A complaint was made against a certifier who made multiple errors in certifying a development. These (and most certification errors) could have been prevented by adopting a more careful, methodical approach and seeking advice from appropriate sources.
The Board found the certifier guilty of unsatisfactory professional conduct. The certifier appealed to the (former) Administrative Decisions Tribunal, which upheld the Board's rulings.
Lessons identified from this case
- If in doubt about the correct Building Code of Australia (BCA) classification, ask for advice from a more experienced certifier, a solicitor or council. Also, refer to the BCA commentary.
- Do not classify a building as BCA class 1 or 10 if its foreseeable purpose, level and range of activities, and probable number of staff/ residents more properly justify a class 2-9 classification.
- Ensure the development is described accurately on the construction certificate or complying development certificate.
- Do not issue an occupation certificate unless all preconditions of the development consent or complying development certificate have been met.
Council lodged a complaint to the Board against a certifier in relation to a horse agistment facility.
The development included multiple buildings, the main having a floor area of approximately 2,500 m2 and a variety of rooms such as a staff room, horse boxes and wash bay.
Council gave development approval, and the certifier then issued a construction certificate that gave the development a class 10a classification under the BCA. Class 10a refers to a 'non-habitable building being a private garage, carport, shed or the like'.
However, the development's size and complexity more properly warranted a class 5 classification (professional or commercial office buildings) or class 7b (buildings for storing/ displaying wholesale goods/ produce).
Class 2-9 buildings are subject to more stringent regulatory standards than classes 1 and 10. These standards cover, for example, structural elements, access and fire resistance.
The certifier acknowledged the reception area of the main building wasn't class 10a, but didn't think this affected the overall classification because of the 10% discretion allowed under the BCA (see note below).
Breaches to the Environmental Planning and Assessment Act 1979 (EP&A Act)
The certifier's improper BCA classification assessment was in breach of the EP&A Act s.109F(1)(a) and the Environmental Planning and Assessment Regulation 2000 cl.145(1)(b) and 147(1)(f). As a result, the development only had to meet the less stringent standards for class 10a.
The classification error was repeated in the final occupation certificate, meaning the completed development was not suitable for use in accordance with its correct classification.
The certifier breached the EP&A Act s.109H(5)(c) by issuing an occupation certificate in these circumstances. The certifier also breached s.109H(2) by issuing the occupation certificate when a precondition of the development consent (related to wastewater management) had not been met.
Council inspected the development and informed the certifier that the wastewater management works had not been completed. The certifier was aware that the owner was discussing with Council an alternative system for wastewater disposal, but the precondition was still in place when the certifier issued the occupation certificate.
Rather than issuing an occupation certificate, the certifier should have advised the owner to apply to Council for a modification of the development consent.
The Board's findings
The Board found:
- the certifier's actions constituted unsatisfactory professional conduct as defined in s.19 of the Building Professionals Act 2005
- the certifier had issued a construction certificate which had the wrong BCA classification and this error was repeated in the final occupation certificate
- the certifier had issued the final occupation certificate when a precondition of development consent had not been met.
The Board decided to take the following disciplinary actions:
- reprimand the certifier
- issue a fine of $10,000
- order completion of a training course (Advanced Building Regulation) offered by the University of Technology, Sydney.
Findings of the Administrative Decisions Tribunal
The certifier lodged an appeal to the (former) Administrative Decisions Tribunal, and the Tribunal affirmed each ruling by the Board.
The role of the Tribunal was to consider the merits of the Board's rulings, and to affirm, vary or set aside each of these.
- Building Professionals Act 2005 section 19.
- Environmental Planning and Assessment Act 1979 sections 109F(1)(a), 109H(2) and 109H(5)(c).
- Environmental Planning and Assessment Regulation 2000 clauses 145(1)(b) and 147(1)(f).
Note: under the BCA, if not more than 10% of the floor area of a building storey has a different classification to the rest of that storey, the classification for the rest may apply to the entire storey (this rule is not universal - refer to the BCA).