McGufficke v Building Professionals Board

'Unsatisfactory professional conduct' 9'Unsatisfactory professional conduct' is defined by s 19 of the BP Act as follows: unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission): (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, (b) a contravention of this Act, the Environmental Planning and Assessment Act 1979, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, or the regulations under any of those Acts, by the accredited certifier, whether or not the accredited certifier is prosecuted or convicted for the contravention, (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, (e) the exercise by the accredited certifier of functions as a certifying authority in a partial manner, (f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority, (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme, (h) a failure by the accredited certifier to comply with a term or condition of the certificate of accreditation, (i) a failure by an accredited certifier to comply with an order of the Board or the Tribunal under this Act, (j) a failure by the accredited certifier, without reasonable excuse, to comply with a direction or requirement under Part 5, (k) wilfully misleading or obstructing the Board in the exercise of any function under this Part or Part 4 or 5, (l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier, (m) any conduct specified by a provision of this Act as being capable of being unsatisfactory professional conduct or professional misconduct or any other conduct prescribed by the regulations for the purposes of this definition. 10As we have commented elsewhere recently, it is we think less than fair to accredited certifiers to have a general finding of unsatisfactory professional conduct entered without specifying the categories among the above into which it is seen as fitting. We will approach this case on the basis that it is the primary category, category (a), into which Mr McGufficke's conduct is said to fall, plus in the case of Allegation 1 category (g). 11Mr McGufficke's first argument in reply does not turn on the detail of the allegations and the Board's response. 12The submission focusses on the terms of category (a) in the definition of unsatisfactory professional conduct. 13The submission notes that category (a) states that unsatisfactory professional conduct occurs if in the exercise of his or her functions the accredited certifier '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'. The argument is that the Board must satisfy itself that the conduct found to be in error breaches the standard of 'competence, diligence and integrity' in each respect. Here, it is submitted, the errors went to competence and diligence, but there was no finding of lack of integrity. Therefore, it is contended that there can be no finding in terms of category (a). That being the case all allegations fail, perhaps with the limited exception of the element of allegation 1 that relies on breach of provisions of the Code of Conduct. 14In our view, and with respect, this is a far-fetched submission. The standard simply refers to the three usual components of formulations of this kind. It is not necessary in a case where category (a) is under consideration for each of the three components of the standard to be the subject of separate evidence and separate adverse findings, before a global finding can be made. A certifier might be a person of integrity in the sense that there is nothing about the conduct that was dishonest, corrupt or serving some personal interest in conflict with that of the client or the community. Nevertheless, he or she may have displayed a lack of competence or a lack of diligence. 15It would defeat the purposes of the statutory scheme if this mechanical interpretation were to be adopted. Clearly, the expression is meant to be a compendious or collective one, and it is enough that there be a failure to reach an acceptable standard in relation to one of the components for a global finding to be made. Consistently with this view, therefore, the word 'and' should be read as 'or'. As Malcolm CJ noted in Re Peat Resources of Australia Pty Ltd; ex p Pollock [2004] WASCA 122 at [23] 'the purposive approach to interpretation of a statute includes reading 'and' for 'or' or vice versa if the purpose of the legislation suggests such an interpretation'. See generally, Pearce & Geddes, Statutory Interpretation in Australia (6th ed. 2006) [2.25]-[2.27]. 16We will now turn in more detail to outline the nature of the development, and the detail of the Allegations and the findings. 