Murrant v Building Professionals Board

The decision under review

1. The Board's decision addressed the original complaint and the two additional matters, and confirmed the findings made in the CIR.
2. In relation to Matter 1 the Board concluded that Mr Murrant's conduct was "unsatisfactory professional conduct" as defined in s 19(1)(a), (b) and (g) of the BP Act. The conduct found proven in Additional Matter A was unsatisfactory professional conduct as defined in s 19(1)(a), (b) and (d) of the BP Act. The conduct found proven in Additional Matter B was unsatisfactory professional conduct as defined in s 19(1)(a) and (d) of the BP Act. Taken collectively the extent of the breaches in Matter 1, Additional Matter A and Additional Matter B was also conduct that fell short of the standard that a member of the public is entitled to expects, and was unsatisfactory professional conduct as defined in s 19(1)(a) of the BP Act.
3. In considering the appropriate penalty, the Board took into account the objects of the legislation; the nature, width and extent of the contraventions; the loss or damage and prejudice resulting from the contraventions; the circumstances in which the contraventions took place; any previous similar conduct; any fraudulent or dishonest intent; the extent of carelessness or wilfulness; efforts made to correct the situation; the consciousness displayed of the legislative obligations; any previous disciplinary findings; attitude; the penalty range for similar contraventions; and personal and general deterrence.
4. The Board considered its Disciplinary Penalty Guidelines, and concluded that Matter 1, Additional Matters A and B were similar to the examples in Category D - Moderate infringements, for which the penalty range was $5,000 to $20,000. The Board concluded that given there were three proven matters which each separately fell within Category D, a penalty at the upper end of that range was appropriate. Having regard to the absence of previous disciplinary findings by the Board, the absence of fraudulent or dishonest intent, Mr Murrant's efforts to correct the situation, and his history as an accredited certifier, the Board ordered Mr Murrant to pay a fine of $10,000.

The review proceedings

1. In his application for review Mr Murrant stated that the fine is excessive for what was merely an administrative error and the penalty was not justified. He is no longer practising in NSW as at September 2018, and the complaint was and is the only complaint made to Fair Trading.
2. The Board provided documents under s 58 of the ADR Act, including the CIR and documents obtained during the investigation (ex R1).
3. As noted above, Mr Murrant did not contest the findings made in the CIR or by the Board. However the Tribunal was concerned that the question of ownership of the property at the date of appointment of Mr Murrant as PCA was not directly addressed, or confirmed, in the s 58 documents. At the request of the Tribunal, after the hearing the Board provided confirmation based on Council records that as at 17 and 18 April 2018 the property was owned by Fraser Cove Villas Pty Ltd, and confirmation that Property Projects No 88 Pty Ltd had sold the property to Fraser Cove Villas Pty Ltd on 24 November 2016.
4. Directions made on 6 February 2019 included a direction that Mr Murrant provide evidence including statements by 20 March 2019. That date was extended on 4 April 2019 to 9 April 2019. On 9 April 2019 Mr Murrant provided a copy of the Board's Register of Disciplinary Decisions (ex A1).

