Votano v Building Professionals Board

Issues

1. The BPB's position in Votano No 1 was that the decision should be affirmed on the ground that the applicant had not met the requirements for category A1 accreditation, because he did not meet the requirement of three years' demonstrated experience at the appropriate level. Most of the experience claimed relevant to the A1 category occurred during the applicant's employment with City Plan Services Pty Ltd (CPS) before April 2019 and he had not provided a referee statement from any of his supervising A1 accredited certifiers during that employment. Further, there were deficiencies and errors in the material and information submitted in relation to some of the work and project examples.
2. The applicant's position was that he had provided reasons why he could not provide a referee statement from an A1 accredited certifier for his experience at CPS; he did not accept that his experience did not meet the requirements; and he had provided reasons for any errors made in the documentation provided.
3. The BPB position remains that the applicant has not adequately or sufficiently demonstrated that he has the requisite experience to be registered as an A1 accredited certifier.
4. The applicant's position is that he had satisfied the requirements in the initial application lodged in 2019, and that further demonstration has been provided to prove that he was in fact a professional Building Surveyor/Building Regulations Consultant at the time of his experience. He contends that the category A2 accreditation (Building Surveyor - Restricted (all classes of building)) issued to him does not reflect the experience demonstrated; that all required experience provided during the application and the hearings have been at the A1 level; that the conditions on his registration do not allow certification of class 2-9 buildings assessed under an A2 level or at the A1 level and strip back the functions of an A2 certifier to those of an A3 certifier; and that that accreditation does not reflect his qualifications (Master of Building Surveying) which reflects the category A1 level as required under the Building and Development Certifiers Regulation 2020 (NSW).
5. The role of the Tribunal in this administrative review is to determine what is the correct and preferable decision, having regard to all the material before it including any relevant factual material and any applicable law: ADR Act, s 63.
6. The BP Act did not specify the criteria to be met for accreditation, and the statutory scheme relied on the provisions of the Accreditation Scheme required by s 4 of the BP Act to be prepared by the BPB. An assessment by reference to the Accreditation Scheme of whether an applicant has the required qualifications, skills and experience for accreditation was required, s 7(1)(b) of the BP Act providing that an application for accreditation can be refused "if the Board is not satisfied that the applicant has the qualifications, skills, knowledge and experience required by the accreditation scheme for accreditation as an accredited certifier". In this matter the BPB exercised the power under s 6(2)(a) of the BP Act to issue a certificate "of a category prescribed by the regulations that the Board considers appropriate (regardless of whether the applicant has applied for a different category of certificate)".
7. There is no formal onus on the applicant to prove that the respondent's decision was incorrect, nor is there an onus on the respondent to prove that the decision is correct. There is a practical onus on the applicant, however, as a consequence of cl 13 of the Accreditation Scheme which requires that he provide to the BPB, and therefore on review to the Tribunal, sufficient evidence that he satisfies the qualifications and experience requirements for category A1 accreditation. The issue for the Tribunal is whether the applicant satisfies the Experience Requirement for category A1 accreditation.

Background

1. These reasons are to be read together with the reasons in Votano No 1, which discuss: 1. the transition in the regulatory scheme for accreditation of building professionals from the BP Act (repealed from 1 July 2020) to the Building and Development Certifiers Act 2018 (the BDC Act); and the savings and transitional provisions in Sch 1 to the BDC Act under which the present administrative review in relation to the application for accreditation lodged before the repeal of the BP Act continues in accordance with the provisions of the repealed BP Act (Votano No 1 at [4]-[8]); 2. the relevant provisions of the BP Act and the Building Professionals Regulation 2007 relating to applications for accreditation, and to administrative review under the ADR Act, including the Tribunal's jurisdiction under s 18(c) of the BP Act to review a decision of the BPB to issue a certificate of accreditation to an applicant of a different category to that for which the person applied (Votano No 1 at [9]-[15]); 3. the categories of registration including the authorities conferred on a Category A1 accredited certifier (now Building Surveyor - Unrestricted) and a Category A2 accredited certifier (now Building Surveyor - Restricted (all classes of building))(Votano No 1 at [16]-[20]); 4. the applicant's educational qualifications and employment background, which included employment by City Plan Services Pty Ltd (CPS) from June 2014 to April 2019 and from April 2019 by Central Coast Council (Votano No 1 at [21]-[24]); and 5. the original decision of 6 March 2020 and the internal review decision of 16 April 2020 (Votano No 1 at [24]-[28]).
2. As discussed in Votano No 1, s 4 of the BP Act required the BPB to prepare an accreditation scheme to provide for the "qualifications, skills, knowledge and experience required for accreditation", and specified that it be adopted by the Minister and published in the Gazette.
3. Clause 13.1 of the Accreditation Scheme provides that the BPB will assess an applicant against the core performance criteria, the specialty performance criteria and specialty qualification requirement for each category of accreditation in which the applicant seeks to be accredited, the experience requirement for each category of accreditation, and any further requirements of the legislation. Clause 13.2 provides that an applicant "must provide evidence that he or she satisfies each of the above requirements that are relevant to the category of accreditation applied for"; and cl 13.23 provides the BPB will assess an applicant's experience on the basis of the documents and information provided by the applicant.
4. The core performance criteria are provided in Schedule 1 to the Accreditation Scheme. Schedule 2 provides Accreditation Statements for each category of accreditation, listing the criteria to be satisfied. The Experience Requirement for category A1 is stated to be: 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.
5. Detail as to how an applicant is expected to demonstrate that experience is provided in the Experience Guide Category A1 (the Experience Guide) applied by the BPB, summarised in Votano No 1: 44. 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). 45. 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. 46. 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. 47. Attachment 2: Experience Reports states that the reports "should be one to two pages long and be verified by the referee statements".
6. On the remittal no issue was taken with the conclusion in Votano No 1 that the Accreditation Scheme is "Government policy" as defined in s 64(5) of the ADR Act, and as such must be applied by the Tribunal except to the extent that it is contrary to law or produces an unjust decision in the circumstances of the case (at [52]-[53]). No issue was taken with the conclusion (at [54]) that the Experience Guide, as a policy developed by the BPB in the implementation of the Accreditation Scheme and the exercise of the requirements of the BP Act, is not "Government policy" as defined in s 64(5), and pursuant to s 64(4) of the ADR Act may be taken into account except to the extent that it is contrary to Government policy or law or produces an unjust decision in the circumstances of the case.
7. The Accreditation Scheme requires an applicant for category A1 accreditation to provide evidence to establish a minimum of three years recent practical experience relevant to the category of accreditation applied for, which may 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 relevant legislative requirements, development conditions, and the Building Code of Australia (BCA). My conclusion in Votano No 1 as to the application of the provisions of the Accreditation Scheme was as follows: 53. 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.
8. There was no challenge to that conclusion. The issue is whether the applicant has demonstrated the required recent practical experience relevant to category A1 accreditation for a minimum of three years, which would include his work at CPS.
9. The Experience Guide is a document adopted and applied by the BPB in assessment of an application for accreditation, and provides detail as to how an applicant is expected to demonstrate that he or she has the relevant experience required by the Accreditation Statement for the relevant category. As stated at [55] in Votano No 1, in specifying 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 in the Accreditation Scheme. There was no challenge to the conclusion (at [56]) that the Tribunal may, in accordance with s 64(4) of the ADR Act, and general principles for the application of policy to administrative review, 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; and that the Tribunal must not apply the policy inflexibly.
10. The Experience Guide notes that for category A1, an applicant's practical experience "is expected to exceed the authorities conferred on a category A2 certifier", so that it should relate 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. The experience is expected to include assessing (a) Construction Certificate (CC), (b) Complying Development Certificate (CDC) and (d) Occupation Certificate (OC) applications, (c) carrying out critical stage inspections of building work, and (e) carrying out the role of Principal Certifying Officer (PCA). The Experience Guide states: Practical experience: equivalent alternative If you don't have the practical experience specified in this criteria, you will need to demonstrate alternative experience that must be considered equivalent to the experience in criteria (a) to (e). It is your responsibility to demonstrate that your alternative experience is equivalent. For example, you may have carried out fewer assessments but may be able to show, due to the complexity of the buildings, that you have sufficient CC assessment experience.
11. The Experience Guide specifies the number and type of CC, CDC and OC applications and critical stage inspections required.
12. For CCs, the Experience Guide states that sufficient practical experience can be demonstrated by evidence of: (a)forty CC applications for class 2 to 9 buildings of any size; (b)twenty CC applications for buildings that exceed the authorities conferred on category A2 working under the supervision of a category A1 (these can come from the 40 applications used to demonstrate criterion (a)); (c)three CC applications (excluding fit outs of existing buildings and excluding minor alterations, extensions and additions to existing buildings) for building that exceed the authorities conferred on a category A2 for: (i)class 2 or class 3 buildings; (ii)class 5 or class 6 buildings; (iii)class 7b or class 8 buildings; (iv) class 9a or class 9b or class 9c buildings; (The applications used to comply with this requirement can come from the same buildings used to demonstrate criterion (b)); (d)one CC application for a building with an effective height in excess of 25 metres - without this, a condition may be imposed on your certificate of accreditation restricting you to buildings with a maximum effective height of 25 metres); (e)ten applications for CCs that propose alternative solutions involving fire safety requirements for 10 separate buildings that exceed the authorities conferred on category A2; (f)five applications for CCs that propose alternative solutions involving fire safety requirements that require referral to Fire & Rescue NSW under clause 144 of the EP&A Regulation. These can come from the 10 used to remonstrate criteria (e); (g)two alternative solutions not involving a fire safety requirement. If you don't have this experience, you may be able to demonstrate sufficient alternative solution experience by relying upon addition experience assessing alternative solutions involving fire safety requirements.
13. The number of CDC and OC applications and inspections required "for all sizes and classes of buildings" are: for CDC applications, 10, 3 for an existing class 2 to class 9 buildings; for critical stage inspections, 30 for class 2 to class 9 buildings, 5 of each of the different types of critical stage inspections for class 2 to class 9 buildings; and for OC applications, 20 for class 2 to class 9 buildings, 15 for class 2 to class 9 buildings that exceed the authorities conferred on category A2.
14. In summary, the Experience Guide requires an applicant to provide: 1. A "comprehensive" list of work projects that contains sufficient information to satisfy the criteria, with separate lists for assessing CCs and CDC and OC applications and critical stage inspections, including the information in the templates at Attachments 1a-1d; 2. Statements from "at least three referees to verify your work experience", which should verify projects in the list of work projects, using the templates available on the BPB website; and "in addition to the referee's statement from an A1 accredited certifier", a statement from "an independent professional external to your company who you have worked for or with on building projects"; and 3. Six experience reports "that highlight the breadth and depth" of the experience based on the "number of applications assessed and inspections carried out", which should be 1-2 pages long and "be verified by the referee statements".
15. The applicant provided with his original application referee statements using the BPB Referee Statement template from three accredited certifiers, Mr Wayne Herd, Mr Mark Newton, and Mr Grant Killen, to verify the applicant's work experience from April 2019 when he started working at Central Coast Council. He provided referee statements on the BPB template by Mr Anthony Vardas, Project Manager Meriton Property Services, and Mr Jorgen Liaris, Project Manager Construction Profile.
16. There was no referee statement provided by either of the two category A1 accredited certifiers at CPS, Mr Brendan Bennett or Mr Chris Michaels. The applicant had provided a copy of an email from Mr Bennett to the applicant dated 4 April 2019 in which he 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.
17. In an email dated 31 January 2020 Mr Bennett stated: I committed to verifying the project reports. I am not comfortable providing reference as my preference is to only do so when the person is employed by us because we take on the risk. Can't you get current employer to provide the references needed?
18. In Votano No 1 I considered the consequence of the absence of a referee statement provided by Mr Bennett: 61. 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.
19. I considered the list of projects provided by the applicant for the period that he was employed by CPS: 79. 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. 80. 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. 81. 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". 82. 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.
20. At [85]-[88] I considered the six Experience Reports provided by the applicant: 85. 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). 86. 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. 87. 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. 88. 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.
21. At [71]-[73] I considered the referee statements provided by Mr Herd, Mr Killen and Mr Newton, relating to the applicant's experience from April 2019. At [90] I considered the referee statements provided by Mr Vardas and Mr Liaris.
22. My conclusion was stated as follows: 91. 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.
23. As noted above, my decision to affirm the decision under review was set aside on appeal by consent. The applicant had in January 2020 provided to the respondent copies of the six Experience Reports signed by Mr Bennett. However, the copies included in the s 58 documents, and admitted in evidence without objection, were the earlier copies signed only by the applicant and not by Mr Bennett; and neither the applicant nor the respondent had alerted the Tribunal to that fact. The respondent has acknowledged that the copies signed by Mr Bennett should have been provided to the Tribunal. Copies have since been provided to the Tribunal.

