Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Bennett v Building Professionals Board (No 2) [2011] NSWADT 238
• Hearing dates: 18 July 2011
• Decision date: 12 October 2011
• Jurisdiction: General Division
• Before: M Chesterman, Deputy President; P Friedmann, Non-judicial Member

Decision

1. The Respondent's decision of 22 April 2010, to the effect that the Applicant engaged in unsatisfactory professional conduct and should on that account be reprimanded, is set aside.

2. The complaint described as 'Additional Matter No. 1' in this decision of the Respondent is dismissed.

3. Any application for a costs order in these proceedings must be filed and served, with supporting submissions and particulars of the amount claimed, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

• Catchwords: Accredited certifier - unsatisfactory professional conduct - interpretation of development consent
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Building Professionals Act 2005; Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000
• Cases Cited: Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181; Bennett v Building Professionals Board [2011] NSWADT 111; Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
• Category: Principal judgment
• Parties: Brendan Bennett (Applicant); Building Professionals Board (Respondent)
• File Number(s): 113053

DECISION

Introduction

1 (M CHESTERMAN (DEPUTY PRESIDENT), P FRIEDMAN (NON-JUDICIAL MEMBER)): The Applicant in this case, Mr Brendan Bennett, is an accredited certifier practising in New South Wales. He is the managing director of a company called City Plan Services.

2 On 3 March 2011, Mr Bennett applied to the Tribunal for review of a determination of the Respondent, the Building Professionals Board ('the Board'), that he had engaged in unsatisfactory professional conduct as defined in the Building Professionals Act 2005 ('the BP Act') and should on that account be reprimanded.

3 Following a preliminary hearing on 10 May 2011, the Tribunal rejected a claim by the Board that Mr Bennett had filed his application out of time: see Bennett v Building Professionals Board [2011] NSWADT 111.

4 The present decision deals with the merits of Mr Bennett's application. These were the subject of a hearing on 18 July 2011. The principal evidence before us comprised two folders of documents filed by the Board in compliance with section 58 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). Ms Jacinta Reid, of Anthony Hudson, Wilshire Webb Staunton Beattie, solicitors, appeared for Mr Bennett and Mr Anthony Grey, solicitor, appeared for the Board.

Outline of facts

5 The events giving rise to this case related to a development project ('the Development') undertaken on land ('the Property') owned by Doherty & Associates Pty Ltd ('Doherty') at 268 Port Hacking Road, Miranda.

6 On 8 March 2006, the Sutherland Shire Council ('the Council') issued a Development Consent (DA05/0696) ('the Consent') relating to the Development. This document described the Development as 'Demolition of Existing Dwelling and Ancillary Development to Existing Nursing Home - Alterations and Additions'.

7 On two further occasions (26 July 2007 and 11 June 2008), the Council issued a Modified Development Consent for the Development. A relevant amendment made in the second of these documents is described below.

8 On 12 March 2007, Mr Bennett was appointed as the Principal Certifying Authority for the Development.

9 On five occasions (12 March, 30 April and 10 August 2007; 25 February and 4 August 2008), Mr Bennett issued separate Construction Certificates authorising the execution of different stages of the building work relating to the Development.

10 None of these Construction Certificates was accompanied by details of certain design changes that, according to clause 8 of the Consent, were required to 'accompany the Construction Certificate'. These design changes were defined in clause 8(c). They related to the reconstruction of a retaining wall on the northern boundary of the Property. The terms of clause 8 and of other relevant sections of the Consent are set out below.

11 During 2003, at the request of Doherty, this retaining wall had been the subject of an investigation by Broune Group Consultants ('BGC'). In its report dated 2 June 2003, BGC expressed the opinion that the wall was 'currently stable', that it was 'likely to remain stable unless conditions behind the wall (loading or drainage) or its strength change' and that 'any future work proposed to be undertaken adjacent to the wall (say within 4m) or to drainage at 268 Port Hacking Road should be reviewed to check that no adverse affect ( sic ) on the wall will result'.

12 In the course of considering the Development Application relating to the Development, the Council resolved on 6 February 2006 that its consent should be deferred pending the submission of a number of documents, including 'a new Engineer's report as to the sufficiency and location of the retaining wall'. The resolution further stated: 'If the report does not support the structural adequacy of the existing wall, then a new retaining wall to be designed and constructed as part of the development.'

13 In a further report dated 28 February 2006, which was again prepared at the request of Doherty, BGC stated that in its opinion the wall had 'remained stable for the last 3 years' and was likely to remain stable 'unless conditions behind the wall (loading or drainage) or its strength change'. Under the heading 'Proposed Works at 268 Port Hacking Road', it recorded its understanding that these works included the replacement of a bitumen sealed car park adjacent to the wall with open garden planting and pointed out that this would increase the amount of water filtration behind the wall. Under the heading 'Conclusions and Recommendations', it observed that the proposed works had 'the potential to adversely affect the wall's stability' and recommended as follows:-

When this work commences, an exploratory trench should be dug behind the wall, to allow the size of footing, type of soil behind the wall, the nature of any drainage behind the wall, and the details of the tiebeam-soil interface to be determined. Following this, any remedial works found to be necessary to properly address the change in conditions behind the wall would be determined, specified and carried out.

