Da Silva v Building Professionals Board

Factual background

1. In August 2013 Marrickville Council, now Inner West Council (the Council), granted development consent for the construction of a four-storey residential flat building comprising 20 units atop two levels of basement car parking in Hutchinson Street, St Peters.
2. Mr Da Silva has been an A1 accredited certifier since 2007, being first accredited in 2003. On 24 June 2014 Mr Da Silva issued construction certificate No. 095/14 for "Stage One" which was for site preparation and demolition of an existing building. That construction certificate did not authorise or propose the carrying out of the approved new building work. That was the purpose of construction certificate No. 361/14 issued by Mr Da Silva on 30 July 2014 for "Stage Two" which was for the remainder of the works including construction of the new building.
3. In July 2016 the Board received a complaint from a nearby resident largely relating to overshadowing of his property and loss of privacy due to changes made to the approved plans. The complainant advised that the Council had informed him that no amendments to the approved plans had been made by Council.
4. The Board investigated the complaint and found multiple variations between the plans approved by Council and the construction certificate endorsed plans. Mr Da Silva made various submissions about the matters raised with him by the Board.
5. Mr Da Silva argued that there was no basis to the complaint and submitted that he had not breached cl 145 of the Environmental Planning and Assessment Regulation. Following consideration of the submissions, a decision was made in the terms outlined above.

The variations

1. Mr Da Silva agrees that there are variations between the construction certificate plans and the approved plans. The variations are:

• an increase in the height of the ground floor vehicle entry to the basement;
• the height of the floor level of the front part of unit 5 on the first floor of the building raised by 825mm and internal stairs added between the front bedroom and the remainder of the unit;
• the height of the floor level of the front half of the terrace (with planter boxes) of unit 12 on the second floor of the building raised by 815mm and the terrace divided into two levels with steps instead of being on one level;
• access between the living areas and the terrace in unit 12 removed as the terrace floor is 775 mm higher than the living area (with access to the terrace only remaining through the unit's bedrooms);
• changes to the street elevation of the building as the height of vehicle entry to the basement is increased, the terrace for unit 5 is no longer level with other terraces on the first floor and unit 12's terrace wall is reinforced concrete; the facing wall is concrete not bricks as per the approved plans, not glazed as all other units at the same level of above;
• changes to the south elevation of the building as the floor level of unit 12's terrace and planter boxes is raised by 815mm, the side wall alongside vehicle entry to the basement is predominantly open not fully enclosed as shown in the approved plans and a window in unit 17 on the third floor is deleted and a new window added; and
• the floor area of the basement is increased by 150m2 (20%) by further excavation of the south-east corner of the property with consequent construction of concrete walls and piles and there are changes to the floor layout, including the incorporation of the additional floor space.

1. The Board states that the variations fall into three categories: 1. Changes to the external appearance of the building; 2. Changes to the internal layout; and 3. The addition of building works not included in the development consent.

Are the changes inconsistent with the development consent?

