Frances:
OK, welcome everyone
Frances:
who has already joined us.
Frances:
We're just going to give this one more minute to let a few more people join and then we'll commence the webinar.
Frances:
OK.
Frances:
Well, we might make a start as it's now 1205.
Frances:
Welcome everyone to this webinar, which is where designs are not coordinated between design consultants, the risks for architects.
Frances:
My name is Frances Hall.
Frances:
I'm from Weir Legal and Consulting and I'll be presenting this webinar together with David Sainsbury.
Frances:
David is an architect.
Frances:
I'd like to begin with an acknowledgement of country.
Frances:
We respectfully acknowledge the traditional owners of the lands wherever attendees are situated.
Frances:
In particular, the Wurundjeri People of the Kulin Nation, and we pay our respects to their elders, past and present.
Frances:
David I’ll pass over to you.
David:
The the role of the ARBV is particularly important and not a lot of us really have the full appreciation and obviously its obligations to the consumers, but the role of the ARBV is to regulate the profession of architects in Victoria, to register and monitor their ongoing professional obligations to protect consumers by ensuring architects provide services in a professional and very competent manner, to accredit providers of architectural qualifications.
David:
That is, the universities and to administer the architectural practice examination as a pre-registration pathway for registration.
David:
As an architect in Victoria and to regulate professional contact, it's not designed.
David:
It takes into account all those consumer issues that unfortunately arise and the ARBV's purpose is to protect the Community interest and instil confidence in the regulation, integrity and delivery of architectural services in Vic.
David:
In recent years the VBA and building surveyors in particular have reported an increase in non-compliant building design documentation and I think everyone will be aware this has been an issue for a long time and some of the causes are lack of coordination between building design professionals.
David:
Uh contracts that limit architects involvement?
David:
And a lack of understanding, but I think.
David:
Typically we would say that all architects should have had the training and a quite sufficient knowledge by the time they registered.
David:
However, this isn't always the case.
David:
Many of the issues relate to
David:
Lack of like the coordination, the limitation of their involvement and the lack of understanding by the client of what's required.
David:
Often the project team is not retained for the full project and is treated by the client as more of a drafting service, just to provide the basics.
David:
The most comprehensive documentation is produced out of an arrangement where building design consultants and when we use that term, we're talking about subconsultants specialists etcetera are retained by the architect on behalf of the client for the design, documentation and construction stages of a project.
Frances:
So what I'm going to do is just start with, I guess what
Frances:
What the framework is for establishing building design compliance and many of you will already be very familiar with this, but it sort of sets the context, I guess for the issues that that commonly arise.
Frances:
So under the building act, any piece of building work is regulated.
Frances:
In the first instance by a building surveyor who is described as the relevant building surveyor for that work.
Frances:
Now that can either be a private building surveyor, or it can be the municipal building surveyor for the municipality in which the work is being carried out.
Frances:
Umm.
Frances:
As this section applies in practice, though very few Councils now issue building permits, and so the vast majority of building permits are issued through private building surveyors in their role as the relevant building surveyor for that piece of work.
Frances:
So the role of the relevant building surveyor after they've been appointed is to assess the building permit application and the documents that accompany the application.
Frances:
So the application might be lodged by the Architect on behalf of the landowner, or it could be lodged by the builder or by the owner themselves.
Frances:
It really will vary depending on the size of the project and how the project has been structured.
Frances:
The RBS assesses the building design and decides whether or not they're proposed.
Frances:
Building design is compliant in making that decision.
Frances:
They have to consider whether other consents are required, so they need to consider whether a planning permit is required, and, if so, whether the proposed design is compliant with that planning permit.
Frances:
That may have already been issued then my old also be report and consent required from the relevant Council or the applicable Water authority or Fire Rescue Victoria.
Frances:
Uh.
Frances:
Then when the building work is being carried out, it's the role of the relevant building surveyor to assess whether that building work is being carried out in a way that is compliant both with all of the applicable laws and also with the design that's been approved as part of the building permit.
Frances:
And they have enforcement powers to deal with non-compliant work.
Frances:
Councils and VBA also have enforcement powers in relation to building work, but the primary regulator at the first instance is the building surveyor.
Frances:
So there are a number of paces of legislation that sort of contain the requirements for design documentation.
