Freixas v Building Professionals Board (No 1) [2020] NSWCATOD 27

Freixas v Building Professionals Board (No 1) [2020] NSWCATOD 27

The Tribunal found that several complaints concerning complying development certificates at 9 Regent Street, Putney and 21 Lamb Street, Glendenning were established because the applicant issued certificates despite obvious failures to comply with statutory requirements, prescribed conditions, required information and Building Code of Australia matters. Those failures fell below the competence and diligence expected of a reasonably competent accredited certifier, involved failures to comply with statutory duties, and breached requirement 5 of the Code of Conduct, with some safety-related matters also breaching requirement 1. The Tribunal rejected the alleged Liverpool construction...

Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Administrative Review of a Disciplinary Finding and Action Taken Against an Accredited Certifier Under S 33 of the Building Professionals Act 2005 (nsw) / Principal Judgment on Whether the Applicant Is Guilty of Unsatisfactory Professional Conduct; Action to Be Taken Deferred for Further Evidence and Submissions
Outcome
The applicant was found guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW), with further directions made for evidence and submissions on the action to be taken against him.
Legal Topics
['administrative Review' 'unsatisfactory Professional Conduct' 'accredited Certifier' 'complying Development Certificates' 'construction Certificates' 'building Code of Australia Compliance' 'code of Conduct for Accredited Certifiers']
['administrative Law' 'professional Discipline' 'planning and Development' 'building Certification'] ['administrative Review' 'unsatisfactory Professional Conduct' 'accredited Certifier' 'complying Development Certificates' 'construction Certificates' 'building Code of Australia Compliance' 'code of Conduct for Accredited Certifiers']

Case Brief

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Procedural Posture

Administrative Review of a Disciplinary Finding and Action Taken Against an Accredited Certifier Under S 33 of the Building Professionals Act 2005 (nsw) / Principal Judgment on Whether the Applicant Is Guilty of Unsatisfactory Professional Conduct; Action to Be Taken Deferred for Further Evidence and Submissions

Legal Issues

  1. 1 ['Whether Complaint no 25/17 - Matter 1 was established in relation to privacy requirements for windows and balconies and size requirements for rear terraces at 9 Regent Street, Putney.' 'Whether Complaint no 25/17 - Additional Matter A was established in relation to issuing a complying development certificate without being reasonably satisfied that the proposed building would comply with relevant requirements of the Building Code of Australia.' 'Whether Complaint no 25/17 - Additional Matter B was established in relation to issuing a complying development certificate that did not contain information required by the Environmental Planning and Assessment Regulation 2000 (NSW).' 'Whether Complaint no 25/17 - Additional Matter C was established in relation to omitting prescribed conditions and including an unauthorised condition in a complying development certificate.' 'Whether Complaint no 43/17 - Additional Matter A and Complaint no 43/17 - Matter 1 were established in relation to construction certificates for 13-15 Bigge Street and 2 Lachlan Street, Liverpool being inconsistent with the modified development consent.' 'Whether Complaint no 66/17 - Matter 1 was established in relation to issuing a complying development certificate for building work at 21 Lamb Street, Glendenning without adequate plans and specifications concerning Building Code of Australia compliance.' 'Whether the conduct constituting the established complaints should be characterised as unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW).']

Ratio Decidendi

The Tribunal found that several complaints concerning complying development certificates at 9 Regent Street, Putney and 21 Lamb Street, Glendenning were established because the applicant issued certificates despite obvious failures to comply with statutory requirements, prescribed conditions, required information and Building Code of Australia matters. Those failures fell below the competence and diligence expected of a reasonably competent accredited certifier, involved failures to comply with statutory duties, and breached requirement 5 of the Code of Conduct, with some safety-related matters also breaching requirement 1. The Tribunal rejected the alleged Liverpool construction...

Court Disposition

The applicant was found guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW), with further directions made for evidence and submissions on the action to be taken against him.

Orders

  • ['The applicant is guilty of unsatisfactory professional conduct within s 19(1)(a), (d) and (g) of the Building Professionals Act 2005 (NSW).' 'The applicant is to file and serve within 14 days any further evidence, and submissions including whether an order should be made pursuant to s 50(2) of the Civil and...