1. The majority of variations between the construction certificate plans and the development consent plans stem from the increase in height of the vehicle entry to the basement car park. This increase in height had flow on effects to the units and terraces above and the external appearance of the building. In addition it increased the amenity impacts (overshadowing and loss of privacy) upon the neighbour who complained to Council. The other variations relate to the further excavation and shoring and an increase in size of the basement carpark.
2. The starting point must, of course, be the plans that were approved by Council. Council's consent explicitly stated that the development "must be carried out in accordance with" specified plans, details and conditions contained in the consent. The approved plans show a diagram of a truck loading bay in the basement, a truck turning circle, waste bins and the outline of a garbage truck. Condition 20 of the approval provided that a waste management plan was to be prepared in accordance with Part 2.21 of Marrickville Development Control Plan 2011 - Recycling and Waste Management and accepted by the certifier prior to the commencement of works.
3. Mr Da Silva accepts that the height of vehicle entry to the basement was raised in the construction certificate drawings and that this had flow on effects to unit 5 above and to part of the terrace of unit 12. He states, however, that the change was not inconsistent with the approval as it was made purely to meet the requirements of Council's Development Control Plan No 27 relating to waste management. The approved waste management plan states that a garbage truck will collect waste and recycling from the basement on collection day.
4. Mr Da Silva's position is that, because the development consent required garbage to be collected from the basement by a garbage truck, the height of the vehicle entry to the basement needed to be increased. He states that Council trucks have an operational height of 4.3m but it was agreed that waste collection would be undertaken by a private collector. The waste collection company advised that it would need a 3m clearance. Mr Da Silva states that he discussed the matter with the architect and the developer who confirmed that a clearance of 3.5m would be sufficient. The basement entry level was therefore adjusted to accommodate this. Mr Da Silva states that the approved plans and Condition 20 clearly envisage collection of waste by a garbage truck and that the increase in height to facilitate this was therefore in compliance with the development consent and not inconsistent with it.
5. Mr Da Silva states that the height of the vehicle entry had to be increased at the construction certificate stage in order to comply with the development consent and that Council clearly left this matter to the discretion of the certifier. There was no reason to increase the vehicle entry and floor heights unless it was to meet what he, the architect and the builder thought was the intent of the Council's approval and requirements. He states that, if Council was of the opinion that this was not a construction certificate matter to be left to the certifier, then he was entitled to presume that Council would not have issued the development consent.
6. Mr Da Silva states that he considered overshadowing and privacy concerns arising out of the increased floor heights and was satisfied that there was no detrimental impact.
7. In relation to the basement reconfiguration, Mr Da Silva states that the construction certificate plans do not increase the number of car parking spaces above the 23 spaces provided for in Condition 3 of the development consent. He states that the additional area was required to ensure compliance with the relevant Australian Standards for parking space dimensions, aisle widths, circulation spaces and accessible parking.
8. Furthermore, Conditions 4 provided for bicycle storage and Condition 5 concerned the provision of one off-street motorcycle parking space. Mr Da Silva points to Condition 37(b) and (c) which required amended plans be submitted to the certifying authority prior to the issue of the construction certificate to ensure the bicycle storage and motorcycle parking were provided in accordance with Part 2.10 of Marrickville Development Control Plan 2011 - Parking.
9. Mr Da Silva also states that the construction certificate plans required co-ordination of all the essential services such as stormwater drainage, wet fire services plant and equipment and building services to ensure compliance with the Building Code of Australia. He notes that Condition 43 required the stormwater drainage plans to be amended prior to the issue of a construction certificate to relocate a rainwater tank and to make certain changes to the basement pumps. He states the rearrangement of the lower basement level also was required to incorporate three additional stormwater pits. Mr Da Silva states the lower basement area had to be excavated to provide structural support to the basement level above and the remaining building structure above that as the lower basement level was in fact smaller than the level above in the approved plans. He refers to a geotechnical report which confirmed the necessity of shoring being undertaken along the perimeter of the site to provide sufficient support to the building.
10. Mr Da Silva maintains that all changes were made to ensure compliance with the Building Code of Australia and the development consent.
11. The Board states that none of the conditions in the development consent referred to by Mr Da Silva allow for design changes to be made to the building. Specifically, there was nothing in the conditions which permitted the height of the building's vehicle entry to be increased. The fact that the plans approved by Council depicted a loading bay, waste bins and a garbage truck was not authority for the external design and floor levels of the building to be increased. The Board states that Condition 20 required a waste management plan prepared in accordance with Part 2.21 of Marrickville Development Control Plan 2011 - Recycling and Waste Management (not Development Control Plan No 27 as stated by Mr Da Silva) to be submitted to the certifying authority prior to construction but it does not refer to vehicle entry into the basement nor did it seek, require or authorise amended plans for the construction certificate.