14 On 12 February 2008, 19 January 2009 and 16 February 2009, Mr Bennett issued Interim Occupation Certificates relating to different stages of the Development. On 30 March 2009, he issued a Final Occupation Certificate.

15 On 2 December 2008, Mr Tony Truong, a Senior Building Regulation Consultant employed by City Plan Services, discovered in the course of an inspection that a new stiffening wall had been erected on the Property, directly behind the retaining wall. This had been done in accordance with recommendations made by Cardno, Low & Hooke, structural engineers, in a letter to Doherty dated 22 September 2008.

16 No construction certificate for this work was ever applied for or issued.

17 On 11 February 2009, the Board received a complaint against Mr Bennett and Mr Tony Truong, a fellow-employee of City Plan Services. The complainant, Ms Nancy Lee, described herself as the secretary of a strata corporation which owned land adjoining the northern boundary of the Property.

18 Ms Lee alleged in her complaint that Mr Bennett and Mr Truong had failed to direct the builders employed on the Development to comply with clause 8 of the Consent, with the consequence that 'the original unsafe retaining wall' had not been reconstructed and for that reason constituted a risk to public safety.

19 In a letter to Doherty dated 6 March 2009, however, Cardno Low & Hooke stated that the 'stiffening work' carried out to support the retaining wall was in accordance with the relevant standards and that the 'structural connection of the existing block retaining wall to the new retaining structure to maintain the existing wall' was 'structurally adequate'.

20 Relying on this report, the Council stated in a letter dated 6 May 2009 to Mr Bennett that the existing retaining wall was 'in a stable condition' and that the Council would therefore not be taking any action in relation to a recent complaint that it had received regarding the wall.

21 A team that the Board appointed to investigate Ms Lee's complaint received a submission from Mr Bennett, along with other documentary evidence. It concluded, in a report dated 24 February 2010, that the available evidence did not support Ms Lee's allegation. It went on to state, however, that as provided for in section 27(3) of the BP Act, it should investigate another matter 'in respect of which another complaint could have been made' against Mr Bennett. It formulated this additional matter (which it called 'Additional Matter No. 1'), as follows:-

Mr Bennett issued construction certificates dated 12 March 2007, 30 April 2007, 10 August 2007, 25 February 2008 and 4 August 2008 prior to compliance with condition no. 8(c) of development consent no. DA05/0696 dated March 2006 which was a condition precedent to the issue of a construction certificate.

22 On 22 April 2010, having received a further submission dated 16 March 2010 from Mr Bennett, the Board determined that Additional Matter No. 1 was established, that the relevant conduct of Mr Bennett amounted to unsatisfactory professional conduct and that he should therefore be reprimanded.

23 In its Statement of Decision on Complaint, issued in compliance with section 32 of the BP Act, the Board formulated as follows its 'findings on material questions of fact':-

The relevant condition of consent stipulates that the proposal had to be amended, prior to the issue of a construction certificate, to include a proposal showing the reconstruction of the existing retaining wall located on the northern boundary of the construction site. It is considered that the description a construction certificate also includes staged construction certificates.

The endorsed drawings associated with the issued construction certificates do not indicate any design changes pertaining to the rebuilding of the existing retaining wall.

The certifier's response to the complaint did not provide any clear indication that the certifier was of the view that condition no. 8(c) of the development consent had been complied with prior to the issuance of the construction certificates.

In issuing the construction certificates prior to ensuring that condition no. 8(c) of the development consent had been complied with, Mr Bennett contravened c. 146(c) of the E P & A Regulation.

The allegation is proven.

24 The Board gave the following reasons for its determination:-

The Board is satisfied, based on its findings on the material facts in relation to Additional Matter No. 1, that the conduct of Mr Brendan Bennett constitutes unsatisfactory professional conduct as defined by section 19 of the BP Act in that it was conduct:

Occurring in connection with the exercise of the 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.

Contravened clause 146(c) of the Environmental Planning and Assessment Regulations 2000 whether or not he is prosecuted or convicted for the contravention.

25 It is this decision by the Board that Mr Bennett challenges in these proceedings.

Relevant provisions of the Consent

26 The Consent was in two parts. The first part, headed 'determination of development application no. DA05/0696' (in upper case), was only one page long. It gave brief particulars of the Property, the applicant (Doherty) and the nature of the Development. It stated that the Council granted consent to the Development subject to the conditions specified in the Consent. The second part, headed 'conditions of consent' (in upper case also), set out these conditions. It contained 57 clauses, covering 21 pages.

27 The second part of the Consent was divided into six sections, under the following headings in upper case: 'general conditions' (clauses 1 - 7); 'matters relating to the issue of a construction certificate' (clauses 8 - 23); 'pre-commencement conditions' (clauses 24 - 27); 'construction conditions' (clauses 28 - 46); 'post construction conditions' (clauses 47 - 54); and 'operational conditions' (clauses 55 - 57).

