Qiu v Building Professionals Board
[2013] NSWADT 289
•16 December 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Qiu v Building Professionals Board [2013] NSWADT 289 Hearing dates: 16 August 2013 Decision date: 16 December 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President
P Hayward, Non-judicial MemberDecision: Respondent's decision is varied as follows:
1. Mr Qiu is reprimanded.
2. Mr Qiu is fined the sum of $7000, payable within 28 days of receipt of notice of this decision.
3. A condition is imposed on his accreditation requiring him to provide a copy of any complying development certificate he issues within two days of its issuance to an accredited certifier approved by the Board. This condition is to take effect once the Board approves of the accredited certifier, and is to remain operative for two years from the date of the approval. These arrangements are to be made within 60 days of the issuance of this decision.
4. Liberty is given to either party to apply on two days' notice in respect of the terms of the above condition.
5. In the meantime the condition imposed by the stay order requiring Mr Qiu to provide a copy of any complying development certificate he issues to the Board within two days of its issuance is to be continued.
Catchwords: PROFESSIONAL DISCIPLINE - Accredited Certifier - Review of disciplinary decision - standards in relation to issuance of construction certificates in respect of residential development projects - Board finding of unsatisfactory professional conduct - ten allegations found proven - orders of reprimand, fine and suspension from issuing construction certificates for two years - eight of the allegations found proven pressed at review hearing - seven findings upheld - finding of unsatisfactory professional conduct - disciplinary order varied. Building Professionals Act 2005, s 19 Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005
Environmental Planning and Assessment Act 1979Cases Cited: Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3
Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43Category: Principal judgment Parties: Ting Jian Qiu (Applicant)
Building Professionals Board (Respondent)Representation: J Cotton, Lovegrove Solicitors (Applicant)
A Grey, Building Professionals Board (Respondent)
File Number(s): 133197
reasons for decision
This is an application for review of a disciplinary determination of the Building Professionals Board. The review applicant is Ting ('Tony') Jian Qiu, an accredited certifier, registration no BPB 0333.
Board Determination
On 23 May 2013 the Board disciplinary committee determined, following investigation of a complaint by the investigative staff of the Board, that he had engaged in unsatisfactory professional conduct 'as defined under s 19 of the Building Professionals Act 2005 (BP Act)'. It made disciplinary orders.
The Board's disciplinary jurisdiction is conferred by s 31 of the BP Act which provides:
31 Decision after investigation of complaint
(1) After the Board has completed an investigation into a complaint against an accreditation holder, 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 accreditation holder under Division 5 if it is satisfied that there is a reasonable likelihood that the accreditation holder will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct or it may instead exercise the functions conferred on it by subsection (4).
(3) (Repealed)
(4) If the Board is satisfied that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, the Board may take any one or more of the following actions:
(a) caution or reprimand the accreditation holder,
(b) by order impose such conditions as it considers appropriate on the accreditation holder's certificate of accreditation,
(c) order that the accreditation holder complete such educational courses as are specified by the Board,
(d) in the case of an accredited body corporate, order an accredited certifier who is a director or employee of the body corporate to complete such educational courses as are specified by the Board within the time specified by the Board,
(e) order that the accreditation holder report on his, her or its practice as an accredited certifier or building professional at the times, in the manner and to the persons specified by the Board,
(f) order the accreditation holder to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order,
(g) order the accreditation holder to pay to the complainant such amount (not exceeding $20,000) as the Board considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,
(h) suspend the accreditation holder's certificate of accreditation for such period as the Board thinks fit,
(i) cancel the accreditation holder's certificate of accreditation,
(j) disqualify the accreditation holder from being an accredited certifier director of, or otherwise being involved in the management of, an accredited body corporate or a specified accredited body corporate for such period (including the period of his or her lifetime) as may be specified by the Board,
(k) in the case of an accredited body corporate, disqualify an accredited certifier director of the body corporate from being an accredited certifier director of, or otherwise involved in the management of, the body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, but only during any period when the body corporate holds a certificate of corporate accreditation,
(l) order that the accreditation holder cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Board,
(m) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accreditation holder is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accreditation holder.
(5) The Board is to dismiss the complaint against the accreditation holder if it is satisfied that the accreditation holder is not guilty of either unsatisfactory professional conduct or professional misconduct.
(5A) When considering what action should be taken under subsection (4) in relation to an accreditation holder, the Board is to take into consideration any previous disciplinary action taken against the accreditation holder. This subsection does not limit any other matter that the Board may take into consideration.
(6) An order of the Board under this section takes effect on a date specified in the written statement of the decision given under section 32 or, if a statement is not required to be provided under that section, on a date specified in a notice in writing served on the person the subject of the complaint. Any such date must be a date occurring on or after service of the statement or notice on the person the subject of the complaint.
Section 19 of the BP Act provides:
professional misconduct, in relation to an accreditation holder, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accreditation holder's certificate of accreditation.
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,
(c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention,
(d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation,
(e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner,
(f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority,
(g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme,
(h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation,
(i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act,
(j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5,
(k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5,
(l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier,
(m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition.