12. The Board does not dispute that the development consent appears to approve or require collection of waste from the basement by a garbage truck and that the size of the basement entry opening was not high enough for this purpose. However, the Board submits that it is not the role of a certifier to "fix things" if there is an error or fault discovered in the plans that were submitted to Council with the development application. The Board submits that Mr Da Silva was not given any unfettered authority to make changes to the building which he considered acceptable in order to accommodate waste collection in the basement by a garbage truck. It notes, for example, that the consequential variations to the terrace to Unit 12 caused the loss of ready access to the terrace from the adjacent living room and kitchen and, instead, provided for access only through the bedrooms.
13. The Board states that there is nothing in the conditions to the development consent relating to car parking, bicycle storage and motorcycle parking which would necessitate or require additional floor area to be provided in the basement. There is also nothing in the Australian Standard which would permit Mr Da Silva to make unconstrained changes to the floor area of the basement. The Board points out that the relevant standard (AS/NZS 2890.1:2004) notes that its use does not remove the need to comply with the regulatory requirements of local government.
14. Similarly, the Board states that there is nothing in Condition 43 (which refers to a rainwater tank and pumps) which would authorise the unilateral excavation of the basement. While Mr Da Silva states that an extra three drainage pits were required to deal with the stormwater, the Board states there is no evidence that the pits required an extra 150 square metres of space in the basement. The Board also submits that there is nothing in the development consent which would permit alteration of the building design so as to permit the changed shoring to ensure support for the building.
15. The Board submits that the changes made to the basement alone would justify a finding of inconsistency.
16. The function of the "not inconsistent" requirement in cl 145 of the Environmental Planning and Assessment Regulation is to ensure that the development as built will be in accordance with the development consent and variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as "inconsistent with" the development consent (Moy v Warringah Council [2004] NSWCCA 77 at [79]).
17. In Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 at [147]-[149] Sackville AJA stated that "inconsistent" should be given its ordinary meaning and includes "lacking in harmony between different parts or elements". He described the task of deciding whether there is an inconsistency between development consent and construction certificate plans as "not a straightforward task". To address the issue it is necessary to make findings as to the nature and extent of the variations to the approved plans and specifications. It is then necessary to make a judgment as to whether the variations are or are not inconsistent, in the relevant sense, with the approved plans and specifications.
18. In Lesnewski v Mosman Municipal Council [2004] NSWLEC 99 at [34] Pain J stated: It is difficult to precisely qualify the meaning of "inconsistent". Each case will need to be decided on its own facts. A single minor difference between the construction certificate plans and the development consent plans is likely to be acceptable. Where there are a number of minor differences then the collective impact of these differences will need to be assessed to determine whether they combine to result in unacceptable inconsistency. A major difference is likely to give rise to an inconsistency. Whether a difference is major or minor and whether, in the case of a number of minor differences, the cumulative effect is a major difference will depend on the circumstances.
19. At issue is whether, viewed objectively, the variations between the approved plans and the construction certificate plans in this matter were significant and readily identifiable (Levick v Building Professionals Board [2018] NSWCATOD 125 at [24]).
20. At the outset we should say that it is not our role to examine why the Council issued the development consent in the form that it did. Nor was it Mr Da Silva's role to ensure that any errors or omissions in the design phase were corrected through the construction certificate approval process.
21. We do not accept Mr Da Silva's proposition that the various changes he made to the approved plans were permitted by any of the consent conditions. We agree with the Board that there is nothing in Condition 20 which permitted the height of the building's vehicle entry to be increased. There is certainly nothing in Condition 20 or the approved plans which permitted changes to be made to the floor levels above the vehicle entry which had the impacts on Units 5 and 12 as set out above. There is also nothing in any of the conditions referred to by Mr Da Silva which permitted excavation of the basement and the addition of a further 150 square metres of floor space.
22. Mr Da Silva appears to have taken the view that the building as designed and approved, if built in accordance with approval, would not function as intended. That may or may not be correct. Even if it is correct, it was not up to the developer or Mr Da Silva to take it upon themselves to ensure the functionality of the building and to decide what method would be employed. Mr Da Silva, in effect, took on the function of the Council and changed, at will, the development consent. The developer and builder had available to them the modification process in s 4.55 of the Environmental Planning and Assessment Act (the former s 96 application) to rectify any errors or, if it was considered undesirable or impractical to proceed with elements of the approved design, to propose changes to the design. That modification process was the only appropriate course which should have been advised by Mr Da Silva.
23. The variations that were made in the construction certificate as issued, went far beyond increasing the height of vehicle entry to the basement. There are increased floor levels and changes to the internal and external design of the building. There are also substantial alterations to the basement, including further construction of piling and excavation and increased floor space. The number and extent of the variations resulted in changes to the design and construction of the building.
24. The variations between the two sets of plans are readily identifiable and are significant. None were expressly or impliedly permitted by the development consent. We are satisfied that the changes as identified in the construction certificate plans are inconsistent with those in the development consent and that Mr Da Silva has contravened cl 145 of the Environmental Planning and Assessment Regulation.