28 The second of these sections, 'matters relating to the issue of a construction certificate', commenced with an introductory statement. There then followed four subsections. These had subheadings as follows: 'Design Conditions' (clauses 8 - 10); 'Conditions Relating to Works in the Road Reserve (clause 11); 'Public Utility Authorities Requirements' (clauses 12 - 21); and 'BCA Fire Safety Conditions' (clauses 22 - 23).

29 Clause 8 is the provision of prime importance within the Consent. It was placed directly under the heading 'matters relating to the issue of a construction certificate' (in upper case), the subheading 'Design Conditions' and their respective introductory statements. The terms of these particular components of the Consent were as follows:-

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

Design Conditions

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

30 So far as relevant, clause 8 itself stated:-

8. Design Changes Required

To reduce the environmental and/or ecological impact of the development proposal, the following design changes shall be implemented:

a). Car Park

The vehicular access-way and car park lay out shall be designed and constructed to comply with AS/NZS2890.1:2004 Parking facilities Part 1: Off-street car parking , except where modified by the following...

b). Garbage, recycling and green-waste storage area.

An enclosed garbage and recycling storage facility shall be provided in accordance with the following:...

c). Reconstruct the retain wall on the northern boundary of the development site. The wall shall be designed and constructed in accordance with the following:

Of masonry materials with a render concrete finish.

The top finished level be the same as the existing wall.

Relevant Australian Standards.

Details of these design changes shall accompany the Construction Certificate.

31 In the second of the two Modified Development Consents for the Development, issued by the Council on 11 June 2008, paragraphs (a) and (b) of clause 8 were deleted.

32 The remaining two provisions under the subheading 'Design conditions' required respectively that a 'Construction and Site Management Plan' should 'accompany the Construction Certificate' (clause 9) and that 'a road frontage works design drawing shall be prepared and submission ( sic ) as part of the Construction Certificate' (clause 10). Details of what these two documents should include were set out.

33 Three other provisions of the Consent, namely clauses 1, 4 and 48(b), made express reference to the retaining wall. The first two of these appeared under the heading 'General Conditions' and the third under the heading 'Post Construction Conditions'. They were in the following terms:-

1. Approved Plans and Documents

The development shall be implemented substantially in accordance with the details and specifications set out on the... Retaining Wall Inspection Report prepared by Bourne ( sic ) Group Consultants...

4. General Condition 2

Prior to the issue of a construction certificate a report shall be submitted by a suitably qualified structural engineer to confirm the structural adequacy of the existing retaining wall between the subject site and the adjoining development to the north.

48 Works-As-Executed Drawings (W.A.E.D.) and Certification of Works...

(b) An Accredited Certifier shall certify to the Principal certifying Authority that the retaining wall was constructed in accordance with the Consent. Prior to the issue of the Occupation Certificate the applicant or owner shall submit to Council a copy of the aforementioned letter of certification.

34 The term 'Construction Certificate', preceded by 'a' or 'the', appeared in many other provisions of the Consent. A number of these instances of the use of this term were referred to in the parties' submissions. Some of them are mentioned below.

Relevant statutory provisions

35 The following provisions of the BP Act are of relevance in these proceedings:-

19 Definitions

....

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,

(b) a contravention of this Act, the Environmental Planning and Assessment Act 1979... or the regulations under any of those Acts, by the accredited certifier, 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...

(f) the wilful disregard by the accredited certifier of matters to which the accredited certifier is required to have regard in exercising functions as a certifying authority...

(l) any other improper or unethical conduct of the accredited certifier that indicates that the accredited certifier is unfit to properly carry out the duties of an accredited certifier...

31 Decision after investigation of complaint

(1) After the Board has completed an investigation into a complaint against an accreditation holder, the complaint is to be dealt with in accordance with this section.

(2) The Board may apply to the Tribunal for a disciplinary finding against an accreditation holder under Division 5 if it is satisfied that there is a reasonable likelihood that the accreditation holder will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct or it may instead exercise the functions conferred on it by subsection (4)...

(4) If the Board is satisfied that the accreditation holder is guilty of unsatisfactory professional conduct or professional misconduct, the Board may take any one or more of the following actions:

(a) caution or reprimand the accreditation holder...

(5) The Board is to dismiss the complaint against the accreditation holder if it is satisfied that the accreditation holder is not guilty of either unsatisfactory professional conduct or professional misconduct.

33 Person may apply to Tribunal for a review of disciplinary finding of Board

A person in respect of whom the Board has made a disciplinary finding may apply to the Tribunal for a review of that finding and any action taken by the Board under section 31 (4).

36 Section 63 of the ADT Act describes in the following terms the powers and functions of the Tribunal in an application such as the present one:-

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

37 The principal statute governing development consents is the Environmental Planning and Assessment Act 1979 ('the EPA Act'). The relevant provisions of this Act include the definitions of 'building' and 'building work' in section 4; section 80(3); subsections (2)(a) and (5) of section 81A; and the definition of 'construction certificate' in section 109C(1)(b). These are as follows:-

4 Definitions

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

building work means any physical activity involved in the erection of a building.

