Boyce v Building Professionals Board

Procedural history

1. On 9 May 2019, the applicant commenced proceedings 2019/00145439 in the Tribunal against the respondent by filing an application in which he states he is seeking a review of the Decision on the grounds that it was not open to the respondent to find that he was guilty of professional misconduct.
2. On 22 May 2019, the Tribunal stayed the Decision subject to the condition that the applicant is not authorised to accept any application seeking that he issue a complying development certificate or a construction certificate, other than in relation to any undetermined application received by him on or before 3 May 2019, and any application seeking a modified certificate: Boyce v Building Professionals Board [2019] NSWCATOD 94.
3. On 23 June 2019, the applicant filed his particulars to the grounds of application, which set out in summary form his response to the findings in respect of the Complaints, and the penalty imposed by the respondent (the applicant's particulars).
4. On 5 July 2019, the respondent filed its reply dated 3 July 2019, which contends that the Tribunal should affirm the Decision (the respondent's reply).

The hearing

1. The hearing was held on 22 and 23 August, and 6 December 2019.
2. The applicant tendered the following written evidence: 1. the statement of Kelly Smith (Ms Smith) dated 8 July 2019 (Ex A1) (the Ms Smith statement); 2. the statement of Joshua Allen (Mr Allen) dated 8 July 2019 (Ex A2) (the Mr Allen statement); 3. a bundle of references (Ex A3); 4. the applicant's particulars (Ex A4); 5. plan (Ex A4A); 6. final occupation certificate (Ex A5); 7. aide memoire, 272 Old South Head Road, Watsons Bay (Ex A6); 8. aide memoire, chronology (Ex A7); 9. the affidavit of Bradley Thomas Grimshaw dated 9 May 2019 (Ex A8).
3. The respondent tendered the following written evidence: 1. section 58 material (pages 1-1681) (Ex R1); 2. the respondent's reply (Ex R2); 3. penalty guidelines (Ex R3); 4. supplementary documents served in letter dated 31 July 2019 (Ex R4); 5. code of conduct (Ex R5); 6. guide to the code (Ex R6); 7. aide memoire (Ex R7); 8. the statement of the complainant in relation to 3 Dudley Street, Paddington (the 3 Dudley Street, Paddington complainant) dated 14 August 2019 (Ex R8); 9. Mr Allen's area calculation of patio on ground floor plan (page 88 of Ex R1) (Ex R9); 10. guiding development - practice note, when is there is a conflict of interest from a certified creditor? issued in August 2001 (Ex R10); 11. email and attachment from Richard Salmon to Peter Nemes dated 18 May 2017 (Ex R11).
4. Mr Allen gave oral evidence. The applicant did not provide any statement or affidavit which addressed the Complaints and did not give oral evidence.

The submissions

1. The applicant provided the following written submissions: 1. applicant's outline submissions dated 1 August 2019 (AS); 2. applicant's outline submissions on penalty dated 30 October 2019 (APS).
2. The respondent provided the following written submissions: 1. submissions of the respondent dated 14 August 2019 (RS); 2. submissions of the respondent on penalty dated 10 October 2019 (RPS); 3. further submissions of the respondent dated 13 November 2019 (RFS).
3. Counsel of each of the applicant and the respondent made extensive oral submissions.

The BP Act

1. Part 1 (ss 1-3) deals with preliminary matters. Section 3(1) contains definitions and relevantly provides: 3 Definitions (1) In this Act - accreditation holder means the holder of a certificate of accreditation. … Board means the Building Professionals Board constituted under section 75.
2. Part 2 (ss 4-18) deals with accreditation of certifiers. Section 4, which comprises Division 1, deals with an accreditation scheme and relevantly provides: 4 Accreditation scheme (1) The Board is to prepare an accreditation scheme for the purposes of this Act. (2) An accreditation scheme may make provision for or with respect to the following matters - (a) …, (b) a code of conduct for accreditation holders, (c) …, (d) ….
3. Part 3 (ss 19-44) deals with disciplinary proceedings. Section 19(1) contains definitions and relevantly provides: 19 Definitions (1) In this Part - complaint means a complaint about an accreditation holder made under section 21. disciplinary action means any of the following action - (a) any action taken by the Board under section 31 (4) or by the Tribunal under section 34 (2) in respect of an accreditation holder, (b) …. disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct. 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 or the Strata Schemes Development Act 2015, 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) …, (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) …, (i) …, (j) …, (k) …, (l) …, (m) ….
4. Section 21 provides a procedure for a person to make a complaint to the respondent against an accreditation holder in respect of the accreditation holder's professional conduct.
5. Section 27 provides that the respondent must, subject to some exceptions, conduct an investigation into each complaint made to it and for its powers of investigation.
6. Section 31 deals with the decision after investigation of a complaint and relevantly 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) … (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) …, (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) …, (k) …, (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) …. (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.
7. Section 33 deals with the administrative review of a disciplinary finding of the respondent and provides: 33 Person may apply to Tribunal for administrative 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 an administrative review under the Administrative Decisions Review Act 1997 of that finding and any action taken by the Board under section 31 (4).
8. Part 7 (ss 75-81) deals with the constitution and management of the respondent, and relevantly provides that there is constituted by the BP Act a corporation with the corporate name of the Building Professionals Board (s 75(1)) and that its functions include the taking of disciplinary action against accreditation holders (s 77(d)).
9. Part 8 (ss 82-97) deals with miscellaneous matters. Section 85 deals with false representations and relevantly provides: 85 False representations (1) A person who - (a) …, or (b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate, is guilty of an offence against this Act. Maximum penalty - 300 penalty units.

The ADR Act

1. Chapter 2 (ss 7-9) deals with the administrative review jurisdiction of the Tribunal, and relevantly provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator in the exercise of functions conferred by the enabling legislation (s 9(1)(a)).
2. Section 63 deals with the determination of administrative review by the Tribunal and provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively 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 legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Environmental Planning and Assessment Act 1979 (NSW)

1. Part 4 Division 3 (ss 84-87) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as it was in force at the time of the conduct constituting the Complaints dealt with special procedures for complying developments. Section 85A dealt with the process for obtaining complying development certificates and relevantly provided: 85A Process for obtaining complying development certificates … (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

Code of conduct

1. The code of conduct for accredited certifiers made in accordance with s 4(2)(b) of the BP Act (the Code of Conduct) relevantly provides: Introduction The Building Professionals Board Code of Conduct for Accredited Certifiers (the Code) presents the principles to guide the behaviour of, and the standards of conduct and professionalism expected from, accredited certifiers when performing certification functions … The Code applies equally and to each person accredited by the Board as an accredited certifier Purpose of the Code The purpose of the Code is to • set standards of conduct and professionalism expected from accredited certifiers when performing their certification functions • inform the community of the standards of conduct and professionalism expected from accredited certifiers • provide consumer, regulatory government employment and professional bodies with a basis for making decisions regarding standards of conduct and professionalism expected from accredited certifiers and • assist accredited certifiers to - fulfil their statutory duties, and - act in a way that enhances public confidence in the process of the certification of development … Code of Conduct requirements When working as an accredited certifier and carrying out certification functions, an accredited certifier shall comply with requirements 1 to 13, inclusive, of the Code, which are the Code of Conduct Requirements Acting in the public interest 1 An accredited certifier shall carry out his or her functions and duties and exercise any discretionary powers, in ways that promote or preserve the public interest. Regard for interests of principals and others 2 … 3 An accredited certifier shall not misinform, or otherwise mislead, a principal or any regulatory, government, employment or professional body or any other person about any matter relating to the performance of the accredited certifier's certification functions. … Duty of care 5 An accredited certifier shall exercise reasonable care and attention in carrying out his or her duties, and in the exercise of his or her powers. Making decisions and taking actions 6 An accredited certifier shall take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions.
2. In March 2007, the respondent issued Code of conduct: a guide which relevantly provides: Introduction This guide provides explanatory notes to the Code of Conduct for accredited certifiers (the Code) contained in Schedule 4 of the Building Professionals Board's accreditation scheme (the scheme). The notes do not form part of the scheme or the code. … The explanatory notes are intended to be used to clarify the meaning and scope of the Code and to provide guidance on how to comply with the requirements of the Code. The explanatory notes are not intended to be exhaustive of all situations that may give rise to a breach of the Code. These explanatory notes do not in any way limit the extent of the Code of Conduct Requirements. Acting in the public interest (Code of Conduct Requirement 1) … Accredited certifiers must carry out certification functions in the public interest and must not take action that would compromise the health, safety and amenity of any person or property. An accredited certifier shall take appropriate and prompt action in relation to complaints made by the public, councils or any other body in relation to building work or subdivision work for which the accredited certifier is carrying out certification functions. An accredited certifier shall take reasonable steps to promptly inform the complainant of the action he or she has taken in response to the complaint, including informing the complainant of a decision not to take any action in response to the complaint. … Regard for interests of principals and other parties (Code of Conduct Requirements 2 and 3) … Code of Conduct Requirement 3 recognises that an accredited certifier is under a duty to act professionally, responsibly and with accountability. … Duty of care (Code of Conduct Requirement 5) When appointed to carry out certification functions under the EP&A Act or strata legislation an accredited certifier has a duty of care in relation to any advice given and action taken (or not taken) in assuming the role. An accredited certifier is given certain discretionary powers under the EP&A Act such as: • determining whether relevant conditions of consent have been met, … The certifier will be subject to the ordinary principles of the law of negligence in carrying out those functions and must exercise a reasonable standard of care in making these types of decisions. … Making decisions and taking actions (Code of Conduct Requirements 6, 7) … An accredited certifier must be able to demonstrate that they have obtained all relevant facts reasonably available when making a decision. A certifier can do so by documenting the findings of fact, the evidence or other material on which the findings were based and the reasons for the decisions made. In making decisions an accredited certifier needs to exercise reasonable judgement Code of Conduct Requirement 7 does not require a certifier to make decisions without error It is recognised that errors of judgment will occur However, a certifier may breach this requirement if they act negligently, recklessly or unreasonably in issuing a complying development certificate strata certificate or a Part 4A certificate. …

Generally applicable legal principles

1. A disciplinary tribunal may, but is not obliged to, draw adverse inferences in the absence of an explanation from the practitioner. The inference is available where an explanation of matters revealed by other evidence falls peculiarly within the knowledge of the practitioner. An explanation can be proffered in disciplinary proceedings without the practitioner entering the witness box: Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [124]-[132].
2. A condition precedent to exercise of statutory power under s 85A(3) of the EPA Act to issue a complying development certificate is that the certifier be satisfied that the proposed structures are a complying development. It is implied that the certifier's state of satisfaction be reasonable. If upon the application of an environmental planning instrument, correctly construed, to the clear facts the decision is plainly unreasonable, the court should infer that the decision-maker misinterpreted, failed to address or overlooked the requirements of those instruments or that in some other way there has been a failure to properly form the prerequisite state of satisfaction: Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 at [12]-[23].
3. Statutory offences have to be read in the light of the general principles of the common law which govern criminal responsibility. There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered. There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: He Kaw Teh v R (1985) 157 CLR 523 at 528.
4. In R v Wampfler (1987) 11 NSWLR 541 at 546-548 the Court of Criminal Appeal considered the subject of mens rea in statutory offences following the decision of the High Court of Australia in He Kaw Teh v The Queen (1985) 157 CLR 523: He Kaw Teh is authority for the proposition that for the purpose of considering criminal intent, statutory offences fall into three categories: (1) Those in which there is an original obligation on the prosecution to prove mens rea. (2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. (3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence. … There is a discernible trend in modern authorities away from construing statutes as creating absolute liability and towards recognising statutory offences as falling within the middle or second category - that is to say the category in which the prosecution must negative the honest and reasonable belief in innocence if there is sufficient basis advanced to be capable of raising a reasonable doubt of such belief.

Jurisdiction

1. The Tribunal has jurisdiction to review the Decision under s 9 of the ADR Act when read with s 33 of the BP Act. The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1).

The issues

1. The following issues arise for decision in undertaking an administrative review of the Decision: 1. whether Complaint no 29/17 - Additional Matter A is established; 2. whether Complaint no 29/17 - Additional Matter B is established; 3. whether Complaint no 102/17 - Matter 1 is established; 4. whether Complaint no 103/17 - Matter 1 is established; 5. whether Complaint no 103/17 - Matter 2 is established; 6. whether Complaint no 35/18 - Additional Matter A is established; 7. whether Complaint no 35/18 - Additional Matter B is established; 8. whether Complaint no 75/18 - Additional Matter A is established; 9. whether the conduct constituting the Complaints should be characterised as unsatisfactory professional conduct or professional misconduct; 10. what disciplinary action should be taken against the applicant.
2. In considering the first eight of these issues we have set out the findings on material questions of fact from the Reasons and have only set out further material where this is relevant to our consideration. We have also used the same abbreviations as used in the Reasons.

Whether Complaint no 29/17 - Additional Matter A is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 1.0 ADDITIONAL MATTER A (Complaint no. 29/17) Accredited certifier Mr Peter Boyce issued complying development certificate (CDC) no. BBB15197 dated 16 June 2015 with confusing and misleading information in regard to excluding a proposed patio from the approved works. FINDINGS ON MATERIAL QUESTIONS OF FACT 1.1 On 16 June 2015, Mr Boyce issued complying development certificate (CDC) no. BBB1519 for a proposed new dwelling and pool at 9 Tierney Avenue, East Gardens. The development was assessed as complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). 1.2 In accordance with clauses 130(3) and 134(2A) of the EP&A Regulation a CDC also includes the relevant plans endorsed by the certifier. Relevantly, the CDC document signed and issued by Mr Boyce is titled that it is a 'Complying Development Certificate' and that 'This Certificate authorises the Applicant (or a person having the benefit of this Certificate) to carry out the development in accordance with the conditions set out in the Certificate and the plans and specifications that have been approved.' 1.3 As demonstrated by items a. to g. below, Mr Boyce issued the CDC with confusing and misleading information in regard to whether the patio at the rear of the dwelling was approved or excluded: a. The application form for the CDC stated approval was sought for 'Demolition of existing brick dwelling and construction of new 2 storey brick dwelling'. The accompanying plans included a proposed patio forming part of the dwelling (see d. below). b. The CDC stated the approved works included a proposed patio viz., '... construction of new two storey brick dwelling house, swimming pool, garage and patio - This was assessed under Part 3 General Housing code ...of the SEPP (Exempt and complying codes) 2008'. This description of works and Codes SEPP assessment conflicts with the hand-written note on the CDC site and ground floor plans which purports to delete the patio as it does not comply with the Codes SEPP (see e. below). Conversely, the CDC description of works corresponds with the plans that depict the patio and which don't have the hand-written note. c. Condition 8 of the CDC, which is a mandatory condition under the Codes SEPP, requires the work to be carried out in compliance with the CDC endorsed plans. The CDC identified the relevant endorsed plans as '8 Squared drawing nos 00 to 09; Mitchell Howes Civil & Structural Engineers drawing nos 7363-S01 - S09'. As depicted on the CDC plans/drawings the proposed patio is an integrated part of the dwelling structure. Condition 8 however is impossible to comply with as the patio is purportedly deleted on the CDC site and ground floor plans (see e. below), but is not deleted on the CDC's elevations, sections and the structural engineer's drawings (see f. below). d. The CDC plans depict a 3350mm by 9300mm patio immediately outside of the dwelling's rear doors (family and dining rooms). The patio concrete slab is a part of and a continuation of the dwelling's ground floor slab. On the south-west elevation, the dwelling's side wall is situated upon the patio slab i.e. the wall extends 3150mm beyond the rear of the dwelling. Directly alongside the wall is a bbq area on the patio. e. A hand-written note on the CDC's site plan and the CDC's ground floor plan seeks to condition the CDC and its plans by stating 'patio to be deleted to comply with clause 3.9 'site coverage' of the SEPP'. This note conflicts with the description of the works on the CDC i.e. the CDC's description includes a patio as part of the approved works and that the development was assessed under the Codes SEPP. Mr Boyce offered in his submissions that a member of his office staff may have added the notation. There is no legislative authority that allows a certifier (or others on their behalf) to add notations (conditions) to plans under a CDC. f. The hand-written note deleting the patio does not appear on the CDC's other plans that show the proposed patio i.e. elevations, sections and the structural engineer's drawings. g. The CDC includes 'Advisory Conditions' added by Mr Boyce. Condition 32 states that 'The rear patio is to be deleted in order to comply with Clause 3.9 Maximum site coverage of all development of the SEPP'. There is no legislative authority that allows a certifier to include or enforce 'Advisory Conditions' under a CDC. This condition conflicts with the description of the works on the CDC which includes a patio and states that the development was assessed under the Codes SEPP. 1.4 Mr Boyce in his submissions to the Board (email dated 6 November 2017) accepted the results contained in the Board's complaint investigation report and stated that he fully understood the errors that he had made. 1.5 Mr Boyce in his Second Submissions stated: Relates to the plans which have been noted in red stating that a Patio on the ground floor is not approved and is to be deleted. But the investigator states that other plans show the patio and therefore this is considered to be confusing and misleading conduct. There is nowhere legislation which states to what standard building plan must be when submitting to Council or Certifiers for approval. It has been my view, that with over 40 years in the industry, having worked for 9 Council's, being a Certifier since Certification was introduced and being directly involved with construction, any competent person with experience in the construction industry would know what was approved for construction which I issued. With refence to the description of work including a patio on the application and the approved CDC, I do not believe this would confuse the approval when the plans show the patio being deleted. Description of works on applications for Development Approval with Council's, commonly show work which is not part of the approval when the DA is issued, but is still part of the description being applied for. This cannot be considered as acting outside the Public Interest as required by 1, 3, 5 & 6 of the Code of Conduct. 1.6 Mr Boyce's submissions do not provide a reasonable explanation for his conduct as his actions do not accord with the professional conduct expected of an A2 accredited certifier carrying out the role of a public official. For the reasons set out in paragraph 1.3 above, it is not readily determinable whether the CDC has approved the patio part of the dwelling or not. The duty of Mr Boyce was to assess and determine the application that was before him, not to instead alter the plans himself (or others acting on his behalf). It is contravention of s.66(1) of the BP Act for Mr Boyce as an accredited certifier to issue a CDC after having made (or directed others to make on his behalf) changes the design of a building on the application's plans. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including the endorsed plans) forms part of the framework of public accountability within which accredited certifiers operate i.e. a copy is required to be given to the local council for their information/records and to make it available for public viewing, including by nearby residents and future owners. A council may also need to at some future date enforce compliance with the CDC approved uses. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Requirements 1, 3, 5 and 6 of the Code of Conduct under the Building Professionals Board Accreditation Scheme (Code of Conduct) requires a certifier to act in the public interest, to not misinform or otherwise mislead, to observe their duty of care and to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. For the reasons set out in paragraph 1.3 above, Mr Boyce failed to comply with the Code of Conduct. Given the inclusion of the patio meant the proposed development was not complying development, Mr Boyce had a particular duty to ensure that the CDC was clear and unambiguous as to what it had authorised. 1.7 In this instance, the actions of Mr Boyce (including the inhouse procedures he has put in place) resulted in a CDC being issued that is confusing and misleading in its plans and in the CDC's description of works. By issuing the CDC in manner set out above, Mr Boyce failed to comply with the Code of Conduct requirements 1, 3, 5 and 6. 1.8 By issuing the CDC, Mr Boyce contravened section 85(1)(b) of the BP Act.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: c. Properly construed complying development certificate BBB15197 ('CDC BBB15197') excluded the patio and was not misleading or confusing. d. It is unclear as to whether the BPB made a finding that there was a breach of s66(1) of the Building Professionals Act 2005. To the extent that it is asserted, it is denied.