Unsatisfactory professional conduct

1. The Board is permitted to take disciplinary action against an accredited certifier if it satisfied that the person is guilty of unsatisfactory professional conduct. This term is defined in s 19 of the Act as follows: unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission): (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, (e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner, (f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority, (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, (h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation, (i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act, (j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5, (k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5, (l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier, (m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition.
2. A contravention of the Environmental Planning and Assessment Act or Regulation falls within the definition of unsatisfactory professional conduct in s 19(1)(b) of the Act. We have found that Mr Da Silva contravened s 6.8 of the Environmental Planning and Assessment Act and cl 145(1) of the Regulation. He is therefore guilty of unsatisfactory professional conduct on that ground.
3. The Board submits that Mr Da Silva's conduct also falls with sub-sections (a) and (g) of s 19(1) of the Act in that 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 accredited certifier and he also failed to comply with the Code of Conduct. The Board submits that Mr Da Silva has misconstrued his role as a certifier and states that, instead of determining whether the statutory requirements for issuing the construction certificate were met, took it upon himself to fix errors or shortfalls in the development consent as issued by Council.
4. Mr Da Silva states he has been a full-time professional accredited certifier since 2003 and has the skills, qualifications and experience for the role. He states he participates in continuing professional development each year and fully understands his role as a certifier.
5. In Building Professionals Board v Cogo [2008] NSWADT 119 the Tribunal stated at [85] that "the objective gravity of the conduct should be the focus when considering where the conduct might fall on the spectrum set by the legislation, i.e. is it conduct, objectively viewed, which is of a kind that might warrant suspension or disaccreditation". The Tribunal also held that the level of accreditation is a matter to be taken into account.
6. Mr Da Silva is a Grade A1 certifier and the public would have a reasonable expectation that he would perform his functions diligently and with care and that he would have a high level of knowledge of all relevant matters he was required to consider. In this case, we are of the view that he did not demonstrate that he possesses these qualities to the expected and necessary degree.
7. Mr Da Silva holds the highest accreditation available to a certifier and had available to him guidance material published by the Board on the exercise of his functions. It would be expected that a certifier of Mr Da Silva's seniority and experience would not have issued the construction certificate in light of the number and extent of the variations between the construction certificate plans and the development consent. In our view, in order to justify his actions, Mr Da Silva has attempted to read into the development consent conditions matters which, on the face of those conditions, simply do not permit significant changes to be made to the design and construction of the building.
8. It was not Mr Da Silva's role to issue the construction certificate come what may. It was necessary for him to pay due regard to and have a good understanding of the regulatory environment within which he performs his role. It is apparent that Mr Da Silva has failed to come to grips with his responsibility to ensure that the design and construction of the building was not inconsistent with the development consent. His lapse of judgement permitted both external modifications (enlarging the building envelope) internal modifications (out of sight increases in area and configuration) that exceeded his express authority as Certifier. His conduct has failed to reach the standard of competence, diligence and integrity that a member of the public is entitled to expect of an A1 accredited certifier and falls within the definition of unsatisfactory professional conduct in s 19(1)(a) of the Act.
9. Under requirement 1 of the Code of Conduct established by the Board, an accredited certifier is required to carry out his or her functions and to exercise any discretionary powers in a way that promotes or preserves the public interest. Requirement 5 of the Code of Conduct imposes an obligation on accredited certifiers to exercise reasonable care and attention in carrying out their duties and in the exercise of their powers.
10. In issuing a construction certificate in circumstances where the statutory requirements have not been met, Mr Da Silva failed to exercise his functions in the public interest. It is apparent that he had little regard for how the changes to the building would impact upon neighbours and persons living in the building. He has also failed to carry out his duties with reasonable care and attention and, indeed, continues to maintain that the plans he approved are consistent with the approved development plans. We are satisfied that Mr Da Silva failed to comply with requirements 1 and 5 of the Code of Conduct and his conduct was therefore unsatisfactory professional conduct as defined in s 19(1)(g) of the Act.