80 Determination

(3) "Deferred commencement" consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

81A Effects of development consents and commencement of development

(2) The erection of a building in accordance with a development consent must not be commenced until:

(a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier...

(5) Regulations may provide for the issue of certificates

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

109C Part 4A certificates

(1) The following certificates (known collectively as Part 4A certificates ) may be issued for the purposes of this Part:...

(b) a construction certificate , being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5)...

38 On the dates (12 March and 30 April 2007) when Mr Bennett issued the first two of the five construction certificates relating to the Development, subsections (1)(a) and (1A) of section 109F of the EPA Act stated as follows, under the heading 'Restriction on issue of construction certificates':-

(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:

(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and...

(1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.

39 Before the remaining three construction certificates were issued, subsection (1)(a) had been amended to read as follows:-

(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:

(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and...

40 Within these regulations (i.e., the Environment Protection and Assessment Regulation 2000 - hereafter 'the EPA Regulation'), Regulations 145(1)(a) and 146(c) should be quoted. They are as follows:-

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless:...

(a) 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...

146 Compliance with conditions of development consent

A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless each of the following have been complied with:...

(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.

41 In addition, Regulation 139, read in conjunction with clause 6 of Part 3 of Schedule 1 to the EPA Regulation, specifies numerous documents that must accompany an application for a construction certificate.

42 Our examination of the issues raised in this case can be conveniently conducted under three headings, which we will formulate as questions.

Does the legislation place any restriction on the issue of more than one construction certificate?

43 It was acknowledged by both parties that nothing in the EPA Act or the EPA Regulation prohibits, expressly or by implication, the issuing of more than one construction certificate with respect to an approved development.

44 The submissions advanced by Ms Reid on behalf of Mr Bennett placed emphasis on the following aspects of the provisions of the EPA Act quoted above: (a) the definition of a construction certificate in section 109C(1)(b) describes as a certificate that 'work' will comply with the EPA Regulation; (b) section 81A(2) indicates that construction certificates are issued for the 'building work' to which they refer; (c) the definition of 'building' in section 4 includes 'part of a building' and 'any structure or part of a structure'; (d) in this section, 'building work' is defined to mean 'any physical activity involved in the erection of a building'; and (e) section 109F(1A) also demonstrates that construction certificates are to be issued with respect to 'building work'.

45 At the hearing, the Board tendered an affidavit sworn on 15 July 2011 by Mr Matthew Wunsch, who is employed by the Board in the position of Team Leader, Investigations. Annexed to this affidavit was a copy of a Practice Note headed 'Construction certificates for building work', issued in September 1999 by the Department of Urban Affairs and Planning. The following statement appears in this Practice Note:-

Can construction certificates be staged?

It is possible to issue construction certificates for various stages of the development. For example, a construction certificate could be issued for works up to the ground floor slab and a second construction certificate could be issued for the remaining floors of the development.

46 In the light of these considerations, it is apparent that the governing legislation does not contain any general prohibition of, or express restriction on, the issuing of more than one construction certificate relating to a single development.

47 Mr Grey argued, however, that the issue of multiple construction certificates for a single development was a 'rare event'. He sought to rely on statements to this effect contained in Mr Wunsch's affidavit of 15 July 2011.

48 Ms Reid objected to the tender of the relevant paragraphs of this affidavit on two grounds. These were (a) that evidence on this matter based on the experience of a person occupying Mr Wunsch's position would not assist greatly in the resolution of this case; and (b) that it would be procedurally unfair to admit these paragraphs because the Board, after indicating at a directions hearing on 7 June 2011 that it was not proposing to file any further evidence, had filed and served the affidavit only three days before the hearing.

49 We upheld this objection. We accordingly do not make any finding, such as Mr Grey argued for, that multiple construction certificates are issued only rarely.

Did the Consent stipulate that only one Construction Certificate should be issued?

50 The next question to be considered is whether the Consent in the present case permitted the issue of more than one construction certificate.

51 Submissions on Mr Bennett's behalf. Ms Reid pointed out that in the passage preceding clause 8 of the Consent, the Council had used the phrase 'a Construction Certificate', but that later in this passage, and also at the end of clause 8, the phrase used was 'the Construction Certificate'. This usage, she maintained, fell well short of indicating that there should only be one construction certificate for the whole project.

52 Ms Reid referred also to clause 25 of the Consent. Under the heading 'Pre-Commencement Inspection', this clause stated that one of the 'pre-commencement conditions' of the Consent was that a 'pre-commencement meeting', at which Council representatives were present, should occur 'before work is commenced'. In subparagraph (v) of clause 25, one of the purposes of this meeting was stated to be to 'confirm that a Construction Certificate has been issued where necessary'. According to Ms Reid's submission, the use of the words 'where necessary' clearly implied that more than one construction certificate was permitted by the Consent.

