NSW Architects Registration Board v Peng [2025] NSWCATOD 58

(a) altered the DCD relating to mechanical services in the name of Scott Walken-Brown dated 26 November 2021 without his knowledge or permission;

(b) altered the DCD relating to electrical services in the name of Ziad Hassan dated 2 December 2021 without his knowledge or permission;

(c) altered the DCD relating to fire engineering in the name of Lei Xia dated 3 December 2021 without his knowledge or permission;

(d) altered the DCD relating to structural engineering in the name of Wen Lu Zheng dated 2 December 2021 without his knowledge or permission;

(e) altered the DCD relating to structural engineering in the name of Ryan Campbell dated 10 December 2021 without his knowledge or permission;

(f) altered the previously altered DCD in the name of Scott Walken-Brown dated 26 November 2021 and created the DCD dated 24 March 2022 without his knowledge or permission; and

(g) altered the previously altered DCD in the name of Lei Xia dated 3 December 2021 and created the DCD dated 24 March 2022 without his knowledge or permission.

1. Following its investigation the Department of Customer Service wrote to the Board and advised that:

(a) the Department has reasonable grounds to believe that Mr Peng's actions amount to a contravention of the professional requirements of the Architects Act; and

(b) Mr Peng may have engaged in unsatisfactory professional conduct or professional misconduct under the Architects Act.

1. At a meeting in October 2023, the Board decided to make a complaint against Mr Peng in respect of his conduct as an architect. Following an investigation the complaint was finalised on 23 April 2024. The Board resolved to refer the complaint to the Tribunal in accordance with s 43(3) of the Architects Act on the basis that Mr Peng engaged in unsatisfactory professional conduct which warrants a finding of professional misconduct. As noted above, the application to the Tribunal by the Board was made on 6 November 2024.

1. Under Part 4 of the Architects Act, the Board must investigate complaints made against architects. Under s 43 of the Architects Act, if the Board it is satisfied that the architect is guilty of unsatisfactory professional conduct, it may either take certain actions against an architect itself (s 43(2)) or may apply to the Tribunal for a disciplinary finding against the architect (s 43(4)). However, if the Board is satisfied that the architect is guilty of professional misconduct, it must apply to the Tribunal for a disciplinary finding against the architect: s 43(3).
2. "Professional misconduct" is defined in s 32 of the Architects Act to mean:

(a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect's registration, or

(b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act.

1. Unsatisfactory professional conduct is also defined in s 32 and relevantly includes:

(b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under s 7;

(h) conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture; and

(i) any other improper or unethical conduct of the architect in the course of the practice of architecture.

1. The functions of the Tribunal in determining an application for disciplinary orders are set out in s 47 of the Architects Act. Pursuant to s 47(1), in any application for a disciplinary finding in relation to an architect, the Tribunal is to determine whether or not the architect is guilty of unsatisfactory professional conduct or professional misconduct. Sub-sections 47(2) and (3) set out the orders the Tribunal may make if it makes a finding of unsatisfactory professional conduct or professional misconduct:

(2) If the Tribunal finds that the architect is guilty of unsatisfactory professional conduct, the Tribunal may make any one or more of the following decisions -

(a) caution or reprimand the architect,

(b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint,

(c) direct that such conditions relating to the architect's practice of architecture as it considers appropriate be imposed on the architect's registration,

(d) order that the person complete any educational course or courses specified by the Tribunal,

(e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons,

(f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons,

(g) order the architect to pay a fine of an amount not exceeding 200 penalty units.

(3) If the Tribunal finds that the architect is guilty of professional misconduct, the Tribunal may (in addition to any decision made under subsection (2)) -

(a) order the suspension of the architect's registration for such period as the Tribunal thinks fit, or

(b) order the cancellation of the architect's registration.

1. If the Tribunal orders the cancellation of the architect's registration, it may also order that the person cannot apply to be re-registered within such period (including the person's lifetime) as may be specified by the Tribunal: s 47(5).

Has Mr Peng engaged in professional misconduct?

1. Consent orders were filed by the parties on 30 January 2025 which sought the following orders:

(a) The Respondent is guilty of professional misconduct.

