Freixas v Building Professionals Board [2020] NSWCATOD 27 | Case summary

Freixas v Building Professionals Board [2020] NSWCATOD 27 | Case summary | Zoe

The Decision

On 29 January 2019, a delegate of the respondent in the Decision found that the applicant was guilty of unsatisfactory professional conduct in respect of the complaints relating to three properties, and decided to take the following actions under s 31(4) of the BP Act (bold text in the original): Disciplinary Action against the Accreditation Holder: 1. Pursuant to section 31(4)(a) of the Act, I reprimand the Accreditation Holder. 2. Pursuant to section 31(4)(f) of the Act, I order the Accreditation Holder to pay to the Board a fine in the amount of $30,000 within a period of 28 days from the date on which this Notice is deemed to be served on the Accreditation Holder. 3. Pursuant to section 31(4)(c) of the BP Act, I order the Accreditation Holder to complete (and provide documentary evidence suitable to the Board) within a period of six (6) months from the date on which this Notice is deemed to be served on the Accreditation Holder, the following educational course viz., the Advanced Building Regulation five-day professional development course (class 2-9 buildings) conducted by The University of Technology Sydney (UTS) Centre for Local Government. … The Decision takes effect immediately from the date of this Notice.
The reasons for the Decision are set out in the Schedule to the Decision (the Reasons). The Reasons are organised under the following sections: 1. the section entitled "Determination", under which is set out the complaints which are found to constitute unsatisfactory professional conduct; 2. the section entitled "Findings", under which is set out the findings on material questions of fact and the evidence or other material on which the findings are based in respect of the complaints. The respondent found that the evidence in respect of some of the complaints was not sufficient to support a finding of unsatisfactory professional conduct; 3. the section entitled "Reasons For The Decision", under which is set out the factors taken into account in the findings of unsatisfactory professional conduct; 4. the section entitled "Appropriate Disciplinary Action", under which is the factors taken into account in the actions taken by the respondent.
The Reasons indicate that adverse findings against the applicant have been made in respect of the following complaints relating to the following properties: 1. Complaint no 25/17 - Matter 1, Additional Matter A, Additional Matter B and Additional Matter C: 9 Regent Street, Putney; 2. Complaint no 43/17 - Matter 1 and Additional Matter A: 13-15 Bigge Street and 2 Lachlan Street, Liverpool; 3. Complaint no 66/17 - Matter 1: 21 Lamb Street, Glendenning.

[7]

BP Act

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.
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) ….
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, … (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, … (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme,
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.
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.
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). … (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, … (c) order that the accreditation holder complete such educational courses as are 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, (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. … (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.
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).
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)).

[10]

EPA Regulation

Part 7 Division 2 (cll 130AA-136) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as it was in force at the time of the conduct constituting the Complaints dealt with the determination of applications and commencement of complying development. Clause 130 dealt with the procedure for determining application for complying development certificate and 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). … (3) Evidence of the issue of a complying development certificate must be endorsed by the council or the accredited certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the accredited certifier in accordance with clause 126.
Clause 134 dealt with the form of complying development certificate and relevantly provided: 134 Form of complying development certificate (1) A complying development certificate must contain the following: … (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 this regulation concerning the issue of the certificate, (f) if the development involves the erection of a building, the class of the building under the Building Code of Australia, (g) any conditions imposed on the development under this Regulation. … (2A) A complying development certificate for any development must include a copy of any relevant plans endorsed by the certifying authority.

[11]

Code of conduct

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. … 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.
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. … 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.

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The Reasons

The Reasons contain the following findings (bold text, italics and underlining in the original): 1.0 MATTER 1 (Complaint no. 25/17) Mr Freixas' issuing of a complying development certificate (CDC) no. 16/0434-01 without compliance with/for privacy requirements for windows and balconies. FINDINGS ON MATERIAL QUESTIONS OF FACT 1.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. 1.2 The CDC was issued by Mr Freixas with a statement made pursuant to section 85(1 )(a) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and clause 134(e) of the Environmental Planning and Assessment Regulation 2000 (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 other requirements prescribed by the regulations concerning the issue of a CDC (notwithstanding the wording of the statement used by Mr Freixas on the CDC erroneously corresponded with that required for a construction certificate i.e. clause 134(1)(e) of the EP&A Regulation). 1.3 To determine whether a CDC can be issued, section 85A(3) of the EP&A Act states the 'accredited certifier must consider the application and determine ... whether or not the proposed development complies with the relevant development standards'. 1.4 The development proposed by the application was assessed by Mr Freixas under the relevant development standards, being the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). 1.5 For the following reasons, Mr Freixas could not have properly determined under section 85A(3) of the EP&A Act that the proposed dwelling (as depicted in the plans and specifications accompanying the application) complied with the relevant development standards under the Codes SEPP as in force between 5 August 2016 to 13 July 2017: a) No privacy screens to bedrooms The windows to Bedroom 2 and Bedroom 5 on the dwelling's first floor do not satisfy clause 3.23(1)(a) as they do not have privacy screens. The window in Bedroom 5 faces no.7 Regent Street (the complainant's property). In each instance the window is required to have a privacy screen as: ■ it faces a side boundary, ■ is in a habitable room (bedroom) that has a finished floor level of more than 1 m above ground level, ■ has a sill height of less than 1.5m (being 1 m high by scaling), ■ has an area larger than an 2m2 (by scaling the plans Bedroom 2 is 2.59m2 and Bedroom 5 is 3.62m2), and ■ is less than 3m from the boundary (Bedroom 2 has 1123mm setback and Bedroom 5 has 1650mm setback). b) No privacy screens to terraces (balconies) The front and rear terraces of the dwelling do not satisfy clauses 3.23(3)(a) and 4(a) as they each have a floor area in excess of 3m2 and have no compliant privacy screens on the side facing no.11 Regent Street i.e. the south-west elevation. While the rear terrace has a wall on the south-western side, it does not extend above 600mm high. A screen of at least 1.7m is required. The front terrace has no privacy screen at all. c) Size of terraces exceeds maximum allowed The total floor area of the proposed terraces on the dwelling's first floor level (front and rear) within 6m of a side boundary was approximately 31m2, which exceeded the maximum 12m2 total floor area of all terraces permitted by clause 3.12(1). 1.6 The complainant's concerns in regard to the other windows in the north-east elevation and the lack of a privacy screen to the terrace's rear elevation are not supported as: a) None of the windows have a sill height below 1.5m high and therefore satisfy clause 3.23(1)(a) of the Codes SEPP. b) Per clauses 3.23(3) and (4) of the Codes SEPP the rear elevation of the terrace is not required to have a privacy screen i.e. the terrace is more than 6m from the rear boundary and the terrace elevation complained of does not face the side boundary. 1.7 Despite the proposed development not complying with the relevant development standards, Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 14 October 2016 he issued CDC no. 16/0434-01.
The Reasons contain the following reasons for decision (italics in the original): 11.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions Mr Freixas conceded that the windows required privacy screens. 11.2 Mr Freixas also stated that in regard to the windows he gave significant weight to the town planner's report, it has subsequently been found there was an error in that report, and the consequence of issuing the CDC without a privacy screen had minimal impact on the adjoining properties. As noted in the complaint investigation report (paragraph 1.8) this reasoning is not accepted. Section 85A(3) of the EP&A Act requires the certifier to consider the application and determine whether the proposed development meets the development standards. A certifier cannot abrogate their responsibility when determining a CDC to others, and cannot make discretionary planning judgements. While it is accepted that a certifier may utilise reports of other professionals to assist and inform them, these reports must not be accepted blindly and a certifier must make their own assessment of the relevant matters. It was well within the expected competence of Mr Freixas as an A1 accredited certifier that he could and would readily identify by assessment of the application's plans that the windows to Bedroom 2 and Bedroom 5 on the dwelling's first floor failed to meet clause 3.23(1)(a) of the Codes SEPP as they do not have privacy screens. Mr Freixas failed to identify these non-compliances and did not recognise that the CDC application and the town planner's report each considered a different set of plans. 11.3 The certifier's submissions are not accepted in regard to impact of his failure to include the privacy screens on the CDC plans i.e. being negated by the circumstances on the adjoining properties. Despite having the benefit of the complaint investigation report, which expressly commented on this issue in paragraph 1.8 d), Mr Freixas has demonstrated that he does not understand the role of a certifying authority assessing an application for complying development i.e. what a window overlooks on an adjacent property is immaterial to a proper assessment of whether a CDC application meets a development standard. 11.4 The certifier's submissions are not accepted in regard in regard to impact of the failure to include the privacy screens on the CDC being negated by the development complying at completion of the works. Mr Freixas' submission demonstrated that he does not understand the role of a certifying authority assessing an application for complying development under section 85A(3) of the EP&A Act i.e. ensuring the privacy screens are installed before completion of the development is immaterial to a proper assessment of whether a proposed development in a CDC application meets a development standard. 11.5 The legislation does not authorise a certifier to issue a CDC on the basis that the certifier is satisfied the requirements have been (or will be) met. Mr Freixas' explanation is contrary to what a CDC is per section 85(1) of the EP&A Act, and ignores that carrying out the work per the CDC endorsed plans would result in a development that did not meet the development standards for complying development. 11.6 Mr Freixas' submissions failed to provide any explanation in regard to requirements concerning the non-compliant terraces as detailed in paragraphs 1.4 b) and c) of the complaint investigation report. 11.7 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development complied with the relevant development standards. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. 11.8 Requirement 5 ('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') of the Building Professionals Board's Code of Conduct for Accredited Certifiers (Code of Conduct) requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Given the serious consequences that can follow if an approval for a new two-storey dwelling is given by a CDC for a proposal that does not meet each of the relevant development standards, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 1.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including 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. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Accordingly, Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.9 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act.

