Votano v Building Professionals Board

Background

1. Mr Votano qualified with a Diploma of Building Surveying (TAFE) in 2015, and was accredited as an A4 Building Inspector in 2015, and as an Accredited Certifier - Category A3 - Building Surveying Grade 3 in 2017. He obtained a Graduate Diploma of Building Surveying in 2018 from Western Sydney University, and completed requirements for a Master of Building Surveying degree in 2019. The respondent accepts that Mr Votano holds the requisite qualification for category A1 accreditation.
2. Mr Votano has been employed by Central Coast Council as Building Surveyor since April 2019. He was previously employed from June 2014 to April 2019 by City Plan Services Pty Ltd (CPS) as Building Regulations Consultant. He was formerly a qualified and licensed construction carpenter.
3. In his application Mr Votano stated that he has the minimum of three years recent practical experience relevant to the category of accreditation, exceeded by two extra years of Class 2-9 experience. Mr Votano provided Referee Statements (using the BPB template form) from Wayne Herd (Section Manager, Central Coast Council), Mark Newton (Fire Safety Officer, Central Coast Council), Grant Killen (Principal Surveyor, Central Coast Council), Anthony Vardas (Project Manager, Meriton Property Services), and Jorgen Liaris (Project Manager, Construction Profile).
4. Mr Votano acknowledged that he could not provide signatures from Mr Brendan Bennett, Managing Director of CPS, and referee statements from Mr Bennett or Mr Chris Michaels, who had signed his supervised projects at CPS. He provided copies of email correspondence with Mr Bennett, including an email dated 4 April 2019 in which Mr Bennett stated "…I confirm that CPS will provide verification, either now or at any point in the future, of works completed whilst at CPS in respect to an application for accreditation with BPB."
5. On 3 February 2020 Mr Votano provided additional supporting documents to the BPB, being signed experience reports and an email from Mr Bennett. In his email of 31 January 2020 (ex R1, p1416) Mr Bennett stated: I committed to verifying the project reports. I am not comfortable providing reference as my preference is to only do when the person is employed by us because we take on the risk.
6. The original decision made on 6 March 2020 identified 32 matters as the basis for the decision not to issue A1 accreditation and to issue A2 accreditation restricted to class 1 and class 10 buildings only: 1. Reason 1 was that most of the experience claimed by Mr Votano relevant to A1 category was during his employment at CPS, and in that regard he had not provided a referee statement from any of his supervising accredited certifiers A1 category from CPS. While Mr Votano had provided referee statements from his current supervisors at Central Coast Council, who were supervising him from April 2019 only, there were a number of errors and misinterpretations, and that experience was not considered acceptable experience relevant to assessment and determination of construction certificates (CCs) for class 2-9 buildings in either category A1 or A2; 2. Reasons 2, 4, 7, 8, 9, 10, 11,12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29 related to information provided in work and project examples, including relating to fire safety, determined to be unsatisfactory. That documentation included CCs, and complying development certificates (CDCs) and occupation certificates (OCs). Reason 30 related to an OC with the date of assessment shown in May 2014, before the applicant commenced working for CPS in June 2014. Reason 3 referred to two CCs issued for demolition of existing buildings and structures only. Reasons 5 and 6 related to provision of a minimum number of critical stage inspections and CC examples as required in the BPB Experience Guides for category A1 or A2; and 3. Reason 31 was that Mr Votano had hardly provided any evidence to demonstrate that he possessed relevant experience in dealing with alternative solutions, or correct identification of applicable performance requirements to the non-complying deemed to satisfy clauses of the BCA, and how he identified those performance requirements.
7. Mr Votano provided additional information to the BPB in support of the internal review application. Mr Michael Marks, Senior Investigator with the BPB, was asked to consider the technical aspects of the internal review request (ex R1, p 2275). In an internal email dated 6 April 2020 Mr Marks advised that reasons 1, 2 and 32 were not considered matters of a technical nature, and made no comment on those matters. He considered that Mr Votano's submissions were considered reasonable and addressed concerns with regard to reasons 4, 5, 7, 8, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 31. Mr Marks stated that Mr Votano's submissions were not entirely satisfactory with regard to reasons 12, 13, 14, 15, 16 and 19; and did not adequately address the concerns with regard to reasons 3, 6, 9, 10, 11, 29 and 30. Mr Marks provided an assessment of each reason that he did not regard as satisfactory (ex R1, pp 2278-2289). Mr Marks noted that the BPB had power under s 5(3)(b) of the BP Act to determine Mr Votano's skills by way of interview, examination or providing a demonstration.
8. Mr Marks' technical assessment was incorporated in the internal review determination, which referred to reasons 1, 3, 6, 9, 10, 11, 12, 13, 14, 15, 16, 19, 29 and 30 as the basis for the decision to affirm the original decision. Those reasons were pressed by the respondent at the hearing of the administrative review application.