The Reconsideration Decision

1. The reconsideration on remittal to the respondent under s 65 of the ADR Act was undertaken by Mr Jonathan Lynch, Manager of Building and Development Certifiers Registration, Registry and Accreditation, Licensing and Funds at NSW Fair Trading. In the Reconsideration Decision, made on 23 April 2021, Mr Lynch found that the applicant had demonstrated that he satisfied the Core Performance Criteria, the Specialty Performance Criteria (Specialty Knowledge and Specialty Skills), and the Specialty Qualification requirements for Category A1. Mr Lynch considered the Experience Requirement in the Accreditation Statement in Sch 2 to the Accreditation Scheme and concluded that the decision to issue the applicant a certificate of individual accreditation in Category A2 subject to the conditions imposed in the original decision of 6 March 2020 should be affirmed.
2. Mr Lynch commented on the applicant's resume, his list of projects, the signed experience reports (7D3-19-21 Tennyson Road Breakfast Point, 7D2-19-21 Tennyson Road Breakfast Point, 84-92 Epsom Road Zetland, 11-15 York Street Point Frederick, 31-33 Albany Street Crows Nest, 13 Lynn Street Point Frederick), and the referee statements.
3. On reviewing the resume Mr Lynch commented that the applicant had not demonstrated that he had obtained three years recent practical experience assessing applications for CCs, CDCs, and OCs that exceeded the authorities of a category A2 certifier under the supervision of a category A1 certifier; it was not clear whether the "assistance" provided by the applicant in his employment at CPS included carrying out the assessment of applications for CCs, CDCs and OCs; and the resume showed that he had not carried out the assessment of applications for CCs, CDCs and OCs that exceeded the authorities of a category A2 certifier under the supervision of a category A1 certifier in his employment at Central Coast Council as a Building Surveyor.
4. In relation to the List of Projects: 1. It appeared from the information provided that the applicant had carried out an administrative role of compiling a list of requirements and receiving documents that make up an application for assessment by the category A1 certifier; 2. The information provided demonstrated that the applicant had not obtained the required minimum of three years practical experience carrying out assessment of applications for a CC, CDC, or OC of class 2-9 buildings that exceed the authorities of a category A2 certifier under the supervision of a category A1 certifier; 3. The alternative experience provided was insufficient in number and breadth of the nature of the assessments and experience obtained to make up for the deficiencies with the lists of applications for CCs, CDCs and OCs; 4. The applicant had not provided evidence of assessing three CC applications (excluding fit outs of existing buildings and excluding minor alterations, extensions and additions to existing buildings) for buildings that exceeded the authorities conferred on a category A2 certifier for class 7b or class 8 buildings, or class 9a or class 9b or class 9c buildings; 5. The list of projects also indicated concerns including indicating that construction certificates can be issued for demolition only, that a company that is not an accredited body corporate can be appointed the PCA, that non-compliances with deemed-to-satisfy provisions of the BCA identified after the relevant building work has been completed can be resolved by proposing and approving an alternative solution and issuing a new CC, and that a CC can approve an alternative solution after building work has been completed when the approved plans show the building work will comply with deemed-to-satisfy provisions of the BCA; and 6. The applicant had not provided sufficient evidence to demonstrate the expected experience assessing large sized class 7a or 8 buildings and large class 9a, 9b or 9c buildings where the class 7,8 or 9 part exceeds the authorities conferred on an A2 certifier.
5. Mr Lynch commented on the six Experience Reports as follows: 1. The reports were in relation to the applicant's experience with six class 2 residential flat buildings with class 7a car parks and in some cases some other classes such as class 6; five were buildings from 5 to 7 storeys and below an effective height of 25m and one example was above 25m in effective height; 2. The six examples showed that the applicant assisted with CCs and with the assessment of the Fire Engineering Brief (FEB), Fire Engineering Report (FER) and all documentation required to issue the CC, and did not indicate that the applicant assessed the applications for CCs or OCs; 3. The experience reports demonstrated that the applicant had carried out an administrative function of preparing documentation rather than assessing the applications for CCs, CDCs and OCs under the supervision of a category A1 certifier; 4. In the six reports the applicant had listed under the heading "Alternative Solutions Assessed" several alternative solutions however had not specified whether the certifier assessed the proposed alternative solutions as part of assessing the CC application; 5. In five of the six reports in relation to the section "Detecting areas of non-compliance and the action taken to resolve these matters" the applicant referred to clause 6.10 of the Environmental Planning and Assessment Act 1979 (the EP&A Act), however section 6.10 was not introduced into that Act until 1 March 2018 and did not apply to the final OCs issued before then. That indicated that the applicant was not really involved in the assessment of the application for the OC or final OC and appeared to be a list of non-compliances without any real explanation of whether the applicant identified the non-compliances with the DTS provisions of the BCA as part of assessing an OC or final OC.
6. Mr Lynch's consideration of each of the reports included the following comments: 1. 7D3-19-21 Tennyson Road Breakfast Point (residential unit building with a rise in storeys of 7 classified class 2 and 7a, effective height 21.636m): there were concerns with the list of DTS non-compliances provided by the applicant, including references to C2.14 and E1.0 of the BCA and the issue of a CC subject to a clause 188 exemption being assessed by Fire & Rescue NSW; and there was no relevant information provided regarding his involvement in fire engineering design briefs, referrals to Fire & Rescue NSW, review of fire engineering reports, assessments of CCs and inspections of building works required for final fire safety reports from Fire & Rescue NSW and how these were resolved; 2. 7D2-19-21 Tennyson Road Breakfast Point (class 2 and class 7 residential unit building comprising 100 apartments with a rise in storeys of 7): the applicant appeared to have obtained some experience assessing plans and specifications for an application for a CC in relation to compliance with the DTS provisions of the BCA, however it was not clear if that was for the whole or part of the building; and there was no relevant information provided regarding his involvement in fire engineering design briefs, referrals to Fire & Rescue NSW, review of fire engineering reports, assessments of CCs and inspections of building works required for final fire safety reports and how those were resolved; 3. 84-92 Epsom Road Zetland (mixed use development comprising 4 residential flat buildings being class 2, 6, 7a, 7b and 9b): the documentation demonstrated that the applicant assisted with CC5 and CC6 and with the assessment of the FEB, FER and all documentation required to issue the CC; there were concerns with his statement that Building A has a building height of 32.3m and the united buildings have a height of 26.35m, because different effective heights for different parts of a unified building could result in incorrect application of the relevant fire safety provisions of the BCA; 4. 11-15 York Street Point Frederick (demolition of 3 dwelling houses and erection of a residential flat building of 54 units of class 2 and class 7a): the applicant appeared to have obtained some experience assessing plans and specifications for an application for a CC in relation to compliance with the DTS provisions of the BCA, however it was not clear if that was for the whole or part of the building; and he provided no relevant information regarding his specific involvement in fire engineering design briefs, review of fire engineering reports, or assessments of CC applications; 5. 31-33 Albany Street Crows Nest (demolition of existing structures and construction of new mixed-use building of class 2, 6 and 7a): the applicant had listed under "Alternative solutions assessed" several alternative solutions however it was not specified whether the certifier assessed the proposed alternative solutions as part of assessing the CC application; and in the section "Detecting areas of non-compliance and action taken to resolve matters" the information appeared to be a list of non-compliances without any real explanation of whether the applicant identified the non-compliances with the DTS provisions of the BCA as part of assessing the CC; 6. 13 Lynn Ave Point Frederick (residential flat building comprising 20 apartments class 2 and 7a with a rise in storeys of 5): the applicant had provided good examples of identifying concerns with a FER, however it was not clear whether he reviewed the FER and formed the opinion as he used the term "we"; and the applicant had not provided information detailing how the issues identified were resolved.
7. Mr Lynch concluded that the six experience reports do not provide sufficient information to demonstrate the applicant has three years recent practical experience relevant to Category A1.
8. In relation to the referee statements provided by the applicant, Mr Lynch referred to the statement in the application form that: 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.
9. Mr Lynch noted that the applicant provided no referee statement to verify the information in his list of projects and six experience reports and to confirm that, in the opinion of the category A1 certifiers who supervised his work experience at CPS, his experience when he was an employee at that company was recent practical experience relevant to category A1. There was no confirmation from a category A1 certifier from CPS that in their opinion the applicant is competent to perform the functions of a category A1 certifier.
10. Mr Lynch commented on the referee statements provided: 1. The referee statement from Mr Herd, a Category A1 council accredited certifier employed by Central Coast Council, does not confirm that the applicant has obtained recent practical experience relevant to category A1 as the experience it confirms is his experience in relation to fire safety upgrades; and that experience does not appear in most cases to be relevant to buildings that exceed the authorities of a category 2 certifier or provide equivalent experience to assessing an application for a CC, CDC or OC for a proposed new building that exceeds the authorities of a category A2 certifier; 2. The referee statements from Mr Newton and Mr Killen, both category A1 council certifiers, refer to the fire safety upgrade work the applicant has performed at Central Coast Council and do not provide verification of recent practical experience relevant to category A1; 3. The referee statement from Mr Vardis, Project Manager Meriton Property Services provides independent confirmation that the applicant has carried out site inspections to identify BCA non-compliances and prepared and collated relevant documents associated with CCs and OCs rather than assess applications for CCs and OCs; 4. The referee statement from Mr Jorgen Liaris, Project Manager at Construction Profile, verified the applicant's experience in relation to one development being four high end units being class 2 with a fire engineered alternative solution, including conducting mandatory PCA inspections, issuing CC documentation, reviewing and providing advice on design documentation, reviewing and approving certification from builder trades and consultants, responding to RFIs from builder and architect and issuing updated requirements lists and inspection reports; that experience did not appear to be experience in relation to a building that exceeds the authorities that a category A2 certifier can carry out and the applicant could not have issued the CCs as he was not authorised to issue CCs for class 2 buildings.
11. In his reasons for his decision to affirm the decision to issue a certificate of accreditation in category A2 subject to conditions, Mr Lynch stated that the applicant had not provided sufficient evidence to demonstrate that he has satisfied the experience requirement of the Accreditation Statement for category A1 and for Category A2 in relation to class 2-9 buildings, for the following reasons: 1. he had reviewed and assessed the information provided by the applicant in his resume, list of projects, six signed experience reports and referees statements, and found that the applicant had not provided sufficient information to demonstrate that he satisfies the experience requirements for category A1 and for category A2 in relation to class 2-9 buildings; 2. the applicant had not been able to provide a referee's statement from one of his supervisors at CPS to verify the length of experience and the quality of experience and confirm that in their opinion the applicant is competent to perform the work of a category A1 certifier; 3. the applicant is relying on his experience at CPS in relation to his resume, list of projects and six experience reports which are not verified by a relevant referee's statement from a supervisor at the company, and for the reasons provided in his assessment of those documents, those documents were insufficient to demonstrate that the applicant has three years recent practical experience relevant to category A1 and Category A2 in relation to class 2-9 buildings; and 4. the information submitted in the list of projects and six experience reports also raises concerns about the applicant's experience in relation to interpretation and application of the relevant legislation and the provisions of the BCA.

