Building Professionals Board v Hans (No.2) (GD) [2008] NSWADTAP 48

Building Professionals Board v Hans (No.2) (GD) [2008] NSWADTAP 48

Mr Hans was guilty of professional misconduct by wilfully disregarding the express requirements of clause 6B(3)(i) of the Wingecarribee Local Environmental Plan in issuing 25 complying development certificates, contrary to repeated advice from relevant authorities. This conduct fell short of the competence and integrity expected of a certifier, and was sufficiently serious to warrant a finding of professional misconduct, though not, in all the circumstances, cancellation or suspension of accreditation.

Parties
Appellant: Building Professionals Board; Respondent: Anthony Hans
Jurisdiction
Australia
Judgment Date
29 July 2008
Procedural Posture
Disciplinary Appeal / Appeal (merits and Penalty Variation)
Outcome
Appeal allowed in part (orders of Tribunal varied; finding of professional misconduct and increased fine)
Legal Topics
Accredited Certifiers, Professional Misconduct, Unsatisfactory Professional Conduct, Penalties—disciplinary Proceedings, Complying Development Certificates
Administrative Law Professional Regulation Planning and Environment Law Accredited Certifiers Professional Misconduct Unsatisfactory Professional Conduct Penalties—disciplinary Proceedings Complying Development Certificates

Case Brief

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Parties

Building Professionals Board

Appellant

Anthony Hans

Respondent

Procedural Posture

Disciplinary Appeal / Appeal (merits and Penalty Variation)

Legal Issues

  1. 1 Whether the respondent's conduct in issuing 25 complying development certificates contrary to the Local Environmental Plan was professional misconduct or unsatisfactory professional conduct
  2. 2 Appropriate disciplinary penalty to be imposed

Ratio Decidendi

Mr Hans was guilty of professional misconduct by wilfully disregarding the express requirements of clause 6B(3)(i) of the Wingecarribee Local Environmental Plan in issuing 25 complying development certificates, contrary to repeated advice from relevant authorities. This conduct fell short of the competence and integrity expected of a certifier, and was sufficiently serious to warrant a finding of professional misconduct, though not, in all the circumstances, cancellation or suspension of accreditation.

Court Disposition

Appeal allowed in part (orders of Tribunal varied; finding of professional misconduct and increased fine)

Orders

  • Order 1 set aside: 'The Respondent is guilty of professional misconduct' substituted.
  • Order 3 set aside: 'The Respondent is fined $11,000, payable within three months of the date of these reasons' substituted.