Issues

1. The BPB's position is that the decision under review should be affirmed on the ground that Mr Votano has not met the requirements for A1 certification, because: 1. The lack of certification of Mr Votano's experience at CPS means that he does not meet the requirement of three years demonstrated experience at the appropriate level; and 2. There are deficiencies and errors in the material and information submitted in relation to the work and project examples for matters 1, 3, 6, 9, 10, 11, 12-16, 19, 29 and 30.
2. Mr Votano contends that he has provided reasons why he cannot provide verification of his experience at CPS, and he does not accept that his experience does not meet the requirements. He has provided reasons for any errors made in the documentation provided.

Evidence

1. Mr Votano relied on the following documentary evidence: 1. Supporting Documentation Report, filed 15 July 2020 (ex A1); 2. Addendum to that report (ex A2); 3. Statement in support of his application for review 11 May 2020 (ex A3); 4. Statements by Wayne Herd dated 4 September 2020 (ex A4) and Grant Killen dated 1 September 2020 (ex A5). Mr Killen gave oral evidence.
2. Mr Votano's Supporting Documentation Report addressed the Reasons discussed in the Internal Review, and in Appendix A provided a table listing CCs, CDCs, OCs and alternative equivalent experience relied upon, and additional documents including plans and CCs and OCs.
3. The BPB relied on the following documentary evidence: 1. Documents provided under s 58 of the ADR Act on 17 June 2020, including Mr Votano's application and supporting material and the internal review application, numbering 2301 pages (ex R1). On 5 October 2020 the respondent provided a revised index with annotations including references to the location in the s 58 documents, and the stated description of the roles and responsibilities, for each of the claimed experience items; 2. Statement by Michael Marks dated 7 August 2020 (ex R2).
4. Mr Marks was the officer who provided technical input for the internal review determination. He is currently a Senior Investigator with the respondent, his main duty for 2020 being to draft a Certifier Practice Guide for the new scheme under the BDC Act. Mr Marks formerly carried out assessments and investigations of complaints against accredited certifiers. His accreditation as an A1 - Accredited Certifier - Building Surveying Grade 1 is currently suspended.
5. Mr Votano objected to the tender of Mr Marks' statement on the basis that it was provided late, on 10 August 2020, which was after the due date of 6 August 2020. The document was admitted (ex R2) on the basis that Mr Marks would be available for cross examination on its contents on an adjourned hearing date. The respondent's position was that his evidence responds to the submissions made by Mr Votano concerning the technical issues in his Supporting Documentation Report (ex A1). Mr Marks' statement acknowledged the Tribunal's Procedural Direction 3- Expert Evidence and the Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005, however the respondent stated that it was provided to identify the issues in contention, and not as expert opinion evidence. Mr Marks gave oral evidence at the adjourned hearing, and was cross examined.
6. On the first day of hearing the Tribunal raised the issue of the legal basis for and status of the Accreditation Scheme. The BPB subsequently provided a copy of the Accreditation Scheme as gazetted on 3 August 2018, annexed to written submissions addressing that issue filed on 4 September 2020. A copy of the Accreditation Scheme as at 11 October 2019, and extracts from the BPB's Experience Guide Category A1 and Experience Guide Category A2, are annexures A, B and C to Mr Marks' statement of 7 August 2020 (ex R2).

Accreditation Scheme

1. The legislative authority for the Accreditation Scheme is s4 of the BP Act, which requires the BPB to prepare an accreditation scheme for the purposes of the Act, to make provision for or with respect to matters including, in s 4(2) (a), "the qualifications, skills, knowledge and experience required for accreditation under this Act". An accreditation scheme has no effect unless it is adopted by the Minister (s 4(3)); is subject to public exhibition and comment in draft form (s 4(4)); and is to be adopted by the Minister by publication in the Gazette: s 4(4)(e)). The Minister may amend or replace the accreditation scheme: s 4(7). Sections 40 and 41 of the Interpretation Act 1987, which require tabling in Parliament and provide for disallowance, apply to an accreditation scheme adopted by the Minister in the same way as they apply to statutory rules: s 4(10).
2. Clause 13.1 of the Accreditation Statement provides that an applicant for accreditation is assessed against the core performance criteria; the specialty performance criteria for each category of accreditation in which the applicant seeks to be accredited; the specialty qualification requirement for each category of accreditation; the experience requirement, if any, for each category of accreditation in which the applicant seeks to be accredited; and the further requirements of the Act and the regulation. Clause 13.2 provides that the applicant must provide evidence that he or she satisfies each of the requirements relevant to the category of accreditation applied for.
3. Clause 20.1 provides that an application must be in the form approved by the BPB, together with such supporting documents as are required by the application form.
4. Clause 22.2 provides that an applicant must provide evidence that he or she satisfies each of the requirements under cl 17, which refers to the qualifications and experience specified in Sch 2. Clause 22.3 provides that the onus is on the applicant to provide sufficient evidence to satisfy the Board "that he or she has a qualification or experience that satisfies the requirement for the category of accreditation in which he or she seeks to be accredited".
5. Schedule 1 to the Accreditation Statement provides the core performance criteria, and Sch 2 provides accreditation statements for each category of accreditation, which list the criteria that must be satisfied. The Experience Requirement for category A1 is stated in the following terms: A minimum of three years recent practical experience relevant to this category of accreditation, to the satisfaction of the Board. This can include assessing plans and specifications of an appropriate range of proposed buildings and inspecting an appropriate range of buildings during construction and upon completion to determine compliance with the relevant provisions of the EP & A Act and the EP & A Regulation, relevant development standards relevant development conditions and the BCA.