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The first Freixas statement

In the first Freixas statement, Mr Freixas relevantly asserted that: 1. no privacy screens are required for the windows located in Bedroom 2 and Bedroom 5 for the following reasons: 1. the Bedroom 2 window has an area of approximately 1.08m2 (0.9m x 1.2m). Accordingly, subclause 3.23(l)(a) of the Codes SEPP does not apply to it; 2. each of the two Bedroom 5 windows has an area of approximately 1.35m2 (1.15m x 1.15m). Accordingly, subclause 3.23(1)(a) of the Codes SEPP does not apply to it; 1. the rear terrace adjacent to Bedroom 3 has a double brick wall that stands 1.2m high, parallel to the side boundary and running along the edge of the terrace. Above that wall is a fixed metal louvre privacy screen to a height of at least 1.7m but not more than 2.2m. The metal louvres are angled and fixed, precluding viewing across the boundary. On 30 May 2017, he jointly inspected the partly completed dwelling with the Board investigator, Mr Frank Rupolo (Mr Rupolo). He said to Mr Rupolo that the privacy screen comprising of fixed metal louvres would be inserted into the wall of the Bedroom 3 terrace before he would issue an occupation certificate. Mr Rupolo replied "I am satisfied with that"; 2. the terrace at the front of the dwelling does not have a privacy screen on the edge that is parallel to the side boundary as required by clause 3.23(3) and (4) of the Codes SEPP. Prior to issuing the CDC, he obtained the Graham report which he relied upon. The front terrace has no privacy impact upon the neighbouring property at 11 Regent Street because the development addressed the street; 3. the area of the (rear) Bedroom 3 terrace is approximately 11.41m2 (4.15m x 2.75m). The area of (rear) Bedroom 4 terrace is approximately 8.51m2 (3.095m x 2.75m). When he issued the CDC he relied on the Graham report. He applied the permitted floor area of 12m2 to each and every terrace, each being under the permitted 12m2. He did not interpret the provision of the Codes SEPP to apply to the combined floor area of the front terrace and the rear terraces.

[28]

Codes SEPP

Part 1 Division 1 (cll 1.1-1.14) 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 preliminary matters. Clause 1.5 dealt with general matters of interpretation. There was no definition of window. The definition of "privacy screen" includes "a window, the whole of which has translucent glass and is fixed and not able to be opened".
Part 3 Division 2 Subdivision 2 (cll 3.8-3.12) as it was in force at the time of the conduct constituting the Complaint dealt with site requirements. Clause 3.12 dealt with setbacks and maximum floor area for balconies, decks, patios, terraces and verandahs, and relevantly provided: 3.12 Setbacks and maximum floor area for balconies, decks, patios, terraces and verandahs (1) The total floor area of all balconies, decks, patios, terraces and verandahs on a lot must not be more than 12m2 if: (a) any part of the structure is within 6m from a side or the rear boundary, and (b) the structure has any point of its finished floor level more than 2m above ground level (existing).
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 site requirements. Clause 3.23 dealt with building heights and setbacks, and relevantly provided: 3.23 Privacy (1) A window in a new dwelling house, or a new window in any alteration or addition to an existing dwelling house, must have a privacy screen for any part of the window that is less than 1.5m above floor level if: (a) the window: (i) is in a habitable room that has a finished floor level of more than 1m above ground level (existing), and (ii) has a sill height of less than 1.5m above that floor level, and (iii) faces a side or rear boundary and is less than 3m from that boundary, or … (2) Subclause (1) does not apply to a window located in a bedroom where the window has an area of not more than 2m2. (3) A new balcony, deck, patio, terrace or verandah and any alteration to an existing balcony, deck, patio, terrace or verandah that has a floor area of more than 3m2 must have a privacy screen if the balcony, deck, patio, terrace or verandah is: (a) within 3m of a side or rear boundary and has a floor level more than 1m above ground level (existing), or … (4) Any privacy screen required under subclause (3) must be installed: (a) to a height of at least 1.7m, but not more than 2.2m, above the finished floor level of the balcony, deck, patio, terrace or verandah, and

[34]

