent before he issued the Construction Certificate.

Occupation Certificates

55 An occupation certificate is issued pursuant to s 109C of the Act. In this case the purpose of the occupation certificate was to authorise a change of building use for an existing building. Under s 155(1)(e) of the Regulation, an occupation certificate for the proposed backpacker accommodation, must contain the following information:

(e) a statement to the effect that:
(ii) a current development consent or complying development certificate is in force for the building, and

(iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and

(iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia

56 While the requirements in (ii) and (iii) above had been complied with, the building was not suitable for occupation or use in accordance with its classification under the BCA. For example, at the time of issuing the Occupation Certificate, the stairs were non-complying, no sprinkler system had been installed and the head heights in the stairway were less than 2.0 metres.

57 On the basis of all the evidence and submissions, we are comfortably satisfied that:

1) Bradley Conway did not comply with Clause 145(1)(a) of the Regulation in that he issued a construction certificate when the proposed building works were not consistent with the Council’s consent for the development (the development consent), in particular conditions 17(a), (b), (k) and (l) of the Consent.

2) Bradley Conway did not comply with clause 145(1)(b) of the Regulation in that he issued a construction certificate when the proposed works did not comply, in certain respects, with the relevant requirements of the Building Code of Australia for the relevant building type classification of the development. In particular, the fire-rated ceilings that Mr Conway recommended did not comply either with the BCA for a three storey building.

3) Bradley Conway did not comply with s 146(c) of the EP& A Regulation in that the following conditions of the development consent were not met prior to the issuing of the construction certificate:

Particulars

Use of the premises must not recommence until the building has been upgraded to provide adequate levels of fire safety for the occupants of the building, and the Principal Certifying Authority issues an Occupation Certificate.

Conditions 17(a), (b), (k) and (l)

4) Bradley Conway issued an occupation certificate for the development in circumstances where the building was not suitable for occupation or use in accordance with its classification under the Building Code of Australia.

Particulars

At the time of issuing the Occupation Certificate, the stairs were non-complying, no sprinkler system had been installed and the head heights in the stairway were less than 2.0 metres.

58 Under s 109ZA we must determine whether or not Mr Conway is guilty of unsatisfactory professional conduct or professional misconduct. The conduct on which the applicant relied as constituting unsatisfactory professional conduct is that defined in s 109R(a), (c) and (d)(i):

(a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, or

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited

59 Professional misconduct, in relation to an accredited certifier, “means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.”

Standards expected of a reasonably competent accredited certifier

60 As we said above at [28], the relevant standards are those which a member of the public is entitled to expect of a reasonably competent accredited certifier. The Tribunal must determine the standards that a reasonable member of the public is entitled to expect by relying on its own opinion of those standards (given that the Tribunal sits with an expert member) and the opinions of reasonably competent accredited certifiers, including Mr Harriman. According to Mr Harriman, Mr Conway’s conduct falls far short of the ordinary standards of conduct of the profession. In particular, according to Mr Harriman, Mr Conway’s inability to correctly identify that the building had three storeys falls well below the expected minimum standard for a Grade 1 Accredited Certifier.

61 The public is entitled to expect that accredited certifiers will not issue Construction Certificates which are inconsistent with the conditions in the Development Consent or which do not comply with the relevant requirements of the BCA. We have found that the construction certificate issued by Mr Conway was inconsistent with these requirements. In addition, Mr Conway issued an Occupation Certificate for the development in circumstances where the building was not suitable for occupation or use in accordance with its classification under the Building Code of Australia.

62 Mr Conway also conceded that he should have advised Bellstar that they needed to seek an amendment to the Consent before he issued the Construction Certificate. On the basis of our findings, we are comfortably satisfied that Mr Conway’s conduct falls short of the standard of competence that a member of the public is entitled to expect of a reasonably competent accredited certifier.