Experience Guide

1. The BPB relied on Experience Guide Category A1 (Experience Guide). Mr Marks' evidence was that this document, annexed to his witness statement as attachment B, has been adopted and is applied by the BPB in assessment of an application for accreditation in category A1.
2. The version of the Experience Guide Category A1 annexed to Mr Marks' statement is undated. Mr Votano included an extract of the "Demonstrating Experience" section of what he identified as the 2017 version of the Guide in his Supporting Documentation Report (ex A1, p 6-8). That extract is in the same terms as the undated version of the Experience Guide for Category A1 annexed to Mr Marks' statement. The Tribunal accepts that that is the version of the Experience Guide applicable at the time of Mr Votano's application and assessment of that application by the BPB.
3. The Experience Guide states: This experience guide describes the experience building surveyors must demonstrate to be accredited as a Category A1-Accredited Certifier - building surveyor grade 1. The Board will reference the guide when assessing your application for accreditation. All applications will be assessed on the individual merits of the application. Applicants can satisfy the experience requirement by alternative means to those specified in this guide. Experience requirement - 3 years minimum The experience requirement for category A1 is a minimum of three years recent practical experience relevant to this category of accreditation, to the satisfaction of the Board. This can include assessing plans and specifications of an appropriate range of proposed buildings and inspecting an appropriate range of buildings during construction and upon completion to determine compliance with the relevant provisions of the EP & A Act and the EP & A Regulation, relevant development standards, development consent conditions and the BCA. … Experience relevant to category A1 Your practical experience is expected to exceed the authorities conferred on a category A2 certifier. In general, this means your experience relates to class 2 to class 9 buildings with a rise in storeys greater than three storeys and with a floor area greater than 2,000m2. Practical experience Your practical experience is expected to include: a.assessing construction certificate (CC) applications for building work b.assessing complying development certificate (CDC) applications for building work c.carrying out critical stage inspections of building work d.assessing occupation certificate (OC) applications e.carrying out the role of the principal certifying authority (PCA).
4. The document states that category A1 applicants must be able to assess CCs for all sizes and classes of buildings, and that they are expected to demonstrate their experience assessing CDC applications and OC applications for all sizes and classes of buildings, and experience in carrying out critical stage inspections for all sizes and classes of buildings. The document specifies the number and type of CC applications, CDC applications, and OC applications required, and the number and type of critical stage inspections required.
5. The document states how experience is to be demonstrated: Applicants must provide a comprehensive list of work projects that contains sufficient information to satisfy the abovementioned criteria. Provide separate lists of: 1.construction certificate applications assessed 2.complying development certificate applications assessed 3.critical stage inspections 4.occupation certificate applications assessed The list of projects is to include the information in the templates at Attachments 1a-1d. The application for accreditation form requires you to provide statements from at least three referees to verify your experience. These statements should verify projects included in your list of work projects. The required templates are available on the Board's website. In addition to the referee's statement from an A1 accredited certifier you should include a statement from an independent professional external to your company who you have worked for or with on building projects. For example you may provide a referee's statement from an architect, project manager, consulting engineer, builder or fire safety engineer employed by another company who can verify your experience. … Six experience reports In addition to assessing experience based on the number applications assessed and inspections carried out, an assessment will be made about your competence and the quality of the experience obtained. You are required to provide six experience reports that highlight the breadth and depth of this experience. Attachment 2 provides more details.
6. Attachment 2: Experience Reports states that the reports "should be one to two pages long and be verified by the referee statements".

