Griffith City Council has been found to have breached the law on the certification of 20 buildings.
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An investigation by the NSW Government’s Building Professionals Board (BPB) found council assigned building certification work to staff who were not accredited under the law to do the work.
“I knew what I did was illegal...”
Council planning manager Carel Potgieter told the board “I knew what I did was illegal however I thought I was doing it within my delegation...”.
Council defended their actions in a submission to the BPB, highlighting problems they face in terms of staff shortages. Council said, "the motive for non-accredited officers to sign certificates was in the interest of customer service”.
The BPB’s final report found council did not not provide “acceptable reasons or explanations for the inappropriate management of its certification function”.
Certification work is done to ensure buildings are constructed to appropriate codes and safety standards.
A NSW Fair Trading spokesperson said when building work is done “without the approval of an appropriately accredited certifier or without a certifier, there is a risk of the work not meeting required development and building safety standards”.
NSW Fair Trading were unable to advise whether a property owner’s insurance would be voided as a result of Council certifying building by those without proper accreditation, saying owners should seek legal advice.
Breaches carry maximum penalty of $110,000
When asked if the certification breaches were a breach of the law, a NSW Fair Trading spokesperson said, “Yes. Breaches of this section carry a maximum penalty of $110,000. The Building Professionals Board (BPB) cannot issue fines under this section but can take prosecution action in Local Court or the Land and Environment Court”.
Griffith City Council have said they have not been fined and do not expect to be fined.
Outraged reaction
Building experts and business leaders have expressed outrage at the BPB report findings.
Building designer Carmel La Rocca said Council saying it was difficult to attract skilled staff was “nonsense”.
“There has never been problems attracting highly qualified building inspectors in the past.”
“Council needs to consider the reasons why they can’t attract them now ”.
Business chamber president Paul Pierotti said, “there have been multiple and serious breaches of the Act… we expect council to use ratepayers money to employ staff who are appropriately qualified to do certification work”.
Mr Pierotti said council’s response to the investigation suggests “they either don’t care or are trying to pull the wool over people’s eyes”.
Council don’t publish full report
The final investigation report, addressed to general manager Brett Stonestreet, was dated July 25 2017.
Council did not publish the full report of their website, but the report was made public by the BPB on Thursday 21 September.
Council said, “the full report was not published as it contained references to staff which, in accordance with the Local Government Act and Local Government State Award, should remain confidential”.
Council “ultimately responsible”
The report stated “the individual actions of non-accredited officers may be mitigated somewhat by the fact the staff operated in an environment structured by Council’s management; a situation for which council is ultimately responsible”.
In response to this finding, Council said “Council employees share the responsibility with Council, as their employer, to act within their delegation and the law, which in this case relates to their accreditation with the BPB”.
On the question of whether action is being taken against staff and management as a result of the law breaches, council said “any staff disciplinary matters in relation to the Building Professionals Board report or any other matter are confidential in accordance with the Local Government Act and Local Government State Award”.
The BPB investigation into council commenced when the BPB were informed of the law breaches in February 2016, when it reviewed 30 of Council’s development files, and found 20 instances of unlawful accreditation.
The BPB provided an initial report to council for reply in November 2016, to which council responded outside the required 40-day deadline.
Council says it “overly emphasised” customer service
In it, council acknowledged its actions, but was skeptical of the findings, stating the BPB report gave, “no weight to mitigating factors that Council believe are relevant”.
“Council now acknowledges that service to customers, a high priority with Council, was overly emphasised in respect of certification,” the reply said.
The BPB provided council with 26 recommendations on how it needs to address its failings.
Council will need to submit written evidence within 12 months demonstrating the recommendations have been implemented.
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Full Griffith City Council responses to The Area News questions
Does Griffith City Council accept Council did not provide "acceptable reasons or explanations for the inappropriate management of its certification functions", as stated on Page 3 of the BPB report?
Council acknowledges that on specified occasions, it did not ensure that certification work was done by persons who were the holder of a certificate of accreditation under the Building Professionals Board Act that authorised them to do that certification work. The Council's reasons and explanations for this were provided to the BPB. The BPB found these reasons to be unacceptable. Council also acknowledges the Report found that improvements to administration, assessment processes and record keeping related to certification work were required.
Does Griffith City Council accept the individual actions of non-accredited officers may be mitigated somewhat by the fact staff operated in an environment structured by Council's management, and that Council is "ultimately responsible" for the breaches of Section 74A of the BP Act (Page 3)?
Council employees share the responsibility with Council, as their employer, to act within their delegation and the law, which in this case relates to their accreditation with the BPB.