The Board examined Mr Qiu's conduct in respect of five developments in the City of Canada Bay, a municipality in greater Sydney:
- 3 High Street, Concord (four allegations, allegations 1 and 3 found proven)
- 57 Wellbank Street, Concord (four allegations, all found proven)
- 8 Fairview Street, Concord (two allegations, allegation 1 found proven)
- 7 Seabrook Avenue, Russell Lea (four allegations, allegations 1, 3 and 4 found proven)
- 20 Station Street, Concord (one allegation, found not proven).
In total ten allegations affecting four developments were found proven.
The Board made the following disciplinary orders:
- A reprimand.
- A fine of $20,000, payable within 28 days of the determination.
- Imposition of a condition on his certificate of accreditation, which removes his authority to issue complying development certificates (CDCs) within the meaning of the Environmental Planning and Assessment Act 1979 (EPA Act), effective from 3 June 2013 to 3 June 2015 (inclusive).
The determination included the following statements:
'6. The decision on penalty is an aggregation of the proven matters listed in the investigation report; and
7. The Committee took into consideration previous disciplinary action taken against Mr Qiu, having regard to the Board's Disciplinary Penalty Guidelines.'
Review Application
On 21 June 2013 Mr Qiu applied to the Tribunal for review of the Board's decision. The Tribunal's review jurisdiction is conferred by s 33 which provides:
33 Person may apply to Tribunal for a review of disciplinary finding of Board
A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for a review of that finding and any action taken by the Board under section 31 (4).
At a directions hearing on 25 June 2013 the Tribunal endorsed consent orders staying the orders of the Board until disposal of the review application by the Tribunal. Mr Qiu agreed to a condition that he provided copies of CDCs to the Board within two days of them being issued. The Board gave an undertaking that it would remove the determination from its public web site until disposal of the review application by the Tribunal.
The provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) govern the exercise by the Tribunal of its jurisdiction to review reviewable decisions. The primary provision is s 63 which 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.
Filings
The Board filed all relevant material, as required by s 58 of the ADT Act, including the investigation report, and the Board's reasons for decision. The parties filed written submissions as follows: applicant's submissions, 23 July 2013; expert report obtained by applicant from Mr Brendan Bennett, Building Surveyor, Accredited Certifier, Grade 1, Director, City Plan Services, 1 August 2013; respondent's submissions divided into two parts: submissions as to allegations found proven, submissions as to disciplinary orders, 16 August 2013.
Applicant's Case
Mr Qiu's application for review had attached to it 'submissions in support of review', dated 21 June 2013. His case is outlined there. He stated, see para 19, that:
(i) for most of the proven allegations he denies that any adverse disciplinary finding should be made against him;
(ii) even if some of the errors alleged were made, he denies that (even when seen cumulatively) the errors are sufficient to justify a finding of 'unsatisfactory professional conduct';
(iii) if, nonetheless, it is considered that he is guilty of unsatisfactory professional conduct, he seeks a review of the disciplinary orders, in the following respects: (a) the imposition of a condition that he not be able to approve complying development certificates for a period of two years; and (b) the amount of the fine, which it is submitted is excessive.
The Hearing
The hearing proceeded on 16 August 2013, before a panel 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 Philip Hayward, a registered surveyor of standing).
At hearing, the Board, represented by Mr Grey, legal officer, did not press three of its adverse findings: i.e. High Street, Concord development, allegation 3 (accordingly allegation 1 remains alive); Wellbank Street, Concord development, part of allegation 2 (accordingly allegations 1 and 2 as to one part, 3 and 4 remain alive; and Fairview Street, Concord development, allegation 1 (accordingly no allegations remain alive in respect of this development). It pressed all the proven allegations in respect of 7 Seabrook Avenue, Russell Lea.
The result is that the certifier's conduct remains in issue in respect of three developments, and there are seven allegations found wholly proven to be reconsidered, plus one found proven in respect of one of its two elements.
At hearing Mr Qiu accepted that there had been a number of errors on his part, in line with the advice provided in Mr Bennett's expert report. Only two allegations were in contest: Wellbank Street, allegation 4; and Seabrook Avenue, allegation 3.
Oral evidence was given by: Mr Bill Oslan, Senior Investigator, Building Professionals Board; Mr Bennett; and Mr Qiu.
Function of CDCs
As will be evident from the narrative to this point, the Board's concern in respect of the certifier's conduct in respect of each of the developments related to his issuance of CDCs. The allegations that remain alive divide into two types: Mr Qiu issued a CDC in circumstances where the law did not permit this method of approval; or Mr Qiu issued a CDC that certified to compliance with the law, but the matter certified was non-compliant.
The power given to accredited certifiers to issue a CDC is a significant one. It combines the functions of a development consent and a construction certificate. Generally speaking, the CDC procedure is able to be used to certify and approve developments of a relatively minor character.
The certifier's authority is given by s 85A of the EPA Act:
85A Process for obtaining complying development certificates
(1) Application
An applicant may, in accordance with the regulations, apply to:
(a) the council, or
(b) an accredited certifier,
for a complying development certificate.
(2) (Repealed)
(3) Evaluation
The council or accredited certifier must consider the application and determine:
(a) whether or not the proposed development is complying development, and
(b) whether or not the proposed development complies with the relevant development standards, and
(c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.
(4) A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5) A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6) Determination
The council or an accredited certifier may determine an application:
(a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b) by refusing to issue a complying development certificate.
(7) The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
(8) The determination of an application by the council or accredited certifier must be completed within the period prescribed by the regulations (or such longer period as may be agreed to by the applicant) after lodgment of the application.