Application of the Accreditation Scheme and Experience Guide

1. The BPB submits that the Accreditation Statement, which has been adopted by the Minister, should be applied as "Government policy" under s 64 of the ADR Act, which provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators.
2. The BPB submits that the Experience Guide should be followed, first, because it has statutory force being the minimum form and information that the Board requires to be provided, and secondly, because it is another policy that is not "contrary to Government policy", and ensures that Government policy is met and maintained.
3. The applicant submits that he has demonstrated that he has the required experience. The Experience Guide is not "government policy", and the Tribunal should not give effect to it as policy. The applicant submits that the BPB's requirement for a referee statement from a former employer who supervised the work, in addition to satisfactory compliance with the Experience Guide requirement for three referee statements from three A1 accredited certifiers, is contrary to what the Experience Guide requires and contrary to past Fair Trading decisions. A referee statement from any supervisor or any person is also not critical, being derived from a guide which is not enforced by legislation. The applicant submits that the Experience Guide is a guide, and not a legislative instrument, and the BPB did not apply government policy flexibly, referring to Tribunal decisions including Freixas v Commissioner for Fair Trading (No 2) [2020] NSWCATOD 78 at [74], Al-Shinawa v NSW Fair Trading [2020] NSWCATOD 1, Price v Commissioner for Fair Trading [2020] NSWCATOD 93 at [65], Ngo v Commissioner for Fair Trading [2019] NSWCATOD 103 at [43], and Carrigan v NSW Fair Trading [2018] NSWCATOD 60 at [30].
4. The Tribunal notes that the decisions on which the applicant relies are on administrative review of decisions under the Home Building Act 1989, and the application of an instrument purportedly made under s 33D of that Act in assessment of the experience required of an applicant for a contractor licence under that Act. Those decisions apply the general principle that a statement of policy must not be applied inflexibly, as if it were a fixed determinative rule. The Accreditation Statement and the Experience Guide must be considered in the context of the BP Act, and consistent with general law principles on the application of policy to administrative decision making.

The Accreditation Scheme

1. The Tribunal is satisfied that the Accreditation Scheme is "Government policy" as defined in s 64(5) of the ADR Act. It is authorised by the BP Act. It was adopted by the Minister, as required by s 4(3) of the BP Act, by notice in the Government Gazette on 24 February 2010, and the version of the Accreditation Statement as at August 2018 was published in the Government Gazette on 3 August 2018. The Accreditation Statement specifies the qualifications, skills, knowledge and experience required for individuals to be accredited as an accredited certifier in each of the categories of accreditation. Since the Tribunal is, under s 63 of the ADR Act, exercising the powers and functions of the BPB, it must apply the policy expressed in the Accreditation Scheme except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case: ADR Act, s 64(1).
2. The Accreditation Statement requires that an applicant for category A1 accreditation have a minimum of three years recent practical experience. In requiring demonstration of a broad range of experience across the authorities conferred on an accredited certifier, the Accreditation Statement is consistent with, and supportive of, the purpose of the accreditation regime established under the BP Act and continued under the BDC Act. Accreditation at the level of category A1 authorises the certifier to carry out all certifications tasks on all classes of buildings. The requirement that an applicant demonstrate before that accreditation is granted that he or she has experience across a range of certification tasks, for a range of different classes of buildings, and for a significant period, is appropriate. The Tribunal sees no basis for a departure from the requirement in the Accreditation Statement that the applicant demonstrate three years recent practical experience relevant to the category of accreditation applied for.