The evidence of Ms Smith

1. Ms Smith in the Ms Smith statement states that she assisted the applicant with his functions as a certifier in connection with an application for a complying development certificate for a proposed new dwelling and pool at 9 Tierney Avenue, East Gardens, which included a patio at the rear of the dwelling adjacent to family and dining rooms. She formed the opinion, and discussed the matter with the applicant, that the patio did not meet the requirements of clause 3.9 'site coverage' of State Environmental Planning Policy (Exempt and Complying Development Codes) 2009 (Ex A1 at [5]).
2. She recalls the following telephone conversation which she initiated with Mr Allen of 8 Squared Architects Pty Ltd who was acting as agent for the owners (Ex A1 at [6]): Me: Hi Joshua, I am conducting a preliminary assessment of the CDC application for 9 Tierney Avenue, East Gardens. The rear patio does not comply with the SEPP as the site coverage is not met pursuant to clause 3.9. If you want to proceed, it will need to be deleted from the application. Joshua: Ok, I will get instructions and call you back.
3. She recalls shortly afterwards receiving the following telephone call from Mr Allen (Ex A1 at [7]): Joshua: I am instructed by the owners that they do not seek consent for the patio under the CDC application. Would you please exclude the paved area from the application? Me: Ok, I will strike through the area and note that it is deleted.

The evidence of Mr Allen

1. Mr Allen in the Mr Allen statement states that he prepared the plans for the application for a complying development certificate for the dwelling at 9 Tierney Avenue, East Gardens. Following a telephone conversation with Ms Smith he received instructions from the owners to delete the patio from the application and conveyed those instructions to Ms Smith in the following telephone conversation (Ex A2 at [7]): Me: Hi Kelly. I've spoken with the client and I am instructed to delete the patio from the CDC application. Would you please strike through that element. Kelly: Ok, I will note that the patio is deleted from the application.
2. Mr Allen in his oral evidence said that the role of Ms Smith was to advise. He said that there was no revised drawing that went back to the applicant. He referred to email correspondence with Ms Smith which was not produced. In his opinion the patio and the barbecue could be constructed as exempt development (Transcript 22 August 2019, pages 12-27).

The submissions of the applicant

1. The applicant made the following written submissions: 1. as to s 66 of the BP Act, properly construed, Ms Smith's notation on the plans was an administrative task undertaken by instruction of the owners. By making the endorsement on the plan the applicant, by dint of Ms Smith, was not involved in the design of an aspect of the development as it was not in the course of "preparation" of the plans or specifications identified as a conflict in s 67 of the BP Act (AS at [23]-[26]); 2. when the CDC is construed as a whole (rather than by its component parts) it is evident that the patio is not approved (AS at [37]-[46]); 3. as to requirement 5 of the Code of Conduct, the applicant included the advisory condition, notwithstanding the amended plans, so that it was clear on the face of the document that the patio was not approved (AS at [47], [51]); 4. as to requirement 6 of the Code of Conduct, having regard to the particular circumstances, the Tribunal would not find that the applicant acted negligently, recklessly, unreasonably or dishonestly in issuing the CDC (AS at [47], [52]); 5. as to s 85(1)(b) of the BP Act, the words "false" and "misleading" import dishonesty and do not encompass any imprecision in drafting, and the Tribunal would not accept that the applicant has been deliberately, or recklessly, dishonest in his issue of the CDC (AS at [50], [53]-[55]); 6. having regard to the proper construction of the CDC, the Tribunal would find that the Complaint is not proven and the CDC is reasonably clear on its face (AS at [49], [56]).
2. The applicant made the following oral submissions: 1. it is not permissible to use the application to assist in the construction of the CDC (Transcript 6 December 2019, pages 22-23); 2. he is taken not to be involved in the design aspect of the development pursuant to s 67(2) of the BP Act when read with cl 18(1)(c) of the BP Regulation in light of the evidence of Ms Smith that she identified the non-compliance, and the evidence of Mr Allen that he directed the amendment to be made (Transcript 6 December 2019, page 23).

The submissions of the respondent

1. The respondent made the following written submissions: 1. the only documents that may aid the task of construction of the CDC are the CDC itself, the plans approved by the CDC, and the application form. On its proper construction, the CDC included a patio in circumstances where it should not have (RS at [44]-[57]); 2. as to requirement 6 of the Code of Conduct, the applicant's actions give rise to a CDC which is at the least misleading and would constitute a breach against s 85(1)(b) of the BP Act, and was outside the accepted skill, care and diligence of an accredited certifier under the Code of Conduct (RS at [59]); 3. as to s 85(1)(b) of the BP Act, there is no mens rea element (RS at [59]); 4. as to s 66 of the BP Act, the notation was included to ensure that the development satisfied as a complying development, and as such must amount to conduct falling squarely within cl 17(a) of the BP Regulations (RS at [60]-[63]).

The BP Act

1. Part 6 deals with requirements relating to accredited certifiers. Division 3 (ss 66-71) deals with conflicts of interest. Section 66 deals with the circumstances in which conflicts of interest may arise and relevantly provides: 66 Conflicts of interest (1) An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development - (a) if the accredited certifier has been involved in the design of that aspect of the development, or … Maximum penalty - 300 penalty units.
2. Section 67 deals with the conflict of interest which arises where an accredited certifier has been involved in the design of a relevant aspect of an development and provides: 67 Meaning of being involved in the design of an aspect of the development (1) For the purposes of this Division, an accredited certifier is involved in the design of an aspect of development - (a) if the accredited certifier is involved in the preparation of the plans or specifications for that aspect of the development, or (b) in such other circumstances as may be prescribed by the regulations. (2) Despite subsection (1), the regulations may prescribe, for the purposes of this Division, circumstances in which an accredited certifier is taken not to be involved in the design of an aspect of development.

Building Professionals Regulation 2007

1. Part 5 (cll 17-18A) of the Building Professionals Regulation 2007 (NSW) (the BP Regulation) deals with conflicts of interest. Clause 17 prescribes circumstances in which an accredited certifier is taken to be involved in the design aspect of a development and relevantly provides: 17 Prescribed circumstances in which accredited certifier taken to be involved in design of aspect of development For the purposes of section 67(1)(b) of the Act, the following circumstances are prescribed as circumstances in which an accredited certifier is taken to be involved in the design of an aspect of development: (a) if the accredited certifier provides advice on how to amend plans and specifications relating to the aspect of development so that they will comply with applicable legislative requirements (including applicable requirements of the Building Code of Australia) other than advice on how to amend plans and specifications relating to buildings under that Code so that they will comply with the deemed to satisfy provisions of that Code,
2. Clause 18 prescribes circumstances in which an accredited certifier is taken not to be involved in the design aspect of a development and relevantly provides: 18 Prescribed circumstances in which accredited certifier taken not to be involved in design aspect of development (1) For the purposes of section 67(2) of the Act, the following circumstances are prescribed as circumstances in which an accredited certifier is taken not to be involved in the design of an aspect of development in the case of the issue of a Part 4A certificate or complying development certificate: … (c) if the accredited certifier identifies the matters to be satisfied before a Part 4A certificate or complying development certificate can be issued in relation to the aspect of the development,

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

1. Part 3 Division 2 Subdivision 2 (cll 3.8-3.12) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as it was in force at the time of the conduct constituting the Complaint dealt with site requirements. Clause 3.9 dealt with maximum site coverage of all development and relevantly provided: 3.9 Maximum site coverage of all development (1) The site coverage of the dwelling house and all ancillary development on a lot must not be more than the following: … (d) 50 per cent of the area of the lot, if the lot has an area of at least 450m2 but less than 900m2,

Consideration

1. We are satisfied that cl 3.9(1)(d) of the Codes SEPP applied to the development and that on the proper construction of the CDC there is a clear requirement for a patio. There was no authority for the applicant to insert the words "patio to be deleted to comply with clause 3.9 site coverage of the SEPP" on Drawing Nos 02 "Proposed Site Plan" and 03 "Ground Floor Plan" prepared by 8 Squared Architects or advisory condition 32 "the rear patio is to be deleted in order to comply with Clause 3.9 Maximum site coverage of all development of the SEPP". When these words are excluded from consideration it is clear that there are no inconsistent provisions and that the patio is intended. This construction is clear without regard to the application for the CDC.
2. We are satisfied that the respondent made a finding that the applicant breached s 66(1) of the BP Act. While it is not entirely clear from the Reasons, it appears that the respondent found a breach of s 66(1)(a) when read with s 67(1)(b) of the BP Act. However, it is clear that the proven Complaint is not based on such a breach of the BP Act.
3. We are satisfied that the issue of whether the applicant breached s 66(1)(a) when read with s 67(1)(b) of the BP Act and cl 17(a) of the BP Regulation was clearly raised and ventilated before us. The evidence of Mr Allen and Ms Smith was unsatisfactory as the email correspondence between them was not tendered. It is clear from Ms Smith's version of her conversation with Mr Allen that she intended to strike through the patio. However, Ms Smith did not strike through the patio. There was no explanation as to why she did not strike through the patio where it appeared on the various documents comprising the CDC. Ms Smith, on the version of each of Mr Allen and herself, cannot be taken not to be involved in the design of an aspect of the development in the case of the issue of a complying development certificate within s 67(2) of the BP Act when read within cl 18(1)(c) of the BP Regulation because her actions were not limited to identifying the matters to be satisfied before a complying development certificate could be issued. She went further and provided advice on how to amend the plans by deleting the patio so as to comply with cl 3.9(1)(d) of the Codes SEPP which was within the conduct specified in s 67(1)(b) of the BP Act and cl 17(a) of the BP Regulation. While we are satisfied that the applicant breached s 66(1)(a) when read with s 67(1)(b) of the BP Act and cl 17(a) of the BP Regulation, we have excluded this matter from our consideration of this Complaint as the proven Complaint is not based on such a breach of the BP Act.
4. We are satisfied that it was confusing and misleading for the applicant to issue the CDC with the notation on Drawing Nos. 02 "Proposed Site Plan" and 03 "Ground Floor Plan" prepared by 8 Squared Architects and advisory condition 32, and the other documents comprising the CDC having no such notation. The applicant issued the CDC rather than require an amended application and plans with the patio deleted. In issuing the CDC which was confusing and misleading, the applicant breached the Code of Conduct requirements 1, 3 and 5. We are not satisfied that the applicant breached the Code of Conduct requirement 6 as he had all relevant facts available when he made the decision to issue the CDC.
5. We consider that s 85(1)(b) of the BP Act falls into the second category of the statutory offences in which the prosecution must negative the honest and reasonable belief in innocence if there is sufficient basis advanced to be capable of raising a reasonable doubt of such a belief. There is a sufficient basis in the Second Submissions to raise the issue that the applicant had an honest and reasonable belief that the CDC was not false or misleading. We are not satisfied on the balance of probabilities that this honest and reasonable belief has been negatived, and accordingly that the applicant breached s 85(1)(b) of the BP Act.
6. We find that Complaint no 29/17 - Additional Matter A is established by reason that the applicant issued the CDC with confusing and misleading information in regard to excluding a proposed patio from the approved works.

Whether Complaint no 29/17 - Additional Matter B is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 2.0 ADDITIONAL MATTER B (Complaint no. 29/17) Accredited certifier Mr Peter Boyce issued interim occupation certificate no. BBB15197 dated 24 April 2017 for a building that was inconsistent with the CDC viz., the OC included a rear patio. FINDINGS ON MATERIAL QUESTIONS OF FACT 2.1 Mr Boyce was appointed as the principal certifying authority (PCA) for the development at 9 Tierney Avenue, East Gardens, under CDC no. BBB1519. While Mr Boyce was the PCA, another accredited certifier carried out the critical stage inspections. 2.2 On 30 March 2017, Mr Boyce carried out a final inspection of the development. During the inspection he identified that the patio (see Additional Matter A of this Statement) had been built in conjunction with the CDC approved dwelling and pool. 2.3 On 31 March 2017, Mr Boyce issued a notice to the owner under section 109L ('Section 109L Notice') of the Environmental Planning and Assessment Act 1979 (EP&A Act) requiring they comply with the CDC, specifically the unauthorised patio (referred to as 'terrace deck'). 2.4 On 24 April 2017, Mr Boyce issued interim occupation certificate (OC) no. BBB15197. The patio was still in place. The OC issued by Mr Boyce described the building as '...new two storey brick dwelling house, swimming pool, garage and patio ...'. 2.5 Section 109H ('Restrictions on issue of occupation certificates') of the EP&A Act applied. Section 109H(3)(d) of the EP&A Act states that an interim OC must not be issued unless requirements of the EP&A Regulation have been complied with. Clause 154(1B) of the EP&A Regulation states than an OC 'must not be issued unless the design and construction of the new building, or any part of the new building that is completed, are not inconsistent with the development consent in force with respect to the new building'. A CDC is a development consent. The construction of the patio would result in a building that was not complying development as it exceeded the Codes SEPP site coverage requirements, and would thereby be inconsistent with the development consent. 2.6 Mr Boyce in his submissions to the Board (email dated 6 November 2017) accepted the results contained in the Board's complaint investigation report and stated that he fully understood the errors that he had made. 2.7 Mr Boyce in his Second Submissions stated: Relates to the issuing of an Interim Occupation Certificate which included the wording "the Patio" still part of the description of "Work applied for". The house and the Pool had been completed and was fit to occupy, but because the patio had been constructed and was subject to Notice I had issued for Council to take action, a Final occupation Certificate could not be issued. It was my view at the time, that it would be unreasonable to prevent the owner occupying the dwelling, and I believe this would be the community expectation. As the error of description of works was not an intentional error, can this be considered as unsatisfactory Professional Conduct. A CDC is valid until the Court proves otherwise and the Investigator is making a false statement by stating in his report that "by issuing the Interim OC for a building that was inconsistent with the CDC and was no longer complying Development, Mr Boyce made a False and misleading Statement" is not correct as the work is still complying development. A member of the Public would not expect a completed dwelling to be left vacant and would expect that, once a Notice of intention had been sent to Council for the non -compliant patio outside the dwelling, that an Interim Occupation Certificate would be issued. 2.8 Mr Boyce's submissions are not considered to hold merit as they do not accord with the legislation and the statutory duties required of a certifying authority considering an application for an OC, as: a) The CDC is part of a CDC application form. Per clause 149(1)(b) of the EP&A Regulation, the applicant is required to include in the form a description of the building to which the application relates. It isn't the certifier's role to provide the description on the application form. In assessing the application, in the context of having issued a notice under s109L of the EP&A Act, and aware that the inclusion of the patio meant the development was not complying development, Mr Boyce failed to bring the requisite care and attention to reviewing the application before him. It therefore cannot be regarded as an inadvertent error to have issued the OC containing patio in the description. It was also not an isolated instance, having also occurred with the CDC description of works. b) The Board's complaint investigation report did not express a view on whether the OC should have been issued at all. The report stated that, in the circumstances, if Mr Boyce was contemplating the issuing of an OC, it was incumbent upon to him to take great care in regard to wording of the description of the works. He failed to do so. c) An accredited certifier may be found guilty of unsatisfactory professional conduct or professional misconduct despite there being no specific breach of the EP&A Act, a declaration by a court that a certificate issued by a certifier is invalid and/or whether a certifier has been prosecuted for a contravention viz., subsections (a), (b), (c) and (d) of the definition of 'unsatisfactory professional conduct' under section 19(1) of the BP Act. 2.9 Mr Boyce issued OC no. BBB15197 on 24 April 2017 for a building, as described on the OC (i.e. the determined application), that he could not have reasonably determined was consistent with the CDC. The issuing of the OC for the dwelling with the patio included, meant that the building was not complying development. Mr Boyce contravened section 109H(3)(d) of the EP&A Act and clause 154(1B) of the EP&A Regulation.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: e. The applicant concedes that the interim occupation certificate issued on 30 March 2017 might be interpreted to include the patio. f. The applicant notes that he issued a notice pursuant to (then) s109L of the Environmental Planning and Assessment Act 1979 ('the Act') to Council notifying it of the patio works on 31 March 2017. g. The occupation certificate did not regularise the patio works, but had the effect of authorising the commencement of the residential 'use'. h. The applicant notes that he issued a final occupation certificate on 3 August 2018. i. The effect of the final occupation certificate was that it revoked the earlier certificate of 31 March 2017 pursuant to s6.11 of the Act.

The submissions of the applicant

1. The applicant made the following written submissions: 1. he concedes that the imprecise description in the interim OC was an unintentional error on his part, in circumstances where he intended to exclude the patio (AS at [65]); 2. on the evidence available, the Tribunal would not find that the Complaint is proven (AS at [68]).

The submissions of the respondent

1. The respondent made the written submissions in which it adopted paragraphs 2.5 to 2.9 of the Reasons (RS at [67]).

The EPA Act

1. Part 4A Division 1 (ss 109C-109Q) of the EPA Act as it was in force at the time of the conduct constituting the Complaint dealt with certification of work and other matters. Section 109H dealt with restrictions on the issue of occupation certificates and relevantly provided: 109H Restrictions on issue of occupation certificates … (3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless: (a) …, and (b) …, and (c) …, and (d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

Environmental Planning and Assessment Regulation 2000 (NSW)

1. Part 8 Division 2 (cll 139-148) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as it was in force at the time of the conduct constituting the Complaint dealt with construction certificates. Clause 154 dealt with compliance with the conditions of a development consent and relevantly provided: 154 Health, safety, compliance with development consent and other issues: section 109H (cf clause 79O of EP&A Regulation 1994) … (1B) An occupation certificate authorising a person to commence occupation or use of a new building, or a partially completed new building, must not be issued unless the design and construction of the new building, or any part of the new building that is completed, are not inconsistent with the development consent in force with respect to the new building. This subclause applies only if the development consent (excluding any construction certificate forming part of the consent) was issued on or after 1 March 2013. Note. A complying development certificate is a form of development consent. (2) In this clause: new building has the same meaning as it has in section 109H of the Act.