Evidence

1. In addition to the documents in evidence in Votano No 1 (at [31]-[33]), the evidence before the Tribunal is: 1. Applicant: 1. Bundle of documents filed 15 July 2021 (ex A6), 2559 pages, including: 1. Written submissions dated 21 June 2021; 2. Annotated response to the Reconsideration Decision; 3. Documents numbered as D1-D196, including an index titled "Document Register"; 1. Affidavit sworn 21 August 2021 (ex A7); 1. Respondent: 1. Affidavit of Jonathan Lynch, Manager of Building and Development Certifiers Registration, Registry and Accreditation, Licensing and Funds at NSW Fair Trading, affirmed 24 September 2021 (ex R3).
2. The applicant provided written closing submissions on 19 November 2021, and submissions in reply on 22 December 2021. The respondent provided written closing submissions on 29 November 2021.

Applicant's evidence

1. The additional material filed by the applicant after the remittal from the Appeal Panel has been admitted into evidence (ex A6). The applicant's affidavit of 21 August 2021 and his annotations to the Reconsideration Decision referred to parts of that material, and in his further oral evidence at the hearing on 21 October 2021 the applicant took the Tribunal to specific pages in that additional material.

Affidavit evidence

1. In his affidavit of 21 August 2021 the applicant stated that his role at CPS from 16 June 2014 to 12 April 2019 was as Building Regulations Consultant. There were three directors, including Mr Bennett and Mr Michaels; two senior Building Regulations Consultants; and four Building Regulation Consultants, including himself; two assistant Building Regulations Consultants; all assisted by 6 administration officers. He stated that at no time was he in an administration role, rather was in a consultant role.
2. The applicant stated that he has a thorough knowledge of current legislation and the building code, attention to the specifics of the development consent, and a good understanding of current standards and practices to carry out a proper assessment of the projects provided with the application. He currently holds a Master of Building Surveying which covers all of those aspects that form part of an "assessment". The list of projects, signed and dated by an A1 accredited supervisor at the time of the experience gained, includes for all assessments including CCs, CDCs, OCs and BCA assessments "Dates of assessment and the date the certificate was issued" and "Date of assessment". The first experience report, which was signed, dated and verified by an A1 accredited supervisor at the time of the experience, produces the keyword "assessment" 17 times, and the following 5 experience reports are similar. The list of projects template requires an applicant to provide a "brief description" of roles and responsibilities, and an applicant cannot provide a thorough detail of the assessment; that thorough description is left for the six experience reports. Further, the list of projects template includes rows for "Description of Building Work", "BCA Classification/s", Rise in Storeys of the Building", "Floor Area of the Building", Effective Height of the Building", "Description of Alternative Solutions", "NSW Fire & Rescue Referral" and "Non-compliance identified and how it was resolved", which all demonstrate the "assessment" that must have taken place, as those fields could not have been filled in without an "assessment".

Oral evidence

1. In oral evidence the applicant stated that most of the time while employed at CPS he was conducting assessments for final review of an A1 certifier. As a certifier, some tasks were administrative; for example compiling a requirements list is administrative but that is what a certifier does. As Building Regulations Consultant he was under the supervision of Mr Bennett.
2. The applicant was asked about his use of the terms "we" and "I" in his documents. He stated the term "we" indicated that he was working under the supervision of Mr Bennett. In document D48 (a CC requirements list) (ex A6, p1607) the reference to "we" meant that he and Mr Bennett had worked out the outstanding matters, and that requirements list was signed by him. When he used the term "I" that indicated that he was typing the document; and sometimes Mr Bennett would be confident in him. In document D48 the statement at p 1612 "CPS to review" meant he was to review. For document D50 (an OC requirements list), he worked with Mr Bennett to build the schedule and collate certificates. The architectural drawings in evidence (document D88, ex A6 p1848) have both his and Mr Bennett's handwriting on them.
3. In cross examination the applicant acknowledged errors in some of the dates provided. He agreed that there was no reference in his resume to critical stage inspections for classes 2-9 buildings, stating that his accreditation only permitted that for class 1 and 10 buildings, and that he did inspections for classes 2-9 buildings under supervision. He acknowledged incorrect references to section 6.10 of the EP&A Act in 5 of the 6 Experience Reports. He disputed that he had not been diligent in the information provided.

Evidence of Mr Lynch

1. Mr Lynch was the officer of the respondent who carried out the reconsideration on remittal to the respondent by the Tribunal. In his affidavit of 24 September 2021 Mr Lynch stated that there is nothing in the applicant's further documents filed 15 July 2021 that would change his previous view that there is insufficient information to demonstrate that the applicant has sufficient experience relevant to Category A1. At paras [15]-[97] Mr Lynch discussed each of the additional documents provided by the applicant in July 2021.
2. At [10] Mr Lynch stated that he had read the Tribunal's Procedural Direction No 3-Expert Evidence and the Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005 (UCPR) and agreed to be bound by it. In the curriculum vitae provided with his affidavit Mr Lynch stated that he qualified with an Associate Diploma in Health & Building Surveying in 1987. His experience includes work as a council Health and Building Surveyor from 1991 to 1995; as Building Codes Officer with the Department of Local Government and then the Department of Urban Affairs and Planning from 1995 to 2000, and 2002 to 2004; as Environmental Planning Officer, DIPNR, from 2000 to 2002; and since 2004 with the BPB, including as Manager of the Accreditation Team and as Manager of the Building and Development Certifiers Registration Team. That experience includes periods providing technical advice on the BCA and provisions of the EP&A Act and Regulation.
3. In oral evidence Mr Lynch was asked about documents D17-D24 (ex A6), which are BCA assessments in relation to 8 different buildings, including a lobby upgrade of a class 9b building; alterations and additions to a mixed classification use (classes 5, 7b, 9b), the extension being class 5; ground floor fitout of an existing building; class 7b storage; two basement levels; internal fitout of food premises for a class 6 building; internal fitout of those premises considering compliance with disability access standards; and office space and laboratory for an existing building of classes 5, 7b and 7a. At [21] in his affidavit Mr Lynch had stated that that information did not provide any further practical evidence that the applicant had gained relevant experience assessing applications for CCs, CDCs and OCs for buildings that exceed the authorities of an A2 certifier in respect of those classes of buildings.
4. In cross examination Mr Lynch commented that those assessments were all in relation to existing buildings; he had been looking for evidence of experience for the authorities of an A1 certifier, and those assessments demonstrated experience for A2 authorities. He stated that the Experience Guide requires in relation to alternative equivalent experience for CCs, evidence of experience exceeding authorities conferred on a category A2, including "(c) three CC applications (excluding fitouts of existing buildings and excluding minor alterations, extensions and additions to existing buildings) for buildings exceeding category A2 authorities for class 2 or 3 buildings, class 5 or 6 buildings, class 7b or 8 buildings, and class 9a or 9b or 9c buildings". The alternative equivalent experience relied on needs to show experience for CCs across all of (a)-(g) (see [28] above) equivalent to each of those items, and that it exceeds the authorities of a category A2, and it cannot include fit outs or minor alterations to existing buildings. Questioned as to where in the Experience Guide it states that the examples of alternative equivalent experience need to exceed the authority of a category A2, Mr Lynch stated that to be considered to be equivalent, the alternative experience needs to be equivalent to what is specified in the Experience Guide, otherwise it is not equivalent.
5. Mr Lynch stated that the applicant had evidence of plenty of class 2 buildings, but not class 7 or 8. An applicant needs evidence of full size buildings, and a small part of a building would not be considered as equivalent experience.
6. Mr Lynch was cross examined on his qualifications, confirming that he has not completed a university degree since his Associate Diploma. He stated that he has been involved in the development of the BCA and performance provisions and provided advice on the BCA, and was involved in drafting the NSW variations to the BCA. He is not currently accredited or registered as a certifier.
7. At the hearing on 21 October 2021 the Tribunal had sought clarification from the respondent as to the basis on which the evidence of Mr Lynch was provided. The respondent's representative initially stated that his evidence was provided both as the person who did the reconsideration on remittal from the Tribunal under s 65 of the ADR Act, and as a person giving expert evidence as a qualified expert. On obtaining further instructions the respondent's representative stated that this evidence was not put to the Tribunal as expert opinion evidence, but as evidence from the person who undertook the reconsideration who has expert qualifications.
8. The conflation of the roles of decision-maker and expert in Mr Lynch's affidavit evidence was also a feature of the respondent's evidence in Votano No 1. The respondent had relied on a witness statement by Mr Michael Marks, a Senior Investigator with the respondent and the BPB officer who had provided technical input for the internal review determination made by Ms Farquhar, Co-ordinator Reviewable Decisions on 16 April 2020. In his witness statement Mr Marks had also acknowledged the Tribunal's Procedural Direction 3 - Expert Evidence and the Code of Conduct in Sch 7 of the UCPR. The position then in response to the Tribunal's request for clarification was that Mr Marks' evidence was provided to identify the issues in contention and not as expert opinion evidence (Votano No 1 at [35]).
9. The Tribunal has not been assisted in the task of evaluating the evidence by the approach adopted by the respondent in this matter. The Tribunal's role in administrative review is to make the decision afresh, and that task is not limited to a consideration of whether the BPB decision was open on the evidence. The Tribunal is authorised and required to review the actual decision, and not the reasons for it: Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
10. In final written submissions filed 19 November 2021 the applicant submitted that Mr Lynch's affidavit evidence should be given no weight, as he is employed by Fair Trading and has provided a statement as an "expert" or "expert witness" against an applicant in dispute with Fair Trading; the cross examination raises reasonable doubt that he does not have the training, study or experience to provide expert evidence or an opinion relating to the legislation, or codes or standards in particular relating to fire safety; and the affidavit does not comply with Part 35 of the UCPR or s 14G of the Electronic Transactions Act 2000. In final submissions in reply filed 22 December 2021 the applicant submitted that the respondent has failed to provide independent experts to question technical aspects of the application, providing only evidence from officers in an administrative role and not building surveying professionals.
11. The fact that Mr Lynch is an employee of the party on whose behalf his evidence is given would not of itself preclude him from giving expert evidence: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (2008) 165 LGERA 1. The core requirement is that an expert not be an advocate, but is an impartial and independent witness under a duty to assist the Tribunal. Procedural Direction No 3 - Expert Evidence does not in terms require compliance with the code of conduct in these proceedings in which the rules of evidence are not binding, and the UCPR does not apply. Ultimately, in proceedings such as these where the Tribunal is not bound by the rules of evidence, the acceptability of any expert evidence is, if that evidence is relevant to the issues to be determined, a question of weight. What matters is that any expert opinion is soundly based, complete and reliable.
12. The applicant submitted that Mr Lynch lacked the training, study or experience required to be able to provide expert evidence or an opinion. That position was the focus of his cross examination of Mr Lynch. While Mr Lynch does not have formal academic qualifications post his Associate Diploma, in the Tribunal's view his experience, including in providing technical advice on the BCA and provisions of the legislation in relation to certification work, and in reviewing and drafting amendments to the BCA, would be relevant to whether he has the necessary training, study or experience to be an expert: Ananda Marga Pracaraka Samgha Ltd v Tomar (2012) 202 FCR 564.
13. The Tribunal considers that Mr Lynch's evidence based on his experience since 2004 with the BPB, including as Manager of the Accreditation Team, is relevant to an understanding of the rationale for, and how the BPB has applied, the policy documented in the Accreditation Scheme and Experience Guide in implementing the accreditation regime. Further, that his experience in providing technical advice on the provisions of the BCA and the relevant legislation in that context informs his comments on the technical issues in his evaluation of the material provided by the applicant. Cross examination of Mr Lynch was limited to his qualifications and experience, and his comments on the BCA assessments at D17-D24. The Tribunal accepts and gives weight to Mr Lynch's evidence as to the issues arising, and approaches adopted by the BPB, in assessment of an applicant's experience for the purposes of accreditation, including evaluating claimed alternative equivalent experience.
14. In his submissions of 21 June 2021 the applicant submitted that in the Reconsideration Decision Mr Lynch had made comments that "are false, misleading and incorrect", and allegations which are "derogatory, intended to vilify and insult or injure the reputation of the applicant". The Tribunal does not read the Reconsideration Decision to be making personal comments of that kind. Those assertions, and the submissions relating to alleged breaches of public sector codes of conduct, are not relevant to the determination of this administrative review application.