Accreditation and disciplinary proceedings

1. The scheme for accreditation of certifiers is established under the BP Act. Part 3 of the BP Act provides for disciplinary proceedings against accredited certifiers, including investigation of complaints. Section 27 of the BP Act provides that the Board must conduct an investigation into a complaint made to it. Section 27(3) provides that if during an investigation of any one or more complaints it appears to the Board that there is a matter in respect of which another complaint could have been made against the accreditation holder concerned, the Board may deal with the matter in its investigation as if a complaint had been made about it under section 21.
2. Section 31(4) specifies the actions that may be taken following an investigation: 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. … (4) If the Board is satisfied that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, the Board may take any one or more of the following actions: (a) caution or reprimand the accreditation holder, (b) by order impose such conditions as it considers appropriate on the accreditation holder's certificate of accreditation, (c) order that the accreditation holder complete such educational courses as are specified by the Board, (d) in the case of an accredited body corporate, order an accredited certifier who is a director or employee of the body corporate to complete such educational courses as are specified by the Board within the time specified by the Board, (e) order that the accreditation holder report on his, her or its practice as an accredited certifier or building professional at the times, in the manner and to the persons specified by the Board, (f) order the accreditation holder to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order, (g) order the accreditation holder to pay to the complainant such amount (not exceeding $20,000) as the Board considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct, (h) suspend the accreditation holder's certificate of accreditation for such period as the Board thinks fit, (i) cancel the accreditation holder's certificate of accreditation, (j) disqualify the accreditation holder from being an accredited certifier director of, or otherwise being involved in the management of, an accredited body corporate or a specified accredited body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, (k) in the case of an accredited body corporate, disqualify an accredited certifier director of the body corporate from being an accredited certifier director of, or otherwise involved in the management of, the body corporate for such period (including the period of his or her lifetime) as may be specified by the Board, but only during any period when the body corporate holds a certificate of corporate accreditation, (l) order that the accreditation holder cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Board, (m) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accreditation holder is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accreditation holder.
3. The term "unsatisfactory professional conduct" is relevantly defined in s 19(1) of the BP Act: 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, …
4. Section 66 of the BP Act provides: 66 Conflicts of interest (1) An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development: … (c) if the accredited certifier is the applicant for the certificate or is related to the applicant for the certificate, or …
5. Section 85 provides: 85 False representations (1) A person who: (a) issues a Part 4A certificate or complying development certificate that the person is not authorised by or under this Act or the Environmental Planning and Assessment Act 1979 to issue, or (b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate, is guilty of an offence against this Act. Maximum penalty: 300 penalty units.

Certification of development

1. The former Part 4A-Certification of Development of the EPA required appointment of a PCA: 109E Principal certifying authorities (1) The person having the benefit of a development consent or complying development certificate for development: (a) is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development, and (b) may appoint only the consent authority, the council or an accredited certifier as the principal certifying authority for the building work or subdivision work, and (c) may appoint the same principal certifying authority for both types of work or different certifying authorities. … (1A) Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.
2. A construction certificate was one of four types of certificates that could be issued under Part 4A. Relevant provisions were: 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 ...
3. Relevant provisions of the Regulation were: 139 Applications for construction certificates (cf clause 79A of EP&A Regulation 1994) (1) An application for a construction certificate: (a) must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and (b) if the certifying authority so requires, must be in the form approved by that authority, and (c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission. (1A) The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development. … 146 Compliance with conditions of development consent(cf clause 79H of EP&A Regulation 1994) A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with: … (b) each condition requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act), …

Consideration

1. As noted above, Mr Murrant does not dispute the findings made by the Board as to his conduct, or that that conduct was unsatisfactory professional conduct as defined in s 19 of the BP Act.
2. The Tribunal has considered the evidence provided by the Board as to each of Matter 1, Additional Matter A and Additional Matter B. The Tribunal is satisfied based on that evidence that: 1. Mr Murrant issued CC No 16/2068 on 18 April 2018, before the s 94 contributions imposed under condition 19 of the development consent had been paid to the Council, in breach of s 109F(1)(a) of the EPA Act and cl 146(b) of the Regulation; 2. Mr Murrant issued CC No 16/2068 on 18 April 2018 in circumstances where the application for that certificate had been made in his name, in breach of s 66(1)(c) of the BP Act and cl 139(1A) of the Regulation; and 3. Mr Murrant accepted appointment as the PCA for the development on 17 April 2018 in circumstances where the entity appointing him, SPS Building Contractors Pty Ltd, was the builder for the development and not the owner of the property, which at the relevant time was Fraser Cove Villas Pty Ltd, in breach of s 109E(1A) of the EPA Act; 4. In issuing the CC, Mr Murrant breached s 66(1)(a) and 85(1)(a) of the BP Act.
3. The Tribunal is satisfied, for the reasons given by the Board, that Mr Murrant's conduct in Matter 1, and Additional Matters A and B, fell short of the standard of competence, diligence and integrity expected of a reasonably competent accredited certifier, and that he is guilty of unsatisfactory professional conduct as defined in s 19(1)(a) of the BP Act. In relation to Matter 1 and Additional Matter B, Mr Murrant is guilty of unsatisfactory professional conduct as defined in s 19(1)(b) of the BP Act. In relation to Additional Matter B, Mr Murrant is guilty of unsatisfactory professional conduct as defined in s 19(1)(d) of the BP Act.
4. Being satisfied that the applicant is guilty of unsatisfactory professional conduct as defined in s 19(1) of the BP Act, the Tribunal may take any one or more of the actions specified in s 31(4) of the BP Act.

