Building Professionals Board v Cogo [2008] NSWADT 119 (24 April 2008)

Last Updated: 29 April 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Building Professionals Board v Cogo [2008] NSWADT 119
This decision has been amended. Please see the end of the judgment for a list of the amendments.

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Building Professionals Board

RESPONDENT
Mark Cogo



FILE NUMBERS:
073286

HEARING DATES:
14 March 2008

SUBMISSIONS CLOSED:
14 March 2008



DATE OF DECISION:
24 April 2008

BEFORE:
O'Connor K - DCJ (President)Friedmann P - Non Judicial Member





LEGISLATION CITED:
Building Professionals Act 2005
Building Professionals Regulation 2007
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000

CASES CITED:
Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99
Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49
Baulkham Hills Shire Council v Dix and Anor [2004] NSWLEC 404
McIntosh Properties Pty Ltd v Warringah Council (22 August 2002, Cmr J Murrell)Re Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 52 ALR 24
Zangzinchai v Millanta [1994] FCA 1361; (1994) 125 ALR 265

TEXTS CITED:


APPLICATION:
Disciplinary Findings and Order

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
A Grey, solicitor
RESPONDENT
K Lovegrove, solicitor


ORDERS:
1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct
2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $11,000.


Reasons for Decision:

REASONS FOR DECISION

1 The Building Professionals Board (the Board) has applied under the Building Professionals Act 2005 (the BP Act) by Application filed 28 September 2007 for disciplinary findings and orders to be made against the respondent, Mr Mark Cogo, an accredited certifier.

2 The BP Act and the Building Professionals Regulation 2007 (BPR) commenced full operation on 1 March 2007. The Board is responsible under the legislation for the investigation of complaints against accredited certifiers, the taking of disciplinary action and the referral of matters to the Tribunal for determination by the Tribunal.

3 The Board may investigate and make disciplinary orders in respect of unsatisfactory professional conduct (but not professional misconduct): s 31(2) and (4). If it is of the view, after investigation, that the conduct if proven might lead the Tribunal to find that the certifier has engaged in professional misconduct, it must refer the matter to the Tribunal for hearing and determination: s 31(3). The Board is obliged to continue to deal with complaints that were on foot under the previous scheme: BP Act, Sch 2 cl 3(1). This is a case arising from a complaint made under the previous scheme.

4 Warringah Council gave consent relevant for a development at 910 Pittwater Road/12-16 Howard Avenue, Dee Why on 15 September 2000. The development was a major one, and was described in the consent determination as a:

‘Mixed Commercial/Residential Development comprising two (2) buildings and associated car parking. The proposed development comprises of 60x1 bedroom units, 40x 2 bedroom units and 2x 3 bedroom units and the reconfiguration of 1061 sq m of retail space.’

5 Condition 1 required the Development to be ‘generally in accordance with’ the submitted plans, which were listed by their plan numbers. One of the issues raised by the application is car parking, the source of the original public complaints to the Council. Conditions 44-47 relate specifically to car parking. Condition 44 required a minimum of 189 car parking spaces. Their distribution was the subject of Condition 45 – 111 for residential, 21 spaces for visitors, and 57 for retail. Condition 46 nominated certain spaces as ‘visitor’ spaces. Condition 47 required that all car parking spaces comply with the relevant Australian Standard.

6 At the times relevant to this matter Mr Cogo held an accreditation as an accredited certifier/principal certifying authority at Grade 2 level. He has since been upgraded to Grade 1. Since 2000, he has been a director of the national building projects consultancy firm, McKenzie Group Consulting (NSW) Pty Ltd.

7 Mr Cogo issued the construction certificate on 28 November 2001. The work was completed in accordance with the plans attached to the construction certificate (the CC Plans) during 2003, and people starting moving in from about September onwards. There were two complaints to Council from residents over car parking alleging that the car parking arrangements were not in conformity with the development consent and the development consent plans (the DC Plans). The Council investigated the complaints, and compared the DC Plans with the CC Plans. It formed the view that there had been major changes from the DC Plans in respect of various aspects of the development in the upper ground and lower ground areas. The Council complained on 12 December 2003 to the then accreditation authority about Mr Cogo’s conduct.

8 Like a number of other applications with which the Tribunal has recently dealt, this matter has taken several years to reach the Tribunal. The history of the accreditation body’s investigation of the complaint is set out in the affidavit as to jurisdiction. Mr Cogo was informed of the complaint by letter dated 29 January 2004, and invited to respond. A response was provided by letter dated 16 March 2004 from his solicitors. Mr Kuman, a Departmental investigator, prepared a report which was provided to Mr Cogo and the Council in October 2006. The report and the responses of Mr Cogo were considered by the State Assessment Committee on 8 December 2006. It requested further information on certain matters. The request was transmitted to Mr Cogo’s solicitors in February 2007, and a reply furnished in March 2007. On 31 August 2007 the Board determined to refer the matter to the Tribunal.

9 To understand the nature of the concerns raised it is necessary to describe the relevant aspects of the development in greater detail.

10 The site is an L-shaped one, set in from the intersection of Pittwater Road and Howard Avenue. Pittwater Road is a major trunk road on a basically north-eastern/south-western axis. Howard Avenue is a street on an eastern axis heading to the Dee Why surf beach, which is within walking distance.

11 The development had a common building at ground level. That building has an upper level and a lower level. There are two primarily residential buildings on top of the common building. One is a small building on the Howard Avenue side. The main building, housing most of the apartments, is on the Pittwater Road side.

12 The DC Plans show on the top of the common building an area described in the proceedings as ‘the Courtyard’. The DC Plans show a swimming pool at one end. The Courtyard is shown as densely landscaped.

13 The internal areas of the common building on both the upper and lower level are given over primarily to car parking. Under the DC Plans the upper level of the common building had a tiled concourse which ran across the entire width of the upper level and provided a link between the Pittwater Road building and the Howard Avenue building. The entry foyers in each of these buildings is connected to the concourse at either end. The common building had a retail sector on the lower level. There are shop spaces situated at the Pittwater Road and Howard Avenue ends.