Frances:
So the building act contains provisions that govern when a building permit can be issued.
Frances:
The building regulations, which are made pursuant to the Building Act, then set out the more detail about what is to accompany a building permit application, and then the national Construction Code sets out the standards that are building design must meet.
Frances:
So what does the building act require?
Frances:
What the building Act says is that a building permit can't be issued until the relevant building surveyor is satisfied that the building work and the building permit complies with the act.
Frances:
The building regulations and any binding determination that any consent of any reporting authority has been obtained that any planning permit has been obtained and that the building permit or be consistent with the planning permit.
Frances:
So that's quite a lot.
Frances:
And in theory, that should mean that before a building permit is issued that they should be a full and complete design.
Frances:
Now, that's not always the case, for reasons that will get on to, but that's what the act requires.
Frances:
They building regulations then sets out quite a lot of detail about the documents that have to accompany a building permit application.
Frances:
So I won't read all of that out in its entirety, but you can see that it's a planning permit.
Frances:
It's a it's a full set of drawings.
Frances:
It's the specification allotment plans, a description of the proposed use of the buildings.
Frances:
Computations and reports I and for alterations to an existing building.
Frances:
You need drawings and plans that clearly differentiate between the existing building and new building work and then Regulation 25 two then goes into more detail about what has to be included in the allotment plan.
Frances:
Now I should say that the relevant building surveyor has a discretion to give a dispensation.
Frances:
Umm.
Frances:
In not requiring some of this detail, as long as they are still satisfied that the building permit will comply.
Frances:
Just moving on to the next slide.
Frances:
Thanks.
Frances:
Umm, so they final sort of pace of the legislative puzzle is the national construction code requirements which she would all be very familiar with as well.
Frances:
So the way this works is that the building regulations incorporate by reference the national construction code.
Frances:
So what that means in practice is that if Building work doesn't comply with the national construction code, then it is also in breach of the building regulations, which is an offence provision and it can also result in in disciplinary consequences for registered building practitioners.
Frances:
So what it means in practice is that a relevant building surveyor can't issue a building permit without being satisfied that the design meets the performance standards in the National construction code.
Frances:
As you'd be aware, the way the national construction code is structured is that it creates performance standards, and those standards can be met in one of two ways.
Frances:
Either it can be met via a deemed to deem to satisfy design which meets the dentist satisfy provisions in the code, and that is regarded as compliant.
Frances:
And if it doesn't meet those requirements, then there must be a performance solution and the performance solution has to be formally designed and it has to then be assessed to demonstrate that the performance standard in the national construction code is met.
Frances:
Umm.
Frances:
So depending on which section of the national construction code is relevant to the design and there will be obviously many different sections will be relevant for any one design performance solution may be prepared by a specific design consultant such as a fire engineer or the like and on an initial review of an early design, A relevant building surveyor who is acting properly would identify areas where a performance solution is required or would provide feedback to an architect to indicate where detailed input from a subconsultant like a firing engineer is going to be required.
Frances:
So next slide please.
Frances:
So we're just coming to the first question in our webinar and we will give you a minute to consider what your answer is.
Frances:
And then after a minute, we'll show you the answer on the screen.
Frances:
So the question is who assesses the compliance of a building design and when does it occur?
Frances:
Yeah, we'll just give you a few more seconds for anyone else who wants to add an answer into the poll.
Frances:
OK.
Frances:
Well, we might call it there.
Frances:
I can see lots of responses on the screen and it's a pretty easy question.
Frances:
So you've all got the answer right.
Frances:
The answer is the relevant building
Frances:
Surveyor assesses the compliance of a building design and that assessment occurs prior to the issue of the building permit.
Frances:
So I'll now throw back to you, David.
David:
Thanks, Fran.
David:
And so the role of the Architect, project leader in all this?
David:
Umm, I think it very much comes back to the way you commence the project as to how successful your documentation is going to be.
David:
So I think you've got to do many things in relation to the client, but you've really got to advise them on how the project is conducted to get the best outcome in relation to time, cost and quality.
David:
Terms were all pretty familiar with this.
David:
Should not only include the architects fee, but indication of the scope of work and fees for all the black consultants lobby to be required.
David:
Uh, it it's also should be irrespective of where the Architect engages consultants directly or whether they are to be engaged by the client, builder or a project manager.