The Experience Guide

1. Based on the evidence of Mr Marks, which was not challenged in this regard, the Tribunal accepts that the Experience Guide Category A1 is a policy developed by the BPB in the implementation of the Accreditation Scheme and the exercise of the requirements of the BP Act. It is not "Government policy" as defined in s 64(5) of the ADR Act. In accordance with s 64(4) of that Act it may be taken into account, except to the extent that it is contrary to Government policy or to law, or it produces an unjust decision in the circumstances of the case.
2. The Tribunal regards the requirement for verification of experience as an important element in ensuring that only those appropriately qualified and experienced are authorised to undertake the important work of certification of building and construction work. That is especially so for accreditation in category A1 given the wide range of authorities granted. In stating the range of experience that is to be demonstrated and the manner in which that is to be done, the Experience Guide supplements, and is not inconsistent with, the Accreditation Statement.
3. The Experience Guide provides the detail as to how an applicant is expected to demonstrate that he or she has the relevant experience required by the Accreditation Statement. The Tribunal may, in accordance with s 64(4) of the ADR Act, and general principles for the application of policy to administrative review decision-making, have regard to its provisions unless to do so is contrary to Government policy or law, or results in an unjust decision in the circumstances of the case. The Tribunal must not apply the policy inflexibly: Price v Commissioner for Fair Trading [2020] NSWCATOD 93; Carrigan v NSW Fair Trading [2018] NSWCATOD 60.
4. The Tribunal has, in matters concerning licensing of contractors under the Home Building Act 1989, adopted the position that an applicant alone cannot verify their own experience: Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 at [38]; Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131. The Tribunal has also adopted the position in such matters that it is inappropriate to insist that only verification provided on the respondent's template Referee Statement form can be considered: Watts v Commissioner for Fair Trading [2017] NSWCATOD 60; Wall v Commissioner for Fair Trading [2017] NSWCATOD 76. The Tribunal has acknowledged that rigid adherence to the terms of a policy document can produce an unjust decision, and has proceeded on the basis that the central issue is the assessment of the applicant's competency for the licence: Vitogiannis v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATOD 157 at [35]. In the Tribunal's view a similar approach is appropriate in these proceedings.
5. The only previous decision of the Tribunal or its predecessor on administrative review of an accreditation decision of the BPB, as opposed to a disciplinary decision, to which the respondent referred is James v Building Professionals Board [2010] NSWADT 154. That was an application for administrative review of a decision to renew accreditation subject to the same conditions that had been imposed on the applicant's previous accreditation, which included a condition under which the applicant could not certify alternative solutions involving fire safety in relation to class 2 to 9 buildings. The issue for the Administrative Decisions Tribunal was whether the applicant met the experience requirement as it related to fire safety in respect of class 2 to 9 buildings.
6. The difficulty for the applicant in those proceedings was that his only relevant experience was in his previous council employment, some seven years beforehand. The Tribunal referred to the Accreditation Statement requirement that the applicant demonstrate a minimum of three years recent practical experience, and noted that the applicant could point to little equivalent experience since 2002. The Tribunal considered the evidence provided by the applicant, and concluded that it was not assured that he would be able to certify as to alternative solutions of the complexity reflected in modern major commercial projects, noting that his attendance at continuing professional development courses on contemporary standards could not of itself repair the practical experience gap presented by the absence of any significant involvement with class 2 to class 9 work.
7. It is not clear from the reasons in James whether the Tribunal was taken to any document other than the Accreditation Statement, or whether the supporting material provided by the applicant complied with the formal requirements of any such document. Whether or not that was the case, the Tribunal identified its task as being to consider all that material, and to determine whether it could be satisfied that the applicant had the relevant experience specified by the Accreditation Statement. The Tribunal approached that task conscious of the wide authority conferred on a certifier accredited in Category A1, and of the requirement for a certifier to have a thorough knowledge of current legislation, the building code, and current standards and practices. The Tribunal is satisfied that that approach should be adopted in these proceedings.
8. The applicant's position is that he should not be disadvantaged by the refusal of Mr Bennett to provide verification in the form required by the Experience Guide. Consistent with the approach adopted in Home Building Act licensing decisions, the Tribunal agrees: and so the issue is whether the Tribunal can be satisfied that even in the absence of verification by CPS in the form of a referee statement in the template form, the applicant has demonstrated that he has the required experience.
9. Mr Votano has provided extracts from the Knowledge, Skills & Experience Guide for the Class of Building Surveyor - Unrestricted, applicable from July 2020 for assessment for the equivalent accreditation to the former A1 category (the 2020 Guide), to support his argument that the requirements for referee statements have changed.
10. It is not necessary to determine how the present application would be considered against the criteria in the 2020 Guide, rather than the Experience Guide A1. The 2020 Guide requires a minimum of three years recent practical experience relevant to the class of registration, expected to exceed the authorities conferred on a building surveyor - restricted (all classes of buildings) class certifier, and in general, that means that the experience relates to class 2 to 9 buildings with a rise in storeys greater than three storeys and with a floor area greater than 2,000m2. That requirement, and the specified numbers of CCs, CDCs, inspection reports and OCs required to be demonstrated, are the same as that in the Experience Guide A1. Both it and the Experience Guide A1 require that an applicant's three years relevant experience be demonstrated by the appropriate number of work projects as stated in templates applicable to applications for CCs, CDCs, OC, and critical stage inspections; together with six examples from that list of projects verified by the referee statements. Both require statements from at least three referees to verify the applicant's experience, which should verify projects included in the list of work projects. The difference is that the 2020 Guide refers to "the referee statements from a supervising building surveyor - unrestricted certifiers", whereas the Experience Guide Category A1 refers to "the referee's statement from an A1 certifier".
11. The issue for the applicant is, however, not the number of referee statements provided in support of his application, or whether those statements are provided by a current or former employer or supervisor, rather it is whether the referee statements provided, and any other relevant material, verify that he has the three years recent practical experience relevant to the A1 category of accreditation specified in the Accreditation Statement.