(b) Pursuant to s 47(3)(b) of the Act, the Respondent's architect's registration be cancelled.

(c) Pursuant to s 47(5) of the Act, the Respondent cannot apply to be re-registered as an architect within 3 years from the date of these orders.

(d) Each party bear its and his own costs.

1. The Tribunal has taken the view that, given the functions of the Tribunal under s 47(1) of the Architects Act, before making any of the orders provided for in s 47, the Tribunal must determine whether or not the architect is guilty of unsatisfactory professional conduct or professional misconduct. To that end, the parties were directed to provide submissions on the conduct the subject of the application, whether that conduct amounts to professional misconduct and submissions on appropriate orders. The Board has provided written submissions. Mr Peng advised that he had no further submissions to make and agreed to the orders proposed in the consent agreement.
2. Both parties have agreed that the matter can be adequately determined in the absence of the parties on the basis of the written material provided. Accordingly, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
3. The issues that arise for consideration are:

(1) Was Mr Peng providing an "architectural service" as defined in s 4 of the Architects Act?

(2) Does Mr Peng's conduct amount to unsatisfactory professional conduct/professional misconduct?

(3) If so, what decision should the Tribunal make?

1. Section 4 of the Architects Act defines "architectural service" to be a service provided in connection with the design, planning or construction of buildings that is ordinarily provided by architects. The Board requested Mark Bullen of Mark Bullen Architects Pty Limited to provide expert opinion in relation to the conduct of Mr Peng. Mr Bullen provided a report dated 5 November 2024. We accept that Mr Bullen is appropriately qualified to provide an expert opinion in these proceedings.
2. As noted above, Mr Peng's position at Lateral Estate was as a "Design Manager". An argument which was raised early in the investigation was that he was not acting as an architect in that position, although he is a registered architect.
3. The development at Kogarah with which Mr Peng was involved was a 13 storey mixed use residential flat building with a basement carpark. In his report Mr Bullen analysed the skills Mr Peng was exercising when he was considering the various DCDs and the changes made. In his role Mr Peng was involved in the coordination of a team of design consultants, each of whom had a particular speciality. Mr Bullen states that, in his opinion and experience, coordination of specialist design consultants is a core role for an architect when developing the design for a building. He states that this coordination and head consultant role for the design of buildings is commonly performed by architects, not by project managers or other building design consultants. He states that these coordination services commence from the development of the initial planning and concept design, through design development and continue through the construction of any project where consultants are involved.
4. Mr Bullen sets out in his report the skills that are required for an architect to properly perform the role of head design consultant. He also refers to the National Standards of Competency for Architects 2021 which require candidates at the point of registration as architects to meet certain competency standards relating to the coordination of specialists and consultants.
5. In Mr Bullen's opinion the coordination of specialist consultants in this instance, design practitioners, is:

(a) An essential skill. The coordination of consultants is central to the architect's purpose of ensuring that the architectural outcome for a building design is appropriate to the project brief and the design intent. These are matters that the architect alone is charged with. To succeed, the architect must thoroughly understand the impact of all the specialist consultant advice and how it inter-relates with other advice and the architectural outcome;

(b) A skill learned and practiced. Coordination of consultants is a skill learned from the introduction of architectural teaching and is developed from commencement in practice as an architect;

(c) A skill that is expected to be exercised. It is expected that a registered architect has this skill and that it is exercised in practice, as evidenced by its identification as a required competency identified in the successive National Standards of Competency in Architecture since 2001; and

(d) A particular skill of the architect. Coordination of building design consultants is rarely performed by persons other than an architect.

1. Mr Bullen states that, in order for an architect to effectively coordinate a design team, an architect must understand the advice and actions of each specialist consultant well enough to assess whether they are appropriate to the architectural design intent and to the necessary processes, including approvals and declarations. He therefore concludes that the "coordination skills of an architect" are not simply an administrative matter but rather one of understanding, interpretation and process management, and are particular to the practice of an architect.
2. We are satisfied that, contrary to Mr Peng's title as "Design Manager", when he was making the alterations to the DCDs as detailed in the application before us, he was performing an "architectural service" as defined in s 4 of the Architects Act.

