Building Professionals Board v Hans [2007] NSWADT 83

Building Professionals Board v Hans [2007] NSWADT 83

Mr Hans knowingly issued 25 complying development certificates for developments on land not serviced by a reticulated sewerage scheme despite the unambiguous sewerage requirement and advice from Planning NSW and Wingecarribee Council. That conduct fell short of the competence expected of a reasonably competent accredited certifier and amounted to wilful disregard of a matter to which he was required to have regard. However, because he genuinely believed he was acting consistently with the objectives of the legislation and did not act fraudulently or dishonestly, the conduct did not amount to professional misconduct.

Jurisdiction
Australia
Judgment Date
12 April 2007
Procedural Posture
Disciplinary Application Concerning an Accredited Certifier / Principal Matter; Decision on Disciplinary Finding and Penalty
Outcome
The application succeeded to the extent that the respondent was found guilty of unsatisfactory professional conduct, reprimanded, fined, and made subject to a condition on his accreditation; the Tribunal did not find professional misconduct or withdraw accreditation.
Legal Topics
['accredited Certifier' 'complying Development Certificates' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'sewerage Requirement Under Local Environmental Plan' 'disciplinary Penalty']
['administrative Law' 'planning and Environmental Law' 'professional Discipline'] ['accredited Certifier' 'complying Development Certificates' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'sewerage Requirement Under Local Environmental Plan' 'disciplinary Penalty']

Case Brief

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Procedural Posture

Disciplinary Application Concerning an Accredited Certifier / Principal Matter; Decision on Disciplinary Finding and Penalty

Legal Issues

  1. 1 ["Whether the respondent's issuing of complying development certificates where the developments did not comply with cl 6B(3)(i) of the Wingecarribee Local Environmental Plan 1989 constituted unsatisfactory professional conduct under s 109R of the Environmental Planning and Assessment Act 1979." 'Whether the conduct was serious enough to amount to professional misconduct justifying suspension or withdrawal of accreditation.' 'What penalty should be imposed if unsatisfactory professional conduct was established.']

Ratio Decidendi

Mr Hans knowingly issued 25 complying development certificates for developments on land not serviced by a reticulated sewerage scheme despite the unambiguous sewerage requirement and advice from Planning NSW and Wingecarribee Council. That conduct fell short of the competence expected of a reasonably competent accredited certifier and amounted to wilful disregard of a matter to which he was required to have regard. However, because he genuinely believed he was acting consistently with the objectives of the legislation and did not act fraudulently or dishonestly, the conduct did not amount to professional misconduct.

Court Disposition

The application succeeded to the extent that the respondent was found guilty of unsatisfactory professional conduct, reprimanded, fined, and made subject to a condition on his accreditation; the Tribunal did not find professional misconduct or withdraw accreditation.

Orders

  • ['The respondent is guilty of unsatisfactory professional conduct.' 'The respondent is reprimanded.' 'The respondent is fined $2,200.00 payable within 28 days of the date of these reasons.' "The following condition, or a condition to the following effect, is imposed on the respondent's A2 accreditation as a Building...