Wang v Building Professionals Board

Were the notices of non-compliance defective?

1. Section 7 of the Swimming Pools Act provides: 7 General requirements for outdoor swimming pools (1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier: (a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.
2. Schedule 1 of the Act also contains diagrams depicting what is required by way of a barrier.
3. The Swimming Pools Regulation 2008 at cl 5 states that the standards that are prescribed for the purpose of s 7 are the requirements set out in the Building Code of Australia. The relevant requirements are at 3.9.3.0 of the Building Code of Australia which requires that pool safety barriers must be installed in accordance with Australian Standard AS1926 Parts 1 and 2.
4. All four houses where Mr Wang carried out his inspections contained doors which provide a means of access to the swimming pool from the house. The NSW Government stopped allowing house doors to form part of the pool barrier in July 2010 and now requires a pool barrier to be constructed between the pool and the house. Each of the pools certified by Mr Wang were built before August 1990 and, in accordance with s 8 of the Swimming Pools Act and cll 22A and 23 of the Swimming Pools Regulation, could be eligible for an exemption from the current requirement to erect a separate barrier. It was possible, therefore that the pool owners were permitted to use the house's external wall (with protected openings) as a barrier. That would only be the case, however, where the pool barrier complied with the standard applicable at the time of construction. In these four instances as the pool barriers did not fully comply with the standards at the time of construction, the pre 1990 exemption no longer applies and the pool fencing must be upgraded to meet the current standards
5. Mr Wang identified that each of the pool barriers was not compliant with the standard applicable at the time of construction primarily because of the failure of window and door openings to comply with the requirements set out at the time. He also correctly identified that compliance with Australian Standard AS1926.1-2012 was required. However, the Board states that Mr Wang then failed to identify that what is required by s 7 of the Swimming Pools Act is the erection of a barrier, that is, a new pool fence, between the house and the pool. Use of the house wall with protected openings is no longer a permitted option.
6. The instructions given by Mr Wang to the pool owners were that compliance could be achieved if doors and windows in the house walls complied with the closing and locking requirements of Australian Standard AS1926.1-2012. The Board states that this method was not available once non-compliance with the requirements in force at the time of construction was identified and Mr Wang failed to recognise this.
7. Mr Wang states that he has been a swimming pool certifier for three years and since 2016 has used software called Building Certification Systems (BCS) to compile his reports. The software is loaded on his phone. He states that the BCS software is promoted at seminars and training he has attended as part of the Board's continuing professional development program. He states the software is promoted on the Board's website and he has never seen any information which indicates the software should not be used. Mr Wang states that most pool certifiers use the BCS software, although some have created their own templates.
8. Mr Wang states that the BCS software has preloaded text and did not permit him to include in the notices he issued the required methods to make the pool fence compliant, so he included the method which was most appropriate. He said, however, that immediately after his inspection he would meet with the pool owners on site and discuss with them the available options in accordance with the requirements of the Act to make the pool barrier compliant. The options would be to erect a fence between the pool and the house or to permanently disable any access through doors or windows. He said he would spend 30 to 40 minutes with the owners explaining the requirements to them and discussing the options.
9. The Board states it has never endorsed the BCS software for pool certification. Information contained on its website and dated 25 June 2018 does state that BCS certification software is "now fully compliant" with data reporting requirements. The website makes clear, however, that this applies to A1, A2 and A3 certifiers in relation to building work and does not mention E1 certifiers as the reporting requirements referred to are not relevant to pool certifiers. Mr Jeremy Dicello, who owns CPD Training Pty Ltd which conducts training for E1 certifiers, states that he does advise students that software, including BCS, is available but does not recommend the use of any software. While BCS software is promoted at state conferences, he states he does not promote the software and advises students that they can't rely on the software but need to understand the Swimming Pools Act and Regulations.
10. Mr Wang told us that he no longer uses the BCS software and has instead created his own template which he uses to compile notices. At the hearing, however, Mr Wang insisted that he did the right thing in advising the pool owners what to do to make the barrier compliant but was limited by the BCS software. He said he had specified to the owners what needed to be done in their on-site discussion but acknowledged the correct method was not in fact included in the notice.
11. As noted above, s 22E(3)(d) of the Swimming Pools Act provides that a notice of non-compliance issued by a certifier must include the reasons why the certifier is not satisfied the pool barrier is compliant and must set out the steps to be taken in order to make the barrier compliant. In relation to each of the four pools, the notice issued by Mr Wang specified that work needed to be carried out to doors and/or windows of the house (the restricted access from the dwelling method) in order for the pool barrier to meet the current requirements.
12. In specifying the restricted access from the dwelling method in the notice, Mr Wang: 1. failed to require a barrier to be installed that separates the pool from the dwelling as required by s 7(1) of the Swimming Pools Act; 2. failed to require that barrier to be designed and installed in the manner set out in s 7(2) and Schedule 1 of the Swimming Pools Act; and 3. applied a method which is not permitted by the Act as the restricted access from the dwelling methods is not available to a pool owner needing to meet the current standards.
13. Mr Wang's statement that the BCS software did not allow him to specify the correct steps to be taken because of deficiencies with the software, does not absolve him of his responsibility as an E1 certifier to comply with the legislative requirements and ensure that the correct steps to ensure compliance are set out in the notice. His statement that he specified other steps that could be taken in his discussions with the pool owners is not to the point. The steps must be set out in the notice itself.
14. We do not accept that the BCS software was approved by the Board for use by E1 certifiers. While the product may have been promoted at state conferences organised by the Board, that does not mean the Board endorsed its use by pool certifiers.
15. It is apparent that the content of the four non-compliance notices issued by Mr Wang were defective. The notices must be correct, complete and not likely to deceive pool owners and others. The notices failed to specify the correct steps to be taken and instead set out an incorrect method. We find that Mr Wang, as an E1 accredited certifier failed to comply with his statutory duties under ss 7 and 22E of the Swimming Pools Act.

