Building Professionals Board v Waterson [2008] NSWADT 108

Building Professionals Board v Waterson [2008] NSWADT 108

The respondent's failure to identify that the plans and framework did not comply with BCA fire safety requirements for separating walls, together with the non-compliant form of the compliance certificate, fell short of the standard of competence, diligence and integrity expected of a reasonably competent accredited certifier and constituted unsatisfactory professional conduct. However, although the fire safety error was systemic and continued from the construction certificate stage to the compliance certificate stage, it was not so objectively grave as to justify a finding of professional misconduct. Public protection was sufficiently served by a caution, particularly given the...

Jurisdiction
Australia
Judgment Date
09 April 2008
Procedural Posture
Disciplinary Proceedings Against an Accredited Certifier / Principal Matter; Application Referred to the Tribunal for Hearing and Determination
Outcome
The Tribunal found the respondent guilty of unsatisfactory professional conduct, declined to find professional misconduct, declined to impose a fine, and ordered that he be cautioned.
Legal Topics
['accredited Certifier Discipline' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'construction Certificate' 'compliance Certificate' 'building Code of Australia Fire Safety Requirements']
['administrative Law' 'building and Construction Regulation' 'professional Discipline'] ['accredited Certifier Discipline' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'construction Certificate' 'compliance Certificate' 'building Code of Australia Fire Safety Requirements']

Case Brief

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Procedural Posture

Disciplinary Proceedings Against an Accredited Certifier / Principal Matter; Application Referred to the Tribunal for Hearing and Determination

Legal Issues

  1. 1 ["Whether the respondent's issue of a construction certificate for plans showing timber framed walls breaching masonry separating walls contravened applicable fire safety requirements and amounted to disciplinary misconduct." "Whether the respondent's issue of a compliance certificate for framework that did not comply with the Building Code of Australia, and whose contents did not meet cl 138 of the Environmental Planning and Assessment Regulation 2000, amounted to disciplinary misconduct." 'Whether the proven conduct amounted to professional misconduct or unsatisfactory professional conduct.' 'What disciplinary order should be made under s 34 of the Building Professionals Act 2005.']

Ratio Decidendi

The respondent's failure to identify that the plans and framework did not comply with BCA fire safety requirements for separating walls, together with the non-compliant form of the compliance certificate, fell short of the standard of competence, diligence and integrity expected of a reasonably competent accredited certifier and constituted unsatisfactory professional conduct. However, although the fire safety error was systemic and continued from the construction certificate stage to the compliance certificate stage, it was not so objectively grave as to justify a finding of professional misconduct. Public protection was sufficiently served by a caution, particularly given the...

Court Disposition

The Tribunal found the respondent guilty of unsatisfactory professional conduct, declined to find professional misconduct, declined to impose a fine, and ordered that he be cautioned.

Orders

  • ['The Tribunal finds the Respondent guilty of unsatisfactory professional conduct.' 'The Tribunal orders that the Respondent be cautioned.']