Levick v Building Professionals Board

The variations

1. While Mr Levick agrees that there were variations between the plans submitted with the DA and his construction certificate endorsed plans, he does not agree with the characterisation by the Board of the seriousness of those variations. He also believes there is some duplication in the listing of the 25 variations which would bring the total number down to 21.
2. The variations from the DA can be broadly summarised as:

• alterations to the roof design of both buildings;
• an increase in the overall height of both buildings (almost 2 metres for Building A);
• alterations to and relocation of lift and stairs;
• Building B altered to all three storey from three storey with attached single storey portion;
• floor area of building and individual units increased;
• individual unit configurations altered, including additional rooms;
• external swimming pool reduced in size and relocated within Building B and spa removed;
• buildings located closer to northern and eastern boundaries;
• windows and doors removed.

Unsatisfactory professional conduct and professional misconduct

1. The Board is permitted to take disciplinary action against an accredited certifier if it satisfied that the person is guilty of professional misconduct or unsatisfactory professional conduct. These terms are defined in s 19 of the Act as follows: professional misconduct, in relation to an accreditation holder, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the accreditation holder's certificate of accreditation. unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission): (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, (e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner, (f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority, (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, (h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation, (i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act, (j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5, (k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5, (l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier, (m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition.
2. Mr Levick agrees that his conduct in granting the construction certificate amounted to unsatisfactory professional conduct, but does not consider that his conduct was professional misconduct.
3. Mr Levick has been an accredited certifier since 2004 and is a Grade A1 accredited certifier. Prior to becoming an accredited certifier Mr Levick was a local government employee for some 30 years, the last 25 years of which he was a building surveyor. He operates the Newcastle branch of an ACT based certification company. Another three certifiers and some administrative staff are employed at the Newcastle office.
4. At issue is whether Mr Levick's unsatisfactory professional conduct was of a sufficiently serious nature to justify suspension or cancellation of his accreditation and is therefore professional misconduct. The Board argues it was.
5. The Board states that Mr Levick breached the relevant legislation and failed to comply with the Code of Conduct for Accredited Certifiers. His conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, particularly where Mr Levick holds the highest accreditation - Grade A1. The Board states that the variations between the two sets of plans was so great that it amounted to a "dramatic divergence" between the plans. The Board also points to the availability to certifiers of published guidance material on the exercise of their functions.
6. The Board submits that Mr Levick's conduct in approving the construction certificate in circumstances where the variations from the DA plans were so great, substantially undermined the integrity of the certification process and the certification profession. It was submitted that this conduct was so serious as to warrant a finding of professional misconduct.
7. Mr Levick states that, at all times, he was aware of his duties as an accredited certifier under cl 145 of the Environmental Planning and Assessment Regulation. In his written evidence to the Tribunal, Mr Levick stated that he noted there were some variations between the DA plans and the construction certificate plans. He said he probably paid more attention to ensuring that the development complied with the accessibility requirements for a seniors living development rather than strict conformity with the DA plans.
8. Mr Levick stated that the DA plans lacked some detail, although he acknowledged he could read them adequately on the computer screen. Mr Levick stated that, following his assessment, he formed the opinion that, when viewed holistically, the development as depicted in the construction certificate plans was largely similar to that in the DA plans, complied with the Building Code of Australia and was substantially the same development. At the hearing he said that, at the time, he was aware of the variations between the plans and knew that those and other proposed changes required a s 96 modification.
9. Mr Levick also noted that in June 2016 the Council approved a s 96 modification for the development in which the variations between the DA plans and the construction certificate plans were approved. He states that Council, in considering the s 96 application, was satisfied that the development was "substantially the same development" when compared to the DA. He submits that the Council's approval demonstrates that there was not a "dramatic divergence" between the two sets of plans as argued by the Board.
10. Mr Levick states that there was no risk to human safety, building safety or economic loss resulting from his conduct, a fact which is accepted by the Board. He also said that some of the variations would in fact lead to improvements for future occupants. He agrees, however, that his role was to consider consistency between the two sets of plans, not whether variations were improvements.
11. Mr Levick has provided references from two references from builders who state they have used his services over a number of years. Both speak highly of his capabilities and integrity.
12. In Building Professionals Board v Cogo [2008] NSWADT 119 the Tribunal stated at [85] that "the objective gravity of the conduct should be the focus when considering where the conduct might fall on the spectrum set by the legislation, i.e. is it conduct, objectively viewed, which is of a kind that might warrant suspension or dis-accreditation". The Tribunal also held that the level of accreditation is a matter to be taken into account.
13. Mr Levick is a Grade A1 certifier and the public would have a reasonable expectation that he would perform his functions diligently and with care and that he would have a high level of knowledge of all relevant matters he was required to consider. In this case, we are of the view that he did not demonstrate that he possesses these qualities to the expected degree.
14. Mr Levick drew our attention to Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 where Sackville AJA described the task of deciding whether there is an inconsistency between DA and construction certificate plans as "not a straight forward task". Sackville AJA went on to say that it is common for there to be some differences in the two sets of plans and specifications and "whether the differences amount to an inconsistency for the purposes of the Clause 145(1) might be a difficult matter to resolve". Mr Levick submits that the fact the s 96 modification was granted indicates that the variations were not such a "dramatic divergence" from the DA plans as the Board makes out. In our view, however, there is no doubt that, viewed objectively, the variations between the DA and the construction certificate plans in this matter were significant and readily identifiable.
15. Of concern, is that Mr Levick acknowledged that, at the time he approved the construction certificate, these variations (and other proposed changes) would necessitate a s 96 modification.
16. We consider that Mr Levick's unsatisfactory professional conduct was serious, but we do not find that it was of a sufficiently serious nature to justify suspension or cancellation of his accreditation. We are particularly mindful that his conduct did not lead to a potential or actual risk to the safety of any persons or to the integrity of the buildings. Nor does it appear to have resulted in any adverse economic effects.
17. While acknowledging the different tests that apply under the BP Act and for a s 96 modification under the Environmental Planning and Assessment Act (see the comments in Lesnewski v Mosman Municipal Council [2004] NSWLEC 99 at [34]), we consider the granting of the s 96 modification to be a matter which goes to our consideration of the seriousness of Mr Levick's conduct. We note the reasons provided by the Council in arriving at the conclusion that the variations resulted in substantially the same development with no adverse impacts recorded.
18. We therefore find that Mr Levick is not guilty of professional misconduct.