Applicant's submissions

1. In his submissions of 21 June 2021 the applicant maintained his grievances as to the way in which his application for Category A1 accreditation was determined by the respondent, contending that he was denied procedural fairness, that the procedure in s 6(3) of the BP Act was not followed, and that s 5(3) of the BP Act was not applied. He contends that the respondent has not demonstrated that any request was made to obtain additional information, and has intentionally set the foundation for the application to fail, which he submits is a clear breach of the Good Conduct and Administrative Practice -Guidelines for State and Local Government. At paras [62]-[73] of those submissions the applicant submitted that the BPB acted in breach of the Good Conduct Guidelines, and the Public Service Commissioner Direction No 1 of 2015 under the Government Sector Employment Act 2013, from the original decision made on 6 March 2020 through to the Reconsideration Decision on 23 April 2021. The applicant queried whether the engagement of a barrister by the respondent was an efficient use of public financial resources. The applicant submitted that improper conduct had been implied relating to the examples where a CC had been issued for demolition work, this being a matter for the signatory of the certificate and not a matter for the applicant or for the purpose of assessment of experience; that had nothing to do with him who had direction as an employee to assist with those CCs. Even if those 7 CCs may have been issued incorrectly and that experience was disregarded, the minimum number of CCs had been provided in any event, there being 52 CCs whereas the Experience Guide requires only 40.
2. The applicant submitted that the additional information provided on 15 July 2021 (ex A6) included additional information to address the assessment of the relevant State Environmental Planning Policy (SEPP) in the CDC applications. He submitted that Mr Bennett had verified all experience in his emails of 4 April 2019 and 31 January 2020. He submitted that he has complied with the requirements of the Experience Guide, and provided evidence over and above that required. He has qualifications including a Master of Building Surveying and skills and knowledge beyond that of the vast majority of A1 certifiers.
3. As noted above, at the conclusion of the hearing on 21 October 2021 the parties were directed to provide written closing submissions. The submissions provided by the applicant on 19 November 2021 were in the form of an affidavit in which he repeated the detail of his employment and formal qualifications, and referred to various documents included in the 2559 pages of additional material now exhibit A6; and referred to previous Tribunal decisions in support of his position that he should not be disadvantaged by the refusal of Mr Bennett to provide a referee statement. The Tribunal has taken that document into account to the extent that it makes submissions relevant to the issues for determination.
4. The applicant provided a Table identifying his CC experience and alternative equivalent experience for class 7/8 and 9 buildings; and Tables identifying CC, CDC and OC experience and alternative equivalent experience. He submitted (at [33]) that in the totality of his documentation legislation referencing was 100% correct in the List of Projects and for alternative equivalent experience and 81% correct in the Experience Reports, total 96% correct. He agreed that the reference should have been to section 109H rather than to the post-1 March 2018 section 6.10 of the EP&A Act, and submitted that a more significant issue would have been had the incorrect section been used.
5. The applicant submitted that the experience reports were 7 pages on average, not the 1-2 pages specified in the Experience Guide, and had been verified by the referee statements provided by Mr Herd, Mr Killen and Mr Newton which had endorsed his past experience which included those reports. The Experience Guide does not specifically state that a referee statement from the supervisor at the time is required to verify that, and the experience reports had been individually signed by Mr Bennett and he had confirmed verification of all projects in his email of 4 April 2019. To require a referee statement for the six experience reports from the supervisor at the time would be unjust in the circumstances of the case as the experience had been signed and verified by all A1 accredited supervisors from CPS and Central Coast Council. In relation to the list of projects, the applicant submitted that completion of the areas specified in the templates demonstrates an actual "assessment"; and that it is irrelevant if the non-compliance addressed in each of the CDCs is a BCA or a SEPP non-compliance: a CDC cannot be issued if there is a non-compliance with the Codes SEPP, and therefore a BCA non-compliance was provided for a third of the applications.
6. The additional material (ex A6) included a number of emails, which the applicant submitted demonstrate that he has the required practical experience, skills and specialty knowledge acquired while at CPS consisting of assessment and certification work in relation to carrying out the functions of an A1 accredited certifier and under the supervision of the A1 accredited supervisor and while carrying out assessments of the legislation in respect of new and existing buildings while under the supervision of an A1 accredited supervisor.
7. The applicant submitted that the role of a certifier is to not only demonstrate that they have assessed a numerical amount of CCs, CDCs, OCs and inspections, but to demonstrate the actual role performed under the category of an A1 certifier. The role also includes co-ordination with owners, developers and various consultants, and will include meetings, emails, and discussions. At this level, the co-ordination will involve compliance with relevant legislation, Codes and standards and in particular requirements that relate to fire safety and fire engineering. That is demonstrated in the signed and verified experience reports, and elaborated and demonstrated in the additional emails and documentation. The skills and specialty knowledge was performed under the consent of and under the supervision of an A1 accredited certifier authorised to issue CCs, CDCs, OCs and carry out mandatory inspections under the category of an A1 accredited certifier. That supervision was from Mr Michaels and Mr Bennett; and when he refers to "we", he refers to that supervision.

Respondent's submissions

1. The respondent submitted that the application should be refused because the applicant has not demonstrated that he has the requisite experience to be registered as an A1 accredited certifier, and has not put evidence before the Tribunal that would persuade the Tribunal that the correct and preferable decision is to grant the registration as sought. The respondent notes that having been with his current employer since April 2019 the applicant will soon be eligible to submit a fresh application with supporting experience from his current employer.
2. The respondent submitted that the applicant's resume did not specify that he had responsibility for assessing applications for CCs, CDCs and OCs for class 2-9 buildings including buildings that exceed the authorities of an A2 certifier under supervision of an A1 certifier in his employment at CPS, and his statement that he was "assisting with" those applications did not explain how that demonstrated his experience. The resume made no reference to his carrying out critical stage inspections of class 2-9 buildings at Central Coast Council, and the applicant's response to the concern raised by Mr Lynch in that regard referred to his time at CPS only.
3. The respondent submitted that the statements in the applicant's list of projects that he "developed a list of requirements and received documentation to help assist with the issue…", and his submission that he had filled out all fields on the template, did not provide a basis on which to determine his experience in carrying out an assessment of the applications. The respondent submitted that simply because the documents referred to the class of building, rise in storeys and effective height did not demonstrate an assessment. The respondent submitted that the applicant had not met the minimum requirements at (c)(iii) and (iv) of the Experience Guide for assessment of CC applications for buildings that exceed the authorities conferred on a category A2 for class 7b or 8 buildings or class 9a, 9b or 9c buildings. The applicant had provided buildings of multiple classifications, but had not provided examples of class 7b or 8 buildings, other than one project (D20) for which the applicant had acknowledged applied to A2 accreditation and not A1, and did not exceed the authorities conferred on an A2 certifier.
4. The respondent submitted that the six experience reports did not indicate what assessment the applicant had undertaken and appeared to indicate that he had carried out an administrative function, and the provision in July 2021 of further primary source documents does not assist in establishing the applicant's practical experience. The respondent submitted that the errors made in five of the reports in referencing the incorrect version of the EP&A Act provision diminishes the reliability of the information contained in the applicant's materials. The respondent submits that the applicant's reference in his affidavit of 21 August 2021 to his employment contract does not assist. The lack of information, lack of clarity in the form and substance of the documents, the errors, the inconsistent evidence, the unchallenged evidence of Mr Lynch and the unnecessary and irrelevant materials provided demonstrate that the correct and preferable decision is that made by the respondent.