Appropriate penalty

1. A finding of unsatisfactory professional misconduct against Mr Da Silva is substantiated. Accordingly, we may take one or more of the actions specified in s 31(4) of the Act. Those actions include a caution or reprimand, the imposition of conditions and the payment of a fine.
2. Mr Da Silva submits that the penalty imposed by the Board of a reprimand and $25,000 fine is 'grossly excessive' and states that, in the circumstances, no fine should be levied. Mr Silva represented himself in this matter before the Tribunal. He states that he has four children and a mortgage and the financial impact of a fine would be considerable as he is the only income earner in his family. Furthermore, the stress of the current situation has been substantial and the allegations have had an impact on his health and wellbeing and have had a substantial impact on his family. He states his company has lost contracts as a result of the Board's decision being placed on the public register. He submits that, if the Council failed to properly assess the effect of the development consent, it is the Council that should be made accountable, not the certifier.
3. Mr Da Silva stresses that the alleged non-compliance did not result in any risk to human safety or building safety. Furthermore, the variations are not detrimental to the building or its use.
4. In Qiu v Building Professionals Board [2013] NSWADT 289 the Administrative Decisions Tribunal, drawing on an earlier decision in Director General, Department of Fair Trading v Cohen [2003] NSWFTT 3, set out the following factors as being relevant in disciplinary proceedings: 98. … 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. The certification of building work is a mechanism to ensure that buildings conform to certain standards regarding safety, durability, habitability and sustainability. The primary aim of the regulatory scheme administered by the Board is the protection of the public and the maintenance of standards. As set out above, the contravention of the Environmental Planning and Assessment Act and Regulation provisions by Mr Da Silva was serious and involved the construction of a building comprising 20 residential units. The value of the project was in the order of $5,000,000. According to the Board, the building was constructed in accordance with the construction certificate and stamped plans issued by Mr Da Silva and has been occupied.
6. We have found that the construction certificate issued by Mr Da Silva should not in fact have been issued as there had been a failure to ensure that the building was not inconsistent with the development consent. The Board points to an earlier disciplinary finding against Mr Da Silva in 2010 where he was fined $7,500 which also involved the issuing of a construction certificate which was inconsistent with the development consent. Mr Da Silva states that the circumstances involved in that matter are not the same as in the present case but has not elaborated on why that is so.
7. We do not consider Mr Da Silva's financial circumstances to be relevant to the decision as to the level of penalty, nor do we take into account any possible effect upon the company for which he works. We do accept that no aggravating features such as harm or loss to others are present. However, contrary to Mr Da Silva's understanding, a penalty is not just for non-compliances that constitute either fire or life safety risks. Similarly, there is no evidence that Mr Da Silva acted dishonestly or fraudulently in relation to the construction certificate.
8. The matter of most concern is that Mr Da Silva has failed to understand his statutory responsibilities and the limits of his role. We are very concerned that he appeared to regard his role as facilitating the construction of the building in circumstances where it was apparent that there were problems with the plans which had received development consent. He seems to have regarded it as his role to ensure that the building worked in accordance with the developer's intention and therefore was of the view that the building design could be altered without further recourse to Council. His role in fact was to determine whether what he was being asked to approve was not inconsistent with the development consent. That was all. That Mr Da Silva still believes he acted correctly casts doubt on his ability to ensure that will not act in a similar manner in the future.
9. Bearing in mind the Disciplinary Penalty Guidelines which have been developed by the Board and the seriousness of Mr Da Silva's conduct, we do not consider that the penalty imposed is excessive in the circumstances. Mr Da Silva states that the fact that the Board took some 28 months to issue its decision in respect of his conduct has caused him much stress and anxiety affecting his health and wellbeing and has had a substantial impact on his family. That is no doubt the case but we do not consider that to be a factor affecting the penalty to be imposed. We therefore agree with the Board's decision that Mr Da Silva should receive a reprimand and be ordered to pay the sum of $25,000.

Orders 1. The decision of the respondent is affirmed. 2. The applicant is to pay to the Board the sum of $25,000 within 60 days.

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: 22 November 2019