The Application

14 The variations put in issue by the application relate to: elimination of the swimming pool, and replacement by a spa and feature; elimination of the continuous concourse; changes to entry foyers to the apartment buildings; changes in the location of shops; changes in lift facilities for the main apartment building facing Pittwater Road; various changes in the car park area on both the upper and lower levels including reconfiguration of car parking spaces; changes to size and shape of entry and exit ramps; changes in storage unit locations; incorporation of an electricity sub-station; and changes in the external appearance of shops and in the visual treatment of space above the shops.

15 The material parts of the application follow:

General description of conduct:

A. A complaint was made pursuant to s.109V of the Environmental Planning and Assessment Act 1979 (the EP & A Act) by Mr Norm Fletcher of Warringah Council to the Department of Infrastructure, Planning and Natural Resources on 12 December 2003 against Mr Mark Cogo (the Respondent) in relation to the issue of a construction certificate in respect of plans that were not consistent with the development consent.

B. The Respondent was at all material times accredited as an accredited certifier and principal certifying authority pursuant to s.109T of the EP & A Act.

The Respondent was accredited under the Building Surveyors & Allied Professions Accreditation Scheme (the BSAP Scheme) and the Minister appointed the Director-General of the Department of Planning and other Departmental officers, including Neil Cocks, Director, Building Professionals Branch (the Minister’s appointees) under Clause 199(3)(a) of the Environmental Planning and Assessment Regulation 2000 (the EP & A Regulation) to administer the BSAP Scheme.

C. The complaint has been investigated pursuant to section 109W of the EP & A Act by officers of the Department of Planning on behalf of the Ministers appointees.

D. The authority of the Ministers appointees expired with the commencement of the Building Professionals Act 2005 (the BP Act) on 1 March 2007. Pursuant to Clause 3(1), Schedule 2 of the BP Act, the Building Professionals Board (the Applicant) is required to continue to deal with the complaint as a complaint under Part 3 of the BP Act.

E. By issuing a construction certificate in respect of plans that were not consistent with the development consent the Respondent has engaged in conduct;

(a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that 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/or

(b) by which he contravened the EP & A Act.

PARTICULARS OF ALLEGATIONS

DEVELOPMENT AT 910 PITTWATER ROAD/12-16 HOWARD AVENUE, DEE WHY (the development)

(1) Relevant legislative provisions

Clause 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (the EP & A Regulation) provides:

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.

(2) Particulars of Conduct

(a) On 15 September 2000 Warringah Council granted Development Consent No. 3862DA in respect to the development. The development consent related to certain plans which were specified in Condition 1 of the Notice of Determination of Development Application (the development consent plans).

(b) On 28 November 2001 the Respondent issued construction certificate No. 01/385-1 in respect to the development.

(c) The construction certificate approved certain specified architectural drawings by Arpic Pty Ltd (the construction certificate plans).

(d) The design and construction of the building as depicted in the construction certificate plans was inconsistent with the development consent plans in the following respects:

(i) The spa pool with a sail structure awning and a separate water feature are clearly identified on the construction certificate plans however are not shown on the development consent plans.

(ii) The construction certificate plans do not identify the swimming pool in the north-eastern side of the development as per the development consent plans.

(iii) The parking layout identified in the construction certificate plans differs or varies from that which is depicted in the development consent plans.

(iv) The location of the storage area on the construction certificate plans differs or varies from the development consent plans.

(v) The location of the lift lobby and the lift shaft on the construction certificate plans are located upon entry from Howard Avenue and Pittwater Road. Development consent plans show a lift lobby upon entry from Pittwater Road.

(vi) The construction certificate plans identify two (2) lifts to service the building. The development consent plans identify one (1) lift to service the building.

(vii) The number of shops identified on the construction certificate plans facing Howard Avenue is four (4) shops. The development consent plans identify two (2) shops.

(viii) The construction certificate plans identifies an entry foyer from Howard Avenue that differs or varies from the approved development consent plans.

(ix) The shape of the driveway and car park ramps as identified on the construction certificate plans differs or varies from the approved development consent plans.

(x) The construction certificate plans identify a substation on the north-eastern side of the car park. Development consent plans do not indicate a substation.

(xi) The concourse from Pittwater Road to Howard Avenue as identified in the development consent plans has been deleted from the construction certificate plans.

(xii) The construction certificate plans identify car parking spaces in place of shops, contrary to the development consent plans.

(xiii) The entry foyer on Pittwater Road as identified on the construction certificate plans varies or differs with the development consent plans by having an entry foyer that is shorter in width. Furthermore, the development consent plans show the entry foyer joining onto a concourse through to Howard Avenue.

(xiv) The construction certificate plans identify two (2) shops on the Pittwater Road side. However, the development consent plans identify six (6) shops.

(xv) The development consent plans identify aluminium framed shop glazing on the Howard Avenue elevation. However Council sent a letter to the applicant advising that the fixed louvres have been approved.

(e) By issuing the construction certificate in respect of plans that were inconsistent with the development consent plans the Respondent has engaged in conduct:

- occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that 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/or

- by which he contravened the EP & A Act.

16 The relevant law is set out accurately in the application.

Material before Tribunal

17 In support of the application the Board relies on the information contained in the exhibit annexed to the affidavit of evidence sworn by Mr Matthew Wunsch, Team Leader, Complaints, Building Professionals Board, on 14 February 2008 (the Folder).

18 In his original Reply to the application, filed 8 November 2007, Mr Cogo admitted all particulars as to the differences between the DC Plans and the CC Plans. But he denied that the inconsistencies were of such a degree as to contravene the requirement that lies at the heart of this case, cl 145(1) of the EP & A Regulation, set out in the text of the application above. Even if there was a breach, he denied that it was such as to justify a finding that he was guilty of either unsatisfactory professional conduct or professional misconduct.

