A situation that every private certifier would be extremely eager to avoid is being criminally prosecuted in the Land and Environment Court for wrongfully issuing a construction certificate. The penalty regime under the Environmental Planning and Assessment Act 1979 provides for very high potential penalties if a person is convicted of an offence: Under section 126 of the Act, the maximum fine that can be imposed is $1.1 million. Furthermore, it is the routine practice for the Court to make an award of professional costs against a defendant who is prosecuted, and it is not at all unusual for the amount of costs in such a prosecution to be upwards of $20,000. These penalties and costs are, of course, in addition to any costs that a certifier may have to pay for being legally represented in relation to the prosecution. Thus, beyond the stain on one's personal and professional reputation of having a criminal record for breaching the Act, the financial consequences of being prosecuted in the Court can be very painful if not indeed completely disastrous.
Exactly this perilous situation was faced by the defendant in the case of Warringah v Moy (2005) NSWLEC 416. In that case, the certifier who was prosecuted was a person who had extensive experience, having worked as a building surveyor for 4 councils in the Sydney metropolitan area over a period of 24 years before becoming a private building consultant.
The development project that got the defendant into trouble involved a residential flat building in Brookvale. Evidence was offered in the Court proceedings by the Council that there were major differences between the approved development consent plans and the construction certificate plans. The differences included discrepancies in the height of the building above finished ground level; changes to the internal layout of the apartment units; increases in the height of the floor levels; and changes to the configuration of nearly all of the doors and windows. The Council offered the evidence of two highly experienced and respected building consultants to the effect that the differences between the d.a. and the CC plans were so great that no reasonable certifier could have been satisfied that the CC plans were "not inconsistent" with the d.a. plans.
Thus, it was the Council's case in this prosecution that the certifier should not have issued the construction certificate in question. The Council prosecuted the certifier for breaching his duty under section 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 not to issue any construction certificate unless he was satisfied that the design and construction of the building as shown in the CC plans would not be inconsistent with the development approval, and for falsely including a statement in the CC that he was so satisfied.
The outcome of this case ultimately turned on whether the standard to be applied in assessing compliance with section 145(1)(a) of the Regulation is "objective" or "subjective" - in other words, is the standard whether a reasonable person standing in the shoes of the certifier would have been satisfied that the two sets of plans were consistent, or whether the certifier who actually reviewed the two sets of plans was in fact satisfied that the plans were not inconsistent.
In the event, the Court (Justice Bignold) decided that the appropriate standard is subjective - in other words, whether the certifier in the case was actually satisfied that the two sets of plans were "not inconsistent". There was evidence in the case that the certifier who was prosecuting had closely examined both sets of plans, and that he was satisfied that they were consistent. On this basis the certifier was acquitted of the charges brought by the Council.
It is worthy of note that the judge presiding over the case found that the expert witnesses who gave evidence on behalf of the Council had relied on a set of plans that were not actually those that were in force under the development consent in forming their opinions that the d.a. plans and the CC plans were "inconsistent". It turned out that the plans that actually formed part of the development consent had been extensively modified from the plans that were relied upon by the prosecuting Council's experts.
There are consequently two essential lessons to be drawn from this case. The first is that a conscientious certifier will take great care to ensure that the plans that he or she is given with an application for a construction certificate are indeed the final plans that are referenced in the development consent. The second is that the certifier should be at great pains to examine the CC plans very closely, to satisfy her or himself that those plans are indeed not inconsistent with the d.a., and to prepare a written record providing a detailed explanation of the reasons why the certifier has arrived at this conclusion.
The certifier who wishes to avoid the risk of a possible prosecution or equally painful disciplinary proceedings before the Building Professionals Board will be scrupulous in carrying out the duty to ensure essential consistency between d.a. and CC plans.
The Court's decision in this case can be found at the following link:
http://www.lawlink.nsw.gov.au/lecjudgments/2005nswlec.nsf/2005nswlec.nsf/WebView2/EDF11975A92E5EC1CA25704D001D78E2?OpenDocument
No comments:
Post a Comment