The Reasons

The Reasons contain the following findings (bold text, italics and underlining in the original): 3.0 ADDITIONAL MATTER A (Complaint no. 25/17) Mr Freixas issued a CDC (no. 16/0424-01 dated 14 October 2016) in contravention of the relevant legislation viz., a certifying authority must not issue a CDC for building work unless the proposed building will comply with the relevant requirements of the Building Code of Australia. FINDINGS ON MATERIAL QUESTIONS OF FACT 3.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. The CDC authorised the erection of a dwelling, decks and a pool as complying development: a) The CDC's architectural plans (the site, floor, elevations and section plans) all show connected to the rear of the dwelling proposed split-level timber decks, stairs and pool. b) The CDC's structural engineer's drawings (i.e. per the CDC's 'Other Documentation Relied Upon' and submitted to the council with the CDC) show and detail that the proposed dwelling, decks and decks are an integrated structure. For the reasons set out in paragraph 4.8 of the complaint investigation report, the Board does not accept Mr Freixas' contention that the CDC did not approve/include the pool. 3.2 The CDC included a statement above Mr Freixas' signature verifying that the proposed 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 other requirements prescribed by the regulations concerning the issue of a CDC (noting that the actual wording used by Mr Freixas on the CDC erroneously corresponds with that required for a construction certificate i.e. clause 134(1 )(e) of the EP&A Regulation). 3.3 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. Clause 1.18(1) of the Codes SEPP also requires that for a development to be complying development it 'must' meet the relevant provisions of the BCA. Clause 126(1)(a) and Clause 4 of Schedule 1 of the EP&A Regulation require that an application for a CDC must be accompanied by appropriate building work plans and specifications. 3.4 To enable an accredited certifier to determine that a proposal will comply with the BCA, the applicant must provide sufficient information to demonstrate the intent to comply. The proposed building, as depicted in the CDC's endorsed plans and specifications, did not demonstrate that it will comply with the relevant requirements of the BCA as: a) Smoke Alarms / Part 3.7.2 of the BCA. The CDC endorsed drawing no. A-000 includes a specification referencing 'Part 3.7.2 Smoke Alarms', however this statement alone lacks sufficient detail to properly address the intended method of BCA compliance i.e. the type, location and installation method. The CDC endorsed floor plans depict a 'smoke detector' on the ground floor and one on the first floor. Part 3.7.2.2 requires a Class 1a building to be provided with 'smoke alarms' i.e. not smoke detectors. There is also no indication on the plans that they are intended to be hardwired or interconnected. b) Balustrades & Barriers / Part 3.9.2 of the BCA. The CDC endorsed drawing no. A-000 includes a specification referencing 'Part 3.9.2 Balustrades', however this statement alone lacks sufficient detail to properly address the intended method of BCA compliance. The CDC plans depict the rear terrace serving Bedroom 3 as having no proposed barrier along its north-eastern side (i.e. adjacent to the void outside the bathroom) and its south-western side only depicts a 600mm high wall (i.e. less than the required minimum 1 metre height). The CDC plans are unclear as to whether a barrier is proposed in the first floor family/living space adjacent to the void. There is no information as to the structural design of the barriers, nor any information how the glass barriers would comply with Part 3.6 of the BCA. c) Pool Safety Barrier / Part 3.9.3 of the BCA. There is no reference to the intended method of compliance with Part 3.9.3 in any of the CDC application documents and there is no proposed swimming pool safety barrier (location, heights and materials) depicted on the CDC endorsed plans to restrict access to the pool from the dwelling, neighbouring properties and the street. d) General BCA compliance. The endorsed CDC documents include limited details and information as to how the building would comply with the provisions of the BCA, including but not limited to: a. Part 3.1.3 - termite risk management b. Part 3.3 - unreinforced masonry and weatherproofing c. Part 3.4.3/3.11 - timber framing d. Part 3.5 - roof cladding and gutters and downpipes e. Part 3.6 - glazing and windows f. Part 3.9 - stair handrails and slip resistance As a result, the application did not have sufficient information for Mr Freixas to have reasonably determined that the proposed building will comply with the relevant requirements of the BCA. Given the CDC application as made, Mr Freixas did not have sufficient basis to have determined that his issuing of the CDC would not be in contravention of clause 130(1) of the EP&A Regulation. 3.5 Despite the proposed development not complying with the development standards and the EP&A Regulation (as set out in paragraphs 3.3 and 3.4 of this Statement), Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 14 October 2016 he issued CDC no. 16/0434-01.
The Reasons contain the following reasons for decision (italics in the original): 11.10 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions Mr Freixas advised that the reference on the CDC to 'Other Documentation Relied Upon' includes the stormwater and structural engineer's drawings and design statements that were forwarded to the Council with the CDC. Mr Freixas' explanation is accepted, notwithstanding that the plans were not endorsed (stamped) by him when he issued the CDC. 11.11 Mr Freixas submitted that the smoke alarm details were sufficient as CDC architectural plans do not include electrical engineering details, that in any case he ensures compliance at the final inspection and obtain an electrician's certificate. Mr Freixas' submission demonstrated that he does not understand the role of a certifying authority assessing a CDC application i.e. ensuring the smoke alarms are appropriately installed at completion of the development is immaterial to a proper assessment of whether a CDC application meets clause 1.18(1)(c) of the Codes SEPP and clause 130(1) of the EP&A Regulation in regard to the BCA. Clauses 4(1)(d)(ii) and 5(a)(iv) of Schedule 1, and clause 126(1)(a) of the EP&A Regulation, also require the CDC application's plans and specifications to show the provision for fire safety. Under clause 130(1) of the EP&A Regulation the certifier is required to make an objective test that calls for a finding of fact as to whether the building proposed by the CDC application (plans and specifications) will comply with the relevant requirements of the BCA. For the reasons detailed in paragraph 4.5 b) of the complaint investigation report, the CDC plans and specifications endorsed by Mr Freixas were unacceptable. Despite having the benefit of the report, Mr Freixas failed to address at all that the CDC plans show proposed smoke detectors (instead of smoke alarms) and make no reference to hardwiring/interconnected requirements. 11.12 Mr Freixas' submissions that the 'BCA Compliance Specification' on the CDC plans is sufficient in regard to demonstrating BCA compliance, including the matters in paragraphs 4.5 b) - e) of the complaint investigation report, are not accepted. The purported specification lacks sufficient detail to properly address the intended method of BCA compliance in regard to each of these matters. 11.13 Mr Freixas' submissions provide no specific explanation in regard to the absent or inadequately detailed balustrades and barriers, despite these being crucial safety features of a residential dwelling. 11.14 Mr Freixas' submissions contending that he did not approve a pool under the CDC are not accepted viz., for the reasons detailed in paragraphs 4.8 a) - m) of the complaint investigation report. It is also noted that the structural engineer's drawings and certificate that Mr Freixas advised in his Submissions were part of the CDC documents (refer to paragraph 11.10 of this Statement), depict the proposed concrete pool, decks and stairs as being integrated within the construction of the dwelling structure viz., in particular drawings S5 and S6. It is not accepted that Mr Freixas could, in assessing the CDC application, simply ignore (or not realise) the fact that the CDC plans depicted a pool. It is evident from Mr Freixas' submissions during the investigation that he made no enquiries with the applicant about the pool before he issued the CDC, despite it being on the plans and being integrated within the decks and dwelling structure, and there being no pool barrier depicted. This is a vital life safety matter for a certifying authority, being a public official, to properly consider and make enquiries about with the applicant. Whereas Mr Freixas had initially advised the Board that the pool was existing, his submissions after the complaint investigation report advise that 'At the time of my inspection there was preparatory work underway on what I now know is a pool.... The pool was in early stage of construction...'. Mr Freixas' statements are difficult to reconcile given the CDC application plans the certifier was reviewing at that site inspection unequivocally showed proposed decks around a pool in the location that Mr Freixas contends at the time of the inspection he did not know was a pool. It also conflicts with Mr Freixas' inspection record in which he records that no work had commenced and that he had met the builder on site. 11.15 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development would comply with the BCA. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards i.e. clause 1.18(1) of the Codes SEPP. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined that the requirements of clauses 126(1)(a) and 130(1) of the EP&A Regulation had been met. Given the CDC application as made, Mr Freixas did not have sufficient basis to have determined that his issuing of the CDC would not be in contravention of clause 130(1) of the EP&A Regulation. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. 11.16 Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Requirement 1 ('Acting in the public interest') of the Code of Conduct requires that certifiers are to carry out their functions and duties, and exercise any discretionary powers, in ways that promote or preserve the public interest. This includes not authorising the commencement of the construction of buildings that if built in accordance with the CDC plans and specifications will not comply with the life safety and fire protection requirements of the BCA. Given the serious life safety and fire protection consequences (for the subject site and potentially neighbouring properties) that can follow if an approval is given by a CDC for a proposal that does not demonstrate how it will comply with the BCA, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 3.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work, and any person subsequently occupying or visiting the property, in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Accordingly, Mr Freixas failed to comply Requirements 1 and 5 of the Code of Conduct. 11.17 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had been contravened and/or not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act.