53 A further argument put by Ms Reid was that if the Council had wished to insist that the requirements in clause 8(c) relating to the retaining wall should be complied with before any other work on the Development took place, it could have made this a condition of 'deferred development consent' pursuant to section 80(3) of the EPA Act. It chose, however, not to adopt this course.

54 In support of her arguments on this question and on the next question that we shall address, Ms Reid cited the following passage in the judgment of Pain J in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Pty Ltd [2008] NSWLEC 181 at [116]:-

116... The well established principles concerning the construction of development consents are:

(i) the object of construction is "to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions" of the development consent; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69];

(ii) development consents are not statutes and construction of conditions of consent need to be "rationalised, in a practical and effective way"; Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149;

(iii) a development consent "is not personal to the applicant, but enures for the benefit of subsequent owners and occupiers"; [ Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321];

(iv) "Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject"; Royal Ryde Homes .

55 Referring also to the judgment of Davies J in Detala Pty Ltd v Byron Shire Council (2002) 133 LGERA 1 at [15], Ms Reid contended that when the Consent in this case was interpreted in a 'practical and effective way', it became apparent that nothing in its terms precluded the issue of 'multiple' or 'staged' construction certificates. These could relate to identified stages of the development and would ensure that development was achieved in an orderly and economic manner. Some of the preconditions set out in the Consent (for example, the condition relating to security set out in clause 6) would have to be satisfied before any construction certificate could be issued, whereas others would only be applicable to a certificate authorising the specific building work to which they related.

56 The Board's submissions. In response, Mr Grey argued that the Ko-veda case was not a reliable authority on the question now under consideration because the development consent in that case, which related to the relocation of 47 holiday cabins, expressly provided for the issue of more than one Construction Certificate. He referred us specifically to Conditions 2, 8 and 23, which were set out in the judgment at paragraph [4]. It is sufficient here to indicate that in Condition 2 it was stated that 'this approval allows the installation of cabins in stages...' and that Condition 8 referred to 'the submission of a Building Construction Certificate for each proposed stage of the development'.

57 Also with regard to Ko-veda , Mr Grey submitted that the fourth of the principles of interpretation set out by Pain J - namely that local councils must 'take the consequences of' any uncertainty or lack of clarity in development consents that they grant - was only applicable to proceedings in which the relevant council was a party. This principle, he maintained, should not be applied in the totally different context of disciplinary proceedings.

58 Mr Grey further argued in paragraph 17 of his written submissions that the consistent use of either 'the' or 'a' before 'construction certificate' in the Consent merely reflected 'the usual situation... of one construction certificate being issued for an entire development'. He added at paragraph 18 that there was 'no situation where the [Consent] uses words to indicate that more than one construction certificate is ever contemplated by the council, or that any construction certificate other than the first construction certificate will be the trigger event for a condition or requirement'.

59 With specific reference to clause 8 of the Consent, Mr Grey maintained that its evident intent was to ensure that all the 'design changes' that it required - i.e., those relating to the car park and the garbage and recycling storage facility as well as the retaining wall - should be notified to the Council before 'the first and the only' construction certificate was issued. This interpretation was, he said, supported by (a) the reference to BGC's report of 28 February 2006 in clause 1, (b) the emphasis placed by clause 4 on the need to 'confirm the structural adequacy' of the retaining wall and (c) the emphasis placed by the passage preceding clause 8 on the need to 'ensure that there will be no adverse impact on the environment or adjoining development'. In similar vein, he added, clause 6 (requiring security to be furnished to the Council) and clause 7 (requiring the owner or contractor to take out public liability insurance) imposed conditions to be satisfied before the single construction certificate relating to the Development as a whole was issued.

60 Finally in this connection, Mr Grey pointed out in his written submissions that to interpret the Consent as implicitly permitting more than one construction certificate gave rise to a risk - which in this case materialised - that a certificate relating to an important aspect of the building work might never be issued. This followed, he claimed at paragraph 20, from the fact that 'an accredited certifier cannot impose an obligation upon an owner/developer to apply for a construction certificate'.

61 Our conclusions. In our opinion, the provisions of the Consent did not clearly indicate, expressly or by implication, that only one construction certificate might be issued, or for that matter that the issue of multiple certificates was permitted. It did not convey an unambiguous message, one way or the other, on this question.

62 To the extent that any message at all can be discerned, it was, as Ms Reid argued, that more than one certificate was permissible. We agree with her that clause 25 seemed to contemplate this.

63 The same applies, in our view, to clause 22. This clause, which neither of the parties mentioned in their submissions, bore the heading 'BCA Assessment Report - Building Upgrade'. It commenced by stating: 'A Building Code of Australia Assessment Report shall be submitted with the Construction Certificate.' Having prescribed how this report should be prepared and what it should contain, the clause concluded as follows: 'Further, all recommendations contained within this report shall be incorporated within the scope of works covered by the Construction Certificate.' The final words of this sentence suggest that the certificate to which the clause referred would relate to specific 'works' being carried out as part of the development project, not to the project as a whole. If this is the correct interpretation, the Consent must be taken to have permitted the issue of more than one certificate.