19 The original Reply is consistent with the position he had taken in his representations to the accreditation bodies during the different stages of the investigation of the complaint. He relied on two propositions. One, that as to some of the changes found in the CC Plans he had received the authorisation of relevant Council officers at a meeting he held with them on 28 February 2001. As to one change, he also relied on a note of approval received from an officer. Two, that other changes not the subject of authorisation were minor, and that the development remained ‘substantially the same development’.

20 On 13 December 2007, Mr Cogo filed an amended reply. Again, all particulars as to differences were admitted. But, importantly, he conceded that his conduct fell short of the competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, and by which he contravened the EP & A Act. The reply qualified this concession with the words, ‘only to the extent that he issued the construction certificate in respect of plans that were not consistent with the development consent’.

21 On 22 February 2008, Mr Cogo’s solicitor, Mr Lovegrove, filed by fax (and later filed the original) a document which was essentially a compilation of submissions made to the accreditation bodies in the course of their investigation. The document commences with the two page covering letter dated 21 February 2008 to the Tribunal. It is followed by 22 pages (for convenience, we will use the fax page numbers 1/24-24/24 to refer to this material).

22 In response to the document filed 22 February 2008 the Board filed on 12 March 2008 a document headed ‘Applicant’s Preliminary Submissions and Chronology of Events’. In these submissions, the Board asserted that while the broad features of the plans as approved by the construction certificate remained as per the development consent, there were ‘numerous and significant inconsistencies’ between the development as depicted in the development consent, and that depicted in the construction certificate.

23 The hearing took place on 14 March 2008.

24 At hearing, Mr Lovegrove did not continue to press some of the submissions made previously to the accreditation bodies and in the document filed 22 February 2008. At hearing Mr Lovegrove relied on the submissions contained in the first part of the document filed 22 February 2008: from pages 3/24 to 8/24 down to the words ‘allegations made’. In the next part of the document, he no longer pressed the following: all text under the heading ‘The Spa Pool & Swimming Pool’ at 8/24 to 12/24; all text under the heading ‘Estoppel’ from 12/24 to 14/24; all text under the heading ‘Council Obligations’ from 14/24 to 15/24; the text under the heading ‘Practice and Procedures’ at 15/24 contained in the second sentence in para 53; and all text under the heading ‘The Strata Plan’ at 15/24. The final part of the document commences at 16/24 with the heading ‘Concluding Submissions’. He did not rely on the first submission at para 57 (under the heading ‘Estoppel’), but did rely on the remaining submissions from paras 58 to 66, from 16/24 to 18/24. The final six pages were in the nature of attachments, and included Mr Cogo’s hand written notes of the meeting with Council officers on 28 February 2001 and the note of approval from a Council officer as to a particular matter.

25 Some material relating to disciplinary history was presented to the Tribunal at hearing which had not previously been supplied to Mr Lovegrove or his client. The Board also made a submission as to possible disciplinary orders. Mr Cogo was given leave to file any further submissions within seven days going to these matters. Submissions were received on 21 April 2008. This decision was due to be released that day, but was withheld to enable those submissions to be taken into account.

Conduct in Issue

26 The Board referred in its submissions and at hearing to a marked up copy of the construction certificate plans (folios 1 to 43) which addressed each of the 15 inconsistencies particularised in the application at (2)(d)(i) to (xv). There was no serious contest by Mr Lovegrove with the Board’s account of the inconsistencies.

27 Swimming Pool. (Items (i) and (ii) at 2 (d) of the particulars.) The CC Plans, and the development as built, did not include a swimming pool. Instead there is a spa pool and sail structure awning and a separate water feature.

28 Car Parking Areas. (Items (iii), (ix), (x) and (xii).) There are several changes affecting the amenity of the car parking areas. The DC Plans show a relatively uncongested lay out, using side by side parking bays set in a double row with wide drive-in lanes. The entry/exit areas are double lane and relatively spacious. The CC Plans show on one level a predominance of triple row parking, with narrower drive-in lanes. The entry/exit areas are narrow and the ramps between the two levels are narrower. On the other level there is a scalloped angle parking layout rather than the double row previously.

29 Clearly these are serious diminishments of the accessibility features seen in the DC Plans. The alterations appear to be driven by the need to accommodate changes in the location of the shops, to which further reference is made below. Though the CC Plans presented to the Tribunal did not show precise comparative dimensions it would seem that some car spaces were smaller in overall dimension than had been the case under the DC Plans. A Council inspection found, we should add, that none of the spaces was less than the prescribed minimum standard under the BCA. The two complaints that triggered the Council investigation said that it was almost impossible to get out of the car once parked so narrow were the widths; and that it was very difficult to turn into the bays from the traffic lanes.

30 Other Alterations in the Car Parking Zone. (Item (x).) Installed in the lower level car park by the CC Plans is an electricity sub-station. This was not shown in the DC Plans. This is a further inhibition on the space available for car park purposes. The CC Plans show car spaces where shops were previously marked.

31 Storage Units. (Item (iv).) The next set of changes relates to the location of storage areas. In the DC Plans several car spaces have storage unit areas immediately adjacent to them. They are depicted in a way which would suggest they were intended to be specific to the particular car space. A feature of this kind may well be an incentive to people to buy or occupy an apartment or a shop in a development of this kind. In the CC Plans there are some broad areas between the edge of the car park and walls, not separately marked in the way of the DC Plans simply called ‘Commercial storage’. The storage feature as depicted in the DC Plans is gone.

32 Concourse. (Item (xi).) The spacious and clearly defined upper level concourse of the DC Plans is eliminated. Under the CC Plans, and as built, a person moving from a car to the entry foyer must find their way through a car park of a more congested type than depicted in the DC Plans. This is a significant change in amenity.