Unsatisfactory professional conduct

1. The Board is permitted to take disciplinary action against an accredited certifier if it satisfied that the person is guilty of professional misconduct or unsatisfactory professional conduct. The issue in these proceedings is whether Mr Wang is guilty of unsatisfactory professional conduct as defined in s 19 of the Act. The relevant matters in s 19 are as follows: unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission): (a) conduct occurring in connection with the exercise of the accredited certifier's functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, … (c) a contravention by the accredited certifier of a law (whether or not a New South Wales law, and whether or not the contravention is an offence) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, or involves fraud or dishonesty, whether or not the accredited certifier is prosecuted or convicted for the contravention, (d) a failure to comply with a statutory or other duty, or a contractual obligation, imposed on the accredited certifier by or in accordance with a law (whether or not a New South Wales law) that relates to the functions or obligations of a person as an accredited certifier or the holder of an equivalent authorisation, … (g) a failure by the accredited certifier to comply with any relevant code of conduct contained in the accreditation scheme.
2. We have found that Mr Wang failed to comply with his statutory duties under ss 7 and 22E of the Swimming Pools Act. He also contravened those provisions which related to his functions and obligations as an E1 certifier. He is therefore guilty of unsatisfactory professional conduct on the grounds set out in ss 19(c) and (d) of the Act.
3. The Board submits that Mr Wang's conduct also falls within sub-sections (a) and (g) of s 19(1) of the Act in that his conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier and he also failed to comply with the Board's code of conduct.
4. In Building Professionals Board v Cogo [2008] NSWADT 119 the Tribunal stated at [85] that "the objective gravity of the conduct should be the focus when considering where the conduct might fall on the spectrum set by the legislation, i.e. is it conduct, objectively viewed, which is of a kind that might warrant suspension or disaccreditation". The Tribunal also held that the level of accreditation is a matter to be taken into account.
5. The Board notes the seriousness of issues concerning child safety and swimming pools and refers to the matter of Fairfield City Council v Saha [2018] NSWLEC 104 where at [16] Pain J stated that "The importance of complying with the pool safety requirements of the Act and AS 1926.1-2012 is a matter of fundamental public safety". In Autore & anor v Waverley Council [2015] NSWLEC 1350 Commissioner Fakes stated at [24] that the broad intention of the statute and standards is "to make it very difficult for a child to gain access to a pool on private land from anywhere, be it from a dwelling on the land, other parts of the same land, an adjoining private property, public reserve or any other area".
6. Mr Wang states he has been an accredited E1 certifier since January 2016. He states he did not knowingly issue a notice which did not comply with the legislation but states he now understands his responsibilities. He points to the fact that he has developed his own template to overcome the shortcomings of the BCS software. Mr Wang notes that, when the owners of the four pools in question failed to invite him back to inspect any work they had carried out to remedy the non-compliance, he sent the non-compliance notices to Council as he was required to do.
7. Mr Wang is an E1 certifier and has been for more than three years. As such he holds a position of trust and notices and certificates issued by him are relied upon by vendors, purchasers, landlords, tenants, councils, other certifiers and the community. The public would have a reasonable expectation that Mr Wang would perform his functions diligently and with care and that he would have a high level of knowledge of all relevant matters he was required to consider. In this case, we are of the view that he did not demonstrate that he possesses these qualities to the expected degree as he failed to apply the correct legislative requirements.
8. Each of the pools in question had no fence between the pool and the house. There was therefore an immediate issue of safety to persons, and particularly children, in the vicinity of the pool. We consider that Mr Wang should have been more diligent to ensure that he had a complete understanding of the swimming pools legislation so that the non-compliant pool barrier could be rectified correctly.
9. It is apparent that Mr Wang failed to fully understand his statutory duties. His conduct has therefore failed to reach the standard of competence, diligence and integrity that a member of the public is entitled to expect of an E1 accredited certifier and falls within the definition of unsatisfactory professional conduct in s 19(1)(a) of the Act.
10. Under requirement 1 of the code of conduct established by the Board an accredited certifier is required to carry out his or her functions and to exercise any discretionary powers in a way that promotes or preserves the public interest. Requirement 5 of the code of conduct imposes an obligation on accredited certifiers to exercise reasonable care and attention in carrying out their duties and in the exercise of their powers. Under requirement 6 an accredited certifier is obliged to take all reasonable steps to obtain all relevant facts when making decisions and carrying out certification and other statutory functions. Requirement 7 states that an accredited certifier shall ensure that his or her decisions and actions are reasonable; fair and appropriate to the circumstances; based on consideration of all the relevant facts he or she has obtained; and supported by adequate documentation.
11. In failing to identify the correct requirements for ensuring a non-compliant pool barrier meets current standards and instead specifying an impermissible method, Mr Wang failed to exercise his functions in the public interest. He has also failed to carry out his duties with reasonable care and attention. He also failed to seek or obtain advice or further information about how he should proceed in circumstances where he appears to acknowledge the software he was using was inadequate and not in compliance with his statutory obligations. We are satisfied that Mr Wang failed to comply with requirements 1, 5, 6 and 7 of the code of conduct and his conduct was therefore unsatisfactory professional conduct as defined in s 19(1)(g) of the Act.

