Improper Classification of Building Leads to Finding of Unsatisfactory Professional Conduct, Reprimand and Fine

A recent decision of the NSW Administrative Decisions Tribunal has re-enforced the concept that it is essential that private certifiers properly classify buildings under the Building Code of Australia to ensure that they have the required level of fire safety protection and accessibility.  A failure to exercise a sufficient level of care and professional judgment in making this determination can result in negative findings and sanctions from the Building Professionals Board.

The case, McGufficke v Building Professionals Board (2013) NSWADT 307, arose out of a certifier's work on a project involving an "equine agistment facility" in Moss Vale.  The development involved building works valued at $5.4 million, and included a main two storey building housing offices, a reception room and other facilities that was connected to two wings accommodating stable boxes, vet rooms and equipment areas, among other things. The certifier issued both a construction certificate and a final occupation certification that were based on his determination that the building should be characterised as a "class 10a" building under the BCA.

In its judgement, the Administrative Decisions Tribunal affirmed the finding of the Building Professionals Board that the certifier had been guilty of unsatisfactory professional conduct in so acting.  It was the conclusion of both the BPB and the ADT that the certifier's conduct did not reflect the required standard of competence, diligence and integrity that could reasonably be expected of an accredited certifier.

The certifiers error in the case was to make an overall assessment that the building at issue could be classified as a "non-habitable shed" (class 10a) on the basis that the dominant element of the building was the two wings that contained the stable boxes for the horses. However, the ADT concluded that the building was far more complex in nature, and that the certifier's assessment was not only wrong but was reflective of incompetence.  Although the Tribunal recognised that it may often be difficult for certifiers to determine precisely what classification should apply to a building, it found that the characterization of the building as a non-habitable shed was plainly incorrect. In the Tribunal's view, it would have been more appropriate for the certifier to identify a classification that more closely corresponded to the nature of the use and occupancy of the building, and thus to ensure that the building incorporated appropriate fire safety measures.

On the basis of its findings that the certifier had erroneously issued both a construction certificate and a final occupation certificate based on a completely incorrect building classification, the ADT affirmed the orders of the BPB which found the certifier to be guilty of unsatisfactory professional conduct, reprimanded the certifiers and fined him $10,000.

The moral that can be drawn from this case is that certifiers would be well-advised to exercise a high degree of care when making decisions about the appropriate classification of a new building. When the matter appears to be in doubt between one or more possible classifications, the better course is to choose a building classification which requires a higher degree of protection of public safety in terms of fire safety measures and structural integrity.  

The ADT's decision can be found on the Internet at the following link:

http://www.austlii.edu.au/au/cases/nsw/NSWADT/2013/307.html