17Nature of Development. On 9 February 2010 (later modified on 17 August 2010) Wingecarribee Shire Council granted development consent for a development described as 'Equine Agistment Facility.' The consent had 32 conditions. There were 12 'general' conditions, 7 'environmental management' conditions, 4 'civil engineering works and services' conditions, 5 'building requirements' conditions, and 1 condition headed 'government agencies'. The 'government agencies' condition was highly detailed, with 26 paragraphs referring to eight subject areas where adherence was required to the Sydney Catchment Authority's regional environmental plan. 18The construction certificate issued by Mr McGufficke described the development as an 'equine facility including horse stables, training and maintenance facilities, farm sheds and garage'. It gave an estimated value of the works as $5.4m. 19The Tribunal was shown a number of photographs. They depicted a major structure, its primary features being a double storey building at the front to which were connected a wing on either side at a right angle to each other. Each wing contained a number of stable boxes set either side of a walkway, and associated facilities such as hosing down stalls, vet rooms and equipment areas. The complex also included some external structures, and a garage. 20In its submissions the Board described this building, the main building, as a multi-use building with the following elements: office (x4), reception, tea room, staff room, trainers lounge, office/lunch room, WC (x6), staff shower and wash basin area, bedding store room, hyperbaric chamber area, vet, spa (equine), rug store/tack store (x2), dry tack store, bedding (room), bin store, bedding store, wash bay (x4), feed mix and store (x2), tack (room), tie up (stall) (x6), store (room), horse box (x24). The other buildings on the property were: hay and feed store/paddock feed, machinery store, garage, workshop/farm store/secure store, arrivals barn/arrivals yard. The complex also included an equestrian centre, a salt water training centre and an arena. 21We will deal with Allegations 1 and 2 together. Allegation 1 Mr McGufficke determined construction certificate no. 10-370, dated 28 July 2010, for a new purpose-built equine agistment facility. The building included provision for a hyperbaric chamber, spa, staff amenities, reception, feed store, board room, offices, trainer's lounge and wash bays. Mr McGufficke noted on the certificate an incorrect building classification of class 10a in lieu of classes 5 and 7b. In so doing, Mr McGufficke failed to properly consider the requirements of s 109F(1)(a) of the Environmental Planning and Assessment Act (EPA Act) and clauses 145(1)(b) and 147(1)(f) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). In failing to properly consider the classification of the building, Mr McGufficke's actions fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier and breached requirements 1 and 5 of the Building Professionals Code of Conduct for Accredited Certifiers. The provisions mentioned above state: EPA Act, s 109F Restriction on issue of construction certificates (1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless: (a) the requirements of the regulations referred to in section 81A (5) have been complied with, and Reg 145(1)(b) provides: EPA Reg, cl 145 Compliance with development consent and Building Code of Australia (cf clause 79G of EP&A Regulation 1994) (1) A certifying authority must not issue a construction certificate for building work unless: (b) 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 construction certificate was made). EPA Reg, cl 147 Form of construction certificate (1) A construction certificate must contain the following: (f) the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates. Code of Conduct, cl 1 (Building Professionals Board, Code of Conduct: a guide (2006, rev. 2007)) Code of Conduct, cl 1 An accredited certifier shall carry out his or her functions and duties, and exercise any discretionary powers, in a way that promote or preserve the public interest. Code of Conduct, cl 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. Allegation 2 Mr McGufficke issued a final occupation certificate dated 20 February 2012 for a building that was not suitable for occupation or use in accordance with its classification under the Building Code of Australia. The building did not comply with the requirements for a class 5 and 7b building pursuant to the Building Code of Australia. Mr McGufficke has breached section 109H(5)(c) of the EPA Act. Mr McGufficke's conduct as an accredited certifier 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. The Environmental Planning and Assessment Act 1979 (EPA Act), s 109H(5)(c) provides: 109H Restrictions on issue of occupation certificates (5) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless: (c) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