64 According to our own reckoning, the Consent contained no less than 26 references to 'a' construction certificate or 'the' construction certificate. In some of the contexts in which one or other of these phrases were used, they might well be interpreted to imply that only one certificate was permitted. But from others, such as clause 22 and 25, the opposite implication arose.

65 Four further considerations that, in our judgment, support this implication are as follows: (a) the heading, immediately preceding clause 8, of the second section of the Consent was 'matters relating to the issue of a [not 'the'] construction certificate'; (b) the introductory statement immediately following this heading referred also to 'the issue of a construction certificate'; (c) the four subsections of this section dealt with a very diverse range of matters (for example, drainage, road noise and fire safety as well as the three separate matters covered in clause 8); and (d) many of the clauses within the section stipulated, as did clause 8, that specified plans and/or other documents should accompany or form part of 'the construction certificate'.

66 If the interpretation urged by the Board were correct, the sole construction certificate issued with respect to the Development would have had to embrace all these diverse matters, not just the three matters with which clause 8 itself was concerned. In these circumstances, it would be surprising if the Council intended to impose a requirement of only one certificate, but did not say so expressly.

67 Despite Mr Grey's submissions to the contrary, we consider that a modified version of the fourth principle of interpretation stated in Ko-veda is applicable here. Since the Consent gave no clear indication that only one construction certificate was permissible, the resulting doubt on this question should be resolved in favour of the party - i.e., Mr Bennett - who would suffer adverse consequences if this were indeed the meaning adopted.

68 While we agree with Mr Grey that accredited certifiers cannot compel owners or developers to apply for a construction certificate, it is relevant that if 'building work' proceeds without a certificate, the owner or developer is likely to be in breach of section 81A(2)(a) of the EPA Act (this provision, so far as relevant, is quoted above at [37]). In interpreting this provision, it must be remembered that 'building' is defined in the Act to include 'part of a building' and 'any structure or part of a structure' and that 'building work' means 'any physical activity involved in the erection of a building'.

69 In concluding our discussion of this question, we feel bound to add that the Board did not press strongly the proposition that only one construction certificate was permissible. The contention to which it gave greatest emphasis was that, on the proper interpretation of the Consent, Mr Bennett was obliged to ensure that the conditions set out in clause 8(c) were satisfied before he issued his first Construction Certificate relating to the Development on 13 March 2007.

Should Mr Bennett have insisted on compliance with clause 8(c) before issuing the first Construction Certificate?

70 For reasons that will become apparent, this was the most important question to be resolved in these proceedings. The parties' arguments in relation to it included most of the submissions summarised in the preceding section of this decision. Their additional submissions were as follows.

71 Submissions on Mr Bennett's behalf. In paragraphs 44 to 49 of her written submissions, Ms Reid argued as follows:-

44. In the present matter, condition 8 related (prior to its amendment) to the design of disparate elements of the proposed development. For example, condition 8(a) in the original consent required an amendment to the design of the basement car park. Condition 8(b) of the original consent required that an enclosed garbage facility be constructed at the southern end of the

site and condition 8(c) of the consent required that the retaining wall on the northern end of the site be reconstructed.

45. When one accepts that more than one construction certificate may be issued with respect to a development consent, it naturally follows that the "practical and effective" ( Baulkham Hills Shire Council v Dix ) way to interpret condition 8 is to ensure that a construction certificate is issued prior to each of disparate component works subject of ( sic ) condition 8 being carried out.

46. It should be noted that condition 8 requires that the design changes accompany "the construction certificate." There is no basis for reading the word "any" in place of "the". The precondition goes to specific work, namely the reconstruction of a specific retaining wall. Its purpose is to ensure that that particular work is carried out according to a design and in a manner that meets Council's standards. That purpose does not relate to the broader development, but rather only to the reconstruction of the wall. It therefore only needs to be met prior to the issue of a construction certificate for the reconstruction of that wall. It was not required to be met prior to the issue of the construction certificates for the other work.

47. If the Council had have intended that condition 8(c) be satisfied prior to "any" construction certificate being issued, it would have been open to it to use that word. Alternatively, the Council may have issued a 'deferred commencement consent' which would have required the design changes contemplated by condition 8 to be satisfied prior the consent being commenced. The Council did not do so, and we submit that the Tribunal would make the inference that in circumstances where the Council has not taken action in relation to the matter, it did not use the word "any" in lieu of "the" in condition 8 and it did not require the changes to be made prior to commencement of the consent, that the Council intended that separate construction certificates could be issued which related to the disparate changes subject of ( sic ) condition 8.

48. The above inference is consistent with the authority in Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd and Royal Ryde Homes that where there is ambiguity or uncertainty in the conditions of consent these must be construed against the Council.

49. Accordingly, it is submitted that Mr Bennett did not breach clause 146(c) of the EPA Regulation.

72 At the hearing, the most significant additional submission made by Ms Reid started from the proposition that nothing in clause 8 indicated expressly or by implication that the conditions laid down in paragraph (c) of the clause (or in any other of its paragraphs) must be satisfied before the first construction certificate relating to the Development could be issued.

