Building Professionals Board v Cohen [2010] NSWADT 62

Building Professionals Board v Cohen [2010] NSWADT 62

All allegations pressed by the Board were proven for both developments. The respondent's delegation of final inspection did not excuse the occupation certificate breaches because the office of accredited certifier is personal, the community would expect the nominated certifier and principal certifying authority to attest to compliance based on his or her own professional skill and expertise, and delegation of final inspection was not an acceptable competent practice standard. Viewed as a whole, the repeated fire safety, egress, disability access, ventilation, signage and certification omissions, many occurring at construction certificate stage and repeated at occupation certificate stage,...

Jurisdiction
Australia
Judgment Date
08 March 2010
Procedural Posture
Applications Under S 31 of the Building Professionals Act 2005 for Disciplinary Findings and Orders Against an Accredited Certifier / Decision on Disciplinary Findings; Submissions on Disciplinary Orders Deferred
Outcome
The Tribunal found the respondent guilty of professional misconduct and directed that a date be fixed for a directions hearing in relation to disciplinary orders.
Legal Topics
['accredited Certifier Discipline' 'construction Certificates' 'occupation Certificates' 'building Code of Australia Compliance' 'fire Safety' 'disability Access' 'delegation of Final Inspection' 'professional Misconduct' 'unsatisfactory Professional Conduct']
['administrative Law' 'professional Discipline' 'planning and Building Law'] ['accredited Certifier Discipline' 'construction Certificates' 'occupation Certificates' 'building Code of Australia Compliance' 'fire Safety' 'disability Access' 'delegation of Final Inspection' 'professional Misconduct' 'unsatisfactory Professional Conduct']

Case Brief

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Procedural Posture

Applications Under S 31 of the Building Professionals Act 2005 for Disciplinary Findings and Orders Against an Accredited Certifier / Decision on Disciplinary Findings; Submissions on Disciplinary Orders Deferred

Legal Issues

  1. 1 ["Whether the respondent's issue of construction certificates and final occupation certificates for the Harrington Park child care centre involved non-compliance with the Building Code of Australia and applicable legislation." "Whether the respondent's issue of construction certificates and final occupation certificates for the Camden office building involved non-compliance with the Building Code of Australia and applicable legislation." 'Whether the respondent was exculpated from occupation certificate allegations because final inspections were delegated to another accredited certifier.' 'Whether the proven conduct amounted to unsatisfactory professional conduct or professional misconduct.']

Ratio Decidendi

All allegations pressed by the Board were proven for both developments. The respondent's delegation of final inspection did not excuse the occupation certificate breaches because the office of accredited certifier is personal, the community would expect the nominated certifier and principal certifying authority to attest to compliance based on his or her own professional skill and expertise, and delegation of final inspection was not an acceptable competent practice standard. Viewed as a whole, the repeated fire safety, egress, disability access, ventilation, signage and certification omissions, many occurring at construction certificate stage and repeated at occupation certificate stage,...

Court Disposition

The Tribunal found the respondent guilty of professional misconduct and directed that a date be fixed for a directions hearing in relation to disciplinary orders.

Orders

  • ['The Tribunal finds the Respondent guilty of professional misconduct.' "Registrar to fix a date for a directions hearing in relation to the Applicant's applications for disciplinary orders."]