Mr Murrant's submissions

1. Mr Murrant submits that all three matters were purely an administrative error, and that when regard is had to disciplinary decisions for other certifiers, to impose a fine is excessive. Mr Murrant relies on the decisions for Bryan Collum (BPB0069) on 27 October 2011, Gordon Dryburgh (BPB 1186) 17 January 2017, and William Nettleton (BPB0292) on 5 November 2008, where the matters were more serious, the conduct was the same or there was disregard for property or person.
2. Mr Murrant submits that his conduct falls within Category C of the Board's Guidelines, and there should be no fine, and simply a reprimand.

The Board's submissions

1. The Board relies on the objects of the legislation, in particular its function of promoting and maintaining the standards of building and subdivision. While Mr Murrant's submissions to the Board stated that the developer had misunderstood its obligations, Mr Murrant as certifier had the obligation to determine compliance and provided no reasonable explanation as to why he did not. The duty to ensure compliance is imposed on the certifier and Mr Murrant could not contract out of it. As an A2 accredited certifier Mr Murrant could certify residential building work, including work of a significant scale. All the circumstances relevant to the determinations listed on the Register must be taken into account, and it is not appropriate to cherry pick from the matters listed in the Register.
2. The Board relies on the Guidelines, and submits that categorisation of the conduct as Category D is appropriate. The conduct would otherwise be at the upper end of the range, however for the reasons given in the decision under review, a fine of $10,000 is appropriate.

