Levick v Building Professionals Board [2018] NSWCATOD 125

Levick v Building Professionals Board [2018] NSWCATOD 125

The applicant's issue of the construction certificate despite significant and readily identifiable variations from the development consent plans constituted serious unsatisfactory professional conduct, particularly given his Grade A1 accreditation and knowledge that a s 96 modification would be required. However, the conduct was not sufficiently serious to justify suspension or cancellation because it did not create actual or potential risk to persons or building integrity, did not appear to cause adverse economic effects, and the later s 96 modification was relevant to seriousness. The finding of professional misconduct and the $110,000 fine were therefore set aside, and a $50,000 fine...

Jurisdiction
Australia
Judgment Date
08 August 2018
Procedural Posture
Administrative Review of Disciplinary Action Against an Accredited Certifier / Principal Judgment
Outcome
Decision of the respondent set aside; applicant ordered to pay $50,000 to the Board within 60 days.
Legal Topics
['accredited Certifier Discipline' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'construction Certificate Inconsistent With Development Consent' 'penalty Review']
['administrative Law' 'occupational Regulation' 'building and Construction Certification'] ['accredited Certifier Discipline' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'construction Certificate Inconsistent With Development Consent' 'penalty Review']

Case Brief

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Procedural Posture

Administrative Review of Disciplinary Action Against an Accredited Certifier / Principal Judgment

Legal Issues

  1. 1 ["Whether the applicant's issue of a construction certificate in contravention of cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 amounted to unsatisfactory professional conduct." "Whether the applicant's unsatisfactory professional conduct was sufficiently serious to amount to professional misconduct under s 19 of the Building Professionals Act 2005." "What penalty was appropriate for the applicant's unsatisfactory professional conduct."]

Ratio Decidendi

The applicant's issue of the construction certificate despite significant and readily identifiable variations from the development consent plans constituted serious unsatisfactory professional conduct, particularly given his Grade A1 accreditation and knowledge that a s 96 modification would be required. However, the conduct was not sufficiently serious to justify suspension or cancellation because it did not create actual or potential risk to persons or building integrity, did not appear to cause adverse economic effects, and the later s 96 modification was relevant to seriousness. The finding of professional misconduct and the $110,000 fine were therefore set aside, and a $50,000 fine...

Court Disposition

Decision of the respondent set aside; applicant ordered to pay $50,000 to the Board within 60 days.

Orders

  • ['The name of the respondent is amended to Building Professionals Board.' 'The decision of the respondent is set aside.' 'The applicant is to pay to the Board the sum of $50,000 within 60 days.']