Wilfully disregards matters

63 The second way in which the Minister alleges that Mr Conway’s conduct amounts of unsatisfactory professional conduct is that he has wilfully disregarded matters to which he is required to have regard in exercising his or her functions as a certifying authority. The word “wilful” is defined in the Concise Oxford Dictionary to mean “(Of action or state) for which compulsion or ignorance or accident cannot be pleaded as excuse, intentional, deliberate, due to perversity or self- will . . .” When exercising the functions of determining whether to issue a construction certificate or an occupation certificate, there is nothing in the relevant legislation which requires an accredited certifier to “have regard” to any particular matter. The requirements in Condition 17 are expressed in mandatory terms. The provisions of Cl 145 and 146 of the Regulation set out certain matters about which a certifying authority must be satisfied before issuing a construction certification. There is no matters of which we are aware to which Mr Conway was required to “have regard” when exercising his functions. Consequently we make no finding of unsatisfactory professional conduct on this ground.

Failure to comply with Code of Conduct.

64 Under s 109R(d)(i), the Code of Conduct applicable at the time stated, in part, that:

16.1 Code of Professional Conduct

BSAP has introduced a Code of Professional Conduct by which accredited certifiers and PCAs are required to abide. The BSAP Code of Conduct aims to ensure that the Code of Conduct requirements recognised by the Act are not breached. The Code of Conduct reflects the Act in respect to the conflict of interest matters referred to in Section 109ZG and the false representation matters referred to in Section 190ZH of the Act.

The guiding principles of the Code are to ensure that accredited certifiers and PCAs:

1. at all times safeguard the interests of the public and the accredited certifiers/PCAs clients and employers provided always that such interests are not in contravention of the code

2. do not breach public trust in the profession to which they belong or the specific trust of their clients and employers. Observance of accepted norms of honesty and integrity must underlie all their professional decision and actions;

. . .

5. do not undertake professional work which they are not competent to perform. If they are in any doubt as to this matter, they must obtain such advice and assistance as will enable them to carry out such work competently.

65 Mr Whyte submitted that there cannot be any breach of the Code because the Code is specifically directed to 109ZG and 109ZH of the Act, as stated in the preamble. With respect to Mr Whyte, that is not the effect of the words used in the preamble. The preamble to the Code merely states that “reflects the Act in respect to the conflict of interest matters referred to in Section 109ZG and the false representation matters referred to in Section 190ZH of the Act.” That does not mean that the Code is exclusively directed to those matters. In fact, the Code clearly relates to issues other than false representations and conflicts of interest. For example paragraph 5 quoted above refers to the competency of an accredited certifier.

66 We find that Mr Conway’s actions did not safeguard the interests of the public. At [50] we found that the level of fire safety was significantly less than it would have been had the design and construction complied with the Consent. In those circumstances, the interests of the public were not safeguarded by Mr Conway’s conduct. We also find that Mr Conway was not competent to undertake the work of determining whether a construction certificate should be issued for the premises in question. That is partly because of his inability to identify the number of storeys in the premises. The number of storeys is of critical importance in determining appropriate levels of fire protection.

Professional misconduct?

67 Having found that Mr Conway is guilty of unsatisfactory professional conduct, our next task is to determine whether that conduct amounts to professional misconduct. Professional misconduct is unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension or withdrawal of the accredited certifier’s accreditation.

68 Mr Conway said he acted honestly and to the best of his ability at all times. In hindsight, he acknowledges that it may have been prudent for him to have contacted Council at the time in relation to his interpretation of the Development Consent and he regrets not having done so. However he still believes that accredited certifiers have a significant degree of discretion with respect to development consent conditions. However, he now accepts that the scope for exercising discretion must be kept to a minimum.

69 In our view Mr Conway’s conduct is of a sufficiently serious nature to justify suspension or withdrawal of his certifier’s accreditation. That conduct, had it gone unchecked, would have exposed backpackers and staff occupying the premises to a significantly lower standard of fire safety than that which Council and the legislature has deemed appropriate for such premises.

Order

70 The respondent is guilty of professional misconduct.

Hearing on disciplinary orders

71 Having found that Mr Conway is guilty of professional misconduct we make the following directions:

1. Respondent to file any further evidence or submissions on which he wishes to rely in relation to the kind of disciplinary order the Tribunal should make within 21 days of the date of this decision.

2. Applicant to file any further evidence or submissions on which he wishes to rely in relation to the kind of disciplinary order the Tribunal should make within 21 days of receiving the Respondent’s material.

3. The matter is to be decided “on the papers” or, if either of the parties request an oral hearing, at a hearing for half a day on a date to be fixed by the Registry in consultation with the Tribunal and the parties.