David:
The architects must also advise and determine with the client the most appropriate building procurement method.
David:
And to emphasize, and particularly the advantages of complete service as it opposed to partial services which we are all aware of these days that clients will sometimes say or can you just do this or that rather than doing the total service and that just doesn't lead to a satisfactory result, umm.
David:
And then obviously to coordinate the involvement of all those relevant design professionals and to make sure that you get the technical resolution that you needed and to ensure that they engaged to provide the most comprehensive service, something that's happened in, in many for many years now is, is consultants aren't fully engaged to the extent that they should be that they're on, on limited fee and this doesn't relate to a satisfactory result I think also in some small projects on the project leader may determine that it's not really necessary to have.
David:
A mechanical consulting design, the air conditioning or an electrical consultant design?
David:
The electric electrical systems in the project, however, you must make sure that you still have all that basic information that will enable you to complete the documentation without gaps and not be relying on things that get sorted out later on.
David:
And I think it in negotiating the involvement each of the consultants, the project leader needs to provide as much project information often when consultants are appointed, they don't really get the full story.
David:
It's often still emerging too, of course, but you want to give that consultant the full story of what's going to be required, and you want to make sure that the consultant is aware of everybody else who's going to be engaged again.
David:
This this applies irrespective of food was actually appointing the consultant.
David:
In particular, importance is getting the contract turned right with these sub consultants or specialists and in particularly in relation to professional indemnity insurance to make sure that there is responsible, well that to the same extent in from an insurance point of view and uh to ensure that, umm any mistakes or errors that the Architect doesn't take the full consequence of any of any failing.
David:
So certainly you want to make sure, and unless there's particular good reason and to ensure that the those consultants have the same level of cover as you do and look that there's all sorts of things that you need to make sure of and a lot of information to get that needs to be sorted out in a relatively short period of time keeping in the mind that you know the Architect service. Umm.
David:
Can only really commence with a fee agreement in place, and I mean and we often advise people that if you can't get all these things sorted out for that initial.
0:20:59.290 --> 0:21:8.30
David:
The agreement will then do a feasibility study or call it some other arrangement whereby you can get that information together.
David:
In in, in, in an orderly fashion.
David:
Uh, but we the client is also obviously paying for your service.
David:
Now so.
David:
So the role of the of the consultants and look they they've all worked with project leaders, designers, Architects before and I think and uh again as I say yeah to too often they have been engaged on a minimal fee or too often they don't know the full brief of the project.
David:
So I think it's certainly it's, it's the architects responsibility.
David:
But you also want to make sure that you can fully engage with those consultants as early as possible.
David:
They should be clear objectives in relation to anticipated life of the building, the use of materials, energy usage, short and long term maintenance, replacement requirements and you just don't want a them to provide a drawing based on.
David:
Umm your completed sketch design development and you want them to be there from the outset of the project.
David:
Uh, it's like there are many frequent problems and the registration board.
David:
Here's many of these senior councillors for the institute here.
David:
Many of these issues and, and I guess it's lack of client understanding on the services required.
David:
Excepting low fees from consultants, that won't be sufficient for the service required.
David:
Consultants not wanting to produce any work until the design is frozen.
David:
Clients who are prepared to engage consultants prior to planning approval being achieved and I guess this is a particularly important one because often you have you're having planning yeah permits issued for documentation or that preliminary documentation that doesn't necessarily apply with it comply with a building requirements and wouldn't get a building permit in the form that they're in so uh and that's not something that planners are necessarily looking out for.
David:
Building build a clients who only ask for a limited service and request minimal documentation.
David:
I mean in in lots of cases the builder thinks will look they know how this thing will go together.
David:
They need you to drive this or that, but often it's that small detail that not only will, will affect obviously the issuance of building permit, but also the cost as you go through the project.
David:
And you know, often you can have no control over that and no involvement of the design team after the preparation of documents.
David:
And this is a common one where the client thinks that they will save money by not having the consultants continue on through the project.
David:
Umm.
David:
And I think it, yes, you want to any documentation exercise needs to be complete but I guess there are always those situations where more clarification is required during construction and that can really only occur properly if the consultants have been retained for the construction.
David:
Uh, another issue?
David:
Lack of coordination between consultants, where they independently engaged by client or builder.