Assessing the applicant's experience

1. The applicant submits that he has met the requirements for category A1 accreditation, having provided: 1. Evidence of 6 years' experience, with the minimum 3 years' experience required by the Experience Guide A1; 2. Verification in the form of referee statements from three A1 accredited certified verifying all current and past experience and two additional statements from external professionals as required by the Experience Guide A1; 3. Verification from CPS for all projects and experience reports by signing all individual projects; 4. Verification from CPS in the emails from Mr Bennett of 4 April 2019 and 31 January 2020; 5. Compliance with the requirements of the application forms, referee statement and Experience Guide A1; 6. Evidence of the required qualifications under the Accreditation Statement; 7. Experience in excess of that required by the Experience Guide A1; and 8. Exceptional conduct as a public official/authority.
2. The issue identified as Reason 1 in the original decision and in the internal review, and maintained in these proceedings by the respondent, was whether the applicant had demonstrated that he had the required three years' recent practical experience relevant to the A1 category of accreditation. The respondent's position is that most of the experience claimed by the applicant relevant to the A1 category occurred during his employment with CPS, and he had not provided a referee statement from any of his supervising A1 accredited certifiers during that employment. The referee statements were provided by current supervisors who had supervised the applicant from April 2019 only.
3. Further, having regard to the errors, misinterpretations and anomalies in the documents provided, and the absence of at least one referee statement from a supervising A1 accredited certifier during his employment with CPS, the applicant's experience was not considered to be acceptable experience relevant to assessment and determination of CCs for class 2-9 buildings in either category A1 or A2.
4. Mr Votano's application was made on the BPB template application form (ex R1, pp 1-11). Section 9 Experience of that form states that a list of projects worked on in the past 3-5 years is required, including "a brief description, your role, start and end dates, and your supervisor's name". The information in the list of projects "needs to be verified in writing by a referee or supervisor".
5. The form states in relation to referee statements: ATTACH written statements from at least three referees, using the required statement template available at www.bpb.nsw.gov.au. Your referees should be able to verify the information in your list of projects and experience report. Two referees should be certifiers currently accredited in the category you are applying for. The third should be an independent professional outside your company, such as an architect who worked on a building project with you.
6. Mr Herd, Mr Killen and Mr Newton are accredited certifiers. They and Mr Vardas and Mr Liaris used the template Referee Statement form. The Tribunal accepts that Mr Votano provided referee statements in the required number, including two certifiers accredited in the category he was applying for.
7. Mr Herd, Mr Killen and Mr Newton were able to verify Mr Votano's work experience from 15 April 2019, when he started working at Central Coast Council. Each states that they are verifying projects being "Class 1 & Class 10 buildings including dwellings, swimming pools, garages, carports etc", and "Assisting with Class 2-9 Fire Safety Upgrades including Performance Solutions". Each states in response to the request for a detailed description of the applicant's work, including his roles and responsibilities: Liaise with professionals within Council and externally, including industry professionals/associations, in respect of expert advice leading to resolution of development and building matters. Assisting with issuing notices and orders where necessary under the provisions of the Environmental Planning & Assessment Act, the Local Government Act and the Swimming Pool Act requiring works to be undertaken to rectify unsatisfactory conditions or non-complying work. Assess and determine development applications, construction certificates and/or perform the Principal Certifying Authority role in accordance with the Act, Regulations and delegation.
8. Mr Herd, Mr Killen and Mr Newton provided a signed two page Additional Information annexed to their Referee Statement. Each refers to the same 6 projects, and each is in identical terms. Relevantly, the Introduction in each states: This additional information has been prepared to accompany the referee statement. In general Clayton has assisted and advised on the following projects which involved fire safety upgrades and the issuing of fire safety orders under Part 2 of Schedule 5 of the Environmental Planning & Assessment Act 1979. The buildings range from 2 storey office and retail buildings to 8 storey residential buildings. Clayton's advice and assistance has certainly been valued and has ensured the Central Coast will be seeing aged buildings upgraded to a higher quality over time. I have no doubt that Clayton is capable of assisting with work that is required under an A1 category and I would endorse Clayton's past experience. I would also like to see Clayton become and A1 accredited certifier which would be of a great benefit to this organisation.
9. The statements provided in these proceedings by Mr Killen (1 September 2020; ex A5) and Mr Herd (4 September 2020; ex A4) are also expressed in the same terms. Both state that they have been responsible for peer reviewing the applicant's assessment of CCs and fire safety matters pertaining to class 2 - 9 buildings, and that they consider he has the requisite qualifications, knowledge, skills and experience to assess and apply the requirements of the National Construction Code - Building Code of Australia (NCC) Volume 1 with accuracy and competence, and to assess "Performance Based Solutions" as provided for in the NCC Volumes 1 and 2 applying the necessary methodology and due diligence as required. Mr Herd includes in his statement an additional statement, that he has been responsible for peer reviewing the applicant's assessment of CDCs relating to class 2-9 buildings as defined in the NCC Volume 1. In oral evidence Mr Killen confirmed that he had not filled out the referee form or prepared the additional information document, and these were provided to him.