Consideration 22Mr McGufficke's assessment of the various elements of the facility led him to conclude that the best overall classification under the Building Code of Australia (BCA) was that the development fell into Class 10a, i.e. a non-habitable shed. 23The BCA has ten classes, and its detailed provisions are grouped into two categories - Class 1 and 10 buildings (Volume Two), and Classes 2-9 buildings (Volume One). Classes 1 and 10 cover small scale residential buildings - single dwellings, and smaller scale boarding house, guest house, hostels or the like. Classes 2-9 cover more substantial buildings such as duplexes (Class 2), larger scale boarding houses and the like (Class 3), dwellings within Class 5-9 buildings (Class 4), office buildings used for professional or commercial purposes (Class 5), shops (Class 6), a building which is a car park, or used for the storage or display of goods (Class 7), a laboratory or workshop (Class 8), or a building of a public nature, such as a health care building (Class 9). 24Different consequences attach to different classifications. Classes 1 and 10 lie at the lower end of the regulatory scheme. They do not attract the degree of regulation that attaches to Classes 2 to 9 buildings in relation to such matters as: structural elements (e.g. load-bearing beams, fire hazard properties), fire resistance (e.g. compartmentation and separation, protection of openings), access and egress, services and equipment (fire fighting, smoke management, lift installations, emergency lighting), health and amenity, and miscellaneous other issues (such as energy efficiency). 25The BCA's commentary deals with the situation where a building has diverse elements or a development has diverse elements capable of carrying different classifications. The commentary provides guidance as to which classification should ultimately be chosen, after weighing up the particular classifications that might attach to particular elements. So for example, a development might have a residential element that arguably falls within Class 1 or Class 4, but otherwise have elements that place it within Class 5, in which case the overall classification would be Class 5. This is a simple illustration. 26Mr McGufficke assessed the facility as Class 10a within the Building Code of Australia (BCA). This classification covers 'a non-habitable building being a private garage, carport, shed or the like'. 27Mr McGufficke's overall assessment was that it was 'a non-habitable shed'. He regarded the dominant element of the main building to be the two wings that contained the stable boxes for the horses. He acknowledged that the two storey structure at the front entrance of the main building could not properly be treated as a shed. It contained a reception area, with at ground level four offices, two WCs and a tea room. Upstairs there was a board room, a meeting room, a store, a WC and a tea room. However he considered that this feature did not affect the overall judgment having regard to the '10%' rule. The BCA (Vol 1, p 40) provides: 'A.3.3. Multiple classification Each part of a building must be classified separately, and (a) (i) where parts have different purposes - if not more than 10% of the floor area of a storey, being the minor use, is used for a purpose which is a different classification, the classification applying to the major use may apply to the whole storey; and (ii) the provisions of (i) do not apply when the minor use is a laboratory or Class 2, 3 or 4 part.' 28'Shed' is not a defined term under the BCA. The following meanings given by the Oxford English Dictionary (on-line) provide, we think, an accurate indication of how the word is ordinarily used in the Australian community. 1. a. A slight structure built for shelter or storage, or for use as a workshop, either attached as a lean-to to a permanent building or separate; often with open front or sides. The special purpose is indicated by a defining word prefixed, as cow-, cart-, goat-, tool-shed. b. A similar structure, but large and strongly built; often consisting of a roof supported on columns. Also Austral. and N.Z., short for wool-shed. 2. a. poet. A hut, cottage, poor dwelling. b. gen. A structure that affords shelter or covering; the hiding-place, lair or nest of an animal. 29The wings of this complex were far more than mere barns or sheds in the way these terms might be used in ordinary speech to refer to a horse-barn or a sheep-shed. For example the north facing wing had the following configuration of internal elements - starting from the rear yard: spa, hyperbaric chamber, staff amenities, vet's room, store, then 6 horse boxes, then a central cross-wing with a feed mix & store, a bedding room, and office/lunch room, a rug store/tack store, a dry tack store, two wash bays, followed by another 6 boxes. The east wing had 12 horse boxes divided into two sets of 6 with a similarly arranged cross-wing (the main difference being that it had two tie-up boxes), and at the far end there were staff amenities, a staff room, a trainer's lounge, a wash bay, two tack room and four more tie-up boxes. 30In our view there was a level of complexity to these wings which bore no relationship to the usual meaning of shed. 31The consequence of his classification was that the regulatory standards applicable to non-habitable sheds were all that he required be satisfied. In our view, this assessment was wrong and demonstrated incompetence. 