Mr Boyce was an accredited certifier in New South Wales. In 2017 and 2018, complaints were made against him alleging his engagement in unsatisfactory professional conduct. The Building Professionals Board (BPB) found him guilty and revoked his certificate of accreditation. This was upheld by the New South Wales Civil and Administrative Tribunal (NCAT).
Lessons identified from this case
- Certifiers must adhere to the Code of Conduct when carrying out any certification work. Not doing so can result in penalties such as fines, suspension or cancellation of registration.
- Certifiers are expected to respond appropriately to complaints and enquiries made by the public about developments they are certifying.
Setting the scene: Relevant legislative provisions
Building Professionals Board Code of Conduct for Accredited Certifiers
Current equivalent: Schedule 5 of the Building and Development Certifiers Regulation 2020.
- Requirement 1 (now clause 2) imposes a duty on certifiers to exercise their powers in the interest of the public.
- Requirement 3 (now clause 7) states that certifiers are not to misinform or otherwise mislead any persons about any matter relating to the performance of their certification functions, including the determination of whether relevant conditions of consent have been met.
- Requirement 5 (now clause 3) imposes a duty of care on certifiers in relation to any advice given or action taken in their role.
- Requirement 6 and 7 (now clause 8) requires a certifier to demonstrate that they have obtained all relevant facts reasonable available when making a decision. Certifiers must also ensure that their decisions are reasonable, fair, and appropriate to the circumstances. This is assessed against all relevant facts obtained and must be supported by adequate documentation.
Building Professionals Act 2005 (repealed)
Current equivalent: Building and Development Certifiers Act 2018.
- Section 85(1)(b) (now section 44(1)) makes it an offence for a certifier to make false or misleading statements in connection to a CDC or Part 4A certificate.
Case details
In 2017 and 2018, a series of complaints were filed against Mr Boyce regarding five properties in which he acted in the capacity of a certifying authority or a principal certifying authority. The complaints were about the breach of numerous provisions of the legislation. These were:
- Section 85(1)(b) of the Building Professionals Act 2005
- Sections 109H(3)(d), 109F(1)(a) Environmental Planning and Assessment Act 1979
- Clauses 130(1), 146(c), 154(1B) Environmental Planning and Assessment Regulation 2000
Prior to complaining to the BPB, members of the public affected or concerned with Mr Boyce’s professional breaches had voiced their concerns regarding these developments. These complaints were made continuously over a period of time, but Mr Boyce failed to properly respond and take appropriate actions to resolve the issues. This, in addition to his breaches, was found to have contravened requirements 1, 3, 5 and 6 of the Building Professionals Board Code of Conduct for Accredited Certifiers in accordance with the Building Professionals Act 2005. Consequently, the BPB revoked his certificate of accreditation.
Conclusion
As a result, the Tribunal found that Mr Boyce had engaged in unsatisfactory professional conduct. They upheld the decision made by the BPB. However, the Tribunal ordered that the date of cancellation of Mr Boyce’s certificate of accreditation be moved to 6 March 2020 instead of the previous date of 31 May 2019.