(9) In determining the application, the council or the accredited certifier must impose a condition that is required to be imposed under Division 6 in relation to the complying development.
(10) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a council or an accredited certifier.
(10A) Payment of long service levy
Where a council or accredited certifier completes a complying development certificate, that certificate is not to be forwarded or delivered to the applicant, unless any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.
(11) Post-determination notification
On the determination of an application for the issue of a complying development certificate:
(a) the council or accredited certifier must notify the applicant of the determination, and
(b) the accredited certifier must notify the council of the determination, and
(c) if the determination is to issue a complying development certificate, the council or accredited certifier must notify any other person, if required to do so by the regulations, in accordance with the regulations.
(12) For the purposes of subsection (7), development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.
The aim of the Codes SEPP is explained at cl 1.3:
1.3 Aims of Policy
This Policy aims to provide streamlined assessment processes for development that complies with specified development standards by:
(a) providing exempt and complying development codes that have State-wide application, and
(b) identifying, in the General Exempt Development Code, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and
(c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and
(d) enabling the progressive extension of the types of development in this Policy, and
(e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments.
Codes SEPP,
1.17 What development is complying development?
(1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.
(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
In each of the three cases that remain under notice, the primary allegation is that Mr Qiu misclassified the new residential dwelling the subject of the CDC as being two storeys or less, when it exceeded that limit. Developments that exceeded two storeys were not exempt from the usual requirements of a development consent followed by a construction certificate. They can not be the subject of a CDC. Codes SEPP 3.2 provides, further to cl 1.17:
3.2 New single storey and two storey dwelling houses
The erection of a new single storey or two storey dwelling house is development specified for this code.
In two of the cases there are further allegations going to other aspects of the CDC.
(1) 3 HIGH STREET, CONCORD (ALLEGATION 1)
Allegation 1 (paraphrased): Mr Qiu issued CDC PC12110 dated 12 March 2012 for the erection of a dwelling at the above address in contravention of sections 85A(3) and 85A(6) of the EPA Act 1979. Specifically, the dwelling exceeded the number of storeys provided in cl 3.2 under Division 1 of Codes SEPP.
The endorsed plans referred to three elements - a garage, a ground floor and a first floor. The main set of plans included a 'basement floor' plan.
Mr Oslan, the investigator, concluded that the endorsed CDC drawings for which Mr Qiu issued the certificate reflected that the development was a three storey dwelling 'in some parts' - specifically, part of the bathroom at basement level, part of the dining room at ground floor level, and part of the retreat at first floor level - when stacked together they form a three storey building. He rejected a drawing submitted by Mr Qiu in his defence, and noted that it did not show the relationship between the elements shown in the CDC drawings.
Mr Bennett agreed with Mr Oslan's assessment. Mr Bennett had interviewed Mr Qiu, and considered that he had incorrectly interpreted the position of the lower ground en suite bathroom to align with the internal void due to the consistent basement floor level. He noted that upon realising that there was an issue he requested the drawings be corrected and issued an amended CDC (9 May 2012).
The Tribunal is satisfied, as found by Mr Bennett, that there were 3 storeys including the basement garage. It is apparent that the amended CDC was only issued by Mr Qiu after he had been alerted to the problem.
(2) 57 WELLBANK STREET, CONCORD (ALLEGATIONS 1, 2.1, 3 AND 4)
Allegation 1 (paraphrased): Mr Qiu issued CDC PC11704 dated 18 July 2011 for the erection of a dwelling and swimming pool at the above address in contravention of sections 85A(3) and 85A(6) of the EPA Act 1979. Specifically, the dwelling exceeded the number of storeys provided in cl 3.2 under Division 1 of Codes SEPP.
The plans provided for a basement floor, a ground floor and a first floor. They showed a driveway entering the ground level of the front of the site, to the right side of the dwelling and then following the contour of the land downwards to a garage below the house.
Mr Oslan found that the endorsed drawings depicted a dwelling that was a three storey one 'in some parts' - specifically, part of the single garage at basement level, part of the gallery at ground floor level, and part of the gallery at first floor level. He considered that when stacked they produced a three storey building. In his initial reply to the Board, Mr Qiu said that based on the BCA (Building Code of Australia) definition the basement is not considered a storey as the floor level of the storey immediately above is less than 1 metre above ground floor. This explanation was rejected, as the relevant definition is that contained in the Standard Instrument - Principal Local Environmental Plan. It defines a basement as a 'storey'.
These are the relevant definitions:
storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include:
(a) a space that contains only a lift shaft, stairway or meter room, or
(b) a mezzanine, or
(c) an attic.
basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).
Mr Bennett expressed some sympathy for Mr Qiu's misinterpretation. While he agreed with Mr Oslan that Mr Qiu had fallen into error, he said that he had applied a 'BCA' approach (i.e. a Building Code of Australia approach) to the assessment of how basement areas of dwellings with two storeys above ground were to be treated in determining whether a dwelling might still be classified as two storeys.
He noted that the relevant amendment to the Codes SEPP occurred on 28 February 2011, and the CDC under notice was issued on 18 July 2011. He said that there was a great deal of industry confusion at the time of these amendments, and differing opinions as to the required interpretation. He referred to the activities of the Department in undertaking training seminars in the run-up to the commencement of these amendments to the Codes SEPP (December 2010), and the number of interpretative documents that have been issued by the Department, and the debate on their meaning, which he said continues.