[53]

The Reasons

The Reasons contain the following findings (bold text and italics in the original): 4.0 Additional Matter B (Complaint no. 102/17) Mr Freixas issued a CDC (no. 16/0424-01 dated 14 October 2016) that did not contain on it the information required by the Environmental Planning and Assessment Regulation 2000. FINDINGS ON MATERIAL QUESTIONS OF FACT 4.1 On 14 October 2016, Mr Freixas issued CDC no. 16/0434-01 for the proposed 'Erection of a new 2 storey dwelling' at 9 Regent Street, Putney. 4.2 The CDC's structural engineer's drawings and stormwater plans were not endorsed (stamped). Mr Freixas failed to comply with his statutory duty under clause 134(2A) of the EP&A Regulation i.e. a CDC must include a copy of any relevant plans endorsed by the certifying authority. 4.3 As set out in paragraph 3.1 of this Statement, the CDC and its plans authorised the erection of a dwelling, decks and a pool. The CDC lists the BCA classification/s as 'Class 1a'. The CDC document did not include the BCA classes for the pool (class 10b) and decks (class 10a). Mr Freixas failed to comply with his statutory duty under clause 134(1)(f) of the EP&A Regulation. 4.4 As set out in paragraphs 1.2 and 3.2 of this Statement, the statement made on the CDC by Mr Freixas for the purposes of clause 134(1)(e) of the EP&A Regulation was incorrectly worded i.e. Mr Freixas included the wording required for a construction certificate under clause 147(1)(e) of the EP&A Regulation. Mr Freixas failed to comply with his statutory duty under clause 134(1)(e) of the EP&A Regulation. 4.5 Despite the statutory requirements of clause 134 ('Form of complying development certificate') of the EP&A Regulation not being complied with (as set out in paragraphs 4.2, 4.3 and 4.4 of this Statement), on 14 October 2016 Mr Freixas issued CDC no. 16/0434-01.
The Reasons contain the following reasons for decision (italics in the original): 11.18 Mr Freixas made a written submission to the Board in response to complaint investigation report. In his submissions he states the CDC was only issued for a dwelling and therefore class 1a only is included on the CDC. For the reasons in paragraph 11.14 of this Statement, Mr Freixas' explanation is not accepted. 11.19 Mr Freixas' submissions provide no explanation or comment in regard to why (irrespective of the pool) the BCA class for decks (10a) is not stated on the CDC, why the structural engineer's drawings and stormwater details were not endorsed (stamped), nor why the CDC included the statutory statement applicable to a CC. 11.20 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to issue the CDC in form required by the legislation. Mr Freixas' submissions do not provide a reasonable explanation for these errors and omissions. The statutory requirements of clause 134 ('Form of complying development certificate') of the EP&A Regulation are not difficult for a competent A1 accredited certifier to apply. Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. This includes ensuring that the information included in any CDC they issue is complete, correct and is not likely to mislead or confuse i.e. that they would not issue a CDC that contained an erroneous statement, without each of the relevant BCA classes and without endorsing all of the relevant plans. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including 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. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.21 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act.

[64]

The Reasons

The Reasons contain the following findings (bold text and italics in the original): 5.0 Additional Matter C (Complaint no. 25/17) Mr Freixas issued a CDC (No. 16/0434-01 dated 14 October 2016), without it being made subject to the conditions specified under Division 2A of the Environmental Planning and Assessment Regulation 2000. Mr Freixas also included a condition when he was not authorised to do so. FINDINGS ON MATERIAL QUESTIONS OF FACT 5.1 Mr Freixas issued CDC no. 16/0434-01 dated 14 October 2016. Attached to the CDC were five pages of conditions. 5.2 Section 85A(6)(a) of the EP&A Act provides that a certifier may issue a CDC 'unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions'. In issuing a CDC a certifier has no authority to omit or alter any of the prescribed conditions, nor can they add further conditions. 5.3 Clause 134(1)(g) of the EP&A Regulation states that a CDC must contain any conditions imposed on the development under the regulation. Clause 1.18(3) of the Codes SEPP states that a CDC under that policy is subject to the conditions specified in respect of the development. 5.4 The CDC was required to be issued with conditions prescribed in Division 2A of the EP&A Regulation and clause 3.37 of the Codes SEPP i.e. Schedule 6. The CDC's conditions did not comply with the statutory requirements as: • The condition required by clause 136H of the EP&A Regulation has not been included (shoring and adequacy of adjoining property). • The condition required by clause 136M of the EP&A Regulation has not been included (payment of security). • Condition (f) on page 1 is not a prescribed condition found under Division 2Aof the EP&A Regulation. • Condition (g) on page 1 failed to include that the written notification to neighbours of the commencement of work must be given at least 7 days beforehand viz., clause 136AB(1) of the EP&A Regulation. • Condition (h) on page 1 requires compliance with conditions contained in a nominated planner's report. There is no authority to impose this condition. Condition 3 in the planner's report contradicts the issuing of the CDC for complying development as it contends the total area of required landscaping is deficient. • The asbestos related condition on page 5 does not comply with clause 136E of the EP&A Regulation as it does not include the requirements of clause 136(1)(d). In regard to clause 136(1)(a) the condition erroneously references the Occupational Health and Safety Regulation 2001 (repealed 1 January 2012) instead of the Work Health and Safety Regulation 2011. 5.5 Despite the statutory requirements relevant to a certifier's duty to issue a CDC subject to specific conditions not being complied with (as set out in paragraphs 5.2, 5.3 and 5.4 of this Statement), on 14 October 2016 Mr Freixas issued CDC no. 16/0434-01.
The Reasons contain the following reasons for decision (italics in the original): 11.22 Mr Freixas made a written submission to the Board in response to complaint investigation, however the submissions fail to clarify why the CDC was issued with conditions in the manner that does not accord with the legislation. 11.23 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to issue the CDC in form required by the legislation. Mr Freixas' submissions do not provide a reasonable explanation for these errors and omissions. The statutory requirements in regard to applying conditions to a CDC are not difficult for a competent A1 accredited certifier to apply. Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. This includes ensuring that the information included in any CDC they issue is complete, correct and is not likely to mislead or confuse i.e. that they would not issue a CDC with conditions that were not in accordance with the statutory requirements. Per Parts 7 and 16 of the EP&A Regulation, the certifier's CDC (including 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. It is therefore crucial that such information is accurate, correct, complete and is not misleading. Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. Mr Freixas failed to comply Requirement 5 of the Code of Conduct. 11.24 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (d) and (g) of section 19(1) of the BP Act.