Discussion and findings

1. The matters addressed by the Board in the decision under review, and in the submissions provided at the hearing, are based on the decision in Qiu v Building Professionals Board [2103] NSWADT 289. In that decision the former Tribunal drew on the earlier decision in Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3, to identify factors relevant to consideration of appropriate disciplinary orders: 98. That case involved disciplinary proceedings against a licensed home building contractor. In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant: (a) the nature, width and extent of the contraventions (b) the loss or damage and prejudice in consequence of the contraventions (c) the circumstances in which the contraventions took place (d) whether the licensee has been seen to have engaged in any similar conduct (e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee (f) the extent of carelessness or wilfulness of the conduct (g) the efforts made to correct the situation and what measures have been taken by the licensee (h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners (i) the effect upon the licensee (j) antecedents (k) attitude, building history and future compliance (l) the penalty range.
2. Considering each of those matters in turn, the Tribunal makes the following findings: 1. The nature, width and extent of the contraventions: The conduct the subject of this application concerned one development of a significant scale, based on the cost of the development at $8,484,030 estimated in the application for the CC, in contrast to some other disciplinary matters concerning several developments on a number of sites; 2. The loss or damage and prejudice in consequence of the contraventions: In issuing CC No 26 on 18 April 2018 Mr Murrant authorised building work to commence. At that time the developer was liable to pay the Council the amount of $692,574.70 as a contribution to a range of community facilities as detailed in the receipt for payment dated 18 May 2018. While that payment was made shortly after the Council officer queried the non-payment, commencement of construction work before those contributions were paid potentially added to the difficulty for Council in recovering those funds. Not only was the precondition to issue of payment of the s 94 contributions not met, but Mr Murrant issued the CC where he was not authorised to do so, given the contravention of s109E(1A) of the EPA Act and cl 139(1A) of the Regulation, potentially compromising the validity of the certificate; 3. The circumstances in which the contraventions took place: Mr Murrant issued the CC for a large project, in circumstances where not only was the precondition to issue (that is, compliance with condition 19) not met, but where he was not authorised to do so, given the contravention of s 109E(1A) and cl 139(1A). The Board relies on the cover letter for the development consent, however that letter (ex R1, p 43) is addressed to the then owner of the property: while Mr Murrant was required to ensure he was aware of the consent conditions, there is no indication in the evidence whether he had access to the cover letter. Whether or not he did, in relying on his staff Mr Murrant did not comply with his obligation under requirement 6 of the Code of Conduct that he ensure he had all the relevant facts in exercising his functions as certifier; 4. Whether Mr Murrant has engaged in any similar conduct: The Tribunal is satisfied, based on the Board's submissions, that Mr Murrant has had no previous disciplinary findings by the Board; 5. The presence of fraudulent or dishonest intent and deliberation: as accepted by the Board, there is no evidence of any fraudulent or dishonest intent in Mr Murrant's conduct; 6. The extent of carelessness or wilfulness of the conduct: Mr Murrant's submissions to the Board during the investigation were that his conduct in issuing the CC before the contributions were paid was an oversight, and not deliberate or misleading. At the hearing he maintained the position that all three matters involved administrative error. The Tribunal regards his conduct as extremely careless, displaying a lack of understanding of and attention to the fundamental requirements of his role as certifier; 7. The efforts made to correct the situation and measure taken: The Tribunal accepts that following Mr Murrant's contact with the developer when he received the query from Council, the s 94 contributions were paid. Mr Murrant's response to all three matters was to state that he had put in place measure to ensure compliance: however, there is no detail of what measures were taken before Mr Murrant's accreditation in NSW lapsed; 8. What consciousness Mr Murrant had and displayed of his legislative obligations: The Tribunal agrees with the Board that Mr Murrant's actions and responses to the complaint and investigation demonstrate that he does not have a complete understanding of his statutory role and duties under the BP Act and EPA Act, and that he did not comply with those requirements to the extent expected of a person accredited to perform a significant role in the maintenance of proper building standards; 9. The effect upon Mr Murrant: Mr Murrant did not give evidence in the proceedings, and provided minimal information or explanation to the Board as part of its investigation, and the Tribunal is unable to make a finding as to any effect on him; 10. Antecedents: Mr Murrant provided no evidence as to his history in the building industry in Queensland. In the absence of any evidence from Mr Murrant to the contrary, the Tribunal accepts the Board's submission that while Mr Murrant has no previous disciplinary proceedings before the Board, the Queensland Building and Construction Commission on 24 October 2014 reprimanded him, having made a finding of "unsatisfactory conduct", on the ground that he had breached provisions of the Queensland Building Regulations 2006 and in so doing "showed a lack of diligence and care in performing his building certifying function when he carried out his final inspection of a dwelling"; 11. Attitude, building history and future compliance: The Tribunal accepts the Board's conclusion that Mr Murrant displayed a reasonable attitude in dealing with the complaint; however, in the absence of evidence from Mr Murrant, the Tribunal is unable to make a finding as to his present attitude to compliance with legislative requirements, or any steps taken to ensure future compliance. 12. The range of penalties that may be imposed: The range of penalties specified in s 31(4) of the BP Act extends from a decision to take no further action, to cancellation of accreditation, and includes a caution or reprimand, and a substantial fine of up to $110,000.