Consideration

1. The applicant has had an extensive opportunity to provide material in support of his application for A1 accreditation, both in his original application to the BPB, and in the Tribunal proceedings. As discussed at [77]-[78] in Votano No 1, s 5(3)(b) of the BP Act 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, if the BPB considers it necessary in order to determine an application. Section 6(4) of the BP Act does not apply to this application. The applicant had an opportunity to provide further documents to the BPB after he lodged his application, in accordance with s 5(3)(a) of the BPB Act. It was in response to that opportunity that the applicant provided a copy of Mr Bennett's email of 31 January 2020, and the six experience reports countersigned by Mr Bennett which were not included in the s 58 documents. In the review proceedings before the Tribunal the applicant has provided additional material in the form of his Supporting Documentation Report and its addendum (ex A1, A2), and the additional 2559 pages of material and the annotated response to the Reconsideration Decision (ex A6); affidavit evidence (ex A3, ex A7) and written submissions; and oral evidence; and he has had the opportunity to cross examine the respondent's witnesses Mr Marks and Mr Lynch.
2. The Tribunal has had regard to all the material now in evidence, including the additional material provided by the applicant (ex A6), which includes his annotated response to the Reconsideration Decision, and his affidavit and oral evidence. The Tribunal has also had regard to the additional material provided by the respondent, namely the affidavit of Mr Lynch and his oral evidence.
3. In considering the totality of the evidence the Tribunal has been guided by the provisions of the Accreditation Scheme, in particular cl 13.2 which provides that an applicant must provide evidence that he or she satisfies each of the qualifications and experience requirements, and cl 13.23 that an applicant's experience will be assessed on the basis of the documents and information provided under cl 12, being the application form and supporting documents required by that form and any further documents the BPB considers necessary in order to determine the application.
4. The Tribunal remains of the view as stated in Votano No 1 at [57], that in these proceedings it is appropriate to adopt an approach similar to that adopted in matters concerning licensing of contractors under the Home Building Act 1989: while the legislative regime and criteria are different, administrative decision-making under the Home Building Act is also undertaken by reference to policy guidelines and templates developed by Fair Trading. Those decisions (referred to in Votano No 1 at [56]-[57]) acknowledge that rigid adherence to the terms of a policy document can produce an unjust decision, and that the central issue for the Tribunal on administrative review is the assessment of an applicant's competency for the particular licence applied for. In this proceeding the applicant does not contend that the Experience Guide should not be applied, rather his position is that he has provided all, and more than, the documentation required by it, and in the form specified by it, other than a referee statement by an A1 accredited certifier who supervised his work at CPS.
5. Tribunal decisions under the Home Building Act since the decision in Votano No 1 have considered how the Tribunal is to evaluate an applicant's claimed experience, and in particular verification of that experience. In Edrees v Commissioner for Fair Trading [2021] NSWCATOD 32 Senior Member Isenberg confirmed that while decisions such as Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175; Limberis v Commissioner for Fair Trading [2017] NCWCATOD 128; Grewal v Commissioner for Fair Trading [2014] NSWCATOD 101; Shoobridge v Commissioner for Fair Trading [2015] NSWCATOD 42; and Trengrove v Commissioner for NSW Fair Trading, Department of Finance and Services [2015] NSWCATOD 131, decided that an applicant alone cannot verify their own experience, that principle did not mean that an applicant cannot corroborate third party evidence of their own experience, nor that they could not provide evidence which is itself corroborated.
6. Senior Member Isenberg referred to the decision of Senior Member Lucy in Ngo v Commissioner of Fair Trading, Office of Finance and Services [2019] NSWCATOD 103, a matter in which the applicant's experience had been obtained overseas and his referees did not hold licences under the Home Building Act: 95 In [Jones v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 142] it was argued by the Commissioner that "an applicant alone cannot verify their own experience," in reliance on Limberis v Commissioner for Fair Trading [2017] NSWCATOD 128 ("Limberis") at [38] and Shoobridge at [69] (see Jones at [58]). 96 In Limberis, the Tribunal accepted that an applicant alone could not verify his or her experience, because otherwise the system would be open to abuse (at [38]). However, in that case, the "only evidence … before the Tribunal about the work carried out by Mr Limberis [was] that given by him" (at [38]). This is a very different case, where there are many referees who have provided details about the tasks Mr Ngo carried out on a variety of building projects. 97 In Shoobridge, the Tribunal, constituted by Senior Member Molony, made the following comments (at [69]): "While I agree with the respondent that direct evidence from the supervisor is the best evidence of relevant practical experience, I do not accept that the only evidence which can demonstrate such experience is evidence from the supervisor. I do agree that an applicant alone cannot verify his own experience." 98 I should note that this is not a case in which an applicant is seeking to verify all of his own experience without any evidence from others. 99 The Tribunal's task is to consider the statutory question of whether the Tribunal is satisfied that the applicant "has had experience of such a kind and for such a period as the [Tribunal] considers would enable the applicant to do, or to supervise, the work for which the certificate is required" (Home Building Act, s 33D(1)(b)). It must do so in the context of conducting an administrative review under the Administrative Decisions Review Act. Its task under that Act is "to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material" and "any applicable written or unwritten law" (Administrative Decisions Review Act, s 63(1)). 100 To adopt a principle that the Tribunal may never accept an applicant's evidence about his or her own experience, where that evidence is uncorroborated, would be to put an unwarranted gloss on both statutes. It would mean that a Tribunal could never be satisfied that an applicant has had the necessary experience under s 33D(1)(b) of the Home Building Act unless the applicant provided corroboration for every part of that experience which the Tribunal proposed to take into account. It would also preclude the Tribunal, having regard to sworn oral evidence (the relevant factual material before it) from reaching a state of satisfaction that an applicant had the relevant experience for the purposes of s 33D(1)(b), unless there was also corroborative material for every aspect of the experience. 101 That is not a lawful approach to the application of s 33D(1) of the Home Building Act or s 63 of the Administrative Decisions Review Act. The Tribunal's decisions about the need for corroborative evidence make the obvious point that, in the absence of some kind of independent evidence about what an applicant has done, the Tribunal would generally be unlikely to be able to reach the state of satisfaction required by s 33D(1) of the Home Building Act. However, it would be wrong to treat those decisions as laying down an inflexible rule which must be applied in every case and to every part of an applicant's claimed experience. With respect I agree with the Senior Member's reasoning rather than only accepting evidence by way of a statement from a person merely because that person holds a licence issued by the Respondent, or any other agency, and irrespective of circumstances or sworn evidence before the Tribunal.
7. In Egan v Commissioner for Fair Trading, Department of Customer Service [2021] NSWCATAD 209, a matter in which the former employer of the applicant had refused to provide a reference in support of the application, Senior Member Montgomery expressed agreement with those decisions, and concluded that the evidence provided on the applicant's behalf both directly and by way of references provided corroboration of his own evidence, and demonstrated that he had the required experience.
8. Applying the approach in those decisions, the Tribunal has considered the documents provided in support of the applicant's application to the BPB, namely the list of projects, experience reports and referee statements; the additional documents provided in support of the application for review; and the applicant's own evidence, both affidavit and oral evidence and in his annotations on the Reconsideration Decision. The issue is whether that material enables the Tribunal to be satisfied that the applicant has the required minimum of three years recent practical experience relevant to category A1 accreditation.
9. In this matter the applicant has used the BPB application form and provided his supporting documents, including the list of projects, experience reports, and referee statements, using the BPB template forms. He submits that he has complied with the Experience Guide and that he has provided evidence over and above what the Experience Guide requires to demonstrate that he has the required practical experience.

List of projects

1. The BPB template forms for the list of projects require completion of a number of fields for each of the CCs, OCs or CDCs recorded. Those fields require information about the building, including details of builder and architect and estimated cost of Work, and Description of Building Work, BCA Classification, Rise in Storeys, Floor Area, Volume, Effective Height; Description of Alternative Solutions; NSW Fire & Rescue Referral; Description of Roles and Responsibilities; Non-compliance identified and how it was resolved. For a CC, the template requests "Date of assessment and the date the certificate was issued"; for a CDC, that field is "Dates of your assessment of the CDC application and the date of issue of the CDC"; and for an OC, the field is "Relevant dates the application for the OC was assessed by you and the date the OC was issued". The templates for Alternative Equivalent Experience are similar to those for a CC.
2. The applicant's list of projects was described in Votano No 1 in the following terms: 79. 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. 80. 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. 81. 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". 82. 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. 83. 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. 84. 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.
3. The applicant submits that the fact that for each project in the list each of the template fields has been completed means that an assessment has been undertaken. The applicant maintained in oral evidence that an assessment is the BCA classification, rise in storeys, effective height and the date of assessment, and in what is stated under the description of roles and responsibilities. The Tribunal does not agree that provision of information about the building and the building work including BCA classification, rise in storeys, floor area and height demonstrates an assessment, rather it confirms the scale and complexity of the project and the likely parameters for consideration required in the assessment before a CC or OC can be issued. Even if provision of information in the template fields suffices to confirm that an assessment has taken place, it does not answer the question as to who carried out any assessment, and in particular what role the applicant played in that assessment. As commented in Votano No 1, the applicant has in those documents described his role as being a limited one, namely to develop a list of requirements, to receive documentation, and to attend inspections.
4. In the Reconsideration Decision Mr Lynch commented that the list of projects did not provide evidence of assessing three CC applications (excluding fit outs of existing buildings, and excluding minor alterations, extensions and additions to existing buildings) for building that exceed the authorities conferred on a category A 2 for class 7b or class 8 buildings; and class 9a, 9b or 9c buildings. In response the applicant referred to the Supporting Documentation Report (ex A1), in which he had included a table of CC experience for buildings of those classes and submitted that while parts of a building had been used in some circumstances there was an adequate amount of alternative equivalent experience that related to whole buildings; and to his additional material at D17-D24.
5. Mr Lynch's evidence as to the documents D17-D24 is summarised at [61]-[62] above. The Tribunal accepts Mr Lynch's evidence as to the requirements for alternative equivalent experience to be regarded as equivalent, and the need for evidence of experience for authorities of a category A1 certifier, including evidence of whole buildings. The Tribunal regards the requirement that an applicant for A1 accreditation demonstrate the range and scope of their experience assessing CC applications across a range of buildings that include classes 7, 8 and 9 as a reasonable requirement, and is not satisfied that the applicant has done so. The examples provided by the applicant do not include whole buildings of class 7b or class 8, and relate to buildings of multiple classifications.
6. The applicant's response to Mr Lynch's concerns stated (at pp 8-12) in the Reconsideration Decision relating to examples in the list of projects of approval of a performance solution for a CC after building work has been carried out, approval of a performance solution in an OC to allow an inconsistency with the CC and development consent, and the issue of CCs for demolition work only, was to comment that this "is a matter for the signatory of the certificate"; that the concerns are not valid as a fair and proper investigation has not taken place; and that this is not a misconduct hearing. The applicant had an opportunity to engage directly with the substance of Mr Lynch's stated concerns, however in the Tribunal's view he deflected responsibility instead of explaining the reasoning behind any of those decisions and his role in making them, thereby demonstrating his understanding of the technical and legal requirements for the proper conduct of the certification process.