[72]

EPA Regulation

Part 7 Division 2A (cll 136A-136N) as it was in force at the time of the conduct constituting the Complaint dealt with the conditions of a complying development certificate. Clause 136AB dealt with notice to neighbours and relevantly provided: 136AB Notice to neighbours (1) A complying development certificate for development on land that is in a category 1 local government area and that is not in a residential release area and that involves: (a) a new building, or … must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days' notice in writing of the person's intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.
Clause 136E dealt with a development involving bonded asbestos material and friable asbestos material, and relevantly provided: 136E Development involving bonded asbestos material and friable asbestos material (1) A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions: (a) work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 458 of the Work Health and Safety Regulation 2011, … (d) if the contract indicates that bonded asbestos material or friable asbestos material will be removed to a specified landfill site, the person having the benefit of the complying development certificate must give the principal certifying authority a copy of a receipt from the operator of the landfill site stating that all the asbestos material referred to in the contract has been received by the operator.
Clause 136H dealt with a condition relating to shoring and adequacy of adjoining property, and relevantly provided: 136H Condition relating to shoring and adequacy of adjoining property (1) A complying development certificate for development must be issued subject to a condition that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the certificate must at the person's own expense: (a) protect and support the building, structure or work from possible damage from the excavation, and (b) where necessary, underpin the building, structure or work to prevent any such damage.
Clause 136M dealt with a condition relating to payment of security.

[82]

The Reasons

The Reasons contain the following findings (bold text and italics in the original): 6.0 ADDITIONAL MATTER A (Complaint no. 43/17) Construction certificate (CC) no. 15/0578-01 dated 1 July 2016 and the related application viz., the certifier's conduct related to 'not inconsistent with the development consent' per clause 145(1)(a) of the EP&A Regulation and issuing the CC. FINDINGS ON MATERIAL QUESTIONS OF FACT 6.1 On 28 September 2005 the Land and Environment Court issued development consent (DA) for a proposed part 8-storey and part 11-storey residential flat building (RFB) at 13-15 Bigge Street and 2 Lachlan Street, Liverpool. On 13 May 2016 a s.96 modified DA was issued by Liverpool City Council 6.2 On 1 July 2016, Mr Freixas issued CC no. 15/0578-01. Under the CC's 'Description of Building Works' Mr Freixas stated: Erection of a part eight storey and part fourteen storey residential flat building containing 123 units and basement carparking for 156 car spaces. - CC1: Bulk excavation, shoring, piling, & structural building works up to and including roof slab. 6.3 Under clause 145(1)(a) of the EP&A Regulation a 'certifying authority must not issue a construction certificate for building work' unless the design and construction of the building (as depicted in the plans and specifications) is 'not inconsistent with the DA. 6.4 The modified DA's plans showed the RFB having a setback of approximately 6 metres between its western external wall and the western boundary. Apart from the basement vehicle driveway entry and adjacent low level garden walls, there was no structure proposed to be built within the 6m side setback area. In variation to the modified DA's plans described above, on the CC plans a columns and ring beam structure had been added to the side of the building within the 6m open setback space and over the driveway entry. The structure is at least 3.6m high, 10m long and extends to within 1.2m from the western boundary. The supporting columns are approximately 960mm wide. 6.5 The modified DA's conditions did not require, contemplate nor authorise the addition of the columns and ring beam structure to the building's design in the CC plans i.e. per clause 146(c) of the EP&A Regulation or otherwise. Condition 1 of the modified DA stated that the development 'must be carried out strictly in accordance with' the listed plans. Condition 24 is a general statement requiring the development to comply with the BCA. Condition 99 is a general planning outcome requirement for the development to maintain specified minimum floor to ceiling heights. The conditions do not refer to the CC application and are not pre conditions of the kind referred to in clause 146(c) of the EP&A Regulation. Clause 145(1)(a) does not provide that a certifier may issue a CC if they are satisfied the requirements have been met. Amendments made in 2007 removed from clause 145(1)(a) a certifier's subjective assessment in determining CC applications and issuing CCs. The amendments ensure that certifiers are subject to an objective standard in issuing certificates. 6.6 The Board and the Department of Planning and Environment (DPE) have issued extensive advice to certifiers extending over a long period of years in regard to their assessment of CC applications and what variations to an DA approved building would be regarded as being inconsistent for the purposes clause 145(1)(a) of the EP&A Regulation. That advice has remained available to certifiers on the Board's website, including: a) The BPBulletin issue 8 - December 2006 provided under the title "The meaning of 'not inconsistent with' the development consent" that altering the external envelope would be considered to be changes inconsistent with the DA. The same Bulletin also advised certifiers that changes to address the BCA were generally only acceptable when within the building i.e. 'additional details to show compliance with the BCA, generally within the external envelope of the building'. b) The BPBulletin issue 4 - December 2005 brought to the attention of certifiers, in regard to their assessment of CC applications and clause 145(1)(a) of the EP&A Regulation, that they could be found guilty of unsatisfactory professional conduct or professional misconduct despite there being no specific breach of the EP&A Act viz., subsection (a) of the definition of 'unsatisfactory professional conduct' under section 19(1) of the BP Act. 6.7 The addition of the columns and ring beam structure altered the appearance of the external envelope of the proposed RFB within the open setback space between the subject RFB and the RFB on the adjoining property. The structure is visible to the occupants of the units of the adjacent RFB and from the footpath and roadway of the street. At pedestrian level the structure adds bulk to the appearance of the building and is above head height. The variation was readily discernible to a competent A1 accredited certifier carrying out an assessment of the application and falls within the examples given by the Board of what would be considered to be changes inconsistent with the DA and condition 1 of the subject DA.
The Reasons contain the following reasons for decision (italics in the original): 12.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. 12.2 Mr Freixas' submission that the Board has erroneously sought to impose an objective standard with respect to the subjective exercise of discretion of an accredited certifier assessing a CC application is not accepted. Whether the certifier was satisfied in their own mind that there was no inconsistency is not a requirement of clause 145(1)(a) and has never been a requirement during the time that Mr Freixas has been an accredited certifier i.e. the clause was amended on 20 July 2007 to delete the words 'unless it is satisfied' (i.e. 'it' being the certifier) in regard to the issuing of a CC. The same change was also made to section 109F(1)(a) of the EP&A Act. These amendments replaced the certifier's making of a subjective assessment. 12.3 Mr Freixas' submissions that the subject variations to the building were made 'to meet an otherwise flawed engineering design and to avoid the alternate option which was to increase the height of the building' are on their face accepted. 12.4 Mr Freixas' submissions that he made an assessment of the columns and beam structure as to BCA (structural design) compliance and whether the proposed building work was not inconsistent with the DA are on their face accepted. 12.5 Mr Freixas' submission is not accepted that as a consequence of the structural design and construction safety considerations, together with ensuring the height of the building was not increased and compliance with the BCA was met, as an accredited certifier assessing the CC application he could put aside the requirements of condition 1 of the DA and that he was acting within the EP&A Regulation and the Board's advice (which both recognise that variations in the CC plans may occur). It is not disputed that the CC application plans must comply with the BCA, but this does not mean that design changes made to address BCA compliance can be accepted without regard to the DA and the legislation i.e. any design changes made to the building to resolve the structural design difficulties contained in the DA approved building and its plans continue to need to fit within the limitations of condition 1 of the DA and clause 145(1)(a) of the EP&A Regulation. An obligation for an applicant to comply with clause 145(1 )(b) of the EP&A Regulation does not give the designer and/or certifier free latitude to put aside the requirements of clause 145(1)(a). Mr Freixas' statutory role as a certifying authority assessing the application was to determine if compliance with clause 145(1)(a) of the EP&A Regulation had been met or not. Any failure realised in the structural design of the building that necessitates changes to the proposed building approved by the DA cannot be construed as an authority to vary or negate the need for the CC to comply with condition 1 and clause 145(1)(a) of the EP&A Regulation. It is also not accepted that the variations fall within the DA under conditions 24 and/or 99 (as detailed in paragraph 2.5 of the complaint investigation report). That the proposed building could not evidently be constructed 'strictly' in accordance with the DA does not mean the certifier can put aside that condition 1 could not be complied with. When Council imposed the condition, it assumed that any certifier assessing a CC application would have due regard to the requirements of the condition, as well as the requirements under the EP&A Regulation for a CC application to be not inconsistent with the DA. A proposed building that does not comply with the specifically stated terms of a DA condition concerning the design of the building is self-evidently inconsistent with the DA. 12.6 Having regard to the Statement's 'Findings on Material Questions of Fact' for this matter, the published advice by the Board and DPE to certifiers (paragraph 6.6 of this Statement), DA condition 1, clause 145(1)(a) of the EP&A Regulation and the nature, extent and location of the concrete structure addition included in the CC plans (i.e. within the side setback and outside of the external envelope of proposed building), it is not considered that it was reasonable for Mr Freixas to have determined that the proposed building was not inconsistent with the DA. 12.7 The EP&A Act explicitly allows for anomalies or errors or contradictions within a DA and its approved plans to be rectified through a modification of the DA under section 96 of that Act. It is not the certifier's role as a public official to sanction the resolution of a DA approved building's structural design difficulties by approving a CC that depicts a significant addition to the external envelope of the building directly adjacent to the street frontage and the neighbouring property and contrary to DA condition 1 i.e. as it is not consistent with the DA. It is also noted that the DA in this matter was considered and determined by the Land and Environment Court. 12.8 Mr Freixas' submission that the Council's purported subsequent acceptance of the variation in the CC is a relevant consideration or a justification for his conduct is not accepted. The investigation of the complaint relates to the certifier's conduct at the time of issuing the CC. A council deciding to raise no issue or take no action after a CC has been issued and the subject work has been largely built is not evidence of how it may have viewed the same matter beforehand. The Council's action or acceptance of the matter does not ameliorate Mr Freixas' conduct in assessing the CC application that is the subject of the complaint (and additional matter). 12.9 The proposed development involved was significant, being a $34,940,000 multi-storey residential building. Mr Freixas' submissions in effect demonstrate that rather than carrying out the public official role which required him to make an objective test of the application's plans and specifications, which should have resulted in his not issuing the CC, he instead made a subjective assessment that facilitated the goals of the developer by deciding the DA, the EP&A Regulation and the Board's advice was to be read in a way that it allowed the issuing of the CC with a significant addition to the external envelope of the building. By issuing the CC the Council (its officers and councillors), the neighbouring property owners and (potentially) the Land and Environment Court were not given an opportunity to consider the proposed modifications to the building's design. 12.10 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. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under clause 145(1)(a) of the EP&A Regulation that the design and construction of the building (as depicted in the plans and specifications) was not inconsistent with the DA. It is not considered that an informed member of the public, cognisant of the public official role held by certifiers, would conclude that Mr Freixas' submitted rationale for issuing the CC was an understandable and appropriate alternative view of the DA, the statutory requirements and the Board's advice to certifiers. An accredited certifier who exercises a discretionary power (i.e. to issue a CC) in the circumstances detailed in the Statement's 'Findings on Material Questions of Fact for this matter, and paragraphs 12.2 to 12.9 of this Statement, is contrary to Requirement 1 ('Acting in the public interest') of the Code of Conduct viz., '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'. Accordingly, Mr Freixas failed to comply Requirement 1 of the Code of Conduct. 12.11 A member of the public is entitled to expect an accredited certifier would not have issued the CC in the circumstances (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier and with the Code of Conduct, falls within 'unsatisfactory professional conduct as defined in subsections (a) and (g) of section 19(1) of the BP Act.