10. The respondent does not dispute that Mr Votano has provided verification for his experience since April 2019; the issue is with the absence of verification of his experience at CPS in the form of a referee statement from Mr Bennett.
11. The respondent submits that the purpose of the referee statement is to verify experience demonstrating competency to perform the work over a period of time, being three years. The Experience Guide does not simply call for a signature that the applicant did certifying work, it provides that the "application for accreditation requires you to provide statements from at least three referees to verify your experience". The respondent submits that while the applicant has provided project examples in the form 1a-1d template from the Experience Guide, appearing to be signed by Mr Bennett, there is no way of extracting the experience gained because there is no supporting explanation from Mr Bennett by way of verification, and so the actual work performed by the applicant under supervision is not known.
12. The respondent accepts that substantial compliance with an approved form is not required, as provided in s 80 of the BP Act, however contends that the applicant has not provided verification of his experience as required, and so there is not even substantial compliance.
13. The applicant relies on s 5(3)(b) of the BP Act, however that provision enables, but does not require, that an applicant have an opportunity to attend an interview, or undertake an examination or provide a demonstration, of their skills.
14. The Tribunal notes that the applicant had an opportunity to provide further documents after he lodged his application with the BPB, in accordance with s 5(3)(a) of the BP Act. On 20 December 2019 (ex R1, p 928) he provided a list of signed projects from Mr Bennett, with advice that he anticipated that Mr Bennett would sign the six experience reports in January 2020. The applicant was advised on 7 January 2020 (ex R1, p 1409) that he needed at least one referee statement from an accredited supervisor for his work at CPS as the referee statements submitted did not cover at least three years of supervised work experience, particularly in relation to category A1 or A2 relevant work experience. The applicant responded on 12 January 2020 (ex R1, p 1412) referring to the three referee statements already provided, offering to provide a statutory declaration, and requesting further time to provide the six experience reports. On 3 February 2020 (ex R 1, 1416) the applicant provided a copy of Mr Bennett's email of 31 January 2020, and six experience reports. Mr Bennett is identified in the six experience reports as the supervisor; however none are signed by Mr Bennett.
15. The applicant's list of projects provided for the period he was employed at CPS, other than those he had previously submitted in support of his application for accreditation as an A3 certifier, included 45 CCs, 10 CDCs, and 51 OCs, and alternative equivalent experience for 14 projects.
16. For the CCs, all except 5 state as the "Description of Role and Responsibilities" of the applicant: Developed a list of requirements and received documentation to help assist with the issue of the Construction Certificate.
17. A similar description is provided for 7 of the CDCs, and 30 of the OCs. Only slightly more detail is provided for other OCs, which state that the applicant "attended pre-final inspections", or attended "FRNSW inspections".
18. Even for those of the work projects in the list that have been signed by the stated supervisor, Mr Bennett or Mr Michaels, the Tribunal is not satisfied that such a brief description enables an understanding of the actual work undertaken by the applicant. The further information provided in those documents does not elaborate on the extent of the applicant's involvement in the assessment, the identification of issues and the development of alternative approaches and appropriate outcomes.
19. The information provided for the CDCs in the list (discussed in Reason 29) illustrates the point. Seven of those documents, signed by the stated supervisor, describe the role and responsibilities of the applicant as: Developed a list of requirements and received documentation to help with the issue of Complying Development Certificate.
20. Five of those documents refer to BCA provisions in the section "Non-compliance identified and how it was resolved", however none of those documents refer to the specific clauses of the applicable State Environmental Planning Policies relevant to the non-compliances identified and resolved before the CDC was issued. The applicant's position was that a CDC would not be issued if there were non compliance with an applicable development standard. The Tribunal agrees with the respondent's concern that given the function of a CDC as provided in the EP & A Act, there be some evidence of consideration of that issue in addition to BCA compliance, and the reasoning involved in the decision to issue the CDC. That is not apparent in the documents provided by the applicant.
21. The six A1 experience reports provided by the applicant relate to the issuing of CCs and OCs during the period of his employment at CPS for projects at 7D3 19-21 Tennyson Road Breakfast Point (ex R1, p 98); 7D2 19-21 Tennyson Road Breakfast Point (ex R1, p 105); 84-92 Epsom Road Zetland (ex R1, p 112); 11-15 York Street Point Frederick (ex R1, p 125); 31-33 Albany Street Crows Nest (ex R1, p 130); and 13 Lynn Avenue Point Frederick (ex R1, p 137).
22. The respondent takes issue with the misdescription in those experience reports of the applicable provisions of the EP & A Act, including in the OC for 7D3, 19-21 Tennyson Road Breakfast Point a reference to a version of the legislation that was not in force at the time the OC was issued (Reasons 12, 13, 14, 15, 16). The applicant submits that those were typographical errors. The respondent contends that the errors relate to changes in substance in the legislation as well as form, and that a high degree of diligence is required of an application for accreditation of the highest order, especially when the reference is to the very legislation under which the applicant will be discharging his duties. The Tribunal agrees that the errors are more significant than typographical errors, as the amendments made to the EP&A Act with effect from March 2018 changed the substance, as well as the numbering, of several relevant provisions including the former s 109H which is now section 6.10.