Consideration

1. We are satisfied that the respondent correctly found that the applicant issued the interim OC for a building, as described on the interim OC, that he could not have reasonably determined was consistent with the CDC. The issuing of the interim OC for the dwelling with the patio included, meant that the building was not a complying development. The applicant failed to comply with the statutory duty in s 109H(3)(d) of the EPA Act when read with cl 154(1B) of the EPA Regulation.
2. We find that Complaint no 29/17 - Additional Matter B is established by reason that the applicant issued the interim OC for a building that was inconsistent with the CDC through the inclusion of a rear patio.

Whether Complaint no 102/17 - Matter 1 is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 4.0 MATTER 1 (Complaint no. 102/17) Mr Boyce as the appointed principal certifying authority (PCA) failed to properly respond and take appropriate action in regard to the building roof not being constructed in compliance with the approved plans i.e. setback 450mm from the side boundary. FINDINGS ON MATERIAL QUESTIONS OF FACT 4.1 On 21 April 2016, Mr Boyce accepted appointment as the PCA for the proposed dwelling alterations/additions at 272 Old South Head Road, Watsons Bay, under development consent (DA) number DA 501/2014. 4.2 The roof plan on DA and construction certificate (CC) plans show that part of the proposed upper roof of the dwelling addition had no gutters and was setback 450mm from the adjacent common boundary (shared with the complainant's property). This was necessary so that the roof design complied with the allowable encroachment requirements (fire separation) in 3.7.1.7(c) of the BCA. To ensure stormwater compliance, the roof water would fall onto and be collected by the flat metal roof below. 4.3 On 9 February 2017 the complainant began sending emails to Mr Boyce's office raising concerns with the PCA about the non-compliance of the roof section with the approved plans i.e. the 450mm setback had not been provided and the roof water would fall onto the neighbour's property. 4.4 On 19 May 2017, Mr Boyce issued a final OC for the completed works, however the non-compliant roof setback raised by the complainant had not been rectified. 4.5 The following events and actions took place: a) On 15 December 2016, Mr Boyce issued a signed inspection certificate document in which he stated 'the frame has been completed generally in accordance with the approved plans' and 'Work can proceed'. Contrary to the above statement made by Mr Boyce, the fact the roof members had not been cut-back to provide the 450mm setback would have been evident. There is no evidence Mr Boyce identified the variation and/or that he took any action prior to advising in the inspection certificate that work could proceed. Mr Boyce could not validly make the statement that the work was in accordance with the approved plans. b) On 9 February 2017 the complainant sent an email to Mr Boyce's office (Mr Peter Nemes) bringing to the PCA's attention that the roof section had not been constructed in accordance with the approved plans i.e. the 450mm setback had not been provided. On 13 February 2017 the complainant forwarded the above email directly to Mr Boyce's email address. There is no evidence Mr Boyce or his office acted upon and/or replied to the above email. c) On 24 February 2017 the complainant sent an email directly to Mr Boyce and to his office (Mr Nemes) expressing concern that he had not received a response (to his earlier email). There is no evidence Mr Boyce or his office replied to the above email. d) On 27 February 2017, Mr Boyce's office (Mr Nemes) forwarded the complainant's emails to the architect with a direction to 'Please respond to the emails below'. The builder replied to Mr Nemes (as well as to the owner and architect) acknowledging the existence of the variation and advised that the roof (hip) has been built 'within 50 mm of the boundary' and would be cut back to 450mm 'once we have fine weather'. There is no evidence Mr Boyce or his office provided any update to the complainant. e) The complainant evidently sought an update from Mr Boyce's office on or before 26 April 2017 viz., Mr Neme's forwarded to the complainant on 26 April 2017 a copy of the emails referred to in d) above. The complainant immediately replied to Mr Boyce's office (Mr Nemes) via return email advising that the rectification work had not been carried out. There is no evidence Mr Boyce or his office acted upon and/or replied to the above email. f) On 4 May 2017 Mr Boyce issued a signed inspection certificate document in which he stated the roof gutters had been connected to the stormwater disposal system 'in accordance with the approved plans' and 'Work can proceed'. Contrary to the above statement made by Mr Boyce, the fact the roof had not been cut-back to provide the 450mm setback meant not all of the roof water was being collected. The complainant had raised the presence of the variation with Mr Boyce and his office over the preceding three months, including as recently as the week before (email dated 26 April 2017) in which he again pointed out the work had not been rectified. Mr Boyce could not validly make the statement that the work was in accordance with the approved plans g) On 10 May 2017 the complainant sent an email to Mr Boyce's office (Mr Nemes) stating 'any updates from your side - looks like they are moving back in - so when is Boyce planning to finalise the certification, is there a date? will you be checking that the remediation work is done?'. There is no evidence Mr Boyce or his office acted upon and/or replied to the above email. h) On 19 May 2017, Mr Boyce issued a final OC for the work and signed an inspection certificate document in which he stated the work had been generally completed in accordance with the approved plans, DA conditions and the BCA. The complainant had raised the presence of the non-compliant roof variation with Mr Boyce and his office over the preceding three months, including as recently as the week before (email dated 10 May 2017) in which he again pointed out the work had not been rectified and the dwelling was being prepared to be occupied. Photographs provided by the complainant show the completed building work with the roof extending to or very near the boundary i.e. not setback 450mm. As detailed in d) above, the builder had advised Mr Nemes in an email on 27 February 2017 that the hip has been constructed within 50mm of the boundary. The as-built eaves and fascia, being within 450mm, did not comply with Part 3.7.1.7(c) of the BCA. Mr Boyce could not have validly concluded that the work was in accordance with the approved plans, DA conditions (A.3) and the BCA. i) On 7 July 2017 the complainant sent an email directly to Mr Boyce and to his office (Mr Nemes) stating 'Hi Peter and Peter, another 2 months has passed any update /status you can give'. There is no evidence Mr Boyce or his office acted upon and/or replied to the above email. j) On 4 August 2017 the complainant sent an email directly to Mr Boyce and to his office (Mr Nemes and Ms King) stating 'can you please confirm status of certification of this build'. Mr Boyce's office (Ms King) replied via return email advising that 'A final occupation certificate has been issued on 19 May 2017'. The complainant replied to Mr Boyce's office (Ms King) asking 'How is that possible give the outstanding discrepancy between approved DA and what has been built - and given the long term raised issue around this as outlined in below email trail'. There is no evidence Mr Boyce or his office replied to the above email. 4.6 The available evidence shows that Mr Boyce as the PCA failed to properly respond and take appropriate action in regard to the building roof not being constructed in compliance with the approved plans i.e. setback 450mm from the side boundary by: i. Not acknowledging receipt or replying to written complaints within 14 days. ii. Not carrying out an inspection of the roof under construction following receipt of the neighbour's emails between 9 February and 10 May 2017. iii. Not carrying out an independent assessment of the complained-about matters and providing the complainant with his findings in writing and any proposed action. iv. Failed to identify at the frame inspection carried out on 15 December 2016 that the roof had not been constructed in accordance with the approved plans. v. Despite all parties acknowledging in February 2017 that the roof required rectification, at no time did he pursue compliance or subsequently give any direction to the owner or builder to rectify the variation, despite the protracted period of time involved and prior to his issuing of the final OC. vi. Carried out a roofwater inspection on 4 May 2017, in which he stated in the inspection record that the roof gutters had been connected to the stormwater disposal system 'in accordance with the approved plans' and 'Work can proceed'. This was despite the complainant emails alerting to him that the gutterless roof had not been cut-back to provide the 450mm setback, which meant not all of the roof water was being collected. vii. Issuing the final OC on 19 May 2017 despite the roof rectification not having been carried out. viii. In carrying out the final inspection made no attempt to inspect whether the roof non-compliance had been rectified, submitting to the Board that he did not see it was necessary since the builder had indicated he was going to do this work. Simply relying on the word of a builder is not a sufficient means for a PCA to verify compliance, particular where the complainant has on multiple occasions continued to allege the work had not been rectified. While it is not expected that Mr Boyce ought to have climbed onto the roof to view the part of the roof, he made no attempt to contact the complainant and seek permission to access his property to obtain a readily accessible view of the roof. ix. Misleading the complainant by not responding to their email dated 7 July 2017 to inform them a final OC had been issued. 4.7 Mr Boyce in his submissions to the Board via emails dated 16 and 19 February 2018) stated that he accepted his actions taken in this Matter were far from satisfactory and he has taken steps in his office to introduce procedures and ensure all complaints are in writing. 4.8 Mr Boyce in his Second Submissions stated: This relates to a small section of a roof which had not been constructed strictly in accordance with the Approved plans. The neighbour was stating the small roof section had not had the rafters cutback from the boundary as approved. It was in a position which could only been seen from the neighbours property and was very difficult to inspect from within the subject property. The Builder claimed that the work was correct, but after several visits to the site by myself and with the Architect, the roof was eventually rectified. 4.9 Mr Boyce's submissions do not provide a reasonable explanation for his conduct as his actions do not accord with the professional conduct expected of an A2 accredited certifier carrying out the public official role of a PCA, as: a) The issues in this Matter did not involve Mr Boyce's office not receiving the complaints. The Matter is concerned with his failure to adequately respond and take action. The frequency of the complaints should have in each instance prompted Mr Boyce into action. b) All PCAs have had since 2010 a statutory duty to keep a register of complaints per clause 267A of the EP&A Regulation, including a record of 'any action taken by the authority or response made in relation to the complaint. 4.10 Requirements 1, 3, 5 and 6 of the Code of Conduct requires a certifier to act in the public interest, to not misinform or otherwise mislead, to observe their duty of care and to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. By carrying out the PCA function in manner identified in paragraphs 4.3 to 4.9 of this Statement, Mr Boyce failed to comply with these Code of Conduct requirements. 4.11 Mr Boyce failed to monitor and pursue compliance of the roof setback raised with him by the neighbour. At no time did he follow-up the undertaking made by the builder, nor did he issue any written direction or notice when the rectification work was not promptly done. He allowed his client and the builder to freely carry on and complete the building works without the roof being rectified, and then he issued a final OC. Mr Boyce exercised the functions of a PCA in a partial manner.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: j. The applicant does not accept that he did not respond to the complainant in response to his complaints. k. The applicant acknowledged that the roof works had been undertaken not in accordance with the consent in about February 2017. I. The applicant advised the builder and owner that the roof would need to be rectified. m. The applicant accepts that, in hindsight, he should not have accepted the advice from the architect and builder that the roof works had been rectified. n. The applicant ultimately resolved the matter by working with the builder, owner and architect to ensure that the building works would be remedied.

The submissions of the applicant

1. The applicant made the following written submissions: 1. as to paragraph 4.5(a) of the Reasons, it was not open to the respondent to form a conclusion that the applicant inspected the frame and concluded that it had "been completed generally in accordance with the approved plans" and "work can proceed" (AS at [76]); 2. as to paragraphs 4.5(b), (c), (d), (i) and (j) of the Reasons, the respondent was silent on the oral communications to the complainant referred to in the applicant's response dated 1 December 2017 as follows (AS at [75], [77]): Verbal advice had been given to the complainant by Peter Nemes from our office that the issue raised was being addressed. Peter Nemes from our office has indicated that he had many phone calls with the neighbour and would have advised what action was being taken. But has no specific record. 1. as to paragraph 4.6(i) of the Reasons, it was not open to the respondent to make the finding the applicant had not acknowledged receipt or replied to "written complaints" (AS at [78]); 2. it was an error for the respondent to find that the applicant did not take any action or give direction to the builder to rectify the roof as the applicant's response dated 1 December 2017 makes clear that he did indeed give that direction, and the roof was ultimately rectified (AS at [78]); 3. the Tribunal would not accept the BPB's application of requirements 1, 3, 5 and 6 of the Code of Conduct and would find that the Complaint is not proven (AS at [79]-[91]).
2. The applicant in oral submissions withdrew its submission that the Complaint is not proven (Transcript 23 August 2019, page 58).

The submissions of the respondent

1. The respondent made the following written submissions: 1. the respondent's findings at paragraphs 4.9 to 4.11 of the Reasons are the only findings that can be reached in the circumstances (RS at [74]); 2. the complainant first raised the issue of the setback with the applicant on 9 February 2017. This was followed up again on 13 February 2017, 24 February 2017 and in a discussion sometime before 26 April 2017. The first reply by the applicant is on 26 April 2017 which was to forward a reply from the builder which was conservatively 8 weeks old. Taking 76 days for the applicant to notify the complainant by way of an email which was itself 8 weeks old and notwithstanding the works had still not been completed, was not acceptable (RS at [76]-[77]); 3. the complainant then followed up the applicant on 10 May 2017, 7 July 2017 and 4 August 2017, where the reply was unresponsive as all it did was to inform that a "final occupation certificate was issued" (RS at [78]).

Consideration

1. We are satisfied that the respondent correctly found that the applicant failed to properly respond and take appropriate action in regard to the building roof not being constructed in compliance with the approved plans for the reasons set out in paragraph 4.6 of the Reasons. There was significant delay of the part of the applicant in responding to the written complaints of the complainant. In the absence of evidence from Mr Nemes we do not accept that he provided verbal advice to or had many phone calls with the complainant, particularly having regard to the continuing nature of the complaints. The applicant misquoted the respondent's finding in paragraph 4.6(i) of the Reasons that he failed to properly respond and take appropriate action in regard to the building roof not being constructed in compliance with the approved plans i.e. setback 450mm from the side boundary by "Not acknowledging receipt or replying to written complaints within 14 days". It is probable, notwithstanding the applicant's contemporaneous notes, that at the time of the frame inspection carried out on 15 December 2016 the roof had not been constructed in accordance with the approved plans. The absence of timely and meaningful responses by the applicant to the complainants in relation to their continuing complaints demonstrates indifference on his part to the issues being raised. There was no explanation by the applicant as how the errors in the inspection certificate which the applicant signed on 4 May 2017, and the final OC and the inspection certificate which the applicant issued and signed on 19 May 2017, occurred. In failing to properly respond and take appropriate action in regard to the continuing complaints the applicant breached the Code of Conduct requirements 1, 3 and 5. We are not satisfied that the applicant breached the Code of Conduct requirement 6 as he had all relevant facts available to enable a response to the complaints and in issuing the final OC.
2. We find that Complaint no 102/17 - Matter 1 is established by reason that the applicant failed to properly respond and take appropriate action in regard to the building roof not being constructed in compliance with the approved plans i.e. setback 450mm from the side boundary.

Whether Complaint no 103/17 - Matter 1 is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 5.0 MATTER 1 (Complaint no. 103/17) Contrary to development consent conditions Mr Boyce authorised construction of a new gate instead of retention of an existing gate viz., construction certificate (CC) no. BW16362(M)(M) dated 30 May 2017. FINDINGS ON MATERIAL QUESTIONS OF FACT 5.1 On 3 February 2017, a s.96 modified development consent (DA) under DA 222/2015 was issued by Woollahra Municipal Council for alterations and additions to an existing dwelling at 3 Dudley Street, Paddington. The s.96 DA approved a proposed ensuite bathroom 'pop out' addition located in the 930mm wide space between the eastern side wall of the existing dwelling and the adjacent boundary with the complainants' property. The ensuite's front wall was to be setback approximately 500mm behind an existing side access gate. The existing side gate was setback about 1200mm from the front wall of the existing dwelling. 5.2 Under section 109F(1)(a) of the EP&A Act and clause 146(c) of the EP&A Regulation a 'certifying authority must not issue' a construction certificate (CC) unless each DA condition required to be complied with before the CC is issued has been met. 5.3 Condition C.1 of the DA required that prior to the issuing of any CC, the plans were to show the existing side gate as being retained and deletion of a proposed new gate. The s96 DA plans however were already in compliance with the condition's requirements, including annotations referring to the retention of the existing gate. 5.4 On 30 May 2017, Mr Boyce issued modified CC no. BW16362(M)(M), which described the work as 'Mod. Relocate side gate'. The CC endorsed a different set of plans to those used in the s96 DA. 5.5 The CC endorsed plans did not comply with condition C.1 as: a) C.1 a) ii) viz., the CC plans did not show the existing gate would be kept. b) C.1 a) i) viz., the CC plans showed a proposed new gate, and that gate was a further 1200mm closer to the street. 5.6 Mr Boyce submitted that drawing 'A101' showed the existing gate and included a notation 'comply with C.1 modifications'. The CDC's list of the endorsed plans does not refer to drawing 'A101' and the Board was not provided with a copy of such drawing. CDC drawing 'A101' identifies drawing 'A101' as a demolition and existing ground floor plan. 5.7 Mr Boyce submitted that CDC drawing 'A102' shows the existing gate and no new gate. Mr Boyce has evidently failed to recognise that a notation on 'A102' is about the appearance of the new gate, and it is not a reference to the retention of the existing gate viz., 'Timber gate to match existing to align with front façade as shown'. 5.8 Mr Boyce in his Second Submissions stated that, notwithstanding he took steps to verify (with Council) his actions, he now accepts that in issuing the CC he did not follow the legislative requirements. 5.9 The issuing of the CC, Mr Boyce contravened section 109F(1)(a) of the EP&A Act and clause 146(c) of the EP&A Regulation.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: o. Construction certificate BW16362 ('the CC) was issued on 18 August 2016. p. Condition C.1(a) of development consent DA222/2015 issued by Woollahra Council on 16 March 2016 relevantly provided: (a) Reconfiguration of new gate, retention of existing timber pedestrian gate, deletion of ground floor level ensuite and relocation of air-conditioning condenser units. i. The proposed new gate located to the Dudley Street front boundary shall be deleted. ii. The existing timber side entry gate between the subject property and the south-eastern boundary shall be retained. iii. ... iv. ... q. Construction certificate plans A101 and A102 prepared by Stewart Hollenstein include notations that the existing side gate was to be retained. r. The Council approved a modification of DA222/2015 on 3 February 2017. The modification retained condition C.1(a)(i) and (ii). The approved plan DA04 C prepared by Stewart Hollenstein included a notation 'retention of the timber side entry gate. Colour to match house. s. Modified Construction Certificate BW16362(M) was issued by the applicant on 7 April 2017 and required compliance with condition C.1(a) of DA222/2015. t. Modified Construction Certificate BW16362(M)(M) was issued by the applicant on 30 May 2017 and authorised the side gate to be moved adjacent to the corner of the building. u. The applicant took advice from Council's Team Leader - Development Control Mr George Fotis that the relocation of the side gate was not inconsistent with the development consent. v. The applicant concedes that he should not have relied upon the advice of Council's officer and issued the further modified construction certificate.