[99]

The Reasons

The Reasons contain the following findings (bold text, underlining and italics in the original): 8.0 MATTER 1 (Complaint no. 66/17) Mr Freixas' issuing of complying development certificate (CDC) no. 16/0627-01 for building work without adequate plans and specifications in regard to the Building Code of Australia (BCA). FINDINGS ON MATERIAL QUESTIONS OF FACT 8.1 On 10 February 2017, Mr Freixas issued CDC no. 16/0627-01 for the proposed 'Erection of new industrial building (warehouse) and associate parking' at 21 Lamb Street, Glendenning. The classifications under the Building Code of Australia (BCA) stated on the CC were 'Class 5&7'. The plans (comprising six sheets) endorsed by Mr Freixas with the CDC depict a proposed industrial warehouse building and associated office. The warehouse part is single storey and the office part two storeys connected by a stair and lift. The total floor area of the building is approximately 1750m2 and the overall height is approximately 9.6m. 8.2 The CDC included a statement above Mr Freixas' signature verifying that the proposed 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 other requirements prescribed by the regulations concerning the issue of a CDC (noting that the actual wording used by Mr Freixas on the CDC erroneously corresponds with that required for a construction certificate i.e. clause 134(1)(e) of the EP&A Regulation). 8.3 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. Clause 1.18(1) of the Codes SEPP also requires that for a development to be complying development it 'must' meet the relevant provisions of the BCA. Clause 126(1)(a) and Clause 4 of Schedule 1 of the EP&A Regulation require that an application for a CDC must be accompanied by appropriate building work plans and specifications. 8.4 To enable an accredited certifier to determine that a proposal will comply with the BCA, the applicant must provide sufficient information to demonstrate the intent to comply. The proposed building, as depicted in the CDC's endorsed plans and specifications, did not demonstrate that it will comply with the relevant requirements of the BCA as: a) Structural Design / Section B of the BCA. There are no details or other information on the CDC plans regarding the design, materials or intended method of compliance for the structural elements of the proposed building. The CDC 'Attachments' do not identify any structural engineer's drawings, nor any design certificate or other evidence relied upon to assess whether the structural provisions of the BCA would be met. b) Emergency egress / D1.4 of the BCA. The first floor plan indicates a travel distance on the first floor office area greater than 20m to the single exit, being the internal stairway. In the absence of a specified travel distance on the plans, the travel distance from the south east corner of the first floor office to the nearest part of the stair riser scales to approximately 27m, in contravention of the maximum 20m permitted by D1.4. There is no concession in D1.4 for the first floor level of a class 5 building. c) Access for people with a disability / Part D3 of the BCA. There are no details or information as to how access for people with a disability will be provided to and within all areas of the building normally used by the occupants, such as a lack of details, design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities. That the plans depict a lift serving the first floor does not in itself demonstrate the intended means of compliance with the full requirements of Part D3 of the BCA. d) Fire fighting eguipment & emergency lighting / Section E of the BCA. The CDC plans do not indicate any fire safety systems for the proposed building. The building at minimum requires: (i) a fire hydrant system, (ii) fire hose reel system, (iii) portable fire extinguishers, and (iv) emergency lighting and exit signs. e) Energy efficiency / Section J of the BCA. There are no details or other information on the CDC plans regarding the design, materials and/or features to be implemented to satisfy the energy efficiency provisions of the BCA. f) General BCA compliance. There is no specification or other documents included with the CDC that describes the construction and materials of which the building is to be built. The CDC plans include only limited information regarding some of the proposed building materials. As a result, the application did not have sufficient information for Mr Freixas to have determined that the proposed building will comply with the relevant requirements of the BCA. Moreover, the CDC application's plans included such limited information that no reasonable determination the proposed building would comply with the BCA could be made i.e. how the building will comply with the health, safety, amenity and fire safety aspects of the BCA. 8.5 Despite the proposed development not complying with the development standards and the EP&A Regulation (as set out in paragraphs 8.3 and 8.4 of this Statement), Mr Freixas determined (approved) the application by exercising section 85A(6)(a) of the EP&A Act i.e. on 10 February 2017 he issued CDC no. 16/0627-01. By issuing the CDC, Mr Freixas contravened clause 130(1) of the EP&A Regulation. By issuing the CDC with a false and misleading statement Mr Freixas also contravened section 85(1)(b) of the BP Act.
The Reasons contain the following reasons for decision (italics in the original): 13.1 Mr Freixas made a written submission to the Board in response to complaint investigation report. 13.2 Mr Freixas in his submissions stated that the building is 'Class 5 & Class 7'. On the CDC he stated the BCA classes were 'Class 5 & 7'. His submissions are contrary to the BCA i.e. under 'A3.2 Classifications' of the BCA there is no provision to give a classification of 'class 7'. A building must be either class 7a and/or class 7b. 13.3 Mr Freixas in his submissions contended that the CDC plans did comply with the BCA. In support he provided an assessment report, stated that he possesses a structural engineer's design statement, stated that the EP&A Act does not require a specification for an industrial building, that he issued a fire safety schedule and advised that 'The building is not a warehouse but a hardstand for trucks'. These submissions by Mr Freixas are not accepted as: (i) He has not in his response sufficiently established how the CDC plans properly addressed each of the BCA compliance requirements in paragraphs 1.6 a) - f) of the complaint investigation report. (ii) That he prepared an assessment report and a fire safety schedule does not resolve the omissions and errors in the CDC plans. (iii) The CDC does not reference or include an engineer's design statement, nor has he provided the Board with a copy of the statement. (iv) His submissions contradict the description of works that he stated on the CDC i.e. the 'Erection of new industrial building (warehouse)...' The CDC plans depict a building that could be properly characterised as a warehouse. His submissions elsewhere describe the proposal as an 'industrial building'. (v) Clauses 4(1)(d)(ii) and 5(b) of Schedule 1, and clause 126(1)(a) of the EP&A Regulation require an application for a CDC to include specifications for a proposed building. (vi) The CDC plans failed to include any details of the proposed means of compliance with the fire safety systems for the proposed building. The building at minimum requires under the BCA a fire hydrant system, fire hose reel system, portable fire extinguishers, emergency lighting and exit signs. These are each independently and collectively vital life safety measures required to be assessed by the certifier to ensure the CDC application includes the required level of information to demonstrate compliance with the BCA. (vii) His contention that the items in (v) above were addressed by his preparation of a fire safety schedule is not accepted. The Board published advice to certifiers in May 2016 that 'Certifiers are responsible for