3. In addition to the matters identified in Qiu, the Board submits that personal and general deterrence is a relevant consideration. The Board submits that it is concerned by the continued level of justified complaints it continues to receive, noting that it has been administering the BP Act and regulations since March 2007. The Board's Disciplinary Penalty Guidelines, published in 2012, and updated in 2016, are a response to the continued unacceptable level of complaints. The Board submits that the BP Act is designed to protect the public, and accredited certifiers must ensure their certification work meets acceptable standards; and to ensure the objective of public protection and deterrent to certifiers is adequately served, it is appropriate that a penalty be imposed.
4. The Board submitted that a reprimand and fine of $10,000 is consistent with the decisions of the Tribunal and its predecessor in Hallal v Building Professionals Board [2016] NSWCATOD 78 and McGufficke v Building Professionals Board [2013] NSWADT 307. In Hallal the penalty was a reprimand and a fine of $10,000, in a matter concerning developments at 7 sites, involving 17 complying development certificates, and 27 separate allegations of unsatisfactory professional conduct, and where the conduct caused significant financial detriment to the owners. In McGufficke the fine was $10,000, where the certifier had issued a construction certificate and occupation certificate for a development which he had inappropriately classified under the BCA, and where the Tribunal found that he had not given proper consideration to the safety of the building's occupants. The decisions to which the Board referred provide guidance, however, all the circumstances of this matter must be taken into account.
5. The Board determined the penalty by reference to its Disciplinary Penalty Guidelines. The Guidelines are routinely referred to in disciplinary proceedings in the Tribunal, and direct attention to the seriousness of the conduct (ranging from minor to significant to major infringements), and prior disciplinary history. The Guidelines make clear that all individual extenuating or aggravating circumstances of the matter are to be considered.
6. The Guidelines provide examples of conduct, based on the Board's experience in investigating complaints, falling within the relevant categories. Category E - Significant infringements matters include the issue of a construction certificate that does not comply with the BCA, or that is inconsistent with the development consent, or the issue of an occupation certificate where the preconditions are not satisfied. Category D - Moderate infringements include minor visual departures from development consent, lesser departures from the consent, or lesser BCA non compliances. Category C - Minor infringements include minor regulatory matters for which penalty infringement notices may be issued or minor PCA monitoring incidents.
7. The circumstances in which Mr Murrant accepted appointment as PCA, accepted the application for a CC, and then issued the CC on 18 April 2018, display a fundamental lack of regard for the requirements of the legislation both in avoiding conflicts of interest, and thus assisting in maintaining the integrity of the accreditation and certification system; and in ensuring that all legislative requirements are complied with before a CC is issued and construction commences. In the absence of evidence from Mr Murrant, it is not possible for the Tribunal to be certain as to whether his conduct demonstrates simply ignorance of the requirements, or a lack of care and diligence in ensuring that those requirements are met. Either way, his conduct fell short of the standard of competence and diligence expected of a reasonably competent accredited certifier. Mr Murrant's accreditation has lapsed, and he states that he is no longer practising in NSW: we are of the view that if he were in the future to seek re-accreditation he would benefit from a course of education in the regulatory requirements applicable in NSW.
8. Mr Murrant does not oppose a reprimand. A reprimand signals to the profession and to the community the significance of the shortcomings in Mr Murrant's conduct and the extent of his failure to ensure that his certification work meets acceptable standards. Accordingly, we agree with the Board's decision to reprimand him.
9. In considering whether a fine is appropriate, and if so, the amount of such a fine, we consider that Mr Murrant's conduct is appropriately characterised as falling in Category D- Moderate infringements. It is analogous to the conduct identified as examples in the Guidelines, in particular the example of the issuing of an occupation certificate where the preconditions to the issue are not satisfied, and the preconditions do not relate to health and/or safety. The penalty range is $5,000 - $20,000. In determining the amount, we have regard to the fact that while the matter concerns one development, there were three matters established potentially going to the validity of the CC; to the absence of established harm or loss to others; the absence of evidence that the conduct was deliberate; and Mr Murrant's previous disciplinary history. On that basis we agree with the Board's assessment that a fine at the lower end of the range is appropriate.

Orders

1. The orders of the Tribunal are: 1. The decision of the Board to reprimand Mr Glenn Murrant and to impose a fine in the amount of $10,000.00 is affirmed. 2. Mr Murrant is to pay to the Board the fine within 28 days from the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2019