33 Entry Foyers. (Items (viii), (xiii).) The CC Plans show changes to entry foyers to both buildings that result in smaller foyers. Again this is a change that impacts on the amenity of the development.

34 Lift Arrangements. (Items (v), (vi).) The lift lobby serving the Pittwater Road tower was shown as accessible in the DC Plans from both the Pittwater Road side and the Howard Avenue side. In the CC Plans, and as built, it is only accessible from the Pittwater Road side. The Pittwater Road building CC Plans do provide for a second lift, which presumably would be seen as an improvement in amenity. The installation of an additional lift system may, however, be a significant matter from the point of view of a consent authority.

35 Shop Configuration. (Items (vii), (xiv).) The CC Plans show four shops on the Howard Avenue side, while the DC Plans show two shops. On the Pittwater Road side, the CC Plans show two shops whereas the DC Plans showed six shops. The result is that of the eight shops approved at the DC stage, there are now six shops overall in the development but the dynamic has altered from 6/2 to 2/4 as between Pittwater Road and Howard Avenue.

36 Shop External Appearance. (Item (xv).) Finally, there is an issue of external appearance in relation to the shops and the void created by the concourse on the Howard Avenue side. The DC Plans showed aluminium framed glazing for the shops and the void. The CC Plans did not as noted include a concourse with the result that the void disappeared. Instead the CC Plans show the use of a fixed louvre treatment. This was approved in the note from the Council officer, previously mentioned. Nonetheless the matter is advanced as part of this application as another variation from the development consent raising a question as to consistency.

Contravention of cl 145(1)(a)?

37 The case brought against Mr Cogo depends on a finding that he breached his obligation as a certifying authority not to issue a construction certificate for building work unless he is satisfied that the design and construction of the building (as depicted in the plans and specifications) are ‘not inconsistent with the development consent’.

38 This requirement is a well-known one. It can be seen that the standard is expressed in a way which leaves the certifier with a discretionary judgement to make, and without any direct guidance from the provision. It can perhaps be assayed that the drafter’s choice of the words ‘not inconsistent with’ was intended to provide more latitude than the alternative expression deleting the double negative – ‘consistent with’.

39 Condition 1 of the development consent simply required that the development be ‘generally in accordance with’ the enumerated plans submitted with the development application. This Condition points towards the acceptance on the part of the Council that the CC Plans might differ in detail from the DC Plans. Of the many specific Conditions attached to the development consent only one group might bear on the matters raised by this case (the Car Parking Conditions 44-47). We note, however, that ultimately there is no allegation of a specific breach of any of these Conditions.

40 Regardless of Condition 1, the certifier’s governing obligation remains that contained in cl 145. Referring to this obligation, Pain J said in Lesnewski v Mosman Municipal Council and Anor [2004] NSWLEC 99 at [32]:

‘It is clear that ‘inconsistent’ does not mean that a construction certificate must be identical to the development consent plans. Accordingly, the possibility of some variation between the terms of the development consent and the design and construction of the building is contemplated by the legislation.’

41 The present application may be seen as involving the assumption that a breach by a certifier of the obligation set down by cl 145 should always result in an adverse disciplinary finding. While cl 145 clearly imposes a professional obligation, it does not, in our opinion, follow that any breach of a professional obligation should result in an adverse disciplinary finding. Each case needs to be judged having regard to all of the circumstances. It is a familiar aspect of the law relating to professional discipline that a distinction is drawn between incompetent conduct that, though careless and negligent, is not so objectionable as to justify an adverse disciplinary finding, and, on the other hand, incompetent conduct which is more serious and warrants an adverse finding.

42 As noted, in the original reply Mr Cogo contended that the variations were such that the project as approved at the CC stage and as built was ‘substantially the same’ as the project as contemplated by the DC Plans. This defence was not reflected in the amended reply. However we refer to it, as echoes of it remained in the submissions of Mr Lovegrove at hearing. The terminology ‘substantially the same as’ is drawn from s 96 of the EP & A Act.

43 Section 96 is another well-known provision which requires the holders of development consents to return to the consent authority for approval if they propose to undertake works that involve modifications to the development consent. The essence of the Council complaint in this case is that a competent accredited certifier would have recognised that the number and degree of changes to the DC Plans for which CC approval was sought was such that he should decline to issue the CC, and advise the client to lodge a s 96 application with the Council. The previous accreditation body and the Board clearly agree with this view, in forming the view that the matters raised were of a kind that could result in a finding of professional misconduct by the Tribunal.

44 The provisions in s 96 of most relevance for present purposes are those allowing the consent authority to modify the consent if:

‘(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.’

45 It will be seen that the ‘substantially the same as’ requirement appears within a set of parameters. Those parameters are not the same as apply to an accredited certifier involved in issuing a CC approval.

46 It is not tenable, in our view (and as would appear now to be accepted by Mr Cogo and his legal adviser Mr Lovegrove), to assimilate to the standards expected of an accredited certifier in determining whether a CC plan is ‘not inconsistent with’ the DC plan the ‘substantially the same as’ assessment made by a consent authority under s 96.

47 Mr Lovegrove drew attention to the case of Baulkham Hills Shire Council v Dix and Anor (Dix) [2004] NSWLEC 404 and McIntosh Properties Pty Ltd v Warringah Council (22 August 2002, Cmr J Murrell).

48 In McIntosh Properties the accredited certifier had issued a construction certificate to the developer which allowed variations not in accord with the DC plans. The Council subsequently refused to issue a building certificate, and also refused a separate application to modify the development consent, brought under s 96. The Court upheld appeals by the developer. It held that the modifications were allowable as the development remained ‘substantially the same’ as the one originally allowed. It allowed the development to proceed as modified, and directed the Council to issue a building certificate.