73 By contrast, she argued, clause 6 stated as follows, under the heading 'Council Property & Environment Damage Security - Construction':-

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $10,000 for the payment of the cost of making good any damage caused to any Council property and/or the environment as a consequence of the implementation of this consent...

74 In her submission, both this clause and its successor, which dealt with public liability insurance and commenced with a similar phrase, were distinguishable from clause 8 because they expressly required that no works could commence until the stipulated condition had been satisfied.

75 Ms Reid also put forward the following arguments in response to questions asked by us or to submissions advanced by Mr Grey: (a) there was no evidence that any of the works carried out on the Property under authorisation from the five Construction Certificates that Mr Bennett issued rendered the retaining wall unstable and thereby endangered public safety; (b) although the Consent made reference in clause 1 to BGC's report dated 28 February 2006, it did not require that the recommendations contained in that report should be implemented at any time; (c) the Council, in its letter dated 6 May 2009 to Mr Bennett, stated that the existing retaining wall was 'in a stable condition'; and (d) the Tribunal should not place any weight on the fact that at one stage City Plan Services appeared to have intended to include the reconstruction of the retaining wall among the works covered by the first Construction Certificate that Mr Bennett issued for the Development.

76 The Board's submissions. In his written and oral submissions, Mr Grey placed significant emphasis on the following: (a) the safety concerns expressed in BGC's report; (b) the requirement in clause 4 (General Condition 2) of the Consent that a further report by a structural engineer confirming the wall's 'structural adequacy' be prepared 'prior to the issue of a construction certificate'; and (c) the requirement in clause 48(b) (which was one of the 'post construction conditions') that it be certified to the Principal Certifying Authority (i.e., Mr Bennett) that 'the retaining wall was reconstructed in accordance with the Consent' before the Occupation Certificate was issued. Mr Grey referred us to photographs, contained in the documents filed by the Board under section 58 of the ADT Act, showing that even after the work carried out in September 2008 the wall leant away from the perpendicular and suffered from moisture permeating through it.

77 For these reasons, Mr Grey argued, Mr Bennett should have understood that the Council in clause 8(c) had imposed the 'positive obligation' of reconstructing the retaining wall at the commencement of the Development, in order to protect both the safety of the public and the interests of adjoining owners. He should also have had regard to the fact that if this obligation was not fulfilled, there was (as stated in Mr Grey's written submissions at paragraph 20) 'no guarantee that the safety concerns associated with the retaining wall would be addressed at an appropriate time, if at all'. Mr Grey claimed also in paragraph 21 that Mr Bennett's interpretation of the Consent left it open for the owner/developer to 'frustrate' the condition expressed in clause 8(c) (as indeed occurred) by 'never lodging an application for a construction certificate with respect to the retaining wall'.

78 Mr Grey also pointed out that in a draft 'Construction Certificate Checklist' dated 1 March 2007 and sent to the building contractors for the Development, Mr Truong proposed that there should be only two construction certificates and that the matters dealt with in the first of them should include 'structural adequacy of retaining wall'. In an email on 26 June 2007 to Mr Truong, however, the building contractors confirmed an earlier request by them that there be four certificates and that the matters covered in the fourth of them should include 'any works associated with the retaining wall'. In handwritten amendments to the draft Checklist, an annotation 'CC1' that initially appeared beside the item 'structural adequacy of retaining wall' was changed to 'CC4'. What this showed, according to paragraph 24 of Mr Grey's written submissions, was that Mr Bennett 'had got it right the first time', but that his 'initial stance of compliance with the conditions of consent was steadily eroded until, in the end, work on the wall proceeded as the last item of work carried out... and no construction certificate was ever issued for that work because none was ever applied for'.

79 Our conclusions. We have not found this to be an easy matter to resolve. After careful consideration, we have however determined that the Consent did not stipulate, either expressly or by implication, that the requirements of clause 8(c) had to be satisfied before the issue of any construction certificate whatsoever.

80 We acknowledge that certain features of the terminology of the clause, read alongside other parts of the Consent, provided grounds for inferring a stipulation of this nature. But on balance, the preferable interpretation of the clause is, in our view, to the following effect: certain 'design changes', involving the reconstruction of the retaining wall and required by way of modification to the development proposal, must be 'submitted with' and must 'accompany' the construction certificate that relates to this part of the works that are permitted by the Consent.

81 Once it is accepted, as we decided in the preceding section of this judgment, that the Consent permitted the issue of more than one construction certificate, the question arising is whether it contained any stipulations as to what, if any, matters must necessarily be dealt with in the first certificate.

82 The answer to this question, as was pointed out in Ms Reid's submissions (see 72 - 74 above), is that stipulations of this nature were indeed included in clause 6 (relating to the provision of security to the Council) and in clause 7 (relating to public liability insurance). Each of these clauses commenced with a phrase indicating that the requirement imposed by it was to be fulfilled before 'the commencement of work or the issue of a Construction Certificate'. From a practical point of view, this meant that the requirements in question had to be fulfilled before the issue of the first such certificate. It is noteworthy that these two clauses fell within the first section of the Consent (headed 'general conditions'), not the section in which clause 8 is to be found.