The submissions of the applicant

1. The applicant in his written submissions does not directly address the question of whether this Complaint is established (AS at [86]-[93]).

The submissions of the respondent

1. The respondent in its written submissions proceeds on the assumption that this Complaint is established (RS at [112]-[115]).

The EPA Act

1. Part 4 Division 2 (ss 77-83) of the EPA Act as it was in force at the time of the conduct constituting the Complaint dealt with the procedures for development that need consent. Section 81A dealt with the effects of development consents and the commencement of a development, and relevantly provided: 81A Effects of development consents and commencement of development … (5) Regulations may provide for the issue of certificates The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.
2. Part 4A Division 1 (ss 109C-109Q) dealt with certification of work and other matters. Section 109F dealt with restrictions on issue of construction certificates and relevantly provided: 109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A(5) have been complied with, and

The EPA Regulation

1. Part 8 Division 2 (cll 139-148) of the EPA Regulation as it was in force at the time of the conduct constituting the Complaint dealt with construction certificates. Clause 146 dealt with compliance with the conditions of a development consent and relevantly provided: 146 Compliance with conditions of development consent (cf clause 79H of EP&A Regulation 1994) A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with: (a) …, (b) …, (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.

Consideration

1. We are satisfied that the respondent correctly found that, contrary to development consent conditions, the applicant authorised construction of a new gate at a new location instead of retention of an existing gate for the reasons set out in paragraphs 5.1 to 5.5 of the Reasons. There is no doubt that the retention of existing side gate was an explicit requirement of the development consent. The applicant contravened s 109F(1)(a) of the EPA Act when read with cl 146(c) of the EPA Regulation.
2. We find that Complaint no 103/17 - Matter 1 is established by reason that contrary to development consent conditions the applicant authorised construction of a new gate instead of retention of an existing gate.

Whether Complaint no 103/17 - Matter 2 is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 6.0 MATTER 2 (Complaint no. 103/17) Mr Boyce as the appointed principal certifying authority (PCA) failed to properly respond and take appropriate action in regard to building height and boundary encroachments. FINDINGS ON MATERIAL QUESTIONS OF FACT 6.1 On 16 August 2016, Mr Boyce accepted appointment as the PCA for the proposed alterations and additions to an existing dwelling at 3 Dudley Street, Paddington, under DA number DA 222/2015. 6.2 The side wall of the complainants' dwelling is situated approximately 200mm from the common boundary between the properties. 6.3 The DA (s.96) approved a proposed ensuite bathroom 'pop out' addition located in the 930mm wide space between the eastern side wall of the existing dwelling and the adjacent boundary with the complainants' property. The ensuite's front wall was to be setback approximately 500mm behind an existing side access gate. The existing side gate was setback about 1200mm from the front wall of the existing dwelling. 6.4 Condition E.12 of the DA contains extensive requirements for survey reports to be obtained at numerous specified stages of construction to verify compliance with heights and setbacks. The condition refers to the PCA i.e.: 'The Principal Contractor or Owner Builder must ensure that work must not proceed beyond each of the following critical stages until compliance has been demonstrated to the PCA's satisfaction'. The condition also includes a 'Note' which in part states that 'This condition has been imposed to ensure that development occurs in the location and at the height approved under this consent.' Ensuring condition E.12 was observed by the builder was particularly relevant to Mr Boyce as the PCA given the DA and s.96 plans show the proposed rear addition and the ensuite to be located immediately alongside the common boundary shared with no.5 Dudley Street. This became even more crucial after the complainants' raised specific concerns with Mr Boyce about the compliance of the ensuite bathroom height and location. 6.5 On 28 April 2017, the complainants began sending emails to Mr Boyce's office raising concerns with the PCA about the compliance of the ensuite bathroom (height and location). 6.6 On 23 June 2017, Mr Boyce issued an interim OC for the completed works, However, a survey report verified that the as-built work was not carried out in accordance with the DA and the CC plans as: • The ensuite's side wall encroaches 230mm over common boundary. • The ensuite's front wall height is 135mm above DA approved height. • The rear addition's side wall encroaches 100mm over common boundary. • The rear addition's roof gutter height is 250mm above DA approved height. 6.7 The following events and actions took place: a) On 3 November 2016, Mr Joe Malouf (BPB 0245), who is not the PCA, conducted a 'slab/steel footing inspection', advising the inspection was satisfactory subject to a survey report. On the same day, and presumably as a result of Mr Malouf's inspection result, Mr Boyce issued an 'Inspection Certificate' for 'Slab steel/footings' for the rear addition to the owner. This advised that a survey report was required before work could proceed. The report was not submitted and construction of the additions continued. Despite condition E.12 not being complied with, further inspections were made on Mr Boyce's behalf by accredited Mr Joe Malouf on 22 December 2016 (frame) and 28 February 2017 (wet areas). There is no evidence that any further attempt was made by Mr Boyce as the PCA to obtain the required survey report/s per condition E.12 to confirm the addition's side wall setback and roof height. b) Concerns about the compliance of the ensuite bathroom were first raised by the complainants in an email sent to Mr Boyce's office (Mr Nemes) dated 28 April 2017. An email sent in reply by Mr Boyce's office (Mr Nemes) on 1 May 2017 advised that a modified CC had been issued for the ensuite, but made no comment as to whether any investigation had been made as to whether the ensuite wall was proceeding in accordance with that CC. c) In an email on 1 May 2017 to Mr Boyce's office (Mr Nemes) the complainant asked: 'Can you clarify if the works being carried out comply with council approval especially regarding proximity to existing gate and height of structure'. d) In an email on 5 May 2017 to Mr Boyce's office (Mr Nemes) the complainant advised that the work did not appear to be proceeding per the CC plans including 'Proximity of ensuite structure to existing gate being closer to street and gate than approval' and 'Height of ensuite structure being taller than approval'. The complainant asked 'Can you please address both of these concerns'. e) An email sent by Mr Boyce's office (Mr Nemes) to the complainants on 9 May 2017 advised that 'At this point in time the build appears to be consistent with the approved drawings'. The basis for the above comment by Mr Boyce's office is unclear. There is no evidence that Mr Boyce had visited the site to investigate the concerns raised by the complainant in their emails. f) In an email on 9 May 2017 to Mr Boyce's office (Mr Nemes) the complainant advised that 'I thought the bathroom looked quite close to the existing front gate compared to approved drawings and also seemed quite high. Of course your [sic] the expert. Just want to ask are you sure?'. There is no evidence Mr Boyce or his office replied to the above email. g) In an email on 1 June 2017 to Mr Boyce and to his office (Mr Nemes) the complainant advised: 'Dear Peter Nemes and Peter Boyce, I'm following up from my conversation with Peter Names this morning. This is the email that I have NOT had a response yet from in almost 3 weeks. This is not a response rate that is acceptable with progress being made each week. As a word of caution you are being paid to monitor this work. Previously I have been told you are extremely busy in your office so I would suggest not taking new projects on when you can't tend properly to the ones that you are being compensated for. I'm so disturbed by this. Based on my email 3 weeks ago I would like to know: 1/bathroom being close in proximity and higher than approved plans If I don't hear a response regarding the I will be looking into it myself with counsel'. There is no evidence Mr Boyce or his office replied to the above email. h) Critical stage inspection records show that Mr Boyce visited the site on 11 May 2017 and found the 'Stormwater Connected to Street OK'. Mr Boyce also evidently carried out a 'Pre-final inspection of the above property' on the same day, as detailed in a letter to the owner listing matters required to be addressed before a final OC could be issued. There is nothing in the final inspection letter to suggest Mr Boyce's inspection didn't include the ensuite addition. The letter does not raise any concerns in regard to the compliance of the ensuite. The letter requests a survey report per condition E.12, but only in regard to location and boundaries (i.e. no mention is made of heights). Despite none of the required critical stage inspections for the ensuite having been requested and carried out (footings, slab, wet area and roof frame), Mr Boyce's letter makes no reference to these statutory requirements, nor does he seek an explanation from the owner and/or builder as to why each of the inspections could be regarded as being unavoidably missed. Section 109E(3)(d) of the EP&A Act prevents a PCA from issuing an OC unless all prescribed inspections have been carried out. i) While the CC plans depict the proposed front wall of the ensuite as being setback 500mm from the existing gate, photographs provided by the complainant (taken on 20 April and 1 June 2017) show it was built abutting the gate i.e. without all or the majority of the 500mm setback being provided. j) The CC plans and DA survey plan clearly depict that the side wall of the complainant's dwelling does not abut the common boundary. Upon the ensuite's side wall and footings being built, a discernible gap of more than 200mm from the neighbouring dwelling wall should be readily observable. Photographs provided by the complainant (taken on 1 and 14 June 2017) however instead show the ensuite wall (with roof flashing above) was built directly alongside the face of the neighbouring dwelling wall. The absence of the gap (and possibly the presence of the roof flashing) should have been obvious to Mr Boyce during his site visit on 11 May 2017. k) It should have been apparent to Mr Boyce from the complainants' email to his office dated 28 April 2017 (and each of the subsequent emails) that the ensuite construction had proceeded without critical stage inspections for the footings/slab. It is evident from Mr Boyce's submissions to the Board that he had no recognition that inspections had been missed until after the Board raised this issue with him in an email dated 29 November 2017. This is despite a PCA's statutory duty to within two days of becoming aware of a missed inspection notify the builder and owner under clause 162C(5) of the EP&A Regulation, and the Board's advice to certifiers about the importance of ensuring their clients are made fully aware that inspections are not to be missed (published on 9 March 2017). Mr Boyce issued an interim OC on 23 June 2017. He advised in his submission to the Board dated 25 November 2017 that after issuing the OC, later on the same day he received a survey report showing the encroachments. In a further submission to the Board dated 2 December 2017 he advised that the OC's description of works mistakenly included the ensuite. 6.8 The available evidence shows that Mr Boyce as the PCA failed to properly respond and take appropriate action in regard to building height and boundary encroachments by: i Not acknowledging receipt or replying to written complaints within 14 days (emails dated 9 May and 1 June 2017). ii Not carrying out an inspection of the ensuite addition under construction following receipt of the neighbours emails between 28 April and 1 June 2017. iii Not carrying out an independent assessment of the complained-about matters and providing the complainants with his findings in writing and any proposed action. iv. Advising and misleading the complainants by his office's email dated 9 May 2017 that 'At this point in time the build appears to be consistent with the approved drawings'. v. Aware that condition E.12 was not being complied with, failed to take sufficient action and failed to recognise its expansive requirements i.e. including the height of the roof was in accordance with the roof levels at each of the points on the approved plans. Mr Boyce's contention in his submission to the Board that the condition is invalid is not accepted. A PCA does not have authority to ignore or put aside conditions that it concludes are irrelevant and/or were imposed by Council erroneously or carelessly. vi. The interim OC issued by Mr Boyce dated 23 June 2017 states that it includes the ensuite and refers to the relevant s.96 consent. Mr Boyce's contention that the ensuite work was not completed at the date the OC was issued is dubious given there is no evidence that he had visited the site since 11 May 2017, his final inspection letter of that same date does not suggest the work was incomplete, the available survey reports and photographs indicate a completed ensuite addition, and there is no evidence that the occupants could not access and use the ensuite addition. vii. If Mr Boyce's explanation is to be accepted, he has issued a false and misleading interim OC and has contravened section 85(1)(b) of the BP Act. viii. There is no scope to issue an interim OC in lieu of a final OC while awaiting a survey report to verify the built work is within the property boundaries and does not exceed approved roof and wall heights. Particular care was required by the PCA in this instance before issuing an interim OC as the work involved was to be built abutting a common boundary, a specifically related DA condition (E.12) had not yet been complied with, and complaints had been made by the adjoining owners. ix. Failing to recognise that the critical stage inspections for the ensuite had been missed until the Board raised this issue with him in an email dated 29 November 2017, despite the complainants' email to his office dated 28 April 2017 (and subsequent emails) making it clear the walls of the ensuite were under construction, and this being readily observable during his visit to the site on 11 May 2017. Mr Boyce's submission to the Board that he didn't inspect the ensuite part of the works while on site due to the builder not requesting he do so is not accepted, particularly given he was in receipt of complaints from the neighbours about the ensuite. x. Failing in the PCA's statutory duty to notify the owner and builder of missed inspections per clause 162C(5) of the EP&A Regulation. xi. Unless all of the criteria in clause 162C(2) and (3) are satisfied, including the requirement that the inspection was missed because of circumstances which the PCA considers to be unavoidable, the inspection remains a prescribed inspection for the purposes of section 109E(3)(d) of the EP&A Act. Section 109E(3)(d) prevents a PCA from issuing an OC unless all prescribed inspections have been carried out. xii. Despite being provided with a survey report on 23 June 2017 showing the ensuite encroachment, failed to issue a S.109L Notice until 13 November 2017 i.e. after a complaint was lodged with the Board. xiii. Sought to redress the OC by issuing a replacement interim OC dated 1 December 2017 that 'Amended to exclude ensuite not completed'. 6.9 Mr Boyce in his Second Submissions stated that, notwithstanding he had discussed the neighbour's issues with Council's Manager of Compliance on several occasions, in retrospect he now agrees (with the Board's complaint investigation report) and he endeavours to manage complaints in a more appropriate matter. 6.10 Requirements 1, 3, 5 and 6 of the Code of Conduct requires a certifier to act in the public interest, to not misinform or otherwise mislead, to observe their duty of care and to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. By carrying out the PCA function in manner identified in paragraphs 6.3 to 6.8 of this Statement, Mr Boyce failed to comply with these Code of Conduct requirements. 6.11 Mr Boyce failed to monitor and pursue compliance of the height and location concerns raised with him by the neighbour. At no time did he make enquiries and/or inspections to ascertain if the ensuite work was proceeding in accordance with the DA and CC plans. He allowed his client and the builder to freely carry on and complete the building works without any review of the ensuite setback and height issues, and then he issued an interim OC. Mr Boyce exercised the functions of a PCA in a partial manner.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: w. It is noted that the findings are not directly responsive to the complaint, noting that that the Board may raise additional allegations.

The submissions of the applicant

1. The applicant made the following written submissions: 1. it is relevant to note that the applicant did not have the power to require the builder or the owner to demolish and rectify works (AS at [99]); 2. the Council had the power at that point in time to take regulatory action, and the neighbours had the power to seek injunctive relief from the Land and Environment Court NSW (AS at [100]); 3. in the context where was not a harmonious relationship between the neighbours and/or the builder, the applicant did not respond to all complaints directly to the neighbours. The applicant's attention was focussed on the issue to achieve an outcome in the public interest. There was no statutory requirement for a certifier to respond to every piece of correspondence from a neighbour. The applicant did not ignore the concerns, but rather dealt with them in a manner differently to what the neighbour expected (AS at [101]); 4. despite the applicant's clear advice that the building works could not proceed after the footing inspection, the builder constructed the works in any event. At this point that the applicant made the following errors (AS at [102]): 1. he knew, or ought to have known, that the works were proceeding in the absence of the survey plan; 2. he intended to issue an interim OC to the owners excluding the ensuite on 27 June 2017 to permit them who were expecting a new baby to move into the home. Unfortunately, he made an error in the interim OC and did not exclude the ensuite from the works in the interim OC; 1. the respondent has not proven that there was any breach of the approved height limit (AS at [105]).
2. The applicant subsequently made the written submission conceding that the Tribunal would find the Complaint proven to the extent that it alleges he could have followed up the requirement for a boundary survey following his initial request where he put the builder on notice that works were not authorised to continue without submission of the survey (APS at [52g]).

The submissions of the respondent

1. The respondent made written submissions that the Tribunal would find troubling the absence of file notes and inspection records pertaining to the inspection of the ensuite slab, and the representation in the applicant's office's email of 9 May 2017 (RS at [117]).

The EPA Act

1. Part 4A Division 1 (ss 109C-109Q) of the EPA Act as it was in force at the time of the conduct constituting the Complaint dealt with certification of work and other matters. Section 109E dealt with principal certifying authorities and relevantly provided: 109E Principal certifying authorities … (3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied: (d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and

The EPA Act Regulation

1. Part 8 Division 2 (cll 139-148) of the EPA Regulation as it was in force at the time of the conduct constituting the Complaint dealt with construction certificates. Clause 162A dealt with critical stage inspections required by s 109E(3)(d) of the EPA Act and relevantly provided: 162A Critical stage inspections required by section 109E(3)(d) (1) For the purposes of section 109E(3)(d) of the Act, the occasions on which building work must be inspected are as set out in this clause. Note. These inspections are the critical stage inspections. … (4) In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are: … (g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

Consideration

1. We are satisfied that the respondent correctly found that the applicant failed to properly respond and take appropriate action in regard to building height and boundary encroachments by reason of the matters in paragraphs 6.8.i to 6.8.xiii of the Reasons. In the absence of written or oral evidence from the applicant and corroborating evidence we do not accept his contentions and submissions recorded in paragraphs 6.8.vi and 6.8.ix of the Reasons. The absence of timely and meaningful responses by the applicant to the complainants in relation to their continuing complaints that the builder was constructing the slab and subsequent ensuite over the boundary, higher than permitted and closer to the street demonstrates indifference on his part to the issues being raised. The applicant failed to comply with the statutory duty in s 109E(3)(d) of the EPA Act when read with cl 162(4)(g) of the EPA Regulation in failing to undertake an inspection before issuing the interim OC. In failing to properly respond and take appropriate action in regard to the continuing complaints the applicant breached the Code of Conduct requirements 1, 3 and 5. In issuing the interim OC which included the ensuite and when there were building height and boundary encroachments the applicant breached the Code of Conduct requirement 6.
2. The respondent's finding that the applicant contravened s 85(1)(b) of the BP Act was based on the acceptance of the applicant's asserted explanation that the ensuite work was not completed as at 23 June 2017. We do not accept the applicant gave such an explanation, and accordingly are not satisfied that the applicant contravened s 85(1)(b) of the BP Act.
3. We find that Complaint no 103/17 - Matter 2 is established by reason that the applicant failed to properly respond and take appropriate action in regard to building height and boundary encroachments.