David:
Now, now, as we all know, yeah.
David:
Uh, some projects the Architect engages the client, engages the consultant.
David:
But in in many situations and maybe I I'm not sure how the percentages would run at the moment, but often they are appointed by the client or the builder is it might be and there's not necessary that falling engagement between the consultant and Architect.
David:
That's really required and unrealistic programs for the preparation that design and documentation are often the expectations of the client very high and there is just not a reasonable time to methodically and to put the project together to do the necessary research that's required.
David:
So be very wary of taking on a project where the timelines just aren't realistic.
David:
Uh, and this also relates to the time to review completed documentation at.
David:
I mean, everyone will be familiar with, you know, you're going out to tender tomorrow and you see the completed consultants drawings the day before they go to tender.
David:
And yes, you may have reviewed them several times, but there's always that issues that arise there and often that timing.
David:
Yeah.
David:
Is, is also the same when documents are presented to the building SPA in the hope that they can get going with the consideration of the permit as soon as possible.
David:
Uh, also, and as occurred a lot over the last few years, but project cost increases as a result of insufficient detail or research during the design stages.
David:
And I guess out of all of this, there are occasions where the Architect should strongly consider the, the viability of the project from their own point of view and whether they have an architect, if they have a client who's prepared to take on the project. Umm.
David:
Comprehensively in the way that an architect project leader is obliged to complete the project and to obtain that permit.
David:
Uh, slide.
David:
So if we go on to question two, yeah.
David:
Preferably to best protect the Architect in their league role, the professional indemnity insurance cover the sorry, the professional indemnity insurance cover provided by subconsultant should be not less than the sub consultants fee for the project.
David:
Match the PII cover of the Architect or be less than the value of the building scope covered by the sub console.
David:
Sorry, be not less than the value of the building scope covered by the sub consultant in their documentation.
David:
I can't actually see how we're polling there.
David:
I'll continue and give you the answer.
David:
Umm, so it's it it's B match the PII cover of the Architect.
David:
The act it could accept that a lower cover from the subconsultant, but the architect, architect takes on more risk should there be a major error or in the subconsultants documentation there is potential that the building may have to be partially or fully demolished and the cost of this work can be far greater and there are definitely examples where this has happened in accepting the insurance cover a subconsultant, the architect must evaluate the level of involvement by the Subconsultant and their input to the project.
David:
Uh, the matter should be referred to the Architect PII.
David:
Cheer for clarity and it may be a case that that, that, that some areas of consultant consulting you know you can realistically argue for a lower cover but by and large match the PII cover of the Architect.
David:
Next.
Frances:
OK, so in this next section, I'm going to talk to you about the sorts of legal issues that we can see arise from this lack of coordination issue and what kind of risks that pose to you as Architects in your practice.
Frances:
So the there's a range of different kind of non-compliances that we can say arise and the ARBV has been doing some work collecting data on this issue that has been quite useful.
Frances:
So the first is non compliances arising from inadequate detail.
Frances:
So Where insufficient detail has been included in the drawings, ideally that would, that would have been identified and addressed before either before the building permit was issued, which is how they act is intended to be operated.
Frances:
But in the absence of that, then that issue would be addressed prior to.
Frances:
Construction being at that stage in practice, what can happen is that the builder may go on and carry out the work even in the absence of proper detail.
Frances:
And what that will maybe result in is non-compliant building work.
Frances:
Umm, another issue is where the?
Frances:
Where the problem has been identified, the parties will become aware that they need to amend the designs because the preliminary design can't be built in a way that meets the performance standards in the National construction code that will give rise to the need for potentially off the car performance.
Frances:
Solutions to be prepared which would address the non-compliances or alternatively for the drawings to be amended and a lot of work to be carried out to.
Frances:
To remedy that issue, umm, another issue that arises is inconsistencies between the building drawings and the consultant drawings that might give rise to confusion on the part of the builder.
Frances:
They might down tools until they can understand what is required of them.
Frances:
That might require urgent work on the part of the Architect and or on the part of the consultants to remedy that, and then a further issue is the specification of products that may not be compliant in the context.
Frances:
One of the things that I know that I've seen is sometimes specifications are drafted in a way that they are a bit too general.
Frances:
So then they're not.