32We were referred by Mr McGufficke's counsel to various interstate court rulings going to the question of what structures could reasonably be regarded as a shed. They turned on their own facts. We acknowledge that a shed could be a big structure, cover a large area and serve a commercial purpose. Much will depend on the complexity or otherwise of the physical elements of the built structure and the singularity or otherwise of the activity that occurs in the shed. We endorse the observations of the South Australian Environment, Resources and Development Court in Schmidt v District Council of Mt Barker [2001] SAERDC 30 at [28]: [W]e think it appropriate to express the view that the principal reason for the classification of buildings is to ensure that all buildings are both structurally sound and may be safely used for the purpose for which they have been either constructed or adapted. If a building is used for a purpose other than that appropriate for its classification, there are risks that it may not be structurally adequate for that use and that its occupants may be in danger. That is what the classification of buildings is all about. 33In our view, Allegation 1 (the construction certificate) is proven in relation to the primary element of the allegation, i.e. that 'Mr McGufficke noted on the certificate an incorrect building classification of class 10a'. Similarly the primary element of Allegation 2 (the final occupation certificate) is proven, i.e. that he 'issued a final occupation certificate ... for a building that was not suitable for occupation or use in accordance with its classification under the Building Code of Australia.' 34In both Allegations, the assertion is made that the proper classification was class 5 or 7b. Class 5 - 'an office building used for professional or commercial purposes, excluding buildings of class 6, 7, 8 or 9' Class 7b - 'A building which is - for storage, or display of goods or produce for sale by wholesale'. 35It is not essential that we make a finding on this aspect of the case. In our view, it is at the least plain that this was a complex that fell within the classes 2-9 group, and therefore the relevant governing document was Volume One of the BCA. 36Neither of the two categories nominated by the Board, on their face and read in isolation from the descriptions of the other classes, seem adequate to describe the kind of complex under notice in this case. One would not normally conceive of an 'office' building as one housing 24 horses, even though the complex did have a number of 'office'-type elements. Similarly one would not normally conceive of the building under notice as one whose purpose was the 'storage, or display of goods', though again it has some elements of that kind. 37We accept that certifiers do therefore fact difficulties in coming up with a classification that best fits the development. However, in our view it should have been plain that this was not a class 1/10 situation, and Mr McGufficke's obligation was to do his best to select a classification from the other 8 classes. Clearly classes 2, 3 and 4 were not relevant, they relate to residential buildings. Similarly class 6 (retail shops and the like) was not relevant, nor was class 8 (laboratory, production facility, repair facility), and these were not buildings of a 'public nature' in the way the term is used in class 9. It follows from this process of elimination that the overall classification should have been either class 5 or class 7b. There is a level of inexactitude involved, but this approach would have ensured that the levels of public protection attached to buildings of this nature would have been applied to this complex, rather than the very low levels of protection required of sheds. At hearing the Board gave examples of the differences in the levels of public protection (around issues such as fire protection, access and egress, particular features such as the door joinery). 38As the investigator, Mr Rodgers, noted in his report to the Board - The building being classified as a class 10a building was not required to be assessed under volume 1 of the BCA as providing:

• appropriate fire lighting in accordance with Part E1 of the BCA
• appropriate emergency lighting and exit signs in accordance with Part 3A of the BCA
• appropriate access for people with disabilities in accordance with Part F2 of the BCA