Whether Complaint no 35/18 - Additional Matter A is established

The Reasons

1. The Reasons contain the following findings (bold text, italics and underlining in the original): 8.0 ADDITIONAL MATTER A (Complaint no. 35/18) Accredited certifier Mr Peter Boyce issued CDC no. BW17254 dated 6 October 2017 for proposed dwelling alterations and additions at 71 High Street, Willoughby. The proposed development did not comply with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. FINDINGS ON MATERIAL QUESTIONS OF FACT 8.1 The CDC (no. BW17254) was issued by Mr Boyce dated 6 October 2017 for proposed alterations and additions to an existing dwelling and outbuilding/shed at 71 High Street, Willoughby under the Codes SEPP. 8.2 Under s.85A(3) of the EP&A Act the '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'. The CDC was issued by Mr Boyce with a statement made pursuant to section 85(1)(a) of the EP&A Act and clause 134(e) of the EP&A Regulation i.e. a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by the EP&A Regulation concerning the issue of the CDC. 8.3 Mr Boyce did not possess sufficient basis to have determined that his issuing of the CDC would not be contrary to his statutory duty under s.85A(3) of the EP&A Act, given: a) Clause 3.16(2)(b)(ii) - Side setback. On the CDC plans the dwelling's side wall facing the complainant's property (78 Mowbray Street) has a proposed setback of 1567mm from the boundary. The maximum proposed wall height which complies with a minimum 1567mm side setback is a wall that is 7.168m high. The CDC plans contain no details specifying the height of the proposed wall and it is otherwise indeterminable (i.e. from RLs and other heights on the plans). Mr Boyce therefore had insufficient information to demonstrate that the proposed development would comply with clause 3.16(2)(b)(ii). The CDC plans contain hand-written notations, including on the North elevation a notation indicating a wall height of '6.95m'. However, the '6.95m' does not include the height of the wall (parapet wall) above ceiling level, the level between the ground floor and the adjacent ground level. Moreover, a hand-written notation on drawing no. 1/8 states 'office use only' i.e. the hand-written notations aren't part of the CDC approved plans. As best can be ascertained from the CDC plans, the wall has a height of between 7.4m and 7.55m, with a proposed setback of 1567mm. A 7.4m high wall requires a minimum setback of 1625mm. Mr Boyce in his initial submissions to the Board stated the wall complied as it was 6.6m high with a 1567mm setback. In a subsequent submission he advised he had failed to take into the account the parapet wall and acknowledged clause 3.16(2)(b)(ii) was not complied with. It is not clear what height he now considered the wall was. Mr Boyce in his Second Submissions does not comment on this issue. Mr Boyce in his submissions in response to the complaint investigation report accepted that clause 3.16(2)(b)(ii) was not complied with. He also submitted that the wall height on the CDC plans was 7.2m i.e. 1575mm setback was required. However, this calculation failed to take in account the height of the ground floor level above the adjacent existing ground level. b) Clause 1.18(1)(c) - BCA compliance. The proposed development does not meet the relevant provisions of the BCA: i. Part 3.7.2.2 - Smoke alarms. The proposed dwelling has four bedrooms on the first floor. The CDC plans and specifications make no reference to any intention to provide smoke alarms, including their location/s and type. Mr Boyce submitted compliance was addressed by condition 33 of the CDC's 'Advisory Conditions' which states that smoke alarms are to be installed per the BCA. The condition does not refer to Part 3.7.2.2 of the BCA, nor does it specify the proposed location of smoke alarms. Moreover, there is no legislative authority that allows a certifier to include or enforce 'Advisory Conditions' under a CDC. Mr Boyce submitted compliance was addressed by his CDC endorsement stamp on the plans. The stamp however does not refer to Part 3.7.2.2 of the BCA, nor does it specify the proposed location of smoke alarms. The stamp is too vague to be of any utility, as the stamp requires compliance with multiple versions of the BCA, beginning with BCA 2007. Moreover, there is no legislative authority that allows a certifier to include or enforce requirements by placing a stamp on the CDC plans. ii. Part 3.9.2 - Balustrades. The proposed first floor has balconies and a void area. The CDC plans and specifications make no reference to any intention to provide safety balustrades along the sides, nor do they specify their design requirements. Mr Boyce submitted compliance would be checked at the final inspection. Reliance upon a final inspection of a completed dwelling is not an alternative means to determining whether the CDC application proposes a building that will comply with the BCA. Mr Boyce admitted in his submissions that he failed to identify the missing balustrades when reviewing the plans. Mr Boyce in his Second Submissions does not comment on this issue. Mr Boyce earlier submitted that clause 1.18(1)(c) is a general reference to the BCA that says the development must meet the relevant clauses of the BCA. Contrary to Mr Boyce's submission, under section 85A(3) of the EP&A Act an accredited certifier assessing a CDC application is required to determine whether or not the proposed development complies with the relevant development standards. Per section 4(1) of the EP&A Act 'development standards' include clause 1.18(1)(c)of the Codes SEPP. Accordingly, the applicant must provide sufficient information to demonstrate the intent to comply. It is not the case that in assessing a CDC application, clause 1.18(1)(c) can be treated akin to a condition of approval. 8.4 Under clause 130(1) of the EP&A Regulation a 'certifying authority must not issue a complying development certificate for building work' unless the proposed building will comply with the relevant requirements of the BCA. Mr Boyce issued the CDC in contravention of clause 130(1) of the EP&A Regulation for the reasons provided in paragraph 8.3 b) above. 8.5 It is a fundamental role of an A2 accredited certifier to ensure that any CDC they issue has sufficient details and content to clearly evidence full compliance with the development standards. The non-compliances and omissions set out in paragraph 8.3 above were readily discernible to competent A2 accredited certifier carrying out a careful assessment of a CDC application for the purposes of s.85A(3) of the EP&A Act. 8.6 Mr Boyce issued CDC no. BW17254 dated 6 October 2017 for a proposed development that has not shown via the CDC application that it will comply with each of the relevant development standards, including the BCA. Mr Boyce did not possess sufficient basis to have determined that his issuing of the CDC would not be in contravention of section 85A(3) of the EP&A Act, section 130(1) of the EP&A Regulation and section 85(1)(b) of the BP Act, nor to have made the statement on the CDC (referred to in paragraph 8.2 above). By issuing the CDC, Mr Boyce contravened section 130(1) of the EP&A Regulation and section 85(1)(b) of the BP Act.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: Side setbacks bb. The Board alleges that the plans do not have sufficient information to determine the maximum wall height. cc. The wall height is shown on the approved plans, from existing ground level to ceiling height of 6600mm, a parapet of 600mm is also shown which gives a total of 7200mm. Smoke alarms dd. The Board alleges that the CDC does not require smoke alarms to be installed. ee. The CDC includes the statutory condition that building work must be carried out pursuant to the Building Code of Australia, which includes specifications for smoke alarms. Balustrades ff. The CDC includes the statutory condition that building work must be carried out pursuant to the Building Code of Australia, which includes specifications for balustrades. gg. The requirement at clause 130(1) of the Environmental Planning and Assessment Regulation 2000 does not require certain matters to be shown on plans, just that the building will comply with the BCA. When the plans are read with the conditions, it is clear that the building will comply with the BCA.

The submissions of the applicant

1. The applicant made the following written submissions: 1. the total height proposed in the architectural plans was 7200mm. These plans demonstrate that the applicant had sufficient information to form a view pursuant to s 85A(3) of the EPA Act. The total calculated by the applicant was a required setback of 1567mm, where it should have been 1575mm, being a discrepancy of 8mm (AS at [122]-[124]); 2. condition 16 of the CDC requires that the dwelling be carried out in accordance with the BCA. Having regard to the conditions imposed, it was reasonable for the applicant to form the opinion that the proposed development was complying development that complied with the relevant development standards in accordance with s 85A(3) of the EPA Act (AS at [125]-[129]).

The submissions of the respondent

1. The respondent made the following written submissions: 1. as to the side setback, it is incontrovertible that the proposal did not comply (RS at [121]); 2. as to the BCA compliance, there was no information submitted with the application in respect to smoke alarms, position and type, or in respect to balustrades as set out in paragraph 8.3(b) of the Reasons (RS at [122]-[123]); 3. a condition on the CDC was not sufficient to make the proposed development a complying development having regard to cl 130(1) and cl 4 of sch 1 of the EPA Regulation (RS at [124]-[126]).

Codes SEPP

1. Part 1 Division 2 (cll 1.15-1.20) of the Codes SEPP as it was in force at the time of the conduct constituting the Complaint dealt with exempt and complying developments. Clause 1.18 dealt with the general requirements for a complying development under the Codes SEPP and relevantly provided: 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must: … (c) meet the relevant provisions of the Building Code of Australia, and
2. Part 3 Division 2 Subdivision 3 (cll 3.13-3.23) as it was in force at the time of the conduct constituting the Complaint dealt with building heights and setbacks. Clause 3.16 dealt with setbacks of dwelling houses and outbuildings from side boundaries and built to boundary walls and relevantly provided: 3.16 Setbacks of dwelling houses and outbuildings from side boundaries and built to boundary walls (1) This clause applies to the following: (a) a dwelling house and any carport, garage, balcony, deck, patio, pergola, terrace or verandah that is attached to the dwelling house (a building), … (2) Any point of a building on a lot must have a setback from the side boundary nearest to that point of at least the following: … (b) if the lot has a width, measured at the building line, of more than 10m, but not more than 18m: … (ii) for any part of the building with a height of more than 4.5m - 0.9m plus one-quarter of the height of the building above 4.5m,

The EPA Regulation

1. Part 7 Division 2 (cll 130AA-136) of the EPA Regulation as it was in force at the time of the conduct constituting the Complaint dealt with the determination of applications and the commencement of complying developments. Clause 130 dealt with the procedure for determining application for complying development certificates and the notification requirements, and relevantly provided: 130 Procedure for determining application for complying development certificate and notification requirements (cf clause 77 of EP&A Regulation 1994) (1) A certifying authority must not issue a complying development certificate for building work unless 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 certificate was made).
2. Schedule 1 Part 2 (cll 3-4B) dealt with the form for complying development certificates. Clause 4 dealt with the documents to accompany an application for complying development certificate, and relevantly provided: 4 Documents to accompany application for complying development certificate (1) An application for a complying development certificate must be accompanied by the following documents: … (d) if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house): … (ii) appropriate building work plans and specifications, … (5) Appropriate building work plans and specifications referred to in subclause (1) (d) (ii) include the following: (a) detailed plans, drawn to a suitable scale and consisting of a block plan and a general plan, that show: … (iv) the height, design, construction and provision for fire safety and fire resistance (if any),

Consideration

1. We are satisfied that the respondent correctly found that the side setback of the dwelling did not comply with cl 3.16(2)(b)(ii) of the Codes SEPP for the reasons set out in paragraph 8.3(b) of the Reasons.
2. We are also satisfied that the respondent correctly found that the proposed development did not meet the relevant provisions of the BCA with respect to smoke alarms and balustrades for the reasons set out in paragraph 8.3(b) of the Reasons. The application did not comply with sch 1 cl 4(1)(d)(ii) and (5)(a)(iv) of the EPA Regulation. The insertion of condition 16 in the CDC did not comply with cl 130(1) the EPA Regulation.
3. We are satisfied that in issuing the CDC the applicant failed to comply with the statutory duty in s 85A(3) of the EPA Act as it was an unreasonable decision. We readily draw the inference that the applicant failed to address or overlooked the requirements of cl 3.16(2)(b)(ii) of the Codes SEPP and the relevant provisions of the BCA.
4. There is a sufficient basis in the inclusion of condition 33 of the CDC's advisory conditions and the affixation of an endorsement stamp on the plans to raise the issue that the applicant had an honest and reasonable belief that the CDC was not false or misleading. We are not satisfied on the balance of probabilities that this honest and reasonable belief has been negatived, and accordingly that the applicant breached s 85(1)(b) of the BP Act.
5. We find that Complaint no 35/18 - Additional Matter A is established by reason that the applicant issued the CDC in circumstances where the proposed development did not comply with the Codes SEPP.

Whether Complaint no 35/18 - Additional Matter B is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 9.0 ADDITIONAL MATTER B (Complaint no. 35/18) Accredited certifier Mr Peter Boyce issued CDC no. BW17254 dated 6 October 2017 for proposed dwelling alterations and additions at 71 High Street, Willoughby. The CDC endorsed structural engineer's drawings depict alternative proposed works to the CDC and the endorsed architectural plans. FINDINGS ON MATERIAL QUESTIONS OF FACT 9.1 On 6 October 2017, Mr Boyce issued CDC no. BW17254 for proposed alterations and additions to an existing dwelling and outbuilding/shed at 71 High Street, Willoughby. 9.2 The Board accepts that the CDC did not give authorisation to the construction of a new dwelling. However, Mr Boyce issued the CDC with endorsed structural engineer's drawings (SEDs) that depict alternative proposed works to the CDC and the endorsed architectural plans. 9.3 The proposed building work depicted on the SEDs was a different development (i.e. an entirely new dwelling) to that depicted on the CDC architectural drawings and authorised by the CDC and on the CDC application (i.e. alterations and additions to an existing dwelling). As a result. Mr Boyce issued a CDC that contained conflicting and misleading information. 9.4 The Board does not accept Mr Boyce's (initial) contention that SEDs included and endorsed under the CDC can show an entirely different development to that approved by the CDC and its endorsed architectural plans. Carrying out the work in accordance with the SEDs will result in the construction of a building that is not complying development. This may also be problematic should Council and/or the PCA find it necessary to issue directions requiring compliance with the CDC, which includes the conflicting SEDs. Mr Boyce in his Second Submissions acknowledged that he should have picked up this error in the SEDs when issuing the CDC. 9.5 Requirements 1, 3, 5 and 6 of the Code of Conduct requires a certifier to act in the public interest, to not misinform or otherwise mislead, to observe their duty of care and to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. By issuing the CDC in manner identified in paragraphs 9.2 and 9.3 of this Statement, Mr Boyce failed to comply with these Code of Conduct requirements.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: hh. The applicant concedes that the structural engineering drawings were approved in error.

The submissions of the applicant

1. The applicant made the following written submissions: 1. he conceded that the structural engineering plans do not accurately demonstrate the works for which approval was sought (AS at [134]); 2. although not ideal, the Tribunal would not find that the applicant has breached his statutory obligations (AS at [136]).

The submissions of the respondent

1. The respondent made written submissions that it does not add to paragraphs 9.1 to 9.8 of the Reasons (RS at [127]).

Consideration

1. We are satisfied that the respondent correctly found that the applicant issued the CDC for proposed alterations and additions to an existing dwelling and with endorsed structural engineering drawings that depicted a different development for a new dwelling as set out in paragraphs 9.1 to 9.8 of the Reasons. In issuing the CDC the applicant breached the Code of Conduct requirements 1, 3, 5 and 6.
2. We find that Complaint no 35/18 - Additional Matter B is established by reason that the applicant issued the CDC for proposed dwelling alterations and additions in circumstances where the CDC endorsed structural engineer's drawings depict alternative proposed works to the CDC and the endorsed architectural plans.

Whether Complaint no 75/18 - Additional Matter A is established

The Reasons

1. The Reasons contain the following findings (bold text and italics in the original): 12.0 ADDITIONAL MATTER A (Complaint no. 75/18) Accredited certifier Mr Peter Boyce issued CDC no. BR16529 dated 22 August 2017 for proposed first floor additions, new garage and alterations at 5 Walker Street, Putney. The application (including the plans) did not demonstrate that the proposed development complies with the relevant development standards. FINDINGS ON MATERIAL QUESTIONS OF FACT 12.1 The CDC (no. BR16529) was issued by Mr Boyce dated 22 August 2017 for works described as 'First floor additions, new garage and alterations' at 5 Walker Street, Putney under the Codes SEPP. 12.2 Under s.85A(3) of the EP&A Act the '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'. The CDC was issued by Mr Boyce with a statement made pursuant to section 85(1)(a) of the EP&A Act and clause 134(e) of the EP&A Regulation i.e. a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by the EP&A Regulation concerning the issue of the CDC. 12.3 Mr Boyce did not possess sufficient basis to have determined that his issuing of the CDC would not be contrary to his statutory duty under s.85A(3) of the EP&A Act, as: • Clause 3.13(1) of the Codes SEPP states the height of alterations and additions to an existing dwelling must not be more than 8.5m above ground level (existing). • The CDC drawings (site plan, south-east elevation and south-west elevation) depict a proposed steel column at the south-east corner of the existing dwelling. The plans show the column extends between the existing ground level and the top of the dwelling's parapet roof. • The height of the column is readily determinable by the 'RLs' on the plans i.e. the height is 8.71m between the 'NGL RL 11.93' (site plan and south-east elevation) and 'Proposed Parapet RL 20.64' (south-east elevation). • Mr Boyce submitted that by scaling the plan the height can be determined as '8.2m', which is hand-written on the plans at the top of the column. 12.4 Mr Boyce in his Second Submissions stated: This relates to the assessment which did not identify a column exceeding the code SEPP restriction of 8.5m, the person originally doing the assessment took a scale rule measurement on plan and marked the plan in pencil showing 8.2m and did not identify the RLS shown on the plan. When I signed off the project I accept the written measurement of 8.2m which caused the error. This problem has been rectified at my cost ($ 6,000+) for the clients Solicitor, Draftsman, Planner and Engineer to prepare new plans and for a new CDC to be issued. 12.5 Mr Boyce's submissions are not considered to hold merit as they do not accord with the legislation and the statutory duties required of a certifying authority considering an application for a CDC, as: • It is Mr Boyce's responsibility to determine the compliance of the proposed development with the development standards under the Codes SEPP before he issues the CDC. • It is evident that Mr Boyce repeated the same mistake as the person who had earlier reviewed the plans i.e. failed to identify and consider the RLs on the plans. 12.6 It is a fundamental role of an A2 accredited certifier to ensure that any CDC they issue has sufficient details and content to clearly evidence full compliance with the development standards. The non-compliance set out in paragraph 12.3 above was readily discernible to competent A2 accredited certifier carrying out a careful assessment of a CDC application for the purposes of s.85A(3) of the EP&A Act. 12.7 Mr Boyce issued CDC no. BR16529 dated 22 August 2017 for a proposed development that has not shown via the CDC application that it will comply with each of the relevant development standards. Mr Boyce did not possess sufficient basis to have determined that his issuing of the CDC would not be in contravention of s.85A(3) of the EP&A Act and s.85(1 )(b) of the BP Act, nor to have made the statement on the CDC (referred to in paragraph 12.2 above). By issuing the CDC, Mr Boyce contravened section 85(1)(b) of the BP Act.