49 In Moy v Warringah Council [2004] NSWCCA 77; 133 LGERA 49 the Court of Appeal compared the cl 145 requirement and the s 96 procedure. Mr Moy was the accredited certifier responsible for the issuance of the construction certificate under notice in the McIntosh Properties case. He was charged with the offence of making a statement that is false or misleading in a material particular in a construction certificate (s 109ZH(1)(b) of the EP & A Act), the particulars being that the certificate approved variations that were not consistent with the development consent, in contravention of cl 145(1)(a).

50 In light of the outcome in McIntosh Properties, Mr Moy submitted that, the charge should be dismissed, on the basis that an estoppel arose to the effect that the approved variations were not inconsistent with the development consent.

51 The trial court, and the Court of Criminal Appeal on appeal, rejected the contention. Sperling J (with whom Sully and Simpson JJ agreed) referred to the difference in terminology between cl 145 and s 96, and its significance at [77] ff:

‘77 The applicant submits that the phrases "substantially the same development" and "not inconsistent with" have the same ordinary meanings. That may be so in ordinary usage. However, the fact that the regulation-making authority has chosen different language in cl 145 from that used by the Parliament in s96, where the two provisions are part of the same code, strongly suggests that a distinction was intended. More particularly, both terminologies call for a judgment which cannot be made in vacuo and which necessarily takes into account the function of the respective provisions.

78 From this perspective, the formulae "substantially the same development" in s96 and "not inconsistent with" in cl 145 cannot be seen as having the same import. Put another way, it is entirely possible that the same variation (or a more extensive variation, as in this case) might be seen as resulting in "substantially the same development" within the meaning of s96, and yet as being incapable of accommodating the requirement that the certified development be "not inconsistent with" the development consent within the meaning of cl 145.

79 That is because s96 and cl 145 have different functions in the scheme of the legislation. The function of cl 145 is to ensure that the development as built will be in accordance with the development consent. The function of s96 is to allow modification of the development consent (albeit with a threshold limitation). In this context, the kind of variation contemplated by s96 and by cl 145 may be quite different in character. Variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as "inconsistent with" the development consent within the meaning of cl 145. On the other hand, s96 may be seen as contemplating relief from strict compliance with such limitations under the formula "substantially the same development".

80 There is also, the degree of variation which the respective provisions will accommodate. Clause 145 is proscriptive. It prohibits the issue of a construction certificate unless the certifier is satisfied of the matter specified. Section 96, on the other hand, is a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision: Re Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 52 ALR 24, 28; Zangzinchai v Millanta [1994] FCA 1361; (1994) 125 ALR 265, 272.

81 It is unnecessary to decide whether cl 145 is to be applied strictly although that argument is available. It is sufficient that s96 is to be construed liberally on grounds which do not apply to cl 145. It follows that s96 may accommodate a greater degree of variation in the proposed development referrable to the development consent than cl 145 will accommodate.

82 For that reason also, the finding that the approved development was "substantially the same development" within the meaning of s96 does not necessarily imply that the plans the subject of the construction certificate were "not inconsistent with" the development consent within the meaning of cl 145. And that is so notwithstanding that the approved development involved more extensive variations than were involved in the construction certificate.

83 Because of disparity in the nature and in the degree of variation which may be accommodated by the respective provisions, the questions arising under the two provisions are not necessarily the same.’

52 Talbot J in Dix at [20] adopted, as authoritative, the above explanation of the distinct spheres of operation of the two provisions.

53 In Dix one of the questions was whether the accredited certifier had issued a construction certificate for a variation that was not consistent with the design and construction approved by a (modified) development consent. The CC Plans in that case allowed a stormwater drainage system serving a multi-unit apartment development to be built in a certain way. A condition in the consent had dealt with stormwater drainage, and required it to be built in accordance with a submitted ‘concept plan’ from a named consulting firm. The Court concluded that this meant that the concept as depicted in the development consent plans was to be adopted, but the consent authority did not wish to dictate the method. So the question became whether the particular method proposed reflected the concept. The Court found that the method chosen, to which objection had been taken by an affected neighbour, was in line with the concept approved by the consent authority: see para [27].

54 Dix is a case dealing with a single item. The item was addressed by a condition in the development consent. The case came down to a question of what amounted to sufficient compliance on this point. The terms of the condition referred only to a concept. No particular method or design was identified by the development consent.

55 This is not a case of that kind. Here the DC Plans dealt plainly with the various items now under notice. It might be argued that one or two minor variations from the original plans, resulting from exigencies that arose after the development consent, might not raise a question of professional competence. But here there were numerous changes.

Assessment

56 As this is a pre-March 2007 case, the standards are those found in the definitions in s 109R of the EP & A Act. The starting point is the definition of ‘unsatisfactory professional conduct’:

‘unsatisfactory professional conduct includes conduct (whether consisting of an act or omission):

(a) occurring in connection with the exercise of an 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, or

(b) by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited, or

(ii) any other Act or law prescribed by the regulations, or

(e) by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.’

57 ‘Professional misconduct’ is a more serious form of unsatisfactory professional conduct:

‘professional misconduct, in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.’

58 It may be said that no harm of any great significance ultimately resulted from Mr Cogo’s conduct in this case. There are only two public complaints, both basically about car parking. The complaints were expressed in terms of non-adherence to the development consent. (It may be that the complainants bought under a contract that adopted the CC Plans so there was no breach of contract.)

59 Consent authorities are responsible for ensuring that broader public interest and community considerations are observed in the planning and development process. The certifier is allowed some freedom of judgement within the framework of the original development consent (the cl 145 power), but at a certain point the certifier must either have the developer reduce the variations to a more moderate level or advise that a modification application is to be pursued. The s 96 application is then able to be considered formally by the consent authority, and the various notices given to those possibly affected.

60 The senior Council officer responsible for advising on development applications of the present type, Mr Fletcher, lodged the originating complaint. In this statement accompanying the complaint, he firmly expressed the view that Mr Cogo’s conduct was unacceptable, and the variations should have been the subject of a s 96 application. Equally, it is clear from the material in the Folder that the Board officers, and internal committee members, who have dealt with the matter agree with Mr Fletcher regarding the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier.