Our assessment is that Mr Qiu seems to have misinterpreted the Codes SEPP and did not count the basement as a storey.
Allegation 2 (paraphrased): Specifically, the dwelling had a setback to the boundary with a public reserve that was less than the 3m provided in cl 3.19(a) under Division 2 of Codes SEPP. [The original allegation found proven also referred to non-compliance in respect of the swimming pool. This finding was not pressed at hearing.]
3.19 Exceptions to setbacks
Despite any other clause in this Subdivision:
(a) a dwelling house or an outbuilding must have a setback of at least 3m from a boundary with a public reserve, and ...
Mr Qiu informed the Board that after he knew that the side boundary to the public reserve had to be 3.0m, he immediately advised the owner and asked him to stop working on the site. As Mr Oslan noted in his report, this response amounted to an admission.
Mr Qiu conceded his error. He issued an amended CDC drawing (12 September 2011) and the building was repositioned.
Allegation 3 (paraphrased). Specifically, the first floor balcony to the dwelling was not provided with a privacy screen as required by cl 3.23(2) under Division 2 of Codes SEPP.
3.23 Privacy
(2) A new balcony, deck, patio, pergola, terrace or verandah and any alterations to an existing balcony, deck, patio, pergola, terrace or verandah must have a privacy screen if it:
(a) has a setback of less than 3m from a side or rear boundary, and
(b) has a floor area more than 3m2, and
(c) has a floor level more than 1 metre above ground level (existing).
This allegation is conceded. Mr Bennett agreed with Mr Oslan's and the Board's finding. Mr Qiu's initial response was that because the balcony was facing a park, there was no privacy issue and therefore a screen was not necessary. It will be seen that the standard does not contain any qualification of this kind. Mr Bennett noted that Mr Qiu had issued an amended CDC (12 September 2011) that complied.
Mr Qiu conceded his error. He noted that now the balcony fell within the 3.0m set back, and there was no need for a screen.
Allegation 4 (paraphrased). Specifically, the required excavation work exceeded that detailed in cl 3.29(1)(a) under Division 2 of Codes SEPP.
3.29 Excavation of sloping sites
(1) Excavation associated with the erection of, or alterations or additions to, a dwelling house or ancillary development (other than a swimming pool) must:
(a) be not more than 1m below ground level (existing).
The Board's finding was contested.
Mr Oslan noted that the dwelling had basement level for car parking. He noted that the subject site is a sloping one with a fall of approximately 1 metre from the front boundary to the rear boundary. He stated that according to the endorsed CDC drawings, the levels associated with the design of the basement show that excavation work of at least 2.2m would be required to accommodate the structure. Specifically, he said, the finished floor level at the top of the ramp leading to the basement was depicted as s.f.l. 12.650, and the proposed finished floor level of the basement at the bottom of the ramp was depicted as s.f.l. 10.440, thus amounting to a 2.21m of difference in levels.
In his reply to the Board Mr Qiu stated in part: 'The maximum excavation below existing ground level is not specified in the definition. If the basement area is to be useable and comply with the BCA, the excavation depth must be more than 1.0m'.
Mr Bennett did not dispute Mr Oslan's assessment of the levels shown by the drawings. However, he contended that cl 3.29 was simply not applicable to the dwelling in issue. Mr Bennett did not agree with the Board that the relevant standard was cl 3.29. He considered that cl 3.29 provides a standard relevant to 'earthworks and drainage within a general context to limit the ecological impact of a development on site'.
He said that 'it is clear that this limitation does not apply to the construction of a basement which is a development that is complying development under Part 3 Division 1 of the Codes SEPP.' He referred to the general definition of 'basement', set out earlier in these reasons (see para [31]).
He noted that a basement as a non-habitable space for the purpose of cl 3.8.2.2. of the BCA must have a minimum floor to ceiling height of 2.1m for at least two-thirds of the floor area of the room or space. Mr Bennett said that it is impossible to predict footing depths for a structure as in-ground circumstances can require extended footing depths and/or piers. Such construction, he said, would regularly exceed 1.0m below existing ground level. In support of his view, he referred to the definition of basement - it needs to be a space 'predominantly' below ground level and the floor level of the storey above must be less than 1m above ground level (existing).
In his report, he noted that to achieve a BCA compliant ceiling height it is necessary for a basement to be excavated at least 1200m to 2200mm assuming a 100mm thick slab (excluding edge beams). He referred to the Department of Planning's NSW Housing Code - Expansion to cover small lots/Discussion Paper dated 2010 and its statement at p 18:
It is proposed that additional excavation be allowed provided it is contained within the footprint of the dwelling house or ancillary development, and the area is limited to:
- 25m2 in the Small Lots Housing Code, and
- 40m2 in the General Housing Code.
At the time this was a discussion paper. We note (see extract at Appendix E of Mr Bennett's report) that under the heading 'Basement and Excavation', the paper says:
'Basements are currently not permitted under the General Housing Code, and excavation associated with the erection ... of a dwelling house is limited to a maximum of 1.0m.'
The paper then went on to outline the proposed amendment, as set out above, and invited comment.
Mr Bennett said if applied literally cl 3.29 would never allow for basements to be built.