The applicant's particulars

1. The applicant in the applicant's particulars specifies the following grounds of review: jj. The Board appears to have made an assessment from the north west elevation plan (5/10) only. That plan shows the elevation with an 'NGL' (natural ground level). The elevation and NGL is not shown in section. kk. The plan 'south east elevation (6/10) shows the column with the RL of the NGL at the base of the column. It was reasonable on the basis of the information available for the applicant to conclude that the height requirement was met.

The submissions of the applicant

1. The applicant made the following written submissions: 1. the application for the CDC was accompanied by a site plan/survey which shows that the land has a fall of around 5m. The site plan shows the relevant spot levels which must be read with the elevations. Relevantly, the reference to "NGL RL 11.93" to which the respondent refers is on a step and therefore a cut in the land. Accordingly, the sectional view of the plans is important to the interpretation of the levels and shows the height of the columns as 7.2m and 7.17m, by reference to the NGL in the relevant location rather than the spot level closer to the boundary as used by the respondent (AS at [146]); 2. having regard to the calculation of the column heights by reference to the NGL at the base of the column, the Tribunal would find that the Complaint is not proven (AS at [147]).

The submissions of the respondent

1. The respondent made written submissions that it adopts the reasoning in paragraphs 12.3 of the Reasons (RS at [133]).

Codes SEPP

1. Part 3 Division 2 Subdivision 3 (cll 3.13-3.23) of the Codes SEPP as it was in force at the time of the conduct constituting the Complaint dealt with building heights and setbacks. Clause 3.13 dealt with building heights and setbacks and relevantly provided: 3.13 Maximum height of dwelling houses and outbuildings (1) The height of a dwelling house or the alterations and additions to an existing dwelling house must not be more than 8.5m above ground level (existing).

Consideration

1. We are satisfied that the respondent correctly found that the height of the column did not comply with cl 3.13(1) of the Codes SEPP for the reasons set out in paragraph 12.3(b) of the Reasons. We do not accept that the method of calculating the height submitted by the applicant involving the site plan and south east elevation should be adopted in preference to the difference between the NGL RL at the base of the column and at the proposed parapet recorded on the south east elevation.
2. We are satisfied that in issuing the CDC the applicant failed to comply with the statutory duty in s 85A(3) of the EPA Act as it was an unreasonable decision. We readily draw the inference that the applicant failed to address or overlooked the requirements of cl 3.13(1) of the Codes SEPP.
3. We consider that there is a sufficient basis in the Second Submissions to raise the issue that the applicant had an honest and reasonable belief that the CDC was not false or misleading. We are not satisfied on the balance of probabilities that this honest and reasonable belief has been negatived, and accordingly that the applicant breached s 85(1)(b) of the BP Act.
4. We find that Complaint no 75/18 - Additional Matter A is established by reason that the applicant issued the CDC in circumstances where the application (including the plans) did not demonstrate that the proposed development complies with the relevant development standards.

Whether the conduct constituting the Complaints should be characterised as unsatisfactory professional conduct or professional misconduct

The Reasons

1. The respondent in the Reasons characterised the conduct constituting the Complaints in the following manner: 1. Complaint no 29/17 - Additional Matter A: within paragraphs (a), (b), (d) and (g) of the definition of unsatisfactory professional conduct; 2. Complaint no 29/17 - Additional Matter B: within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct; 3. Complaint no 102/17 - Matter 1: within paragraphs (a), (e), (f) and (g) of the definition of unsatisfactory professional conduct; 4. Complaint no 103/17 - Matter 1: within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct, and professional misconduct; 5. Complaint no 103/17 - Matter 2: within paragraphs (a), (b), (d), (e), (f) and (g) of the definition of unsatisfactory professional conduct, and professional misconduct; 6. Complaint no 35/18 - Additional Matter A: within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct; 7. Complaint no 35/18 - Additional Matter B: within paragraphs (a) and (g) of the definition of unsatisfactory professional conduct; 8. Complaint no 75/18 - Additional Matter A: within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct.
2. The respondent in the Reasons gave the following reasons for its characterisation of the conduct constituting the Complaints (bold text in the original): 14.4 As identified under this Statement's 'Findings on Material Questions of Fact for Additional Matter A (complaint no. 29/17), Additional Matter B (complaint no. 29/17), Matter 1 (complaint no. 103/17), Matter 2 (complaint no. 103/17), Additional Matter A (complaint no. 35/18) and Additional Matter A (complaint no. 75/18), the breaches involved a failure to comply with a statutory duty imposed on the accredited certifier and/or a contravention of the nominated legislation i.e. the EP&A Act (and Regulations thereunder) and the BP Act. Each of the contraventions by the certifier was not a minor administrative breach. Each contravention was on its own a serious transgression of the duties of a certifying authority. It is not acceptable for an experienced A2 accredited to: • Fail to properly assess applications for CDCs to ensure that the proposed work will result in a complying development. Similarly, to issue a CDC for a proposal that is not complying development and/or in a confusing or misleading manner as to whether it is complying development. The determination and issuing of a CDC is a particular responsibility individually held by the accreditation holder. Additional Matter A (complaint no. 29/17), Additional Matter A (complaint no. 35/18) and Additional Matter A (complaint no. 75/18). • To issue a CC with plans with proposing work contradictory to a DA condition, that the DA specifically required the certifier ensure was complied with before the CC was issued. Matter 1 (complaint no. 103/17). • To issue an OC for a completed building that is inconsistent with the CDC (development consent) and results in the work not being complying development, particularly after having issued a Section 109L Notice in regard to that same non-compliance. Additional Matter B (complaint no. 29/17). • Failing in the PCA's statutory duty to notify the owner and builder of missed critical stage inspections per clause 162C(5) of the EP&A Regulation. Matter 2 (complaint no. 103/17). A contravention of the BP Act and/or the EP&A Act (and Regulations thereunder) by an accredited certifier, and/or a failure to comply with a statutory duty imposed on the accredited certifier, fall within 'unsatisfactory professional conduct' as defined in subsections (b) and (d) of section 19(1) of the BP Act. The number of contraventions across various different certifier actions and activities revealed that the certifier either lacked bringing the prerequisite care and attention to the role, or did not fully understand the certifier role, legislation and its application. 14.5 The certifier's conduct involved in both Matter 1 (complaint no. 102/17) and Matter 2 (complaint no. 103/17) demonstrated a profound failure on the part of Mr Boyce to properly carryout the role of a PCA, despite the Board's published advice to certifiers about their expected actions, responses, record keeping and conduct […]. Requirements 1, 3, 5 and 6 of the Code of Conduct requires a certifier to act in the public interest, that they do not misinform or otherwise mislead, to observe their duty of care and that they shall take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. As set out in the Statement's 'Findings on Material Questions of Fact' for each respective Matter, Mr Boyce failed to comply with these requirements of the Code of Conduct. As a result of Mr Boyce's actions in Additional Matter A (complaint no. 29/17) and Additional Matter B (complaint no. 35/18), there were CDCs issued with conflicting endorsed plans and drawings in existence. By his actions Mr Boyce failed to comply with Requirements 1, 3, 5 and 6 of the Code of Conduct, which require a certifier to act in the public interest, to not misinform or otherwise mislead, to observe their duty of care and to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. A failure by an accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, falls within 'unsatisfactory professional conduct' as defined in subsection (g) of section 19(1) of the BP Act. 14.6 In both Matter 1 (complaint no. 102/17) and Matter 2 (complaint no. 103/17), Mr Boyce exercised (including by omission) the functions of a PCA in a partial manner and with wilful disregard of matters to which an accredited certifier is required to have regard to in exercising functions as a certifying authority. The matters to which an accredited certifier is required to have regard to in exercising functions as a certifying authority are not confined to the EP&A Act's requirements for carrying out critical stage inspections and the issuing of an OC for their client i.e. accredited certifiers also have a duty of care in the performance of their role as a public official in relation to future owners, neighbouring property owners, the community and the council. Subsections (e) and (f) of the definition of 'unsatisfactory professional conduct' in section 19(1) of the BP Act includes 'the exercise by the accredited certifier of functions as a certifying authority in a partial manner' and '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'. As demonstrated by the events and Mr Boyce's actions (and inactions) as set out in the Statement's 'Findings on Material Questions of Fact' for both Matter 1 (complaint no. 102/17) and Matter 2 (complaint no. 103/17), Mr Boyce's conduct falls within subsections (e) and (f) of the definition of 'unsatisfactory professional conduct' in section 19(1) of the BP Act. 14.7 The benchmark in the BP Act for the acceptable standard of professional conduct is the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier. It is considered that a member of the public, with an understanding of the role of a certifying authority and the relevant statutory requirements, would regard the certifier's conduct in the Matters individually [Additional Matter A (complaint no. 29/17), Additional Matter B (complaint no. 29/17), Matter 1 (complaint no. 102/17), Matter 1 (complaint no. 103/17), Matter 2 (complaint no. 103/17), Additional Matter A (complaint no. 35/18), Additional Matter B (complaint no. 35/18) and Additional Matter A (complaint no. 75/18)] and collectively, failed to reach the standard of competence, diligence and integrity that a member of the public is entitled to expect. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, falls within 'unsatisfactory professional conduct' as defined in subsection (a) of section 19(1) of the BP Act. … 15.3 Having considered the available material as set in this Statement and Mr Boyce's 'Second submissions', The Board is satisfied that, in regard to Complaint no. 103/17, Mr Boyce's 'unsatisfactory professional conduct' was of a sufficiently serious nature to justify suspension or cancellation of his accreditation and is therefore 'professional misconduct' as defined by section 19(1) of the BP Act. The misconduct by the accreditation holder warranted assessing the conduct as 'professional misconduct, particularly as: a) Mr Boyce contravened explicit requirements imposed on accredited certifiers under sections 109E(3)(d) and 109F(1)(a) of EP&A Act, as well as clause 146(c) of the EP&A Regulation. The related requirements of the DA conditions were not difficult for an accredited certifier to recognise and apply in assessing a CC application. He issued an OC despite missed critical stage inspections and work being partly on the adjoining property. b) In failing to respond as the PCA in a timely and appropriate manner to the serious concerns being raised by the adjoining property owner, which ultimately culminated in non-compliant building work proceeding outside of the boundaries of the property and not in accordance with the Council's DA approval, Mr Boyce failed to comply with the Code of Conduct and his conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent A2 accredited certifier. c) The failures were not the result of carelessness, error or misunderstanding. The failures were entirely preventable by a competent A2 certifier carrying out their proper role with the required competence, diligence and integrity. The conduct occurred despite the Board's previous actions and advice to certifiers. d) It caused and/or posed an adverse risk to building safety and economic loss viz., failing to act as the PCA in regard to work being carried out an adjoining land. e) Mr Boyce was performing a public function. His actions substantially undermined the integrity of the certification process and the certification profession.

The submissions of the applicant

1. The applicant did not make written submissions separate to his consideration of each of the Complaints on the question as to whether the conduct constituting the Complaints should be characterised as unsatisfactory professional conduct or professional misconduct.

The submissions of the respondent

1. The respondent made written submissions that it relies upon the reasons in paragraphs 12.3 of the Reasons (RS at [134]-[139]).
2. The respondent made oral submissions that it withdraws reliance on paragraph (e) of the definition of unsatisfactory professional conduct for Complaint no 102/17 - Matter 1 (Transcript 23 August 2019, page 93; 6 December 2019, page 12).

The EPA Act

1. Part 6 Division 4 (ss 125-128) of the EPA Act as it was in force at the time of the conduct constituting the Complaints dealt with offences. Section 125 dealt with offences against the EPA Act and the EPA Regulation, and relevantly provided: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

Applicable legal principles

1. Whether proved conduct is unsatisfactory professional conduct or misconduct is very much a matter of degree that will depend, amongst other things, on the character of what was done and the explanation for it: Dix v Building Professionals Board [2011] NSWSC 926 at [10].
2. In a disciplinary context involving a solicitor, it is an established principle that reckless carelessness amounts to a wilful breach of the relevant duty: Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 at [79]-[89]. We consider that this established principle is equally applicable to paragraph (f) of the definition of unsatisfactory professional conduct in s 19(1) of the BP Act and accordingly 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 will be established where the accredited certifier is recklessly careless as to any such matters.
3. Offences under s 125 of the EPA Act are offences of strict liability. The standard of proof is proof beyond reasonable doubt. An honest and reasonable mistaken belief in a state of facts held by the defendant will, if established, entitle the defendant to an acquittal. If the defendant establishes on the balance of probabilities a defence of honest and reasonable mistake, the onus then rests upon the prosecution to disprove beyond reasonable doubt that defence: City of Canada Bay Council v Frank Edward Bird; City of Canada Bay Council v Michael John Christopher [2003] NSWLEC 9 at [68], [86]-[87].
4. We consider that in determining whether the applicant contravened any of the statutory provisions specified in paragraph (b) of the definition of unsatisfactory professional conduct, it is necessary to apply the standard of proof of the balance of probabilities.

Complaint no 29/17 - Additional Matter A

1. We are satisfied that the conduct constituting Complaint no 29/17 - Additional Matter A is properly to be characterised as conduct within paragraphs (a) and (g) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (g), while the conduct of the applicant in issuing of the CDC which was confusing and misleading breached the Code of Conduct requirements 1, 3 and 5, we are not satisfied that it breached the Code of Conduct requirement 6.
2. We are not satisfied that the conduct constituting Complaint no 29/17 - Additional Matter A is properly to be characterised as conduct within paragraphs (b) and (d) of the definition of unsatisfactory professional conduct: 1. as to paragraph (b), there was no applicable contravention by the applicant. The evidence did not demonstrate that the applicant breached s 85(1)(b) of the BP Act. Further, there is no offence under any of the other statutory provision specified in this paragraph prohibiting an accredited certifier from issuing a complying development certificate with confusing and misleading information; 2. as to paragraph (d), there was no applicable failure to comply with a statutory or other duty, or a contractual obligation, specified in this paragraph by the applicant. The statutory obligation in s 85A(a) of the EPA Act does not prohibit an accredited certifier from issuing a complying development certificate with confusing and misleading information.

Complaint no 29/17 - Additional Matter B

1. We are satisfied that the conduct constituting Complaint no 29/17 - Additional Matter B is properly to be characterised as conduct within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the OC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (b), the applicant in issuing the OC contravened s 125(1) of the EPA Act on account of his breach of s 109H(3)(d) of the EPA Act when read with cl 154(1B) of the EPA Regulation notwithstanding that he was not prosecuted or convicted for the offence. We are satisfied that the applicant did not raise by way of defence in his Second Submissions referred to in paragraph 2.7 of the Reasons or otherwise an honest and reasonable mistaken belief in a relevant state of facts; 3. as to paragraph (d), the applicant in issuing the OC failed to comply with the statutory duty in s 109H(3)(d) of the EPA Act when read with cl 154(1B) of the EPA Regulation.

Complaint no 102/17 - Matter 1

1. We are satisfied that the conduct constituting Complaint no 102/17 - Matter 1 is properly to be characterised as conduct within paragraphs (a) and (g) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in failing to properly respond and take appropriate action in regard to the continuing complaints of the complainants fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (g), while the conduct of the applicant in not responding to the continuing complaints of the complainants breached the Code of Conduct requirements 1, 3 and 5, we are not satisfied that it breached the Code of Conduct requirement 6.
2. We are not satisfied that the conduct constituting Complaint no 102/17 - Matter 1 is properly to be characterised as conduct within paragraph (f) of the definition of unsatisfactory professional conduct as there was no evidence that the applicant wilfully disregarded any matters to which he was required to have regard in exercising his functions as a certifying authority within this paragraph.

Complaint no 103/17 - Matter 1

1. We are satisfied that the conduct constituting Complaint no 103/17 - Matter 1 is properly to be characterised as conduct within paragraphs (a), (b) and (d) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the CC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (b), the applicant in issuing the CC contravened s 125(1) of the EPA Act on account of his breach of s 109F(1)(a) of the EPA Act when read with cl 146(c) of the EPA Regulation notwithstanding that he was not prosecuted or convicted for the offence. We are satisfied that the applicant did not raise by way of defence in his Second Submissions referred to in paragraph 5.8 of the Reasons or otherwise an honest and reasonable mistaken belief in a relevant state of facts; 3. as to paragraph (d), the applicant in issuing the CC failed to comply with the statutory duty in s 109F(1)(a) of the EPA Act when read with cl 146(c) of the EPA Regulation.
2. We are satisfied that the conduct constituting Complaint no 103/17 - Matter 1 was of a sufficiently serious nature to justify suspension or cancellation of the applicant's certificate of accreditation and so constitutes professional misconduct for the reasons in paragraph 15.3 of the Reasons. There was no adequate explanation for this conduct by the applicant. Notwithstanding the absence of direct evidence by the neighbours, we draw an inference from the ensuite being built over the common boundary that they suffered economic loss to the neighbours by reason of this encroachment.

Complaint no 103/17 - Matter 2

1. We are satisfied that the conduct constituting Complaint no 103/17 - Matter 2 is properly to be characterised as conduct within paragraphs (a), (b), (d), (f) and (g) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in failing to properly respond and take appropriate action in regard to building height and boundary encroachments fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (b), the applicant in issuing the interim OC contravened s 125(1) of the EPA Act on account of his breach of s 109E(3)(d) of the EPA Act when read with cl 162(4)(g) of the EPA Regulation notwithstanding that he was not prosecuted or convicted for the offence. We are satisfied that the applicant did not raise by way of defence in his Second Submissions referred to in paragraph 6.9 of the Reasons or otherwise an honest and reasonable mistaken belief in a relevant state of facts; 3. as to paragraph (d), the applicant in issuing the interim OC failed to comply with the statutory duty in s 109E(3)(d) of the EPA Act when read with cl 162(4)(g) of the EPA Regulation; 4. as to paragraph (f), the applicant in issuing the interim OC wilfully disregarded the matters to which he was required to have regard under s 109E(3)(d) of the EPA Act when read with cl 162(4)(g) of the EPA Regulation in exercising his functions as a certifying authority. There is an inescapable inference that the applicant was recklessly careless having regard to the inclusion of the ensuite and the building height and boundary encroachments referred to in paragraph 6.6 of the Reasons; 5. as to paragraph (g), in failing to properly respond and take appropriate action in regard to the continuing complaints the applicant breached the Code of Conduct requirements 1, 3 and 5. In issuing the interim OC which included the ensuite and when there were building height and boundary encroachments the applicant breached the Code of Conduct requirement 6.
2. We are not satisfied that the conduct constituting Complaint no 103/17 - Matter 2 is properly to be characterised as conduct within paragraphs (b) in respect of any contravention of s 85(1)(b) of the BP Act, and (e) of the definition of unsatisfactory professional conduct: 1. as to paragraph (b), the evidence did not demonstrate that the applicant breached s 85(1)(b) of the BP Act; 2. as to paragraph (e), there was no evidence that the applicant exercised his functions as a certifying authority in a partial manner within this paragraph.
3. We are satisfied that the conduct constituting Complaint no 103/17 - Matter 2 was of a sufficiently serious nature to justify suspension or cancellation of the applicant's certificate of accreditation and so constitutes professional misconduct for the reasons in paragraph 15.3 of the Reasons. There was no adequate explanation for this conduct by the applicant. Notwithstanding the absence of direct evidence by the neighbours, we draw an inference from the ensuite being built over the common boundary that they suffered economic loss by reason of this encroachment.