61 Ultimately the Tribunal must assess this issue. The Tribunal’s judgment is to be informed by an understanding of the work done by accredited certifiers, and what professional peers of competence would consider was acceptable. Mr Fletcher, in particular, holds a position of seniority in the work of accreditation, and his opinion must be respected. We note, though, that the Tribunal did not receive any direct expert evidence from persons experienced in accreditation. The Tribunal panel does include a registered surveyor of standing, familiar with the work done by accredited certifiers.

62 Mr Fletcher, and the Board in its submissions, drew attention to the Practice Notes issued by the relevant Department shortly after inception of the private certification scheme. These are the Practice Notes entitled Construction Certificates for Building Work and When is a Section 96 Modification Required?, both issued September 1999 (see Folder p 1). For example the first Practice Note says:

‘The following would be inconsistent with the development consent:

- altering the external envelope – relocating windows, altering heights, adding plant rooms where not shown

- moving rooms around – changing location of bedrooms and living rooms, increasing number of rooms

- designs not satisfying the conditions of development consent, for instance, conditions requiring modification to plan drawings such as increasing heights or increasing setbacks.’

The second Practice Note states that if changes of this kind are sought, there should be a s 96 application.

63 In reference to the first dot point above, the present case only involves one variation that affected the external appearance of the development – the installation of fixed louvres where aluminium framed glazing previously was shown. The case does not involve any allegations going to the kind of matter raised by the second dot point. There are several changes in this case that might be said to be connected with the third dot point. Significant features of the original development were eliminated, such as the swimming pool and the concourse. The installation of a second lift is a significant change, though we accept is likely to be viewed positively. The changes to car parking arrangements were quite radical in terms of amenity. The changes in storage arrangements were significant.

64 These Notes were seen by Mr Fletcher and the Board as providing direction to practising certifiers as to where to draw the line between permissible and impermissible conduct under cl 145.

65 In our view, these were very limited guidance materials. They tend to focus on the most obvious possibilities – variations to the overall size of the development or variations that affect the external appearance of the development. They have little to say directly on the significance of variations that are internal to the existing envelope, and do not affect external appearance. The examples they give of modifications to plan drawings tend to go to physical changes involving height and width at boundary points (ceilings, walls).

66 The DC Plans were explicit in relation to car parking, car spaces, related storage units, ramp ingress and egress, the lift system, the size and configuration of entry foyers, the distribution of shops at ground level and the shape, size and length of the concourse. The variations allowed by Mr Cogo were numerous. In our view three were of special significance.

67 First, there is the alterations to car park design and lay out which clearly made it a less serviceable car park. The car parking area was radically redesigned. The amenity of the car park was reduced in several ways. Entry and exit ramps become more difficult to use. Two-row parking with spaces that could be driven-into from adjoining lanes was replaced by three-row parking with the result that some kind of stacking system would now need to apply. This is a significant change in terms of user convenience. As we have noted earlier in these reasons, in our view the major factor leading to the diminishment of the amenity of the car park were the decisions to relocate shops. Secondly, there is the removal of the concourse as part of that redesign. Thirdly, there is the cramping of the entry foyers to the apartment buildings. Ease of access to the entry lobbies was reduced by the elimination of the concourse.

68 The replacement of a swimming pool with a spa is not a minor matter. The changes in relation to storage involved a comprehensive alteration. The CC Plans reflected a different approach to the DC Plans. There were no longer separate storage spaces connected to particular car spaces. It was no longer earmarked in that way. The storage space area was now designated ‘commercial’ when that did not appear on the DC Plans.

69 That Mr Cogo had some consciousness that the proposed variations might be such as to require a s 96 application is reflected by his note of the meeting with officers of the Local Approvals Unit on 28 February 2001. This is the meeting to which he has referred through the course of proceedings as providing a justification for his view that the variations did not go so far as to attract the s 96 requirement. The note is rudimentary. It refers to ‘Concourse Level, Carparking, Retail’ and has alongside these words ‘OK’ ‘No 96’. There is a reference to a ‘Landscaping’ item. This is not the subject of the present application and need not be considered here. There is a reference to matters to do with the ‘Pittwater Façade and Howard’. The note states ‘No real concern with planning of general facades’. The latter comment would appear from the markings on the note also to have been seen as applicable to the following ‘Howard Ave – level one façade. To be glazed as per retail residential space’ and ‘storage area associated with carpark at level one associated with commercial space’.

70 In our view a note of this kind is inadequate, without more, to clarify exactly what was agreed between the officers and Mr Cogo at the meeting. It is not apparent what was shown to them, what level of detail was provided and so on.

71 One of the variations affected the external appearance of the building (a subject to which the Practice Notes drew attention) – the replacement of the glazed shop fronts with the louvred treatment. This is the matter that is the subject of a message from an officer of the Local Approvals Unit at the Council, Mr Caponas dated 6 January 2003. It states that the Council has no objection to the changes from glazing to ventilation louvres to the façade at first floor level Howard Avenue elevation as per the plan DWG 301, dated August 2001, submitted to Council on 18 December 2002. This ‘approval’ issued 14 months after the construction certificate had been granted (which, to reiterate, was 28 November 2001). It is not contemporaneous with the issuance of the construction certificate.

72 We agree with Mr Grey that all of the changes served the developer’s interests apart from one (the second lift). This factor raises doubt about Mr Cogo’s ability, at least at that time, to stand back and remain detached from the developer’s interests in performing the statutory responsibility.

73 A certifier must be vigilant in not infringing the standard set by cl 145, even though, we accept, its application to any particular situation leaves much to the professional judgement of the certifier. An accredited certifier, when deciding to approve variations to CC plans without resubmitting them to the consent authority, is performing a public function involving immense trust. Council officers, Council members and the wider community are not given an opportunity to consider the changes proposed.