83 A phrase similar to that appearing at the commencement of clause 6 and clause 7 could readily have been inserted in the Consent so as to apply to the obligation set out in clause 8(c). But this was not done. The absence of any such phrase from clause 8, and indeed from the other clauses in the section in which this clause was located (i.e., the second section, headed 'matters relating to the issue of a construction certificate'), conveys, in our opinion, the implication that the conditions set out in these clauses did not have to be satisfied before the 'commencement of work' or the issue of the first construction certificate.

84 We repeat here an observation that we made above (at [67]) in discussing the second of the three questions posed. A modified version of the fourth principle of interpretation stated in Ko-veda is applicable here. Since the Consent gave no clear indication that the requirements of clause 8(c) had to be satisfied before the issue of the first construction certificate, the resulting doubt on this question should be resolved in favour of the party - i.e., Mr Bennett - who would suffer adverse consequences if this were indeed the meaning adopted.

85 The principal thrust of Mr Grey's argument was, as we understand him, that the public safety concerns relating to the retaining wall were so evident and so important, and were given such prominence in the Consent (notably in clauses 1 and 4), that Mr Bennett should have determined that the reconstruction of the wall had to take place at the commencement of the works on the Development and should have insisted that this task fell within the matters covered by the first construction certificate. Had he acted in this way, he would have been obliged to ensure that the 'design changes' specified in clause 8(c) were implemented before he issued this certificate.

86 We have given careful consideration to this aspect of the Board's case. Our conclusions with regard to it are as follows.

87 First, in so far as Mr Grey sought to support it by claiming that Mr Bennett's failure to act in the manner just outlined gave scope for the owner/developer to deal with the retaining wall in an unauthorised manner, it must be borne in mind that, as pointed out earlier, the course of action actually adopted was on the face of it a breach of section 81A(2)(a) of the EPA Act. This was not something that Mr Bennett should be expected to have foreseen.

88 Secondly, as Ms Reid pointed out, the evidence before us did not show the retaining wall to have been in such a dangerous condition that the commencement of any work whatsoever within the range envisaged by the Development would obviously create a substantial risk to public safety. Some of this work may have unacceptably enhanced this risk. But equally, a significant number of the tasks involved in it may have been quite innocuous. The evidence gives virtually no guidance on these matters.

89 Thirdly, this way of seeking to show that Mr Bennett's conduct amounted to unsatisfactory professional conduct diverges from the grounds on which the Board made its determination. As stated above at [23], the basis for the Board's determination included its finding in the following terms:

The relevant condition of consent [our emphasis] stipulates that the proposal had to be amended, prior to the issue of a construction certificate, to include a proposal showing the reconstruction of the existing retaining wall located on the northern boundary of the construction site. It is considered that the description a construction certificate [emphasis in the original] also includes staged construction certificates.

90 The component of Mr Grey's argument that we are discussing refers to the indications in the evidence that the wall was unsafe, not (as the Board did) to the interpretation that should have been given to 'the relevant condition of consent'.

91 We are aware that under section 63 of the ADT Act (quoted above at [36]) our task is to 'decide what the correct and preferable decision is having regard to the material ... before [us]'. We could, in theory, decide that the ground for the Board's finding of unsatisfactory professional conduct was not made out, but that an alternative ground, deriving from the unsafe condition of the wall, was sufficient to support such a finding. In doing so, we would have to be affirmatively satisfied of the facts warranting such a conclusion. But for the reasons just given, the evidence is insufficient to produce this outcome.

Our orders

92 By virtue of our conclusions on this third and most significant of the three questions that we identified for discussion, there remains no ground on which Mr Bennett's conduct can to be held to have fallen 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 to have amounted to a contravention of clause 146(c) of the EPA Regulation.

93 Accordingly, our principal orders in these proceedings are as follows: (1) the Board's decision of 22 April 2010, to the effect that Mr Bennett engaged in unsatisfactory professional conduct and should on that account be reprimanded, is set aside; and (2) the complaint described as 'Additional Matter No. 1' in this decision of the Board is dismissed.

94 Section 35 of the BP Act provides that in proceedings such as these the Tribunal may award costs pursuant to section 88 of the ADT Act. The latter section states that the parties are to bear their own costs unless the Tribunal determines that would be 'fair', having regard to a number of factors listed in subsection (1A), to make a costs order.

95 As already mentioned, a number of the issues raised in these proceedings have been difficult to resolve. It cannot be said that there was such a 'substantial disparity' between the merits of the opposing cases that it would be 'fair' (within the meaning of paragraph (c) of section 88(1A)) to make a costs order on this ground. But there may be other relevant matters of which we are unaware.

96 We accordingly order that the question of costs is to be determined according to the following procedure. Any application for a costs order in these proceedings must be filed and served, with supporting submissions and particulars of the amount claimed, within 28 days of the date of this decision. The opposing party or parties must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved 'on the papers', pursuant to section 76 of the ADT Act.

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Decision last updated: 12 October 2011