Complaint no 35/18 - Additional Matter A

1. We are satisfied that the conduct constituting Complaint no 35/18 - Additional Matter A is properly to be characterised as conduct within paragraphs (a) and (d) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the CC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (d), the applicant in issuing the CC failed to comply with the statutory duty in s 85A(3) of the EPA Act as it was an unreasonable decision.
2. We are not satisfied that the conduct constituting Complaint no 35/18 - Additional Matter A is properly to be characterised as conduct within paragraph (b) of the definition of unsatisfactory professional conduct as there was no applicable contravention by the applicant. The evidence did not demonstrate that the applicant breached s 85(1)(b) of the BP Act. Further, there is no offence under any of the other statutory provision specified in this paragraph prohibiting an accredited certifier from issuing a complying development certificate where the decision is unreasonable.

Complaint no 35/18 - Additional Matter B

1. We are satisfied that the conduct constituting Complaint no 35/18 - Additional Matter B is properly to be characterised as conduct within paragraphs (a) and (g) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (g), the conduct of the applicant in issuing the CDC breached the Code of Conduct requirements 1, 3, 5 and 6.

Complaint no 75/18 - Additional Matter A

1. We are satisfied that the conduct constituting Complaint no 75/18 - Additional Matter A is properly to be characterised as conduct within paragraphs (a) and (d) of the definition of unsatisfactory professional conduct: 1. as to paragraph (a), while the conduct of the applicant in issuing the CDC fell below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent accredited certifier, we are not satisfied that it fell below the standard of integrity; 2. as to paragraph (d), the applicant in issuing the CDC failed to comply with the statutory duty in s 85A(3) of the EPA Act as it was an unreasonable decision.
2. We are not satisfied that the conduct constituting Complaint no 75/18 - Additional Matter A is properly to be characterised as conduct within paragraph (b) of the definition of unsatisfactory professional conduct as there was no applicable contravention by the applicant. The evidence did not demonstrate that the applicant breached s 85(1)(b) of the BP Act. Further, there is no offence under any of the other statutory provision specified in this paragraph prohibiting an accredited certifier from issuing a complying development certificate where the decision is unreasonable.

What disciplinary action should be taken against the applicant

The Reasons

1. The respondent in the Reasons set out the matters it regarded as relevant to its decision as to the appropriate disciplinary decision that should be made (bold text, italics and underlining in the original): 1. The objects of the legislation The BP Act establishes a regime for the accreditation of persons to carry out 'certification work'. Certification work, which includes the issuing of Part 4A certificates, CDCs and the inspection of building work, is work that ensures that buildings will conform to acceptable standards, including safety, durability, habitability and sustainability. The promotion and maintenance of the standards of building and subdivision standards is an express function of the Board (see-s.77 BP Act). The BP Act is, in summary, legislation to protect the public. 2. The nature, width and extent of the contraventions There are eight proven matters across the five complaints/developments to which the certifier issued CDCs, a CC and an OC and carried out the PCA function i.e. the contraventions traversed across the spectrum of certifier functions involved in residential works within existing suburban areas. Apart from the first proven matter [Additional Matter A (complaint no. 29/17)] which took place in 2015, the remaining seven matters occurred during 2017. 3. The loss or damage and prejudice resulting from the contravention(s) Any Part 4A certificate or CDC that is issued and/or carrying out of the PCA function that does not comply with legislative provisions: • potentially compromises the carrying out of development in accordance with acceptable standards • exposes the certificate to challenge or declaration of invalidity, which may delay, or jeopardise, the development being carried out • may expose persons to potentially unsafe situations All eight proven matters came to the Board's attention as a result of complaints under the BP Act. All eight proven matters had, prior to the making of each complaint, resulted in the involvement of the local council as a consequence of Mr Boyce's carrying out of certification work. Four of the five complaints made to the Board were from members of the public (neighbours) affected and/or concerned by the subject development. • Complaint no. 29/17. To the Board's knowledge, no action was taken by council in regard to the patio. The end result is the existence of a development (dwelling and pool) on the property that exceeds the Codes SEPP requirements for site coverage. • Complaint no. 102/17. Mr Boyce submitted that after the complaint was made to the Board he took action to have the non-compliances rectified, which has now been completed (photos provided). • Complaint no. 103/17. As a result of the encroachment and height non compliances, the local council issued orders for demolition. To resolve the encroachment of the two buildings on the complainant's property, the owner of the development site commenced proceedings (i.e. against the neighbour/complainant) in the Land and Environment Court under the Encroachment of Buildings Act 1922, seeking by annexure of the land to have the boundary line repositioned (i.e. to transfer the land from one property to the other) or to establish an easement. A protracted legal dispute then ensued. The ensuite was subsequently demolished and is now being rebuilt within the boundaries of the property. • Complaint no 35/18. Mr Boyce contends that despite the non-compliances and discrepancies with the CDC he issued, the wall as-built is compliant with the Codes SEPP setback requirements. An application was submitted to Mr Boyce for a modified CDC purportedly addressing the Codes SEPP wall height/setback non¬compliances by deleting the parapet wall. • Complaint no. 75/18. An extensive ongoing exchange of correspondence occurred between the complainant, the local council, Mr Boyce and others. An application was submitted to Mr Boyce for a modified CDC purportedly addressing the Codes SEPP non-compliances (dwelling height). Mr Boyce advised that 'This problem has been rectified at my cost ($ 6,000+) for the clients Solicitor, Draftsman, Planner and Engineer to prepare new plans and for a new CDC to be issued.' 4. The circumstances in which the contraventions took place (a) The majority of the breaches involved contraventions of particular legislative requirements under the EP&A Act and BP Act (and Regulations thereunder). (b) The inaction by Mr Boyce as the PCA in Matter 1 (complaint no. 102/17) and Matter 2 (complaint no. 103/17) was contrary to the Board's published advice to certifiers. In particular, just two months earlier (December 2016) the Board's E-news again reminded certifiers and provided a case study of good practice by a PCA in responding to complaints about non-compliant works i.e. 'Certifiers are required to respond promptly and professionally to concerns about development they are certifying' and 'Certifiers should read advice issued by the Building Professionals Board and put it into practice'. Despite, in each instance, having the benefit of a written complaint made to him by a member of the public (and further emails) bringing to his attention the carrying out of non-compliant work, Mr Boyce failed to appropriately respond to the complainant, failed to investigate the complaints raised, failed to take appropriate action to ensure compliance, the construction work was allowed to continue, and he ultimately issued an OC. (c) On 2 April 2015 the Board had issued to Mr Boyce a complaint investigation report (no.99/14) in relation to a CDC he had issued, and which included CDC plans that had a hand-written notation added to amend/condition the plans to bring them into compliance with the development standards (maximum floor area). On 16 June 2015 the CDC in Additional Matter A (complaint no. 29/17) was issued by Mr Boyce, with CDC plans that included hand-written notations added to amend/condition the plans to bring them into compliance with the development standards (site coverage). Mr Boyce offered in his submissions that a member of his office staff may have added the notation. That Mr Boyce continues to rely upon having his office staff (or himself) adding hand-written notations to non-compliant plans in lieu of seeking amended plans or further details from the applicant, is evidenced by his comments in his submissions in regard to Matter 1 (complaint no. 103/17) and Additional Matter A (complaint no. 75/18), in which he referred to hand-written notations as evidence of compliance. Similarly, he also issued the CDC in Additional Matter A (complaint no. 35/18) with plans containing hand-written notations, including one stating 'office use only'. Certifiers must be aware that they cannot be involved in the design of a proposal and then proceed to issue the CDC/CC viz., section 66(1)(a) of the BP Act. The Board in its decision on 23 June 2015 (complaint no.99/14 / decision no. 393) affirmed to Mr Boyce that a certifier has no authority to impose a condition [i.e. to condition the plans (by adding a notation) to make them compliant] and is required to seek amended plans or refuse the application. (d) On 7 August 2017 the Board's E-news issued to certifiers included commentary under a heading of 'Complying development SEPP standards are mandatory and non-discretionary. This stated that 'Recent complaints show that a small number of certifiers, while knowledgeable, may lack care when it comes to the details and/or exercise their discretionary powers inappropriately. These certifiers issued complying development certificates (CDCs) for work that failed to meet prescribed standards in the relevant State Environmental Planning Policy (SEPP). The errors seem to arise when certifiers don't methodically assess a development against each standard. A CDC application must demonstrate how the proposal will meet prescribed distance, dimension and other applicable SEPP standards, each of which is non-discretionary. Careful assessment is needed because work that fails even one standard cannot be complying development.' Mr Boyce issued the CDC in Additional Matter A (complaint no. 75/18) on 22 August 2017 i.e. two weeks after the Board's reminder. The CDC in Additional Matter A (complaint no. 35/18) was issued on 6 October 2017 i.e. two months after the Board's reminder. (e) In both complaint no. 29/17 and no. 103/17, Mr Boyce in explanation (though not initially) claimed OCs he had issued inadvertently included the non-compliant works that were at the centre of each complaint. While it is noted Mr Boyce stated in a letter to the Board dated 16 July 2017 in regard to complaint no. 29/17 that he had changed his office procedures to ensure the description of work on certificates he issues is correct, he had first been notified of the complaint on 1 May 2017. The OC in complaint no. 103/17 was issued on 23 June 2017. 5 Whether the accredited certifier has engaged in any similar conduct which has been the subject of a disciplinary finding Mr Boyce has an extensive history, having been the subject of six disciplinary findings since 2007. The findings are all considered to involve similar conduct to those in this Statement: • On 23 June 2015, a reprimand and $2,500 fine for issuing a CDC for a secondary dwelling (setback to side boundary / total floor area). • On 31 July 2013, a caution and $2000 fine for issuing a CC prior to a DA condition being complied with and for failing to take appropriate action as the PCA to require compliance with the DA. • On 2 July 2012, a caution for issuing a CC that with inconsistent with the DA. • On 3 June 2010, a caution for issuing a final OC prior to a DA condition being complied with (relating to the reconstruction of a portion of the common wall and installation of flashing to walls adjacent to the common boundary), for relying upon a structural engineer's certification (that did not include the boundary/party walls), and for acting as the PCA without being formally appointed. • On 21 May 2009, a reprimand and $1000 fine for issuing a CC and a final OC that didn't comply with a DA condition requiring access to the basement car parking level for a council garbage truck, and for issuing a final OC where the stairs' treads and risers did not comply with the BCA. • On 21 December 2007, reprimand and required to report on practice viz., as PCA oversaw building works not per the DA (including an additional concrete floor area of 72sqm being poured at first floor level). 6. The presence of fraudulent or dishonest intent and deliberation on the part of the accredited certifier None was alleged. 7. The extent of carelessness or willfulness of the conduct The Board does not regard the certifier's conduct as being willfully inappropriate, however the extent and range of his actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties across multiple functions. It is evident from comments by Mr Boyce in his submissions that much of his work as a certifier is carried out by others under, to varying degrees, his supervision i.e. preliminary assessment of applications, attending to and responding to enquiries, and carrying out critical stage inspections. The events and breaches involved in this Statement indicate that Mr Boyce has put in place and relied upon processes that have proven to be inadequate and/or do not conform to the statutory requirements, despite the circumstances noted in 4.and 5. above. Despite the undertakings he has given to the Board, Mr Boyce had not responded to the seriousness and need for him to carry out his public official role with greater diligence and attention. 8. The efforts made to correct the situation, including any measures that have been taken by the accredited certifier See 3. above in regard to complaint no. 102/17, no. 35/18 and no. 75/18. 9 The consciousness the accredited certifier had and displayed, of his or her legislative obligations Mr Boyce demonstrates that he understands his legislative obligations, however as noted in 4., 5. and 7. above, the extent of his proper application of his responsibilities is uncertain. For example, a failure as the PCA (in two instances) to properly attend to issues raised by the public indicates a lack of professionalism in and regard for carrying out the function, which raises concern as to whether this is also evident across other aspects of the certifier's work. 10 Antecedents, e.g. previous findings of unsatisfactory professional conduct or professional misconduct Mr Boyce has an extensive history, having been the subject of six disciplinary findings since 2007 (refer to item 5. above). Mr Boyce was also subject of eight disciplinary actions by BSAP between 2004 and 2006 (six cautions and two reprimands). 11. Attitude of the certifier, his or her certification history and steps taken by the certifier to ensure compliance will be observed in the future (a) Mr Boyce is an A2 accredited certifier (currently and at the time of the conduct in these complaints). He has been an A2 accredited certifier since 2007. Mr Boyce was first accredited under the BSAP scheme in 1999. (b) Mr Boyce made submissions to the Board in response to each of the complaint investigation reports. In general, Mr Boyce acknowledged the results of the complainant investigation report, however in the Second Submissions these were to an extent withdrawn. (c) Mr Boyce in his submissions also undertook to ensure that his future certification work would meet the required standards. (d) In regard to his actions as the PCA after receiving complaints from the public [Matter 1 (complaint no. 102/17) and Matter 2 (complaint no. 103/17)], Mr Boyce in his submissions advised that he has now introduced procedures into his office, including a complaints register and re-submit system. He added that 'When Complaints are received, we contact the Owner, Architect and Builder and ask for their response', and after this he will determine if a site visit is required. (e) As is evident from the proven Matters in this Statement and his extensive disciplinary record for similar matters extending back a decade, whether Mr Boyce's assurances as to his future conduct and implementation of necessary processes can carry little weight. (f) The complaints process in (d) above is in itself evidence that Mr Boyce is still not fully cognisant of his obligations as a PCA and that he has not reviewed the legislation and the Board's related advice to certifiers (specifically 'How to avoid and manage development complaints'). Since the introduction of clause 267A of the EP&A Regulation in late 2010, it has been a requirement for PCAs to keep a register recording each complaint received and any action in response to the complaint. Mr Boyce's proposed means of dealing with complaints continues to rely upon initially diverting the matter to others, instead of making his own enquiries and carrying out his own investigation as an impartial public official viz., 'The PCA should acknowledge receipt of a complaint as soon as possible and must investigate the complaint. This generally involves visiting the site, contacting the builder and/or checking the approved plans and conditions of consent.' 12. The penalty range relating to the particular contraventions Section 31(4) BP Act sets out a wide range of actions that may be taken, ranging from no further action, cautions through to the cancellation of accreditation. Monetary penalties of up to $110,000 may also be imposed. 13 Deterrence - personal and general The Board has become concerned by the continued level of justified complaints that are continuing to be received. The system of certification was introduced under the EP&A Act in 1998. The industry is no longer in its infancy. … … the Board has adopted Disciplinary Penalty Guidelines. These Guidelines were published on the Board's website in December 2012 (updated December 2016). In exercising its delegated authority the decision-maker, although retaining its absolute discretion in relation to deciding the appropriate action to take, is required by the Board to have regard to the Guidelines. Administrative reviews by the Tribunal of disciplinary action taken by the Board have recognised the Board's application and use of the Disciplinary Penalty Guidelines to determine penalties. The Guidelines require there to be a categorisation of the infringement (Categories A to F) based upon the degree of seriousness. The Guidelines also provide a non-exhaustive list of examples of conduct which may fall within the various categories. The Guidelines divide infringements into six categories: A. complaints that satisfy the requirements of section 22 of the BP Act for taking no further action or section 23 for dismissal; B. minor infringements identified in legislation as capable of being dealt with by the issue of a Penalty Infringement Notice; C. minor infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of up to $5,000 is appropriate; D. moderate infringements that are unsatisfactory professional conduct where a caution, reprimand or the imposition of conditions and a fine of between $5,000 and $20,000 is appropriate; and E. significant infringements that are unsatisfactory professional conduct or professional misconduct where a caution, reprimand or the imposition of conditions and a fine of between $20,000 and $50,000 is appropriate; F. major infringements involving unsatisfactory professional conduct or professional misconduct where a caution, reprimand, the imposition of conditions, suspension, cancellation or disqualification are appropriate together with a fine of $50,000 to $110,000. The Guidelines state: 'For the purpose of applying the Guidelines it is necessary for the delegate to categorise the seriousness of the infringement.' It therefore requires the categorising of the conduct as a whole i.e. all of the proven matters collectively. The Guidelines further state: 'The examples of conduct set out under each Category are provided as general assistance to delegates to categorise an infringement. The examples set out are only illustrative and do not constitute an exhaustive list of categorised conduct.' As set out in this Statement the Board is satisfied that the accreditation holder's conduct in Complaint no. 103/17 was 'professional misconduct'. In the Guidelines it states in regard to Category F, Major infringements includes 'Major errors of judgment or compliance involving unsatisfactory professional conduct or professional misconduct'. It is considered that the issues in Complaint no. 103/17, including issuing a CC contrary to the DA and issuing an OC for a building that was partly on a neighbour's land, a matter to which the PCA had been alerted to during construction but had not acted upon, and without critical stage inspections having been carried out, falls within Category F as major errors of judgment or compliance. The penalty imposed in a category F infringement ranges from $50,000 to $110,000. Category E, Significant infringements includes as an example 'CDC doesn't comply with planning instrument (SEPP)'. It is considered that the issues in Additional Matter A (complaint no. 29/17), Additional Matter A (complaint no. 35/18) and Additional Matter A (complaint no. 75/18) are each similar to the example in Category E. Similarly, Additional Matter B (complaint no. 29/17) and Matter 1 (complaint no. 102/17) were significant infringements by a PCA, issuing an OC despite non-compliances. The penalty imposed in a category E infringement ranges from $20,000 to $50,000. Having regard to the above, the categorising of the conduct as a whole (i.e. all of the proven matters collectively) is Category F. The Guidelines also recognise the Board's power under s.31(4) BP Act to take more than one disciplinary action e.g. imposing reprimands or conditions in addition to a fine. As noted in the Guidelines, both Categories D and E include 'Effect of prior record of disciplinary decisions' that the decision-maker is to take into account 'if the delegate is not satisfied that further infringements are unlikely, consideration to be given whether to suspend or cancel'. Section 31 (5A) of the BP Act also requires: 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. Under item 5. above, the Board has set out and considered Mr Boyce's disciplinary history. Mr Boyce has an extensive disciplinary history, having been the subject of six disciplinary findings since 2007. The findings are all considered to involve similar conduct to those in this Statement. Under Category F it states below 'Possible additional disciplinary decisions' for the decision-maker to consider 'Caution, reprimand, conditions, report on practice, undertake educational course, suspension or cancellation of accreditation, disqualification from reapplying for accreditation'. The BP Act is designed to protect the public and accredited certifiers must ensure that their certification work meets acceptable standards. The Board's previous disciplinary actions against Mr Boyce have not resulted in his having a greater regard for and application of his statutory role as a certifying authority. Given the certification work involved in the proven Matters in this Statement are all within the range of an A3 accredited certifier, it is considered there is little or no utility in ordering any conditions on Mr Boyce (currently an A2) to restrict the nature of the work he can certify, nor is there any appropriate education course. In this context, and given the accreditation holder's lengthy and recurrent disciplinary history, his conduct is sufficient to consider the taking of the most strident of actions against him under the disciplinary powers of the BP Act. Mr Boyce is an experienced A2 accredited certifier and the public would have a reasonable expectation that he would perform his functions diligently and with care, and that he would have and apply a high level of knowledge of all relevant matters he was required to consider, and even more so as he has previously been sanctioned by the Board since 2007. As evidenced by the Matters in this Statement, he did not demonstrate that he possesses these qualities to the expected degree. Mr Boyce was given ample opportunity to demonstrate he now understands and respects the role he is required to carry out as a competent accredited certifier and as a public official, and that he will act accordingly and responsibly in the future. While he has given some undertakings to act appropriately and to implement new procedures, the Board can have no confidence this will be the case given Mr Boyce's disciplinary history and his submissions to the Board during and after the investigation. Accordingly, to ensure the objective of public protection and deterrent to certifiers is adequately served, it is appropriate and warranted that severe action be taken. Due to the nature of the certifier's conduct as outlined in the complaint investigation reports and this Statement, the nature, range and the number of matters involved, and the certifier's disciplinary record for matters similar to those arising in this Statement, an order is an appropriate that Mr Boyce's certificate of accreditation be immediately cancelled, and an order be made that the accreditation holder cannot re-apply for a certificate of accreditation within 2 years is appropriate.