The Board's commentary is as follows "It is incumbent on each individual accredited certifier when carrying out certification work on behalf of a council to be aware at all times of their statutory duties and their level of accreditation. Persons accredited with the BPB are responsible to act within the relevant legislation. In the event that an accredited certifier is asked by a council manger or senior officer to carry out certification work that is contrary to the law and/or their accreditation, the certifier should not carry out the certification work. Notwithstanding that it is reasonable to expect a certifier to reject or dispute any request or direction made to them to carry out certification work outside of their level of accreditation, it is necessarily incumbent upon Council's management and supervisory staff to be cognisant of the limits of each officer's accreditation (including conditions) and to allocate certification work that falls within this criteria. The individual actions of non-accredited officers may be mitigated somewhat by the fact staff operated in an environment structured by Council's management; a situation for which Council is ultimately responsible".
Have council received a penalty fine for breaching the BP Act in regards to issuing part 4a certificates by a non accredited certifiers?
No.
Could Council receive a fine in the future for breaching the BP Act?
No. The Board has advised that it will take no further action against Council in regard to the matters contained in the report. Council is required to submit written evidence by 23 July 2018 to the Board and the OLG demonstrating that the final report's recommendations have been implemented. The BPB can take disciplinary action against persons accredited with them.
Manager Potgieter is quoted as saying "I knew what I did was illegal". What action has been taken against Mr Potgieter for knowingly engaging in illegal work?
The report makes reference to several Council Officers and contractors, both past and present. Any staff disciplinary matters in relation to the Building Professionals Board report or any other matter are confidential in accordance with the Local Government Act and Local Government State Award..
Did General Manager Brett Stonestreet know illegal work was being carried out by his Council staff?
When did Mr Stonestreet first learn of the breaches of section 74A of the BP Act by council staff?
What action has he taken since?
The General Manager did not have prior knowledge that Building Certification works were being undertaken contrary to the provisions of the Building Professionals Board Act. The Director of Sustainable Development informed the General Manager in late February 2016 that there were allegations of improper conduct of Council officers. The General Manager immediately directed the matter be further investigated. The results of that investigation were reported to Councillors on 7 March 2016 and then voluntarily reported to the BPB on 11 March 2016.
What action has council implemented, thus far, to ensure breaches of the BP Act do not occur again?
All recommendations of the BPB have been acted upon with all but two completed and finalised.
Has council contacted owners of buildings with certificates that have been issued without proper certification?
As per their duty of care for health and safety reasons, has council notified all the building owners and tenants to the implications of occupying a building that has not been signed off by an accredited certifier?
Will the buildings in which certification work was carried out contrary to section 74A need to have certification done again? Will Council cover all such costs?
How will council ensure buildings certified by those not properly accredited are safe and conform to all building codes?
In accordance with Recommendation 15 of the BPB, Council is to appoint an appropriately accredited A1 Certifier to review all construction certificates and complying development certificates issued on behalf of Council since 1 January 2015 for building work other than Class 1A and Class 10 buildings under 500sqm in floor area. Council will voluntarily extend this review to those certificates issued since June 2012. Following completion of the audit, Council will take all reasonable steps to ensure any issues found are rectified. Affected property owners will be contacted.
Could insurance on a building be voided if the insurance company finds out the building was certified contrary to section 74A of the BP Act?
That is a matter for the insurance industry.
What legal or other ramifications could there be for a future owner or tenant of a building that was certified contrary to section 74A of the BP Act?
Could Griffith City Council be sued by a future owner or tenant as a result of certification being done by those not properly accredited?
Council has not been advised of any legal ramifications.
Was Councillor Paul Snaidero made subject to a code of conduct investigation in late 2016 for raising the matter of council's certification practices? What is the result of that code of conduct investigation?
Council does not make specific Code of Conduct matters public. Part 13 of the Administration of the Code of Conduct refers to confidentiality of Code of Conduct complaints and states "Information about code of conduct complaints and the management and investigation of code of conduct complaints is to be treated as confidential and is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures".
Why did the internal investigation by Neil Southorn into Council's certification work fail to identify and properly address the problems?
The Director's investigation did identify issues that were brought to his attention by The Area News, and these were voluntarily reported to the BPB and Council. The subsequent BPB investigation found additional items as summarised in their report.
Was the recent resignation of Neil Southorn in any way related to the contents of the BPB report?
No.
Why did Griffith City Council fail to respond to the Chief Executive of Local Government within the required 40 days?
The immediate focus was on preparing reports to Councillors and responding to BPB recommendations. The OLG was notified within 9 additional working days.
Why has Griffith City Council not released the full BPB report on its website?
Council has published all recommendations and responses on the Council website. The full report was not published as it contained references to staff which, in accordance with the Local Government Act and Local Government State Award, should remain confidential.