There was considerable discussion at hearing of the complications of these rules in the case of sites that slope rearward from the street frontage, as here.
Assessment
In relation to Mr Bennett's opinion, we consider that the rule in cl 3.29 is a general rule that is applicable, as it is expressed, to any 'excavation associated with the erection of ... a dwelling house'. This accords with the view expressed in the 2010 discussion paper.
Cl 3.29 appears in Subdivision 6 of Division 2 of Part 3. Part 3 is headed 'General Housing Code'. Division 2 is headed 'Development standards for this code'. The building issues the subject of this division are covered in Subdivisions 2-7, and they are headed 'Site requirements', 'Building heights and setbacks', 'Landscaping', 'Car parking and access', 'Earthworks and drainage' (Subdivision 6 where cl 3.29 appears), 'Ancillary development', 'Outbuildings' and 'Development standards for particular land' (such as bushfire prone land).
This strict provision needs to be understood in the overall framework of the policy aims of the Codes SEPP. The instrument provides for a streamlined process, enabling the 'fast tracking' of various aspects of residential building works. In our view it is understandable that some caution would be shown in relation to allowing fast tracking of more substantial excavation works. The instrument as it is presently framed means that more substantial footings excavation can not be the subject of a CDC.
We accept that the construction of a basement that is at or near the upper end of the area limits specified would often normally require more than 1.0m depth excavation; and that as a practical matter many basements are built in a way that allows someone to stand up in them, and therefore would ordinarily be at least 2.0m in height. Nonetheless, cl 3.4 is entirely silent on this matter, and we are not able to draw the inference that Mr Bennett does.
Consequently, we agree with Mr Oslan's and the Board's interpretation of the rules.
We find the allegation proven.
We note that the problem in this matter was resolved by the issuance of an amended CDC after the Council alerted Mr Qiu to the problem.
(3) 7 SEABROOK AVENUE, RUSSELL LEA (ALLEGATIONS 1, 3 AND 4)
Allegation 1 (paraphrased): Mr Qiu issued CDC PC12099 dated 19 March 2012 for the erection of a dwelling and swimming pool at the above address in contravention of sections 85A(3) and 85A(6) of the EPA Act 1979. Specifically, the dwelling exceeded the number of storeys provided in cl 3.2 under Division 1 of Codes SEPP.
The plans provided for a 'garage/laundry' basement level, a ground floor level and a first floor level. The 'garage/laundry' level included the following spaces: garage, laundry, plant room, and - both external to the walls - a patio and a 5000L tank. The rear yard had three elements, to the right as you enter, a driveway from the rear street, Alison Street; a lawn with clothes hoist at the centre; and to the left side, a swimming pool, set close to the rear boundary.
Mr Oslan found, and the Board and Mr Bennett agreed, that the endorsed CDC drawings depicted a three storey dwelling in some parts - specifically, the plant room at basement level, the walk-in robe, and the en suite to bedroom 2 at ground level and part of the family room at first level when stacked together formed a three storey building. The Board in its submissions noted that at the lowest level the plant room as shown in the plans aligned vertically through the levels above to cause the building to be three storeys.
Mr Bennett noted that he had been advised by Mr Qiu that he issued an amended CDC (6 November 2012) which deleted the plant room and incorporated the sub-floor area for the installation of the rainwater tank.
Mr Qiu did not contest the Board's finding.
Allegation 3 (paraphrased): Specifically, the swimming pool (an 'ancillary development') was not located as detailed in cl 3.14(3) under Division 2 of the Codes SEPP.
The Board's finding was contested. The parties referred to the following provisions:
Definitions (cl 1.5):
ancillary development means any of the following that are not exempt development under this Policy:
swimming pool or spa pool and child-resistant barrier.
parallel road means, in the case of a lot that has boundaries with parallel roads, the road that is not the primary road.
primary road means the road to which the front of a dwelling house, or a main building, on a lot faces or is proposed to face.
3.14 Setbacks of dwelling houses and ancillary development from roads, other than classified roads
(1) A dwelling house and all ancillary development on a lot must have a setback from the boundary with a primary road that is not a classified road of at least:
(a) the average distance of the setbacks of the nearest 2 dwelling houses having a boundary with the same primary road and located within 40m of the lot on which the dwelling house is erected, or
(b) in any case where 2 dwelling houses are not located within 40m of the lot:
(i) 3m, if the lot has an area of less than 300m2, or
(ii) 4.5m, if the lot has an area of at least 300m2 but less than 900m2, or
(iii) 6.5m, if the lot has an area of at least 900m2 but less than 1500m2, or
(iv) 10m, if the lot has an area of at least 1500m2.
(2) A dwelling house and all ancillary development on a lot must have a setback from a boundary with a secondary road that is not a classified road of at least the following:
(a) 2m, if the lot has an area of at least 200m2 but less than 600m2, or
(b) 3m, if the lot has an area of at least 600m2 but less than 1500m2, or
(c) 5m, if the lot has an area of at least 1500m2.
(3) A dwelling house and all ancillary development on a lot must have a setback from a boundary with a parallel road that is not a classified road of at least:
(a) the average distance of the setbacks of the nearest 2 dwelling houses having a boundary with the same parallel road and located within 40m of the lot on which the dwelling house is erected, or
(b) in any case where 2 dwelling houses are not located within 40m of the lot:
(i) 3m, if the lot has an area of less than 300m2, or
(ii) 4.5m, if the lot has an area of at least 300m2 but less than 900m2, or
(iii) 6.5m, if the lot has an area of at least 900m2 but less than 1500m2, or
(iv) 10m, if the lot has an area of at least 1500m2.