Experience Reports

1. The Experience Guide states that the six examples chosen from the list of projects should "demonstrate the most significant and/or large and complex building projects you have worked on, and your personal experience in relation to the construction, certification and inspection of those buildings", and that the reports should "provide a narrative of your roles and responsibilities and information about the lessons learnt and how the experience demonstrates your competence to certify and inspect buildings of all sizes and classes".
2. The BPB template form requires information about the building and building work for each project, as is required in the list of projects. The template requires information on the following, under the heading "Roles/Responsibilities": Involvement in assessment of the CC or CDC application; Involvement in carrying out the critical stage inspections; Involvement in assessment of the OC application; Assessment and review of plans, specifications, documentation and relevant reports; Issues identified as part of involvement in fire engineering design briefs, referrals to Fire & Rescue NSW, review of fire engineering reports, assessment of CC applications and inspections of building works request for final fire safety reports from Fire & Rescue NSW and how these were resolved. Required information under "Alternative Solutions Assessed" includes listing the DTS provision not complied with, relevant performance requirements, description of alternative solutions and BCA assessment method; description of how the performance solution met the relevant performance requirements; inspections performed including carrying out non-critical stage inspections of building work under construction; detecting areas of non-compliance and action taken to resolve those matters; and involvement with other organisations.
3. After noting the respondent's concerns about the misdescription in the experience reports of the applicable provisions of the EP&A Act and agreeing (at [86]) that those errors are more significant than typographical errors as submitted by the applicant, I made the following comments in Votano No 1 on the experience reports: 87. 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. 88. 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. 89. 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.
4. The Tribunal has reconsidered the information provided in the experience reports, having received the copies of those reports countersigned by Mr Bennett, and having regard to the additional evidence provided by the applicant.
5. In the first of the experience reports (7D3-19-21 Tennyson Road Breakfast Point (CC and OC application)) the applicant describes his Roles/Responsibilities in the following terms: 1. Involvement in assessment of the CC or CDC application: "My involvement included assisting with CC1 & CC2. A former employee assisted with the first CC. I assisted with the assessment of the FEB, FER and all documentation required to issue the Construction Certificate." 1. Involvement in carrying out the critical stage inspections: "I assisted with the wet area inspection, the bounding pre-sheet inspection, the fire commissioning inspection and assisted and attended along with the PCA, the final inspection. I also carried out detailed fire stair inspections to assess the riser and goings complying with BCA D2.13." 1. Involvement in assessment of the OC application: "My involvement included co-ordination with the builder and client to receive all documentation required to issue the OC including installation certificates, fire safety certificates and documentation required to satisfy the development consent." 1. Assessment and review of plans, specifications, documentation and relevant reports: "I carried out a full BCA assessment of the building with the final review undertaken by myself and the PCA during an internal meeting. This ensured that there were no issues unresolved. All issues identified were then passed onto the architect for review and an updated set of plans were provided to satisfy the following DTS non-compliances." [8 non-compliances were then referred to, with comments including that the plans were updated to demonstrate compliance, an alternative solution was proposed, a clause 188 exemption was sought by the client, additional information was provided on the plans, and a clause 188 exemption was approved] 1. Issues identified as part of involvement in fire engineering design briefs, referrals to Fire & Rescue NSW, review of fire engineering reports, assessments of CC applications and inspections of building works request for final fire safety reports from Fire & Rescue NSW and how these were resolved (choose six of your projects which contain the most complex issues to be resolved): "As the building is over 6,000m2, and a Category 1 or 2 fire safety provision was provided by the hydrant alternative solution it was discussed with the client and the approach taken to address the Category 1 or 2 fire safety provisions. The option was either to submit a Clause 144 referral to FRNSW under the Category 2 fire safety provisions or request a Clause 188 exemption from FRNSW which would not require a final safety inspection at OC stage. The considerations were that a Clause 188 exemption would typically take longer than a Clause 144 referral however the client determined that the Clause 188 exemption approach was to be used. We provided comments at the FEB stage as stakeholder including agreeance on the acceptance criteria for each alternative solution."
6. Under the heading "Alternative Solutions Assessed" four DTS provisions not complied with were identified, and alternative solutions, relating to protection of openings, service penetrations, discharge of exits, and hydrants were described. For each the comment was made "As part of the FEB process and as stakeholder we agreed that….".
7. Four inspections were included in the list of non-critical stage inspections of building work under construction, prefaced "All inspections carried out by myself (non-critical stage inspections)". Under the heading "Detecting areas of non-compliance and action taken to resolve these matters" the applicant referred to "Clause 6.10 of the [EP &A Act]" stating that an OC must not be issued to authorise occupation or use unless the completed building is suitable for occupation or use in accordance with its classification under the BCA; and listed a number of requirements of the BCA and a clause 188 exemption. The applicant stated under the heading "Involvement with other organisations", "My involvement included consultation with" the architect, the builder, the client, the fire engineer, the hydraulic consultant and FRNSW.
8. The description of Roles/Responsibilities in each of the other experience reports is stated in the same terms as for 7D3-19-21 Tennyson Road Breakfast Point, referring to "assisting" and "co-ordination", and including the statement that the applicant "carried out a full BCA assessment" with final review by himself and the PCA. The lists of non-critical stage inspections carried out are each prefaced "All inspections carried out by myself…", and each of the reports states "My involvement [with other organisations] included consultation with …".
9. Other than in a few instances, references to assessment in each of the reports are framed in terms of "we". Examples where the applicant has specified his experience include the experience report for 84-92 Epson Road Zetland in which he stated "I referred all 4 clause 152 Final Fire Safety Inspections to FRNSW, which accepted those inspections with minimal comments"; for 11-15 York Street Point Frederick, the report included in relation to a clause 152A inspection the statement "I invited FRNSW via formal application and they did not attend"; for 31-33 Albany Street Crows Nest, a CC application, the applicant stated that he "created a Services Matrix with all tested systems to date with relevant test reports" for non-critical stage inspections, and that in relation to detecting areas of non-compliance and action taken to resolve those matters he reviewed performance solutions "with a final review by the PCA" and "we were generally happy with the analysis"; and for 13 Lynn Ave Point Frederick (CC and OC) the applicant stated in relation to critical stage inspections that he "also carried out detailed fire stair inspections to assess the riser and goings complying with BCA D2.13"; and that he submitted a clause 152A application to FRNSW and they accepted the invitation.
10. The applicant submitted that completion of the areas of assessment in the template table demonstrates the actual "assessment", and he has provided more than the 1-2 pages specified in the BPB template, an average 7 pages for each report, following the template. He submitted that "assisting" is the assessment, and pointed to use of the word "assessment" in the template fields.
11. The Tribunal agrees that all fields in the experience report template were completed. However, having regard to the information provided in each of the six reports, the Tribunal is unable to ascertain from those experience reports the extent of the applicant's involvement and experience in the tasks of assessment of a CC application, fire engineering design, review of fire engineering reports, carrying out critical stage inspections, and assessment of an OC application. What emerges from those documents is that his role was to assist with those tasks, and to carry out non-critical stage inspections, and to consult stakeholders. The detail provided for alternative solutions is descriptive, and does not explain what the applicant's individual role, as opposed to the collective "we", was in identifying relevant performance requirements, critically reviewing fire engineering reports, or exploring the methodology used in fire engineering design and identifying the acceptance criteria agreed to. The Experience Guide asks the applicant to state how they identified the relevant performance requirements, and to state their role as part of the preparation of an FEB; however, the information provided is descriptive, and does not explain what role the applicant played. The use of the term "assessment" in the documents, as highlighted in the annotations to the Reconsideration Decision (at pp 69-84, ex A6), does not without further elaboration explain what role the applicant played in that assessment.
12. Each of the projects in the list of projects is signed by either Mr Bennett or Mr Michaels, both A1 accredited certifiers, and the six experience reports are signed by Mr Bennett. The applicant's position is that while Mr Bennett has refused to provide a reference, he has "verified in writing" the list of projects and the experience reports, by his signature on those documents in the "Supervisor's signature" field on the template documents.
13. The Tribunal does not accept the proposition that the supervisor's signature on the list of projects and experience reports is alone sufficient to verify that the applicant has the required experience. That signature confirms agreement with the contents of each document, and those documents describe a limited role for the applicant. In circumstances such as the present where the extent of the applicant's individual involvement in each of the assessments is unclear, a statement by a supervisor would provide assistance in understanding, and clarifying, the extent and depth of the experience gained. A referee statement using the BPB template enables a referee to confirm their employment relationship with an applicant and the period of that relationship, the "work experience you are verifying", and provides for further "detailed description and additional information". The Tribunal notes that consistent with the approach adopted in the Home Building Act decisions, sufficient information to corroborate or verify an applicant's experience could also be provided by a referee without necessarily using the respondent's template form, through other means.