preparing the fire safety schedule but can't use it as evidence to determine a CC (or CDC). Preparing the schedule is a separate task to determining the application.' http://bpb.nsw.gov.au/case-studies/fire-safety-schedule-isnt-evidence-determine-cc-or-cdc (viii) The travel distance concession in D1.4 of the BCA only applies to a Class 5 or 6 building at the level of the road or open space i.e. the first floor of the subject building does not benefit from this concession. (ix) His submissions claim that the provision of a lift between the building's two floor levels is sufficient to address the BCA requirements of Part D3 of the BCA. The presence of a lift on a plan does not give details or information as to how access for people with a disability will be provided to and within all areas of the building normally used by the occupants i.e. design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities. (x) His submissions in regard to the requirements of Section J of the BCA extend no further than identifying the part of the proposed building it is relevant to. No evidence has been provided to show how the CDC demonstrated the building complied with Section J. (xi) His submissions state that he had not provided comments about the BCA matters as he had not been provided with a copy of the complaint investigation report on 21 August 2017. The is illogical as it is the date that the Board provided Mr Friexas with a copy of the complaint and invited him to make submissions. It is clear in items 3, 4 and 5 of the statutory declaration accompanying the complaint that it concerned particular BCA non-compliance issues. Mr Freixas subsequently made no submissions in regard to these matters. (xii) Mr Freixas stated in his submissions that 'It is of my opinion that the 1.18(1) of the Codes SEPP because it does comply with the requirements of the NCC' (BCA). This is not accepted as they do not correspond with his statutory duty given the related requirements for CDCs and the BCA under clause 130(1) of the EP&A Regulation. Whether the certifier's opinion was that the CDC plans and specifications comply with the requirements of clause 130(1) of the EP&A Regulation has never been a requirement during the time that Mr Freixas has been an accredited certifier i.e. the clause was amended on 20 July 2007 to delete the words 'unless it is satisfied' (i.e. 'it' being the certifier) in regard to the issuing of a CDC. This amendment replaced certifiers making of a subjective assessment with an objective test that calls for a finding of fact as to whether the building proposed by the CDC application will comply with the relevant requirements of the BCA. (xiii) His submissions fail to provide any coherent explanation in regard to his including on the CDC a statement related to construction certificates instead of that required for a CDC by clause 134(1)(e) of the EP&A Regulation i.e. verifying that the particular proposed 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 other requirements prescribed by the regulations concerning the issue of a CDC. 13.4 It is evident there was a failure by Mr Freixas, despite his statutory duties and public official role that he was individually accredited to perform, to carry out a proper assessment of the submitted CDC application regarding whether the proposed development would comply with the BCA. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined under section 85A(3)(a) and (b) of the EP&A Act that the development as proposed by the application met each of the relevant development standards i.e. clause 1.18(1) of the Codes SEPP. Mr Freixas' submissions do not provide a reasonable explanation for how he could have reasonably have determined that the requirements of clauses 126(1 )(a) and 130(1) of the EP&A Regulation had been met. The non-compliances and lack of details were readily discernible to a competent A1 accredited certifier carrying out an assessment of the application. The proposed development involved was a $400,000 industrial building with a total floor area of approximately 1750m2, and the overall height is approximately 9.6m, with the warehouse part single storey and the office part two storeys connected by a stair and lift. The CDC was issued without details demonstrating that and how the applicant intended to provide the BCA required fire hydrant system, fire hose reel system, portable fire extinguishers, emergency lighting and exit signs. Mr Freixas' submissions in effect demonstrate that rather than carrying out the public official role which required him to make an objective test of the application's plans and specifications for compliance with the BCA, which should have resulted in his not issuing the CDC, he instead made a subjective assessment of what at best were rudimentary plans. That the CDC was surrendered by the applicant does not mitigate the certifier's conduct in issuing the CDC. Moreover, it serves to illustrate the inconvenience and harm that the certifier's actions have caused to their client and the Council. Any certificate that is issued that does not comply with legislative provisions exposes the certificate to challenge or declaration of invalidity, which may delay or jeopardise the development or use being carried out, or it may expose persons to potentially unsafe situations. 13.5 Requirement 5 ('Duty of care') of the Code of Conduct requires that certifiers exercise reasonable care and attention in carrying out their duties. This includes taking reasonable steps to ensure that the information and plans included in any CDC they issue are correct, complete and comply with the requirements of the EP&A Act/Regulation and the Codes SEPP, and that they do not mislead or confuse. Requirement 1 ('Acting in the public interest') of the Code of Conduct requires that certifiers are to carry out their functions and duties, and exercise any discretionary powers, in ways that promote or preserve the public interest. This includes not authorising the commencement of the construction of buildings that if built in accordance with the CDC plans and specifications will not comply with the life safety and fire protection requirements of the BCA. Given the serious life safety and fire protection consequences (for the subject site and potentially neighbouring properties) that can follow if an approval is given by a CDC for a proposal that does not demonstrate how it will comply with the BCA, Mr Freixas as the certifying authority considering the CDC application should have been more vigilant in that respect. The CDC was issued by Mr Freixas with the statement referenced in paragraph 3.2 of this Statement. The statement made by Mr Freixas on the CDC was misleading as the proposed development did not comply with the relevant development standards of the Codes SEPP and the requirements of the EP&A Regulation. An owner or builder proceeding to carry out the work, and any person subsequently occupying or visiting the property, in reliance upon and in accordance with the CDC plans and specifications would not comply with the statutory requirements i.e. the development would not meet each of the relevant development standards and the requirements of the EP&A Regulation. Accordingly, Mr Freixas failed to comply Requirements 1 and 5 of the Code of Conduct. 13.6 A member of the public is entitled to expect an accredited certifier would not issue a CDC where statutory requirements had been contravened and/or not been met (as set out in this Statement's 'Findings on Material Questions of Fact' for this matter) and contrary to the Board's Code of Conduct. Conduct that falls short of that which a member of the public is entitled to expect of a reasonably competent accredited certifier, a contravention of the BP Act and/or the EP&A Act (and the regulations thereunder), a failure to comply with a statutory duty and with the Code of Conduct, falls within 'unsatisfactory professional conduct' as defined in subsections (a), (b), (d) and (g) of section 19(1) of the BP Act.