74 In our view, even though the official guidance materials of the day (the two Practice Notes) were of limited quality, the changes allowed by Mr Cogo were of such a degree that a reasonably competent accredited certifier would have recognised that a s 96 modification should have been sought. In reaching this conclusion, we reiterate that we do not endorse the view that it necessarily follows that a breach by an accredited certifier of cl 145 should always result in an adverse disciplinary finding. Questions of degree are involved.

75 The best that can be said is that the contact made by Mr Cogo with the Council, limited as it was, showed some conscientiousness on Mr Cogo’s part as to the need to address the s 96 question before issuing the certificate.

76 We are satisfied that, at the least, Mr Cogo’s conduct amounted to unsatisfactory professional conduct.

77 The question that remains is whether the transgression amounts to professional misconduct because it is ‘of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation’.

78 The Board submitted that the conduct was of the requisite severity, and a finding of professional misconduct should be entered.

79 Mr Grey for the Board submitted that this is the most serious of the cases so far brought to the Tribunal. The case does involve the largest development so far the subject of proceedings. As noted above, it was a major development. The construction certificate gave the value of the development as $14,118,000 (and that was in 2001).

80 So far in the Tribunal’s decisions in accredited certifier disciplinary cases there are only three where findings of professional misconduct have been entered. All other cases have given rise to findings of unsatisfactory professional conduct. (One of those cases, raising integrity issues as well as compliance issues, has been appealed by the Board. It is seeking a variation of the finding to professional misconduct. The Appeal Panel has given leave to extend to the merits, and the matter is part heard.)

81 The Board in the ‘Preliminary Submissions’ document noted that it held the view that the present matter warranted a finding of professional misconduct despite the absence of any specific public safety element in the allegations. The latter point is an allusion to the first two cases where professional misconduct findings have been entered. They both involved breaches of fire safety requirements in the issuance of certificates. We agree that a finding of professional misconduct might appropriately be made where the breach or breaches relate to matters not involving a public safety element.

82 This is one of the few cases so far heard by the Tribunal that has involved a significant commercial development. Most of the cases so far have had to do with residential dwelling certifications, often single dwelling or small townhouse or unit developments. We accept the comparative point made by Mr Grey that the present project was one of much greater scale.

83 A number of the cases where the Tribunal has entered a finding of unsatisfactory professional conduct have involved repetitive breaches across a series of developments (often single residences). This is not a case involving a series of developments.

84 In assessing whether the conduct is so serious that a finding of professional misconduct should be entered, some account should be taken of the level of accreditation of the certifier. Mr Cogo held an accreditation at the Grade 2 level at the time of the conduct under notice in this case. The conduct occurred in his first year of accreditation in New South Wales. The level of accreditation reflects an assessment as to level of competence and public trust that can be reposed in the practitioner.

85 The Tribunal has indicated in the various cases 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.

86 Had the conduct under notice in this case occurred in recent times, we would have been inclined to the view that a finding of professional misconduct should be entered.

87 However, we think that some account should be taken of the fact that the conduct occurred in the early period of operation of a newly created public function. There is no precedent on which to draw in relation to what is acceptable in the private practice of statutory certifications. The new ‘profession’ was finding its feet at the stage this conduct occurred. It will be the case, we feel, that objectionable conduct that occurs early in the life of a new regulated occupation or profession will not be viewed with the same degree of seriousness as the same conduct occurring at a later stage. We have noted that the level of official guidance available to certifiers in 2001 in relation to the interpretation of cl 145 was minimal.

88 We are not inclined to enter a finding of professional misconduct on this occasion. Our finding is that the conduct constituted unsatisfactory professional conduct.

89 In the submissions of 21 April 2008, Mr Lovegrove noted that Mr Cogo’s disciplinary history (noted below) ought not to be taken into account in these proceedings when determining guilt or assessing its gravity. We agree.

Appropriate Order

90 The BP Act s 34(2) provides:

‘(2) If the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions:

(a) caution or reprimand the accredited certifier,

(b) direct that such conditions as it considers appropriate be imposed on the accredited certifier’s certificate of accreditation,

(c) order that the accredited certifier complete such educational courses as are specified by the Tribunal,

(d) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Tribunal,

(e) order the accredited certifier to pay to the Board a fine of an amount, not exceeding 1,000 penalty units, specified in the order,

(f) order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,

(g) suspend the accredited certifier’s certificate of accreditation for such period as the Tribunal thinks fit,

(h) cancel the accredited certifier’s certificate of accreditation,

(i) order that the accredited certifier cannot re-apply for a certificate of accreditation within such period (including the period of his or her lifetime) as may be specified by the Tribunal.

(4) The Tribunal may not make an order under subsection (2) (f) without the consent of the complainant and the making of any such order does not affect any right of the complainant to bring an action to seek additional compensation.’

91 It will be seen that it remains open, under this provision, even if a finding of unsatisfactory professional conduct is entered, to consider suspension or cancellation. These sanctions were not sought in this case. It would be unusual, in any case, to give them serious consideration where the primary finding is one of unsatisfactory professional conduct.

92 As to the penalty, the Board drew attention to the view of the internal disciplinary committee (see Folder, p 211) that a fine of $11,000 (i.e. 100 penalty units) would be appropriate. It did not seek any limitation, we note, on Mr Cogo’s accreditation. The Tribunal, of course agrees, with Mr Lovegrove’s submission filed 21 April 2008 that it is not bound in any way by the Board committee’s view as to the desirability of imposing a fine, or its amount.