Does Mr Peng's conduct amount to unsatisfactory professional conduct/professional misconduct?

1. During an interview with officers from the Design and Building Practitioners Unit in the Department of Customer Service Mr Peng admitted that he had made changes to the DCDs without the knowledge or permission of the relevant consultants. His reasons for doing so were outlined in submissions he made to that investigation and to the Board. Mr Peng states that he did not manipulate drawings or alter designs and he did not forge signatures or create forms. He characterised his actions as only trying to ensure that project deadlines were met. As a result, he made the alterations to what he regarded as mistakes or errors in the DCDs so that he did not have to spend significant time going back and forth with the various consultants. We note that Mr Peng is not a registered design practitioner and does not possess any of the qualifications of the design practitioners whose DCDs he altered.
2. We accept that at the time he altered the DCDs Mr Peng was relatively recently registered as an architect. We also accept that the Design and Building Practitioners Act was new legislation and there was some confusion around what was required of various practitioners in complying with the DCD requirements. However, we are satisfied that Mr Peng made material changes to the DCDs which are declarations made by others. To alter a declaration without the permission or knowledge of the person making that declaration is a serious matter. In essence, Mr Peng created false documents and, in doing so, acted contrary to his responsibilities as an architect, both practically or pragmatically and ethically.
3. We are satisfied that Mr Peng is guilty of unsatisfactory professional conduct within the meaning of that term as defined in s 32of the Architects Act because:

(1) His conduct in altering and creating the DCDs demonstrates a lack of integrity and the taking of reasonable care contrary to cl 4(1)(a) of the NSW Architects Code of Professional Conduct.

(2) His conduct in altering and creating the DCDs demonstrates a lack of adequate knowledge, skill, judgment or care in the practice of architecture.

(3) His conduct in altering and creating the DCDs demonstrates improper or unethical conduct in the course of the practice of architecture.

1. We now turn to consider whether Mr Peng's conduct amounts to professional misconduct.
2. The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19] (Basten JA). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20].
3. In Health Care Complaints Commission v Gaberman [2023] NSWCATOD 77 at [137] it was stated that whether conduct amounts to professional conduct requires a decision that the conduct is of a "sufficiently serious nature" to justify an order for suspension or cancellation. The Tribunal went on to say:

That exercise involves "an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct": Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20] (Basten JA). The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35]. The definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] (Basten JA). The impugned conduct is to be measured by the extent to which it departs from proper standards and not by reference to the worst cases. The latter approach risks the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297.

In evaluating whether the impugned conduct is of a sufficiently serious nature to justify the suspension or cancellation of Mr Gaberman's registration, we must consider the circumstances that bear on the objective assessment of that conduct. These include the nature and duration of the conduct; whether the conduct was deliberate or inadvertent; the likely risk of harm to the patient posed by that conduct; and any mitigating factors.

1. Mr Peng altered five DCDs of different design practitioners across a number of disciplines. He held no expertise or qualifications in any of those disciplines. Not only did Mr Peng alter DCDs, he also created two new DCDs from the previously altered DCDs. All of his conduct was without the knowledge or consent of the design practitioners concerned and occurred over a four month period from 3 December 2021 to 24 March 2022.
2. As noted above, the amendments made by Mr Peng were not simply administrative but included matters of substance. We note that the Design and Building Practitioners Act and the associated Regulation were established to raise the standards of building design and building work and to ensure appropriate accountability. DCDs are an essential element of that accountability. It is not appropriate in any circumstances for a person to alter a DCD of a design practitioner. As stated above, this is because the DCD is a personal declaration by that design consultant.
3. In our view Mr Peng's conduct in altering and creating the DCDs amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect's registration within the meaning of s 32 of the Architects Act.

1. Mr Peng accepts that the orders proposed by the Board are appropriate. We are also of the view that the orders set out in [13] above as filed with the Tribunal should be made in this matter.

(1) A hearing is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The Respondent is guilty of professional misconduct.

(3) Pursuant to s 47(3)(b) of the Act, the Respondent's architect's registration be cancelled.

(4) Pursuant to s 47(5) of the Act, the Respondent cannot apply to be re-registered as an architect within 3 years from the date of these orders.

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.