Appropriate penalty

1. A finding of unsatisfactory professional misconduct against Mr Wang is substantiated. Accordingly, we may take one or more of the actions specified in s 31(4) of the Act. Those actions include a caution or reprimand, the imposition of conditions and the payment of a fine.
2. Mr Wang submits that, should a finding of unsatisfactory professional misconduct be made against him, he accepts that a penalty should be imposed but states that a $20,000 fine is excessive. He submits that a fine in the order of $3,000 is more appropriate.
3. Both parties referred to Qiu v Building Professionals Board [2013] NSWADT 289 where the Administrative Decisions Tribunal, drawing on an earlier decision in Director General, Department of Fair Trading v Cohen [2003] NSWFTT 3, set out the following factors as being relevant in disciplinary proceedings: 98. … In addition to factors of deterrence, personal and general; and the importance of upholding the objectives of the relevant legislation, the following considerations might be relevant: (a) the nature, width and extent of the contraventions (b) the loss or damage and prejudice in consequence of the contraventions (c) the circumstances in which the contraventions took place (d) whether the licensee has been seen to have engaged in any similar conduct (e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee (f) the extent of carelessness or wilfulness of the conduct (g) the efforts made to correct the situation and what measures have been taken by the licensee (h) what consciousness the licensee had and displayed of its obligations under the relevant statute and to the owners (i) the effect upon the licensee (j) antecedents (k) attitude, building history and future compliance (l) the penalty range.
4. Mr Wang's conduct and, in particular, his failure to comply with his statutory duties on four occasions, must be assessed in the context within which his contraventions occurred. As noted above, the swimming pools legislation is legislation primarily directed towards public safety. We have no reason to doubt the Board's statement that drowning is a leading cause of preventable death in children under five years of age. Amendments were made to the Swimming Pools Act in 2012 to improve the safety of children around swimming pools in NSW. Indeed, those amendments included the introduction of E1 certifiers.
5. We are most concerned that Mr Wang failed to understand the legislative scheme within which he operates. At the hearing before us he at times displayed a tendency to argue that he had done nothing wrong, although, he ultimately conceded that the four notices did not meet the legislative requirements. After listening to his responses to questions, we have some doubts that, although Mr Wang has changed the way he prepares his notices, he fully understands his obligations. This is a significant matter to be considered in deciding what penalty should be imposed.
6. Mr Wang does not consider that his actions put the public at significant risk. This is primarily because he ultimately forwarded the non-compliance notices to Council for further action when compliance action was not taken by the pool owners. He provided information which indicated that each of the pools was only made compliant quite some time after the non-compliance notices were issued. He fails, however, to understand that his failure to issue a correct notice may have exposed persons to unsafe situations because the pool barrier would not have been brought up to current standards. In addition, the current or future owners may have been exposed to additional costs. That no-one's safety was in fact affected does not diminish the seriousness of his conduct.
7. We note, however, that Mr Wang has had no prior disciplinary findings made against him. There is no evidence that his conduct was in any way fraudulent or dishonest. Similarly, his conduct does not appear to have been wilfully inappropriate but it was certainly careless and demonstrated a lack of understanding of his role and his legislative obligations. We consider that he has displayed a reasonable attitude in dealing with the complaint made against him.
8. Bearing in mind the Disciplinary Penalty Guidelines which have been developed by the Board, the seriousness of Mr Wang's conduct and the residual concerns we have about Mr Wang's understanding of his obligations, we consider it imperative that he undertakes further training with respect to his obligations as an E1 certifier and in relation to safety issues concerning swimming pools. We do consider, however, that a fine of $20,000 is excessive and that an amount of $15,000 is more appropriate in the circumstances.

Orders 1. The decision of the respondent is set aside. 2. The applicant is to complete within 60 days of the date of this decision the E1 Accredited Certifier Swimming Pool Certification Course as identified by the Board on its website. 3. The applicant is to pay to the Board the sum of $15,000 within 60 days of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2019