Referee statements

1. The applicant submits that the referee statements by Mr Herd, Mr Killen and Mr Newton "have verified current experience and endorsed past experience at the A1 level". In support of that proposition, the applicant refers in his submissions to the Referee's declaration on the template referee form which includes the statement: "The applicant is, in my opinion, competent to perform the work of an accredited certifier in the category or categories being applied for"
2. The Tribunal does not accept that the making of that declaration can of itself constitute verification of experience gained in work undertaken before the period during which the referee worked with, employed or supervised the applicant, which was in the case of these three referees, 15 April 2019. Further, the extent of the work experience being verified is specified elsewhere on the template form, and in these three referee statements that is the applicant's work for the Council. There is no indication in the referee statements, or in the additional information provided by Mr Herd, Mr Killen or Mr Newton, that they are purporting to do other than verify the applicant's experience in the period of his employment by Central Coast Council. Nor is that apparent in the statements provided in these proceedings by Mr Killen (ex A5) and Mr Herd (ex A6), both of whom stated that they had worked with the applicant since April 2019 and had been responsible for peer reviewing his assessment of CCs and fire safety matters pertaining to class 2-9 buildings, and his assessment of CDCs relating to class 2-9 buildings, during his period of employment at Central Coast Council.
3. The additional information provided by each of Mr Herd, Mr Killen and Mr Newton refers to the applicant having "assisted and advised", and each states that "I have no doubt that Clayton is capable in assisting with work that is required under an A1 category and I endorse his past experience". And while the "work experience you are verifying" uses the term "assesses", that is in the context of the statement "assesses and determine development applications, construction certificates and/or perform the Principal Certifying Authority role in accordance with the Act, Regulations and delegation": a statement that does not explain how the applicant as a category A3 accredited certifier could have determined a development application or CC or performed the PCA role. In any event, the additional information confirms the applicant's experience relating to fire safety requirements, rather than the broader experience across the range of certification tasks expected by the Experience Guide.
4. At [71]-[73] in Votano No 1 I commented on the similarity of the referee statements and additional information provided by Mr Herd, Mr Killen and Mr Newton. In response, the applicant relied on the decision in Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43, in which the applicant had drafted part of a reference outlining work done at each of ten sites. The evidence of the referee was that when Mr Wilmot asked him for a reference, he may have asked Mr Wilmot to compile the information on the basis that he would review it and, if it was truthful, that he would put his signature to it; and that he would not have signed the reference without a thorough review. The Tribunal was satisfied in that matter, based on the applicant's evidence as to the tasks he said he had performed and that he was not challenged on his evidence that he had, in fact, performed the tasks specified in the project list, that Mr Wilmot had done the work specified in the reference. In this matter Mr Killen in oral evidence on 9 October 2020 confirmed that he had not been responsible for filling out the referee statement form, and had not prepared the two pages of additional information attached to that statement; and the applicant confirmed that he had drafted those documents. Whether or not that evidence, and the signatures on the documents, provide independent corroboration of the applicant's experience, those documents do not provide evidence to confirm that the applicant's experience was other than that of providing assistance and advice.
5. The applicant also relies on the declaration required on the BPB template in relation to the referee statements by Mr Vardas and Mr Liaris. Neither is an accredited certifier, and their role was as the "independent professional external to your company who you have worked for or with on building projects" referred to in the Experience Guide. The Tribunal does not regard the signing of the declaration on the template form as of itself sufficient to establish that the applicant has the experience required for category A1 certification: that would depend not just on the qualifications of the person making the declaration, but the details of the work experience being verified. In understanding the extent of that work experience, the date for the work for which Mr Vardas provided his referee statement is not clear on the referee statement; however the additional documents D59-D69 relating to the project at 84-92 Epsom Road Zetland indicate that Mr Vardas was project manager for that project throughout 2017. The work experience was described as "class 2, class 3, class 6 and class 7b". For Mr Liaris the period specified was 1 April 2018 to 9 January 2019, and the work experience verified was described as "4 high end units in Neutral Bay (class 2 building) with a fire engineered alternative solution". Mr Vardas stated that the applicant carried out site inspections to identify BCA non compliances, prepared and collated relevant documentation associated with issuing CCs and OCs, and carried out inspections of fire bounding walls. Mr Liaris stated that the applicant's work experience was conducting mandatory PCA inspections, issuing all CC documentation, reviewing and providing advice on all design documentation, responding to RFI's from builder and architect, reviewing and approving all certification from building trades and consultants, and issuing updated requirements lists and inspection reports.
6. Both referees were commenting on the applicant's work while employed by CPS. However, the work described does not cover the extent of experience required over and above the authorities of a category A2 certifier; and could not in any event have included as stated by Mr Liaris the issuing of CC documentation. Further, as acknowledged by the applicant in his annotations to the Reconsideration Decision, a customer for whom service and certification work is done, or an independent professional engaged with an applicant on a specific project, would not necessarily be aware of what the applicant's role was.
7. The Tribunal is not satisfied that the referee statements provided by Mr Herd, Mr Killen, Mr Newton, Mr Vardas or Mr Liaris provide corroboration of the applicant's role in the assessment process across the broad range of tasks and contexts expected of a category A1 certifier as outlined in the Assessment Scheme and Experience Guide for his work at CPS.

Additional information

1. The Tribunal has considered whether the additional information provided in July 2021 has elaborated on the applicant's role in carrying out an assessment that would demonstrate, even in the absence of verification by a category A1 certifier at CPS, that he has the required experience. The documents relating to specific projects during the applicant's employment at CPS (documents D16-D24, D45-114, D117-D193) comprise: 1. Requirements Lists for OCs, CCs and CDCs; 2. BCA assessment reports; 3. Inspection reports; 4. CDCs; 5. FER reviews; 6. Email communications with developers, architects, fire engineers, project managers, Fire & Rescue NSW.
2. Those documents include documents relating to the six projects the subject of the experience reports, and a further 10 projects included in the list of projects.
3. The applicant's responses to Mr Lynch's comments on the experience reports in the Reconsideration Decision in his annotations to that decision included reference to the additional documents provided in July 2021, including: 1. 7D3-19-21 Tennyson Road Breakfast Point: the applicant commented that the requirements list for the OC (D45) and the email sent by the applicant attaching the requirements list and inspection report (D46), demonstrate a full assessment of the requirements for an OC; that the BCA assessment was for the entire building, referring to the clause 188 exemption allowing the issue of the CC for all levels above the effective height of 12m; that if the assessing officer required clarification of specific matters provided in the Alternative Solutions Assessed it should have been raised earlier; and that document D47 is a request for review of an FER, which he submits demonstrates a review of an FER; 2. 7D2-19-21 Tennyson Road Breakfast Point: the applicant relied on the requirements list (D48) and email forwarding the updated requirements list for the CC (D49), and a requirements list (D50) and email forwarding the requirements list for the OC (D51), as demonstrating a full assessment; submitted that the report identified that the CC was for Stage 3 up to and including level 4 for a 6 storey building of 100 apartments with basement parking, and so emails responding to queries about balustrade loading, headroom clearance for a fire stair, and space for the Fire Indicator Panel (D52-D57) demonstrate a full assessment of the BCA; and in response to Mr Lynch's comment that "we provided comments at the FEB stage as stakeholder including agreeance on the acceptance criteria" does not identify the issues identified and how those were resolved, the applicant stated that it demonstrates that an assessment of the FEB was actually carried out; 3. 84-92 Epsom Road Zetland: the applicant commented that the requirements list (D64) and email forwarding the requirements list for the OC (D65) demonstrate a full assessment of an OC; and that emails between the project manager, fire engineer, the applicant and Mr Bennett concerning FRNSW comments on a FER (D59, D60), and a further email from Mr Bennett asking the applicant whether he was looking after a fire safety report (D61), demonstrate a full assessment of an initial fire safety report application; 4. 11-15 York Street Point Frederick: the applicant commented that the requirements list for the OC (D70), an email forwarding email correspondence regarding driveway upgrades, approved plan and updated requirements list for CC2 (D71), and the requirements list for the CC (D72) demonstrate a full assessment of a CC and OC; and that emails between the applicant, fire engineer, construction manager, development manager to arrange a meeting to discuss fire engineering matters (D73-D81), and provision of a final review of FER Rev 4 (D78, D80) demonstrate a full assessment of an FER; 5. 31-33 Albany Street Crows Nest: the applicant stated that documents demonstrating a full assessment of CC included a requirements list (D82) and an email forwarding the requirements list, including a summary (D83); and email communications relating to an FER review and items on the requirements list including staging of the CC (D84, D85), an email listing matters needing to be addressed before referral to the fire engineer (D86), an email forwarding BCA review, development consent requirements and fire engineering review (D87), and annotated plans (D88, D89); and that documents demonstrating a full assessment of an FER and requirements to satisfy FRNSW (D90-D101) are emails between the builder, fire engineer, design manager on FEBQ submission (D90), comments on review of the FEB (D91), comments on draft FER (D96), requests for advice and forwarding BCA review (D97, D98), and forwarding comments on FER and list of outstanding CC items (D100); 6. 13 Lynn Ave Point Frederick: documents demonstrating a full assessment of a CC, OC, the EP&A Act and regulations, the development consent, FER and requirements to satisfy FRNSW are at D102-D114, being an email forwarding a clause 152A application to FRNSW (D103), annotated plans (D106, D107), a fire engineer performance solution for spandrel protection to balconies (D108), an email forwarding a draft FER and BCA compliance assessment (D110), a CC requirements lists (D111, D112, D113) and an email forwarding the requirements list (D114).
4. The Requirements Lists provided are all on CPS letterhead, and are signed by the applicant stating that he is the contact person to "discuss any aspect of the information or deliverables requested". There is no indication in those documents as to what if any of the assessment tasks the applicant carried out in order to develop the requirements list, as opposed to collating the list: the plural is used throughout each of the documents, for example in D48 in the Advisory Notes (p1615), which state that "CPS has identified the specific deliverable necessary to satisfy our statutory requirements only".
5. In oral evidence the applicant referred to document D45 (A6, p 1607), an OC requirements list, which he acknowledged was administrative, stating that was what he does as a certifier; and stated that this was a large residential flat building and he compiled the documents and received plans and specifications. He stated that document D48, a CC requirements list, includes outstanding requirements in red: that relates to missing areas of BCA specifications, which he had worked out with Mr Bennett. For the OC requirements list in D50, he had worked with Mr Bennett to build the schedule and collate the certificates.
6. The applicant described his role in the assessment of the CCs and OCs in the list of projects and the experience reports as "assisting" with the CC, and with "the assessment of … all documentation required…", and "co-ordination … to receive all documentation required…". In the absence of a clear indication in the requirements lists as to how much of the process of developing each list of required information and documentation reflected work undertaken by the applicant, the Tribunal is unable to read those documents as reflecting more than the function of compiling and summarising relevant documentation and further information required to enable the issue of a CC or OC; that is, in the term used by the applicant, the role of assisting the category A1 certifier who was to sign off on the CC or OC.
7. The BCA Assessments at D17-D24 are also on CPS letterhead, signed by the applicant, and stating that he is the appropriate contact person. Those assessments deal with a lobby upgrade for a class 9b building; a class 5 extension to an existing building of mixed classification (5, 7b and 9b); fitout of the ground floor of a hotel, class 6; class 7b storage; structure and services for two level basement; internal fitout for food premises in a class 6 building; internal fitout for the same building, relating to access standards; and refurbishment of an existing building of class 7a carpark, class 5 office and class 7b warehouse for class 5 office space and class 8 laboratory.
8. Responding to Mr Lynch's comment that evidence of full size buildings was needed and that a small part of a building would not be considered as equivalent experience for classes 7, 8 and 9 buildings, the applicant submitted that whether the BCA reports relate to assessment of buildings that are part or whole or existing or are fitouts or new buildings is irrelevant, the criteria specify "an appropriate range of proposed buildings". The Tribunal does not agree: the authorities of a category A1 certifier cover all classes and sizes of buildings under the BCA, and the expectation in the Experience Guide that an applicant demonstrate before accreditation is granted that he or she has experience across a range of certification tasks across all classes of buildings is a reasonable one.
9. The applicant described the documents at D88 and D89 as "Applicant BCA review". Those documents relate to the project at 31-33 Albany Street Crows Nest, and comprise in D 88 architectural plans with handwritten annotations, which the applicant stated in oral evidence were notations made by himself and Mr Bennett, and in D89 minutes of a design meeting, with no record of the applicant in attendance. Documents D106 and D107 are also described as "Applicant BCA review", for the project at Point Frederick, and also are handwritten notations on the architectural drawings. The Tribunal is unable to discern the extent to which these documents demonstrate more than that the applicant discussed BCA matters for specific projects with Mr Bennett.
10. The applicant provided two inspection reports (D67 and D69) which were signed by him and stated "Inspected by" himself, the first described as "CPS witnessing test & pre OC status", and the second described as "Clause 152 -FOC". Mr Lynch commented in relation to the former (ex A6, p 1725) that that document demonstrates that the applicant was acting outside the authorities of a category A3 certifier in carrying out an inspection required by the PCA of a building with a rise in storeys of 11 for Building A and 9 for the united buildings: only an A1 certifier, or an A2 certifier under the supervision of an A1 certifier was authorised to carry out this inspection. In oral evidence the applicant commented that he assisted an A1 certifier but if an inspection was not critical stage or mandatory he would conduct it himself, demonstrating that he has the knowledge and is supervised by an A1 certifier. He identified the missing requirements specified at pp 1730 and 1731, and those at p 1735 are requirements that he picked up. The fire commissioning test recorded at p 1742 shows that "we" did the tests and there was a fail; and further issues were picked up at p 1745. He stated that that inspection report was an in depth inspection, and "we" had the building compliant before NSW Fire & Rescue did their inspection. He signed the document (at p 1750), which indicates that he identified the issues not only at the office but on site.
11. The applicant did not respond directly to Mr Lynch's concerns that he did not have the authority to conduct that inspection, or the inspection for the inspection report at D 69 which he also signed.
12. The additional documents included CDCs. In his written submissions of 21 June 2021 the applicant agreed with the Tribunal's concern expressed at [84] of Votano No 1 that there should have been some evidence of consideration of compliance with the applicable development standards in addition to BCA compliance, commenting that the BPB template does not specify a need to identify compliance with relevant provisions of the planning instrument: and concluding that this is an error in the template and not in his response. The applicant submitted that the signature of the A1 accredited supervisor on the template which specifies "Dates of your assessment of the CDC and the date of issue of the CDC" demonstrate that the assessment has taken place and on review of the supervisor the CDC was then issued; and further that he has provided additional information to address the concern as to assessment under the SEPP.
13. In document D121 the applicant is identified as "Project Building Surveyor"; and documents D129, D134, D145, D154, D168, D170, D174, D185, and D193 identify him as the "Projects Co-ordinator" Those documents do not provide any additional information that might demonstrate that the applicant carried out a role other than as co-ordinator.
14. The additional documents include at D127, D128, D130, D131, and D146 listed as "Applicant CDC review", extracts from the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) relating to exempt and complying development, with handwritten notations. The applicant had included in his list of projects as originally submitted a CDC issued for demolition of an internal wall and installation of steel beams and posts (ex A6, p 519) in which he had responded to the template field "Non-compliance identified and how it was dealt with": "I marked up the relevant pages of the Exempt and Complying Development Codes and assessed the work against the requirements of the BCA. There were no issues identified". Documents D127 and D128 appear to relate to that project. If that is correct, the additional documents would support the applicant's current position that some assessment of the requirements under the SEPP in addition to BCA requirements was undertaken. However, the date on which the legislation extracts were printed as recorded on those documents is the date on which the CDC was issued, and not the date recorded on the template document as the "date of assessment". And instead of explaining when and how he carried out the claimed assessments, the applicant relied in his submissions of 19 November 2021 (at [41]) on the fact that the A1 accredited certifiers had issued the CDC, and "verified the assessment of the Codes SEPP took place".
15. Others of the additional documents are more helpful in clarifying the applicant's role in relation to the CDCs, including email communications between the applicant and others including architect, property manager and designer for a number of the CDCs. Those emails include responses to queries, requirements lists and other documents referring both to BCA issues and to conditions required under the SEPP (Exempt and Complying Development Codes) 2008 and the Environmental Planning and Assessment Regulation 2000 (NSW). The Tribunal accepts that those documents demonstrate a role in the assessment process for those CDCs.
16. The additional documents include documents described as "FER review" in the Document Register, at D108 and D132. Mr Lynch commented on D108 that it provides evidence that the applicant has reviewed a fairly straightforward fire engineering report for a performance solution in relation to spread of fire from one floor to the floor above via openings in external walls in relation to non-compliance with deemed-to-satisfy provisions for spandrels under C2.6 of the BCA under the supervision of an A1 accredited certifier. The applicant did not respond to Mr Lynch's comment that that appeared to be "a simple performance solution and not practical experience relevant to category A1". The applicant did not elaborate in his affidavit or oral evidence as to how those reviews supported the level of experience claimed.
17. The additional material included emails, documenting communications including: 1. emails forwarding documents such as requirements lists, inspection reports, fire safety reports, to project managers and developers and agencies such as Fire & Rescue NSW, in some instances including information about process (for example, D59, D66), but otherwise not indicating what role the applicant may have had in the preparation of the attachment; 2. correspondence including others involved in various projects, including project manager, builder, fire engineer, architect; 3. emails responding to requests for information or requests for review, for example D52-D56 (communicating with project manager), D73 (communicating with fire engineer), and D84 (including the comment that "I have had a few discussions this morning with the directors on the spandrels, hydrant pump room doors and the garbage room classification); 4. emails sent from and to CPS administrative staff (for example, D62), to show that the applicant's role was not an administrative role; 5. emails to others at CPS, for example forwarding a CDC to Mr Michaels, the A1 certifier (D125), and forwarding a CDC to Mr Bennett (D165); 6. emails requesting advice from the CPS directors, for example D57, D159.
18. The Tribunal is not assisted in understanding the extent of experience gained simply by the applicant having forwarded a document to outside organisations or internally within CPS. For example, in oral evidence the applicant confirmed that while document D84 related to an architect seeking clarification on a BCA matter, in that instance he took advice from a category A1 certifier. Some emails relate to arrangements for meetings involving specific issues for example fire engineering (D79). Document D90 reports from a meeting at which "all the key stakeholders were present", that the decision was to involve Fire & Rescue NSW, following earlier email correspondence as to possible approaches (pp 1874-1877): it appears that the applicant was the sole CPS representative in that process. However, other than confirming that the CPS directors had confidence in his participation, those documents do not explain what his input was.
19. Documents D135-D141 include correspondence between the applicant and the architect on a project for which a CDC was issued by Mr Michaels (D134): and Mr Michaels was copied in on that correspondence. Those documents, and the documents at D149-D155 relating to a CDC for a shop fitout certified by Mr Bennett (D154), indicate that the applicant was involved as described in the CDC as "Projects Co-ordinator". On other documents, for example D179, also in relation to a CDC, the applicant responded directly to a request for review of a revised approach for a door in an acoustic wall and wet bar. In oral evidence the applicant clarified that while document D58, a request for review/approval of the fire engineer's FER alternative solutions certification, was sent to him by the contract administrator, he would sit with Mr Bennett and mark it up to ensure that all requirements were met.
20. Further documents in which the applicant's individual role, as opposed to participation in discussion, is not clear, include document D176, an email to a project manager responding to a number of queries about fire rating for balcony works: the email opens with the statement "just had an internal discussion on your FRL's" and concludes "We had an internal discussion and have agreed to apply the BCA Spec C1.1 Clause 5.2 concession…".
21. Mr Bennett was copied in to many of the emails from or to the applicant. In document D59 the applicant is copied in to Mr Bennett's email to the fire engineer providing responses prefaced "CPS would require…/agrees…", and "we agree…" to specific queries. In oral evidence the applicant stated that while that email was written by Mr Bennett, he was the consultant on the building. Document D85 is an email from the applicant to the developer, attaching an updated requirements list "identifying and in detail the spandrel separation that needs to be addressed". That email goes on to state that "CPS has had a couple of internal discussions relating to this type of spandrel and collectively agree that …"; and two further comments that "I have added in items 11 & 12…" and "I have attached a markup of your fire door schedule…".
22. The Tribunal accepts that those documents demonstrate, as stated in his oral evidence, that the applicant was doing what a category A3 accredited certifier is meant to do, that is, meeting with the A1 accredited certifier or the PCA and working under supervision to gain experience. Those documents provide some, but limited, clarification of the extent of experience gained by the applicant in the assessment tasks.