(4) (Repealed)
3.34 Swimming pools
(1) Ancillary development comprising a swimming pool for private use must be located on a lot:
(a) behind the setback area from a primary road, or
(b) in the rear yard.
Note. Development for the purposes of a swimming pool is not complying development under this Code unless it is ancillary to a dwelling house.
(2) The swimming pool water line must have a setback of at least 1m from a side or rear boundary.
Mr Qiu approved a set back of 1m from the (rear) allotment boundary with Alison Street, applying cl 3.34(2).
In Mr Oslan's opinion the operative provisions were cl 3.14(3)(a) and (b)(ii). He found, and the Board agreed, that the endorsed CDC drawings permitted a swimming pool that had a nominated setback figure that was less than that detailed under Codes SEPP, at cl 3.14 (3)(a) and (b)(ii). He noted that the development site had an area of 451m2 and was located between two parallel roads known as Seabrook Avenue and Alison Street. He noted that the front door of the proposed dwelling faced Seabrook Avenue and therefore he considered it to be the primary road.
The Board in its submissions at hearing focussed on para (a), noting that this was the applicable standard here, averaged the set backs of the neighbouring dwellings and computed the average distance of the setbacks at 15.5m. Mr Oslan confirmed this calculation at hearing.
Set Backs and Lanes. A 'lane' is defined (Codes SEPP, cl 1.5) as:
a 'public road, with a width greater than 3m but less than 7m, that is used primarily for access to the rear of premises, and includes a nightsoil lane'.
Mr Qiu regarded Alison Street as a 'lane'. His assessment of its primary purpose fits with the depiction of the street in aerial photographs showing only rear yards along both sides of the street, which adjoin the street. The aerial photographs show swimming pools in some of the rear yards. In his submissions he stated that he measured the width of Alison Street and it came in just under the 7m limit at 6.9m. This assertion has not been disputed.
Mr Bennett expressed the opinion that cl 3.14 was a general standard that needed to be read alongside the modified setback provisions. Mr Bennett noted the amount of attention given to setback modification by the Code.
There is no question that Seabrook Avenue is a primary road, as the house faces Seabrook Avenue. Alison Street is therefore a 'parallel road' but it also qualifies as a 'lane'.
Clauses 3.15 to 3.20 all deal with setback modifications. They are headed:
3.15 Setbacks of dwelling houses and ancillary development from classified roads
3.16 Setbacks of dwelling houses and outbuildings from side boundaries, and built to boundary walls
3.17 Setbacks of dwelling houses from rear boundaries
3.18 Setbacks of outbuildings from rear boundaries
3.19 Exceptions to setbacks
3.20 Calculating setbacks
Mr Bennett noted that cl 3.17(3) allowed for a dwelling house to abut a rear lane for not more than 50 per cent of the length of that boundary. Clause 3.17 has general standards regarding setbacks of dwellings. Sub-clause (3) is an exception to those standards. It provides:
(3) Despite subclause (2), if the lot has a rear boundary with a lane the building may have a building line that abuts that boundary for not more than 50 per cent of the length of that boundary.
He said that it could also qualify as a 'parallel road', and then the dwelling house set back rules would come into play and produce a very different result. He presented this as an example of the contradictory tensions between the general standard in cl 3.14 and the specific problems to which cll 3.15 and following were addressed.
The Board in its determination simply stated that it 'disagreed with the submission of Mr Qiu under cover of letter dated 6 May 2013 that Alison Street was not a parallel road'. It did not engage with the submission, in particular the lane/setbacks issue or give reasons for this conclusion. (This approach is characteristic of many of the rulings of the Board that this Tribunal has been called on to review, and assists neither the affected party nor the Tribunal. We have commented in recent hearings on this problem, and look forward to a change in the way reasons for determination are written.)
In our view, the disagreement over the way swimming pool setbacks are to be set in circumstances of the present kind needs to be addressed by clear advice from the Department and the Board, or review of the Code's provisions.
In our view, the interpretation Mr Qiu adopted was not untenable. The provisions do not deal clearly with the circumstances where a street qualifies as both a 'parallel road' and a 'lane'. In our view, if he made an error, it ought not to be treated as one that demonstrates unsatisfactory professional conduct. At most, it was an error of judgement.
Our expert member, Mr Hayward, comments further that, in his opinion, the Board's interpretation of the Codes SEPP on this point is unsustainable and if upheld would make it impossible to build a pool in the rear yard of an allotment with two street frontages.
We find this allegation not proven.
Allegation 4 (paraphrased). Specifically, the principal private open space was not located as detailed in cl 3.25 of Division 2 of Codes SEPP.
This allegation goes to the 'Landscaping' provisions:
3.25 Principal private open space
(2) A lot, with a width measured at the building line of at least 10m, on which a new dwelling house is erected must have at least 24m2 of principal private open space.
(3) In this clause, principal private open space means an area that:
(a) is directly accessible from, and adjacent to, a habitable room, other than a bedroom, and
(b) is at least 3m wide, and
(c) is not steeper than 1:50 gradient.
This allegation is conceded.