The submissions of the applicant

1. The applicant made the following written submissions on penalty: 1. no adverse inference should be drawn against the applicant from his failure to give evidence because the Complaints (APS at [7]-[11]): 1. relate to breaches of the EPA Act upon which no direct evidence from the applicant could assist the Tribunal because they are questions of law which are to be determined on the basis of the material that was before him at the time of the issue of relevant certificates; or 2. relate to the manner in which the applicant dealt with complaints in respect of which any explanation may be given without the applicant giving evidence as there are no unexplained facts established by the respondent; 1. having regard to the fact that the BP Act does not confer any power to compel a certifier to answer questions in disciplinary proceedings, the Tribunal would be careful not to draw any adverse inference against the applicant from his failure to give evidence (APS at [12]-[19]); 2. the Complaints (APS at [20]): 1. did not arise out of any deliberate intention by the applicant to flout the relevant requirements but are more akin to an error in professional judgement or oversight. In the circumstances, they would not be considered in any way reckless or unreasonable; 2. occurred when the applicant was conscious of his legislative obligations and role as a certifier in achieving the underling objectives of the EPA Act; 3. did not raise any public safety matters; 1. the applicant is a person of good character who has considerable professional standing within the community and building certifying industry, which is reflected in references by professional colleagues (APS at [23]-[28], [31]); 2. the applicant's disciplinary history discloses more minor infringements and no history of wilful or intentional harm (APS at [29]-[30]); 3. there is no evidence of any actual harm or injury being caused as a result of the alleged infringements or any impact that has not been rectified. The Tribunal would be careful in the weight that it puts on the evidence of the 3 Dudley Street, Paddington complainant given that the evidence was not given under oath and she was not available for cross examination. There is no evidence to suggest that legal costs of the 3 Dudley Street, Paddington complainant are related to the applicant's actions, nor is there any evidence of how the legal proceedings which the 3 Dudley Street, Paddington complainant commenced were ultimately disposed of (APS at [32]-[38]); 4. as to the objective seriousness or gravity of the offending conduct, the respondent's submissions appear to depart somewhat from the Guidelines (APS at [39], [54]); 5. as to the likelihood of re-offending (APS at [40]): Mr Boyce has no intention of re-offending. He has been physically shaken by the realisation that his actions constituted an infringements of the law and has been emotionally affected both from the moral recognition of wrong doing as well as the process of being investigated. Mr Boyce's business and livelihood have suffered as a consequence of the decision and he understands the gravity of the allegations and findings. Mr Boyce has had to terminate staff from his employ due to the restrictions placed on his accreditation. That step has caused damage to his business and his reputation. Mr Boyce is acutely aware of the ramifications his decisions and the seriousness of the situation. 1. as to contrition and remorse, the Tribunal should give full weight to the remorse expressed by the applicant in relation to the alleged infringements having regard to the following factors and the evidence before the respondent (APS at [41]-[46], [59]): 1. upon becoming aware of them the applicant undertook measures to resolve each of the complaints, including by practical measures; 2. he responded to all requests from the respondent to provide information, and prepared a written response to each Complaint; 3. his actions show that he has clearly taken responsibility for his actions and has made preparations to avoid any further infringements; 4. he sincerely regrets any infringements which the Tribunal finds to be proven and apologises accordingly; 5. he made a number of admissions to specified complaints and additional matters raised by the respondent, without first obtaining legal advice with a view to acting practically; 1. the Tribunal would apply the totality principle in fixing the penalty and take into account the penalty that the applicant has already been subjected to, through the restrictions on his practice, which include consequent impacts on staff (APS at [47]-[51]); 2. the Tribunal should take into account the fact that the applicant has suffered the embarrassment of the public notation of these proceedings and pending cancellation of his accreditation since May 2019, and has abided by the limitations on his practice subject of the decision of the stay, notwithstanding his financial obligations to his staff and the decline in his business due to an inability to accept new work (APS at [55]); 3. the applicant proposes the following condition be imposed on his accreditation (APS at [56]-[57]): 1 Prior to re-instatement of Mr Boyce's accreditation, he is to prepare a complaints handling procedure and submit it to the Board for approval. 2. Following approval of the complaints handling procedure and re-instatement of his accreditation, Mr Boyce is to report to the Board on a monthly basis for 12 months, and provide details of any complaints receive and demonstrate how he has responded in accordance with the complaints handling procedure. The Board may extend the period of reporting in its discretion. 1. specific and general deterrence is achieved through these proceedings and the requirement for public notification on the respondent's website (APS at [58]).

The submissions of the respondent

1. The respondent made the following further written submissions on penalty: 1. the Tribunal would consider the appropriate penalty by considering the objective seriousness or gravity of the offending conduct, the prior disciplinary actions against the applicant, the lack of genuine remorse, the consequence of the applicant's conduct, and the call for general and specific deterrence having regard to the purpose of disciplinary proceedings, the public interest, safeguarding and protect the community, the promotion and maintenance of building certification standards, and public trust and confidence (RPS at [5]-[6]); 2. the applicant's conduct can be seen as aggravated or special because it was careless, caused loss and damage to third parties, and the lack of adequate response to inquiries made by members of the public was strikingly deficient (RPS at [7]); 3. as to public trust and confidence, the time to provide a reasonable response and the honest advice or opinion proffered to a concerned member of the public was inordinate, without a reasonable explanation, and, to be frank, wholly unacceptable in relation to the conduct constituting Complaint no 102/17 - Matter 1 and Complaint no 103/17 - Matter 2 (RPS at [12]-[18]); 4. as to the objective seriousness or gravity of the offending conduct, the Complaints fall into the following categories (RPS at [19]-[24]): 1. Complaint no 29/17 - Additional Matter B, Complaint no 103/17 - Matter 1 and Complaint no 103/17 - Matter 2, towards the upper end of the range, whether individually or collectively because the conduct: 1. lacked reasonable care, skill and diligence and involved obvious and flagrant inaction; 2. caused loss and damage including costly rectification works which were avoidable; 1. Complaint no 102/17 - Matter 1, towards the upper end of the range of objective seriousness with the inaction by the applicant being manifestly profound obviously careless; 2. Complaint no 35/18 - Additional Matter A, Complaint no 35/18 - Additional Matter B and Complaint no 75/18 - Additional Matter A, towards the lower to middle end of the range of objective seriousness. These Complaints arose from complaints from the public, and in respect to Complaint no 35/18 - Additional Matter A had the potential to impact on the safety of the building in relation to the omission of the balustrade in the CDC; 3. Complaint no 29/17 - Additional Matter A, in the middle of the range of seriousness because it led to the construction of works which would otherwise not been permitted, and involved careless diligence to the issue of a CDC, where the plans approved were inconsistent with each other; 4. the Complaints viewed collectively, of the most serious kind; 1. as to the lack of genuine remorse (RPS at [25]-[29]); 1. the applicant's failure to give evidence does not reflect remorse and contrition; 2. the applicant offered no apology to the Tribunal; 3. whereas the applicant initially accepted responsibility in relation to the conduct constituting Complaint no 103/17 - Matter 1, Complaint no 103/17 - Matter 2, Complaint no 35/18 - Additional Matter B and Complaint no 75/18 - Additional Matter A, he resiled from this position; 1. as to the call for general and specific deterrence, the corollary the applicant's failure to give evidence is that the Tribunal cannot be satisfied of the attitude of the applicant towards his future conduct as an accredited certifier. This must count strongly towards the need for specific deterrence in the circumstances. The Tribunal would give weight to the need to denounce the applicant's conduct as inconsistent with the role of accredited certifiers under the accreditation scheme as general deterrence (RPS at [30]-[31]); 2. as to the consequence of the applicant's conduct, the applicant's conduct is aggravated because (RPS at [32]-[33]): 1. the respondent found the four Complaints were made by "public (neighbours) affected and/or concerned by the subject development" and there were the adverse consequences specified in the Reasons; 2. the 3 Dudley Street, Paddington complainant and her husband, the complainants in Complaint no 103/17 - Matter 2, have spent money on legal costs when they were taken to court, which put an immense amount of stress on her and her family's health; 1. as to the prior disciplinary actions against the applicant, he has been the subject of six previous disciplinary findings since 2007 specified in the Reasons as well as the subject of a further eight disciplinary actions between 2004 and 2006 (RPS at [34]-[35]).
2. The respondent made the following further written submissions: 1. the Tribunal in the circumstances may draw inferences adverse to the applicant by reason of the failure to provide evidence on key matters (RFS at [2]); 2. the Tribunal would have difficulty in accepting that the applicant would not re-offend in the absence of evidence, apart from veiled statements that the applicant has put measures in place (RFS at [15]); 3. the seriousness of the applicant's conduct exceeds that for which the conditions suggested would be imposed (RFS at [25]).

Applicable legal principles

1. The system of accreditation and discipline under the BP Act has been established to protect the public from the harm that might flow from incompetence, lack of diligence or lack of integrity in the performance of the important public responsibilities exercised by certifiers. The orders to be made in the event of an adverse disciplinary finding must serve those objectives. The personal impact of the order on the offender is a minor consideration: Building Professionals Board v Boulle [2008] NSWADT 80 at [57].
2. The purpose of disciplinary proceedings under the BP Act is protection of the public, not to punish the person concerned, in a criminal sense. The public, in the context of disciplinary proceedings against accredited certifiers, is a wide conception, including the local community directly affected by a development and the wider community which has an interest in the general amenity of the community as well as the maintenance of consistent standards across the community. It also includes the present and future clients of accredited certifiers: Building Professionals Board v Hans (No 2) [2008] NSWADTAP 48 at [155]-[156].
3. The fact that disciplinary orders are commonly characterised as protective does not deny that they have punitive effects: Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [55].
4. In Qiu v Building Professionals Board [2013] NSWADT 289 at [98], drawing on the earlier decision in Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 at [45], the former Tribunal identified factors relevant to consideration of appropriate disciplinary orders under the BP Act: 98. 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.
5. More recent decisions of this Tribunal have been guided by consideration of these factors: Hallal v Building Professionals Board [2016] NSWCATOD 78; Levick v Building Professionals Board [2018] NSWCATOD 125; Treble v Building Professionals Board [2019] NSWCATOD 34; Lilli v Building Professionals Board [2019] NSWCATOD 119; Murrant v Building Professionals Board [2019] NSWCATOD 130.
6. In the absence of evidence from the accredited certifier as to his present attitude to compliance with legislative requirements, or any steps taken to ensure future compliance, the Tribunal is unable to make a finding as to these matters: Murrant v Building Professionals Board at [40(11)].

Consideration

1. In reviewing the action of the respondent against the applicant we consider that it is appropriate to have regard to the factors in Qiu v Building Professionals Board at [98]. It is not necessary to consider the presence of a fraudulent or dishonest intent and deliberation on the part of the applicant.

The objectives of the BP Act

1. The objectives of the BP Act are set out in Building Professionals Board v Boulle at [57] and in the Reasons.

The nature, width and extent of the conduct constituting the Complaints

1. We agree with the respondent's characterisation that the conduct constituting the eight Complaints traversed across the spectrum of certifier functions involved in residential works within existing suburban areas. One occurred in 2015 and the remaining seven occurred in 2017.

The loss or damage and prejudice in consequence of the conduct constituting the Complaints and the efforts made to correct the situation

1. We agree with the respondent's finding that the conduct constituting the Complaints occasioned loss or damage and prejudice. We reject the applicant's submission that there is no evidence of any actual harm or injury being caused as a result of the conduct. One clear example is the demolition of the ensuite because of its encroachment which resulted from the conduct constituting Complaint no 103/17 - Matter 2. Another clear example is the expenditure by the applicant of $6,000.00 on or for the clients' solicitor, draftsman, planner and engineer to prepare new plans and for a new CDC to be issued which resulted from the conduct constituting Complaint no 75/18 - Additional Matter A.

The circumstances in which the conduct constituting the Complaints took place

1. We agree with the respondent's characterisation of the circumstances in which the conduct constituting the Complaints took place. The conduct demonstrates the applicant was not careful in carrying out his functions as an accredited certifier despite his experience of over 40 years. His hands-off procedures in his practice and office repeatedly produced outcomes which generated complaints, and were foreseeable and avoidable.

Whether the applicant has antecedents and has engaged in any similar conduct which has been the subject of a disciplinary finding

1. We agree with the respondent's characterisation that the applicant has extensive history of six disciplinary findings since 2007 involving similar conduct. These prior six adverse disciplinary findings, the most recent of which occurred in 2015, show a pattern of the applicant's neglect in handling of the actual certification and in carrying out his functions as an accredited certifier.

The extent of the carelessness or wilfulness of the conduct of the applicant

1. We agree with the respondent's characterisation that the extent and range of the applicant's actions demonstrate a lack of understanding and/or sufficient application of a certifier's statutory role and public duties across multiple functions. Some of his conduct demonstrated a wilful disregard by the applicant of matters to which he was required to have regard in exercising functions as a certifying authority through reckless carelessness. His delegation of his functions in a number of instances proved risky as it exposed him to inadequate or incompetent advice from his employees.

The consciousness the applicant had displayed of his obligations under the BP Act

1. We consider that the applicant failed to demonstrate consciousness of his obligations under the BP Act in issuing various certificates in contravention of the EPA Act and in failing to respond in a timely and meaningful way to the continuing complaints of neighbours. His careless approach to certification coupled with reluctant or late responses to complaints by neighbours show he was derelict in his public duty. We note that his disregard of complaints by neighbours is at variance with experience of almost all of his character referees, who have found that he is most solicitous in assisting architects/designers in achieving a complying design. The value of most of his character references was diminished by the absence of any statement by the referee of knowledge of the Complaints or these proceedings before the Tribunal.

The effect of disciplinary action upon the applicant

1. We recognise that the action taken by the respondent has already had, and if affirmed will continue to have, a significant upon the applicant personally as well as his business and reputation. While we have taken this effect into account, we have been conscious that the personal impact of disciplinary action on the applicant is a minor consideration.

The attitude of the applicant, his certification history and steps taken by the certifier to ensure compliance with his obligations under the BP Act will be observed in the future

1. The applicant's failure to give evidence means that we had no opportunity to explore the sincerity of his remorse and contrition for which he submitted we should give full weight, or his likelihood of re-offending. These are critical matters which we were unable to assess having regard to the objectives of the BP Act.
2. In the absence of evidence by the applicant his assurances as to his future conduct and implementation of necessary processes carry little weight. Against his intention of not re-offending must be weighed his substantial pattern of offending. We had no opportunity to explore with him the scope and effectiveness of these protective measures.

The penalty range

1. We were provided with a summary of suspensions by the respondent since 2007. While we acknowledge that these suspensions provide guidance, we have found them of little assistance of determining appropriate action against the applicant which must be determined having regard to all the circumstances of the Complaints and the findings of professional misconduct and unsatisfactory professional conduct in relation to them.

Personal and general deterrence

1. We regard the applicant's conduct when viewed as a whole as falling within Category F of the Guidelines. We are not satisfied that the condition to be imposed on his accreditation proposed by the applicant is an adequate response to this conduct. Both paragraphs of the condition relate to a proposed complaints handling procedure. They do not address the reckless approach of the applicant to the performance of his functions as a certifying authority. Both personal and general deterrence require that the applicant's certificate of accreditation under the BP Act be cancelled. We are not satisfied that everything less would have the required effect on the applicant who is a practitioner of 52 years standing.
2. We disagree with the applicant's submission that specific and general deterrence is achieved through these proceedings and the requirement for public notification on the respondent's website.

Decision

1. We find that the Decision is the correct and preferable decision in relation to action to be taken against the applicant, and should be affirmed apart from the date of the cancellation of the applicant's certificate of accreditation which is varied to take effect on 6 March 2020.
2. We order that the order of the Tribunal made on 22 May 2019 is to be discharged on 6 March 2020.

Orders 1. Decision of the respondent made on 3 May 2019 is affirmed apart from the date of the cancellation of the applicant's certificate of accreditation which is varied to take effect on 6 March 2020. 2. Order that the order of the Tribunal made on 22 May 2019 is to be discharged on 6 March 2020.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2020