Conclusion

1. The Tribunal has reviewed the information provided in the list of projects and the experience reports, as supplemented by the additional material provided by the applicant on which he relied in his annotated responses to the Reconsideration Decision, and in his affidavit and oral evidence, and in written submissions.
2. There is no dispute that the applicant meets the qualification requirements for category A1 accreditation. The issue is whether he has, as required by cl 13 of the Accreditation Scheme, provided evidence that he satisfies the experience requirement for category A1 accreditation.
3. The Experience Guide states that the required minimum of three years recent practical experience relevant to category A1 certification 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 Environmental Planning and Assessment Regulation, relevant development standards, development consent conditions and the BCA. It states that the practical experience is expected to exceed the authorities conferred on a category A2 certifier, which in general 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 experience is expected to include assessing applications for CCs and CDCs for building work, and OCs; carrying out critical stage inspections of building work, and carrying out the role of PCA.
4. Given the importance of the role of a category A1 certifier, the Tribunal is satisfied that there is no basis on which it can be asserted that an expectation that an applicant demonstrate that they meet those requirements, if appropriate through demonstration of alternative equivalent experience, would result in an injustice. In any event, the applicant contends that he has complied with the Experience Guide and provided over and above the number of projects required to meet the CC, CDC, inspection and OC experience specified in the Experience Guide.
5. The Tribunal agrees with the applicant's submission that the role of a certifier is to not only demonstrate that they have assessed a numerical amount of CCs, CDCs, OCs and inspections, but to demonstrate the actual role performed under the category of an A1 certifier. The difficulty for the Tribunal in being satisfied that the applicant has demonstrated the experience at the level required is that the list of projects and the experience reports relating to his experience at CPS, and the referee statements provided by the A1 accredited certifiers relating to his current employment, in general describe the applicant's role as one of providing assistance. Where descriptive detail is provided by the applicant, it is with few exceptions attributed to "we", so that it is not clear what role the applicant has undertaken in any assessment, and in particular whether he has explained how he undertook the claimed assessment and why he reached the conclusions stated.
6. The Experience Guide refers to experience included in the list of work projects and in the experience reports being verified by the referee statements. The issue for the applicant is not the number of referee statements he has provided, or whether those statements are provided by a current or former employer or supervisor, or whether the template form is used. It is whether the referee statements provided, or any other relevant material, verify the claimed three years' experience. It is clear that the applicant worked closely with Mr Bennett at CPS. The Tribunal accepts that the applicant was working under supervision, as required by the Accreditation Scheme. Further information from Mr Bennett or any other A1 accredited certifier at CPS with whom the applicant worked could have identified and clarified the applicant's individual role and his expertise in the assessments required in each of the projects. In the absence of such a statement, the issue is whether the additional material provided by the applicant has confirmed his actual role.
7. The Tribunal accepts that the additional information provided has clarified the applicant's role in assessment of CDCs, and his involvement in stakeholder management. The Tribunal is not satisfied, however, based on the totality of the evidence including the applicant's own evidence, that he has demonstrated that he has the required experience across a broad range of buildings of all classes and undertaking the broad range of certification tasks essential for accreditation as a category A1 certifier.
8. In those circumstances, the decision under review should be affirmed.

Order

1. The Tribunal orders: The decision under review is 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: 14 April 2022