Mr Oslan noted from the endorsed drawings that all habitable rooms are located one floor above any potential principal private open space. Consequently there are no habitable rooms that open to the open space of the property. In the original submissions Mr Qiu referred to a 'nearby' Study room 'near' the front yard, and argued that it was a case of what is meant by 'direct access' and 'adjacent to'. In his report Mr Bennett agreed with the Board. He said in his opinion the non-compliance could be rectified by swapping the identified use of Bedroom 4 with the Study, removing the door/wall separating this space from the porch doorway and corridor, and ensuring that the 24m2 has a gradient of not more than 1:50.
'UNSATISFACTORY PROFESSIONAL CONDUCT'
The Board's reasons do not identify which of the many categories of 'unsatisfactory professional conduct' set out in s 19 this case is said to fall into. The findings of the Board simply state that Mr Qiu has engaged in unsatisfactory professional conduct 'as defined' by the section. This approach is unfair to certifiers the subject of disciplinary action, as some of the categories of misconduct set out in s 19 are clearly more grave than others. We have in mind particularly the categories that refer to conduct that involves moral turpitude and lack of honesty. We will proceed on the basis that it is the primary category, category (a), into which the Board has classified this case, i.e.
(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,
As the Tribunal noted in Director General, Department of Infrastructure, Planning and Natural Resources v Boulle [2006] NSWADT 43:
13 The most notable feature of the above definitions, so far as conduct falling into category (a) is concerned, is that they do not adopt the standard found in the common law formulations of 'professional misconduct' - competence as judged by one's peers in the profession or occupation - but instead provide for competence, diligence and integrity to be assessed by reference to what 'a member of the public is entitled to expect of a reasonably competent accredited certifier'. See further Stapleton No 2 at [62] to [66] and Minister for Infrastructure and Planning v Conway (No.2) [2004] NSWADT 159 at [28].
As will be seen we have entered findings of allegation proven in relation to seven of the eight allegations that remain under notice.
Each of the three projects that have remained under notice involved the building of substantial, new dwellings: 3 High Street, Concord (estimated cost $380,000); 57 Wellbank Street, Concord ($385,000); 7 Seabrook Avenue, Russell Lea ($450,000).
This is a case about competence and diligence, not integrity.
In their main aspect, each of these developments had two primary residential floors, with infrastructure (for example, service areas, plant room, garage) separately located in a third element that lay outside the primary two residential floors. In our view, a disinterested member of the public would expect a certifier faced with this not uncommon equation to exercise great care in ensuring that the development fell within the strict limit of two storeys and could therefore be the subject of a CDC. There is understandable concern in the community over too bulky and dominant development in residential neighbourhoods, and the Codes SEPP seeks to strike a balance in that regard.
In our view Mr Qiu failed to show the requisite level of competence and diligence in his assessment of the way internal spaces were configured in the plans. In our view, a finding of unsatisfactory professional conduct should be entered.
We regard the misclassification of 3 High Street, Concord as the most significant of the three matters. The as-built photographs illustrate the extent to which the bottom level was above street level, and this outcome we think should have been seen on inspection of the plans. Further, the applicant stated that the height breach in relation to Concord remains uncorrected.
The misclassification in the other two cases was less significant in its consequences for the streetscape, as discerned from the photographs placed before us.
The privacy screen error, on its own, would not have given rise to a finding of unsatisfactory professional conduct. It has to be seen as part of a wider problem for Mr Qiu in applying the CDC standards. The excavations issue was hard fought, but we agree with the Board that Mr Qiu did err. On the other hand, we agree with the submissions put on Mr Qiu's behalf and the opinion expressed by Mr Bennett that this is an area where some clarification is desirable.
In the third case (Seabrook Avenue), we did not find the second allegation proven, and the third allegation related to the issue of direct access between habitable space and the private open space. This error revealed difficulty on Mr Qiu's part in properly reading plans.
His original submission to the Tribunal (the one attached to his application for review) made a weak argument, as we see it, for the proposition that an internal study on the ground level could be said to have been directly accessible to the front yard. The standard is one of many that are important in promoting habitability in dwellings. A disinterested member of the public, with a reasonable understanding of the relevant rules, would have expected a certifier to show caution in circumstances where all private living spaces, such as bedrooms, family rooms and the like, were located one level above the ground level.
We are satisfied that a global finding of 'unsatisfactory professional conduct' is warranted.
In our view disciplinary orders should be made.
Reprimand
In his submissions, in the event of a finding of unsatisfactory professional conduct, nothing was said in opposition to the imposition of a reprimand. We affirm that element of the Board's orders.
Other Disciplinary Orders
The Board referred to two previous disciplinary determinations affecting Mr Qiu:
- Reprimand. Fine $3000. 13 December 2012. But the two breaches related to issuance of a construction certificate, and secondly issuance of an occupation certificate prematurely. No details were provided.
- Reprimand. Fine $2000. 20 February 2013. Wrongful issuance of a CDC. No details were provided.
This case and the previous two are all ones that involve 'significant' or 'major' infringements under the guidelines. Further this is a category E matter under the Board's Guidelines as it is the third disciplinary determination within a 12 month period, and therefore can give rise to consideration of the serious step of suspension or cancellation. The Board did not go that far. However, it did take away Mr Qiu's right to issue CDCs for two years.