[101]

The first Freixas statement

In the first Freixas statement, Mr Freixas relevantly: 1. asserted that the CDC complied with cl 134 of the EPA Regulation; 2. disputed the findings of the respondent that: 1. the CDC application did not have sufficient information for him to have determined that the proposed building would comply with the relevant requirements of the BCA; 2. the CDC application's plans included such limited information that no reasonable determination the proposed building would comply with the BCA could be made; 1. as to structural design, asserted that the other documentation relied upon included the Haykal structural design certificate, and that he understood that the EPA Regulation did not require the CDC to identify any structural engineer's drawings, design certificate or other evidence relied upon to assess whether the structural provisions of the BCA would be met; 2. as to emergency egress, accepted that the exit travel distance for the first-floor office exceeded the 20 metres permitted by Section D1.4 of the BCA, and asserted that this was to be solved by means of an alternative solution to be coordinated at a later stage as part of the services coordination for the proposed building; 3. as to access for people with a disability, accepted that some detail and information is not provided within the CDC documentation in respect of compliance with Section D3 of the BCA, and asserted that he was assured by the developer that compliant sanitary facilities would be installed; 4. as to fire-fighting equipment and emergency lighting, asserted that he issued the Fire Safety Schedule specifying the fire safety measures that should be implemented in the building, and that there is no requirement in the EPA Act or the EPA Regulation that requires the CDC endorsed plans to indicate the fire safety systems; 5. as to energy efficiency, accepted that that the CDC plans do not of themselves indicate the design, materials and/or features to be implemented to satisfy Section J of the BCA, and asserted that those provisions were assessed in the BCA assessment that formed part of the CDC. He was satisfied there would be compliance on the basis of discussions with the architect and the builder of which he had no written record; 6. as to general BCA compliance, asserted that the endorsed CDC plans clearly show that the building is to be built with concrete floors, concrete tilt up (wall) panels, concrete roof over office part, colorbond metal roof over the warehouse, aluminium framed windows, and 2H fire rated (internal) walls.

[107]

EPA Regulation

Part 7 Division 1 (cll 125-129D) as it was in force at the time of the conduct constituting the Complaint dealt with applications for complying development certificates. Clause 126 dealt with the requirements for making an application for a complying development certificate, and relevantly provided: 126 How must an application for a complying development certificate be made? (cf clause 75A of EP&A Regulation 1994) (1) An application for a complying development certificate: (a) must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1, and
Part 9 Division 2 (cll 168-168B) as it was in force at the time of the conduct constituting the Complaint dealt with fire safety schedules. Clause 168 dealt with fire safety schedules, and relevantly provided: 168 Fire safety schedules (cf clause 80C of EP&A Regulation 1994) (1) When: … (b) issuing a complying development certificate for the erection of a building or for a change of building use, or … the person doing so must issue a schedule (a fire safety schedule) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises. … (4) A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate.
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, (e) if the development involves building work (other than work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house): … (ii) a list of the proposed fire safety measures to be provided in relation to the land and any building on the land as a consequence of the building work, … (5) Appropriate building work plans and specifications referred to in subclause (1)(d)(ii) include the following: … (b) specifications for the development: … (c) a statement as to how the performance requirements of the Building Code of Australia are to be complied with (if an alternative solution, to meet the performance requirements, is to be used),

[108]

BCA

Section A2 dealt with the acceptance of design and construction, and relevantly provided: A2.1 Suitability of materials Every part of a building must be constructed in an appropriate manner to achieve the requirements of the BCA, using materials and construction being fit for the purpose for which they are intended including the provision of access for maintenance. A2.2 Evidence of suitability (a) Subject to A2.3 and A2.4, evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-Satisfy Provision may be in the form of one or a combination of the following: … (iii) A certificate from a professional engineer or other appropriately qualified person which - (A) certifies that a material, design, or form of construction complies with the requirements of the BCA; and (B) sets out the basis on which it is given and the extent to which relevant specifications, rules, codes of practice or other publications have been relied upon. … (vi) Any other form of documentary evidence that correctly describes the properties and performance of the material or form of construction and adequately demonstrates its suitability for use in the building.
Section A3 dealt with the classification of buildings and structures, and relevantly provided: A3.2 Classifications Buildings are classified as follows: … Class 5: an office building used for professional or commercial purposes, excluding buildings of Class 6, 7, 8 or 9. … Class 7: a building which is - (a) Class 7a - a carpark; or (b) Class 7b - for storage, or display of goods or produce for sale by wholesale.
Section B dealt with structural provisions, and relevantly set out performance requirements (BP1.1-BP1.4).
Section D dealt with access and egress, and relevantly provided that where a deemed-to-satisfy solution is proposed, performance requirements DP1 to DP6, DP8 and DP9 are satisfied by complying with: 1. D1.4 with respect to exit travel distances; 2. D3 which specified access for people with a disability. D3.1 to D3.12 deal with how access for people with a disability will be provided to and within all areas of the building normally used by the occupants, such as a lack of details, design and dimensions regarding the accessway (continuous accessible path of travel), doors, stairway serving the office part, floor coverings, passenger lift features and accessible sanitary facilities.
Section E dealt with services and equipment, and relevantly provided that where a deemed-to-satisfy solution is proposed: 1. performance requirements EP1.1 to EP1.6 are satisfied by complying with: 1. E1.3 with respect to fire hydrants; 2. E1.4 with respect to fire hose reels; 3. E1.6 with respect to portable fire extinguishers; 1. performance requirements EP4.1 to EP4.3 are satisfied by complying with: 1. E4.1 to E4.4 with respect to emergency lighting requirements; 2. E4.5 with respect to exit signs.
Section F dealt with health and amenity, and relevantly provided performance requirements for damp and weatherproofing, sanitary and other facilities, room heights, light and ventilation, and sound transmission and insulation.
Section J dealt with energy efficiency, and relevantly provided that where a deemed-to-satisfy solution is proposed performance requirements JP1 to JP3 are satisfied by complying with specified provisions with respect to specified aspects of energy efficiency.

Freixas v Building Professionals Board

At a glance

Court

Decision date

Before

Source

Judgment (134 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (5)

Cited By (1)