• appropriate measures to ensure that essential fire safety measures required for the principal building were maintained. No fire safety schedule or final fire safety certificate existed for the principal building prior to the issue of the final occupation certificate. 39We agree with Mr Rodgers' assessment that: Mr McGufficke has not given proper consideration to the safety of the building's occupants having regard to the building's size, purpose, operations, the extent to which people are employed in the building, the likely fire load of the building, and the likely consequences of any risks to the safety, health and amenity of people using the building. 40It is incumbent on the certifier to make a best fit with the classifications having regard to the overall purpose of the built structure, the physical characteristics of the built structure, the variety of its elements, the nature and degree of human activity, and in a case like this the degree of animal activity that the building is to accommodate. 41We are satisfied that Allegations 1 and 2 are proven, and that Mr McGufficke's conduct amounted to unsatisfactory professional conduct within the meaning of s 19(a) of the BP Act. Further we agree that he committed the contraventions asserted in the allegations and that therefore his conduct also constituted unsatisfactory professional conduct within the meaning of s 19(b). 42We now turn to Allegation 3. Allegation 3 Mr McGufficke issued a final occupation certificate dated 20 February 2012 when condition 32(xxiv) of Wingecarribee Shire Council's development consent no LUA09/0924.01, dated 9 February 2010, was not complied with. The condition contained in the sub-heading, Implementation of Conditions required all works the subject of the condition to be implemented prior to issue of the occupation certificate as Mr McGufficke had breached s 109H(2) of the EPA Act. Mr McGufficke's conduct as an accredited certifier 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. Section 109H(2) provides: 109H Restrictions on issue of occupation certificates (2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met. 43Cl 32 (xxiv) stated that all required works under cl 32 (and also those under cl 22) must be implemented prior to issuance of an occupation certificate. The 23 preceding requirements of cl 32 all went to works needed to comply with the requirements of the Sydney Catchment Authority. The issue in this case was compliance with the detailed requirements governing wastewater management from laundries, sinks and other facilities, disposal of animal and human waste and effluent and the like (in particular requirements (iii), (iv) and (v)), relating to wastewater management. 44The investigator found that in particular these conditions had not been complied with as the disposal of all wastewater on site was to be contained in a 10,000 litre storage tank and then pumped out to be disposed of contrary to the approval that required that an onsite disposal system be installed to treat the waste water. 45The investigation report noted that the Wingecarribee Shire Council inspection disclosed that the required works had not been undertaken. In explanation, Mr McGufficke stated that he was aware at the time he issued the occupation certificate that the direct sewer main was still being arranged, and that an alternative pump-out system had been installed. He understood that the owner was in negotiation with the Council over these issues. 46We agree with the investigator that, accepting for this purpose that Mr McGufficke's account is accurate, that there is no warrant under the law for issuing an occupation certificate in such circumstances. The appropriate course is to apply for a modification of the consent under the s 96 procedure. 47We agree with the Board that the allegation is proven, as are the specific contraventions alleged. The conduct constitutes unsatisfactory professional conduct within the meaning of s 19(a) and s 19(b).

Disciplinary Orders 48We have affirmed the Board's finding in respect of each of the Allegations. 49Given our conclusions, there is nothing to be gained in having a further, separate hearing on penalty. 50We noted above the three orders, the first (reprimand) and the third (the course requirement) is not in contest. Mr McGufficke contests the second order (fine, $10,000) as excessive. 51In our other recent decision affecting Mr McGufficke, McGufficke v Building Professionals Board [2013] NSWADT 296 at [55] we noted his many degrees and breadth of experience. We also noted the testimonials lodged there which are also before us in this case, heard one business day later. That case and the present case both raise concerns in our mind as to the quality of Mr McGufficke's professional judgement, and his preparedness to engage in lax interpretation that appears to be indifferent to the role that an accredited certifier has in providing an official guarantee of compliance with development standards. See in that regard the submission that an accredited certifier's responsibilities do not extend to all aspects of the approval but only those items that concern 'building works', and the decision in this case to classify the main building as a non-habitable shed. 52We consider that the fine was in the appropriate range. We do not regard it as relevant that one of the four Allegations that went before the Board was found not proven. The allegation depended on a factual premise that a valid consent was not in force. That was shown to be wrong. This was a relatively minor allegation as compared to the three which we have examined.

Order Board's findings and orders affirmed. 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: 20 January 2014