Appropriate penalty

1. A finding of unsatisfactory professional misconduct against Mr Levick is substantiated. Mr Levick submits, however, that the penalty imposed by the Board is unduly harsh, severe and disproportionate.
2. Mr Levick stresses that there is no evidence that he acted in a partial or biased manner when approving the construction certificate or that his conduct involved dishonesty, gross negligence or recklessness. He also notes, as set out above, that there was no risk to human safety, building safety or economic loss resulting from his conduct. He again notes that the s 96 modification was granted.
3. Mr Levick states that he has made several changes to his work practices which now enable him to better document his decisions and which incorporate checks and balances to ensure he acts appropriately, including adopting a more consultative approach with other certifiers within the company. He submits that his acknowledgment of his wrongdoing, in that he has accepted he breached cl 145 and is guilty of unsatisfactory professional conduct, should be taken into account when considering penalty. Mr Levick clearly regrets his actions and understands he must act more diligently in the future.
4. Mr Levick states that he is the sole income earner for his family and a fine of $110,000 would have a significant adverse financial impact on him and his family. He states he lacks the capacity to pay a fine of such a magnitude and that this could mean that responsibility for payment may fall on the company who employs him. This could imperil his employment with the company and have negative flow on effects for the company and its other employees.
5. The Board drew our attention to six other complaints against Mr Levick dating back to 2008 which have been substantiated. Mr Levick received a caution in two matters and was reprimanded and fined amounts ranging from $500 to $3,000 in the other four. In one matter which was decided in 2010, Mr Levick was subject to disciplinary action for issuing a construction certificate that was inconsistent with the development consent. The Board submits that it is relevant that Mr Levick has failed to learn from his past mistakes. Mr Levick points out that the last substantiated complaint was made more than four years ago in 2014.
6. Both parties referred to the Disciplinary Penalty Guidelines issued by the Board which give guidance on the penalties to be imposed relative to the seriousness of the infringement. The Board submits that Mr Levick's conduct falls within Category F in the Guidelines as it involved a major error of judgment or compliance involving unsatisfactory professional conduct or professional misconduct. Mr Levick, on the other hand, states that Category E is more appropriate in the circumstances. Category E refers to significant infringements involving unsatisfactory professional conduct or professional misconduct.
7. As noted above, we do regard Mr Levick's unsatisfactory professional conduct as serious (but falling short of professional misconduct). As a Grade A1 certifier he should not have made the errors he did, particularly when he was found guilty of similar conduct in the past. That being said, however, we do not discern a pattern of conduct on the part of Mr Levick.
8. We do not consider his financial circumstances to be relevant to the decision as to the level of penalty, nor do we take into account any possible effect upon the company for which he works. We do accept that no aggravating features such as harm or loss to others are present. Similarly, there is no evidence that Mr Levick acted dishonestly or in a partial manner.
9. We consider that Mr Levick's conduct falls within Category E of the Board's Guidelines. We are of the view that the penalty imposed of a fine of $110,000 is excessive in the circumstances. We consider that, given the seriousness of the conduct, a fine at the upper end of the range in Category E is appropriate. We therefore order that Mr Levick pay the sum of $50,000 within 60 days

Orders 1. The name of the respondent is amended to Building Professionals Board. 2. The decision of the respondent is set aside. 3. The applicant is to pay to the Board the sum of $50,000 within 60 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2018