Mr Grey for the Board made detailed written and oral submissions on the question of the appropriate further orders. Mr Grey organised his principal submissions by reference to the list of the factors reflected in the Board's disciplinary penalty guidelines, and drawn from Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 at [45] per K P O'Connor DCJ, Chairperson (also the presiding member on this occasion).
That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant:
(a) the nature, width and extent of the contraventions
(b) the loss or damage and prejudice in consequence of the contraventions
(c) the circumstances in which the contraventions took place
(d) whether the licensee has been seen to have engaged in any similar conduct
(e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee
(f) the extent of carelessness or wilfulness of the conduct
(g) the efforts made to correct the situation and what measures have been taken by the licensee
(h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners
(i) the effect upon the licensee
(j) antecedents
(k) attitude, building history and future compliance
(l) the penalty range.
This is not a case raising factor (e). We have no precise information on how these problems came to light. There is a letter from Mr Qiu's then solicitors replying to council, which would suggest that at least some of the concerns originated from the council. The amended CDCs all bear dates that suggest on-site steps were taken before the building works were completed to address most of the matters the subject of adverse findings. But again the material before us is thin.
Mr Qiu gave evidence. He showed a consciousness of the need to be more vigilant and take more care when assessing projects with characteristics similar to those under notice in this case - two primary levels and an infrastructure level. As part of the stay order, he agreed to file his CDCs with the Board within 2 days of issuing them. This provides a form of assurance to the community, in that it operates as a deterrent against slack practice, and enables the Board to audit compliance. On the other hand the Board should not be cast into a relationship of this kind to errant certifiers. It has more important functions to perform than becoming a post box and, impliedly, an audit point for errant certifiers.
In his submissions Mr Qiu stated that he had been an accredited certifier since January 2004. He said that his business, ACE Building Approvals, handles certification for about 400 developments a year, 95% being class 1/10 (i.e. residential and related). The business employs two people full time (himself and an office manager) and two part time. This case has a feature the Tribunal has seen in several of the accredited certifier discipline cases, that of a small practice with only one accredited certifier. Mr Qiu is in that way isolated from other accredited certifiers at the day to day level, and his ability to obtain professional input is reduced. He referred to using an A4 accredited certifier and an accredited certifier - Engineer C7 & C15 - to assist with some critical stage inspections.
As to the first of the two reprimand determinations referred to above, Mr Qiu said that he made an error in relation to bushfire requirements and has now attended a Bushfire Prone Areas Seminar on 26 June 2013. He referred to the present case, acknowledged that he had made mistakes, and noted that the standards are complicated, and in his opinion some clauses are not clear. Mr Bennett's report supports Mr Qiu's perception in respect of some matters.
Mr Qiu said that he had recently engaged an experienced town planner to review and assess the requirements of the Codes SEPP. He said that the town planner provides a comprehensive report clause by clause. He expects that this process will ensure that errors are highly unlikely to recur. He presented written testimonials from Mr Peter Katris, architect, Burwood NSW (16 July 2013) and Mr Kenneth Ng, Accredited Certifier (Civil Engineering), Baulkham Hills (19 July 2013).
Fine
In our view, the fine should be reduced to a smaller sum, partly reflective of the fact that now seven allegations have been found proven, as compared to the ten found proven before the Board, and the fifteen allegations pressed by the Board's investigation team. In our view, a fine of $7000 is sufficient.
Placement of Condition on Accreditation
We are not inclined to go so far as to prevent Mr Qiu from issuing CDCs for two years. His practice is overwhelmingly a residential one, and removal of this authority would, we think, have a devastating effect. On the other hand, we accept that some intervention is desirable.
In its submissions the Board noted that the Codes SEPP will shortly be extensively amended and expanded. In support of continuation of the condition imposed by the disciplinary committee, the Board said that while he was barred from issuing CDCs, he would have time to study the new Codes and participate in training, thereby minimising the prospects of him falling into further error. We see the solution in the medium term as lying in a reporting option. We do not think the reporting need be direct to the Board. In our view the present protocol under the stay order of him having to lodge CDCs within two days of their issuance should continue, but it would be sufficient if they were provided to a certifier of standing approved by the Board. This would provide also the usual purpose of having Mr Qiu involve himself in an ongoing professional relationship with another accredited certifier. There may need to be a fee settled with the external certifier, we leave that to the parties to resolve. This system should remain in place for two years.
Rather than invite the parties to reconvene to settle the terms of the order, we have framed an order below which we consider sufficient. Our orders include liberty to apply if it is considered that the proposed condition needs to better expressed, or has overlooked an important matter.
Order
Respondent's decision is varied as follows:
1. Mr Qiu is reprimanded.
2. Mr Qiu is fined the sum of $7000, payable within 28 days of receipt of notice of this decision.
3. A condition is imposed on his accreditation requiring him to provide a copy of any complying development certificate he issues within two days of its issuance to an accredited certifier approved by the Board. This condition is to take effect once the Board approves of the accredited certifier, and is to remain operative for two years from the date of the approval. These arrangements are to be made within 60 days of the issuance of this decision.
4. Liberty is given to either party to apply on two days' notice in respect of the terms of the above condition.
5. In the meantime the condition imposed by the stay order requiring Mr Qiu to provide a copy of any complying development certificate he issues to the Board within two days of its issuance is to be continued.
Decision last updated: 02 January 2015
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