23. It is not necessary to decide whether such errors demonstrate a shortfall in the diligence required of a certifier such as should preclude an applicant from accreditation. The more significant issue with the six experience reports is that while Mr Bennett is identified as supervisor, none are signed by him. The Tribunal accepts that the experience reports are comprehensive and provide detail of the applicant's claimed involvement in assessment of each application, the issues identified and the assessment undertaken, and the action taken to resolve areas of non-compliance. However, in the absence of confirmation from someone other than the applicant himself, the Tribunal does not regard those documents as providing verification of the extent of his experience.
24. While those projects also appear in the list of work projects, signed by Mr Bennett, as noted above there is insufficient detail provided as to the extent of the applicant's engagement in the work so as to regard the signature on those documents as providing support or verification by someone other than the applicant.
25. The applicant has provided documents to the Tribunal, relating to projects (using the BPB's template Attachments 1a-1d), and providing copies of CCs and OCs including supporting documents and plans, in his Supporting Documentation Report (ex A1). The project reports provide no additional detail or elaboration on the extent of the applicant's involvement in the assessment process undertaken for the issue of the CC or OC to expand on that discussed above at [80]-[82]. The formal CC and OC documents confirm that those certificates were signed and certified by Mr Bennett; however they do not assist in confirming the extent of the claimed experience of the applicant.
26. The referee statements provided by Mr Vardas and Mr Liaris are provided on the BPB template form. Mr Vardas states that he is verifying the applicant's projects on class 2, 3, 6 and 7b buildings, being carrying out site inspections and preparing and collating documentation for the issuing of CCs and OCs. No dates are provided. Mr Liaris states that he is verifying 4 units in a class 2 building with a fire engineered alternative solution, being conducting mandatory PCA inspections, issuing all CC documentation, reviewing and approving certification from trades and consultants and issuing requirements lists and inspection reports. Mr Liaris worked with the applicant from 1 April 2018. Neither Mr Vardas nor Mr Liaris is an accredited certifier, and even if their referee statements could be regarded as supporting the claimed experience while with CPS, neither establishes the extent of experience for the duration required by the Accreditation Statement.
27. The Tribunal concludes that even if the absence of a referee statement in the form specified in the Experience Guide to verify the applicant's experience at CPS should be disregarded, the applicant has not provided sufficient information to enable an assessment of whether he possesses the relevant experience so as to substantiate his claimed experience for the full three years required by the Accreditation Statement. The Tribunal is not satisfied that the application of the policy manifest in the Experience Guide A1 would work an injustice in the circumstances, and the decision under review should be affirmed.
28. That conclusion means it is not necessary to reach a concluded view on the other matters raised in the internal review. Some brief comments are made on some of those issues.
29. The respondent took issue in Reason 3 with the examples given in two of the project reports of a CC (No 163027 and 163097) issued for demolition work only, which it contended was unsatisfactory as a CC cannot be issued for demolition works only. In response the applicant relied on the terms of the relevant development consents for those projects which limited the work that could be carried out until a CC was issued, providing extracts from those consents (ex A1, p10). The applicant relied on the decision in Sharp v Hunters Hill Council [2002] NSWLEC 27, which he submitted establishes that the demolition of an existing dwelling is relevantly "building work", and that there is no obligation to issue a CC for demolition works only. The internal review decision noted, but did not accept, Mr Votano's reasoning in support of his argument that a CC can be issued for demolition work only, and commented that there is a level of misunderstanding in the industry regarding demolition work, which is further confused by demolition being a form of complying development as well as conditions of consent imposed by certain councils. It is not necessary to consider whether Sharp addresses the issue raised by the respondent. The respondent was not able to identify any authority to support its contention that a CC cannot be issued for demolition work only. In any event, in the absence in the evidence of a copy of the relevant CCs, or the applications for those CCs, the Tribunal is unable to find that that is in fact what occurred.
30. In Reasons 6, 9, 10, and 11 the respondent took issue with Mr Votano's interpretation and application of specific provisions of the BCA, including section C2.7 on separation by fire walls, section E1.9 on fire precautions during building construction, and the relevant provisions on protection of window openings, and provisions of the Environmental Planning and Assessment Regulation 2000 applicable to fire hydrant systems. In his statement, and in oral evidence, Mr Marks explained the basis on which he disagreed with Mr Votano's responses. The evidence before the Tribunal did not include relevant extracts from the BCA, or expert opinion evidence on the application of those provisions or alternative approaches available under the BCA, and in that context it is not appropriate to comment on the differing interpretations of the specific provisions of the BCA explored in Mr Votano's submissions and in the oral evidence.

Conclusion

1. The Tribunal concludes that the applicant has not provided sufficient evidence to establish that he has the minimum of three years recent practical experience relevant to the category of accreditation for which he applied, as required by the Accreditation Statement under the BP Act. The decision under review should be affirmed.
2. The order of the Tribunal is: 1. Decision under review affirmed.

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: 21 January 2021