93 Mr Cogo’s accreditation history (see letter from Board, 9 April 2008) commenced in New South Wales in December 2000. He was first accredited on 19 December 2000. Mr Lovegrove advised the Tribunal at hearing that Mr Cogo had moved to Sydney from Victoria to take up his appointment as a director in the Sydney office of McKenzie Group. His first accreditation was as an Accredited Certifier Grade 2 and Principal Certifying Authority Grade 2. At the end of his first year of accreditation, his accreditation was upgraded to Grade 1 in both categories. It remained at that level for the duration of the old accreditation scheme. In March 2007, with the commencement of the new scheme, it was converted to an A1 Accredited Certifier – Building Surveying Grade 1 with conditions, and has continued at that level. There are three conditions: restricting powers in relation to fire safety matters; requirements as to detail required in respect of alternative solutions in fire safety matters; and procedures to be adopted in decisions made contrary to recommendations of the Fire Commissioner.

94 There are two matters adverse to Mr Cogo in his disciplinary history (details provided to the Tribunal by letter from the Board dated 9 April 2008). They are:

(1) Complaint No. 03/03: 29-37 George Street, Woy Woy. The matter was dealt with internally, and a caution administered. The complaint was upheld. It alleged that construction had been endorsed in disregard of instructions from the New South Wales Fire Brigade (NSWFB) relating to the deletion of sprinklers. This was seen as unnecessarily placing building occupants including firefighters in danger in the event of fire. Moreover, the internal determination found that Mr Cogo had not acted in good faith, and had sought approval of an alternative solution from another certifier to the issue (to do with whether it was necessary to install an automatic sprinkler system in a car park) without informing that certifier of NSWFB’s objection.

(2) Complaint No. B10-02: 16-30 Bunn Street, Pyrmont. This matter was dealt with internally, and a caution was administered. There was a breach of the transitional provisions, in that Mr Cogo issued a construction certificate in relation to a development application that was lodged before 1 July 1998. Pre-1 July 1998 applications could only be endorsed by the Council or a consent authority.

95 The second matter appears to have been a minor one, and was not given any real emphasis at hearing by the Board. The first matter is more serious and may provide some background to the third of the conditions now placed on Mr Cogo’s accreditation.

96 In mitigation, Mr Lovegrove referred to the fact that the conduct under notice in these proceedings occurred soon after Mr Cogo came to New South Wales to work. He said that Mr Cogo has revised his procedures so as to avoid any recurrence of the problems identified by this case, and the subsequent complaint dealt with internally by the accreditation body. He said that the firm of which was a director, McKenzie Group, was jealous of its reputation, and has its internal quality control systems externally audited. Mr Lovegrove referred the Tribunal to a certificate given to McKenzie Group (NSW) by a firm called SAI Global Limited stating that it complied with the Australian Quality Assurance Standard, AS/NZS ISO 9001:2000; certificate issued 29 May 2006 and expiring 26 May 2009. He provided the Tribunal with three open professional references dated March 2008 as to Mr Cogo’s competence and reputation from specialist building consultants and professionals. They make no direct reference to the present application.

97 Mr Lovegrove referred to the long time this matter has been pending. We accept that Mr Cogo would have suffered stress as a result of these proceedings, exacerbated by the length of time it has taken for this matter to be finalised. As in a number of recent applications dealt with by the Tribunal, there are long, largely unexplained gaps in the accreditation body’s administrative history of dealing with the complaint. We note that the disciplinary history involves matters with 2002 and 2003 file dates, suggesting that the conduct in issue belonged to Mr Cogo’s early period of practice in New South Wales. Mr Lovegrove referred to Mr Cogo’s personal circumstances. Accreditation work is his primary source of income, and he has a family to support.

98 Mr Lovegrove informed the Tribunal that Mr Cogo now consults with a town planner if there is a question as to whether a variation is such that a s 96 modification should be sought. We do not see this practice as a positive indication of progress. An accredited certifier should be sufficiently trained to be able to make the judgments required for the certification process in an independent way. We do not see what special expertise or added value a person trained in town planning would bring to the process of making very specific decisions about building matters.

99 The Tribunal had no evidence directly from Mr Cogo on any of these matters, in particular the practice he now follows in dealing with variations in CC plans from the DC plans.

100 As noted, Mr Cogo has incurred two disciplinary cautions in the past. This, a third matter, belongs to the same period of time as those cautions.

101 In the submissions filed 21 April 2008, Mr Lovegrove challenged some comments made by Mr Grey in his closing address at hearing, which were seen as casting a slur on his client in connection with the 2003 Wyong matter. On its face, this matter is one of some seriousness. The conduct may be seen as suggesting a preparedness (in that period of time at least) to circumvent unwanted regulatory requirements or considerations. Mr Grey had gone further, and suggested that it showed a propensity on Mr Cogo’s part to shop around for a convenient certificate or advice that avoided the need to go back to Council.

102 In the submissions Mr Lovegrove referred to how internal disciplinary orders were procured at that time. They required the consent of the respondent. Mr Cogo, he said, had submitted to the outcome without necessarily conceding all the allegations made against him, or electing to test the case against him. Mr Grey, similarly, had indicated at hearing that orders of this kind were only obtainable by consent in that period of the accreditation scheme’s history. Mr Lovegrove said that his client categorically rejected any imputation of the kind suggested by Mr Grey.

103 In the present case much had been made, until the matter reached the Tribunal, of the meeting Mr Cogo had with officers of the Council on 28 February 2001. In our view, far too much weight was placed on that meeting. Mr Cogo’s notes are of a minimal kind. An experienced professional, as Mr Cogo was by that time, would, we think, have reduced the discussion to a much more specific form, and obtained clear written endorsements of the variations proposed to the DC Plan.

104 In our view, the penalty should comprise a reprimand and a fine. The amount of the fine suggested by the internal committee is, we think, in the relevant range. The fine is higher than others set by the Tribunal in the past. The factor influencing us to set it at a higher level than has been imposed in previous cases is the scale of the project that was the subject of the misconduct.

Orders

1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct

2. The Tribunal orders that the Respondent be reprimanded; and pay to the Board a fine of $11,000.

AMENDMENTS:


29/04/2008 - Citation. - Paragraph(s) N/A