Frances:
They're not specific enough about the product, and so they might refer to a category of product and some of the products within that category will be compliant for the use of this particular design and others won't.
Frances:
And so I do think it's really important in the specification to be as detailed as possible and to refer to specific products and not just necessarily product of a kind and of a type.
Frances:
So just moving on to the next slide, so the ramifications for that for Architects, so.
Frances:
Depending on the type of building and when they the issue is identified, it might mean that if you have a completed building that I'm builders have to go back in or new builders have to be engaged to carry out rectification work to bring the building into Compliance.
Frances:
Alternatively, it might mean that during the construction process there has to be an urgent redesign and it might mean that part of the existing work has to be altered to accommodate an amended design in order to make sure that the as built building is compliant with the NCC, they obvious risk from that is it can lead to delay claims from the builder, it will lead to obviously variations for the additional work.
Frances:
Now in in both of those sorts of issues, there may well be a claim from either the developer or the subsequent owner to recover the costs of that extra work, and I thought I might talk a little bit about the lacrosse case, which many of you will be familiar with.
Frances:
And it is sort of the first decision in Victoria that really considered the liability of the various consultants at parties, all of whom were involved in the design and the construction of a particular building.
Frances:
So the lacrosse building was designed and so that it had external walls which were clad with a particular type of ACP cladding.
Frances:
And I will say that this design occurred quite a long time ago, before the.
Frances:
The requirements of the NCC regarding combustible cladding were well understood and they, and they cladding that was installed was, umm, combustible cladding.
Frances:
It was not compliant with the NCC, but that was not understood at the time and after there was a fire at the building, the Owners Corporation had to replace the external cladding at a cost of about $7 million.
Frances:
The Owners Corporation sued the builder uh and relied on the warranty provisions in the domestic Building Contracts Act.
Frances:
The builder then joined into the preceding each of the building surveyor and the fire engineer, and the architect.
Frances:
And what the builder said was that I was relying on their design that was provided to me and I was relying on the advice of the building surveyor whose job it was to assess compliance.
Frances:
And I was relying on the fire engineer who should have identified any kind of fire safety issues.
Frances:
So this was considered first by their cat and then by the Court of Appeal of the Supreme Court of Victoria.
Frances:
And what both those courts held was that the builder was liable in the first instance because of because he owed a statutory warranty under the domestic Building Contracts Act, but that he was able to pass through that liability to each of the building surveyor and the fire engineer and the architect.
Frances:
And the reason that the court held that was because each of those parties had it effectively accepted liability both under the terms of the contracts that they signed and also in terms of there’s a general duty of care to ensure that the design was compliant.
Frances:
The Architect argued that it should have been able to rely on the relevant building surveyor and on the fire engineer, and I think that there's some force in that argument because the relevant building surveyor eases, as I pointed out earlier, is the regulator of the work and it's their job to assess the design at building permit stage and decide whether or not it's compliant.
Frances:
But there were two problems for the Architect in this instance.
Frances:
The first was that the Architect, by the terms of its consultant contract, where it was lead consultant, had expressly agreed to be responsible for design Compliance.
Frances:
I'm and the second issue had to do with approval of the selection of the cladding product itself and this was a design and construct contract.
Frances:
Many of you will be familiar with that process.
Frances:
The design and construct contract model means that the builder will build for a fixed price, but then is able to effect and changes through what's described as a value management process.
Frances:
So that can involve some tweaks in design in order to create savings for the builder.
Frances:
Now, using that process the builder had selected a cladding product and that had been signed off on by the architect, and so that was, uh, very significant in the reasoning of the Court.
Frances:
So I think that that is a perhaps useful example of where risks can arise for Architects and the need really to focus on what the contract says.
Frances:
Umm, where?
Frances:
Were signing a contract.
Frances:
The contract says what obligations it imposes on the Architect and also where there is a process such as the design and construct value management process, focusing on what the architects obligations are during that process so that any kind of contractual obligation to ensure compliance that that you're considering it at that stage as well as at the initial stage of.
Frances:
And producing a design.
Frances:
So as well as there being the risk of sort of civil proceedings of court proceedings in terms of, you know, the costs associated with a non-compliant building, the other issue is the potential for disciplinary proceedings that could arise out of a situation like this.
Frances:
Umm, you'll be familiar with the requirements that are set out in the Act for conduct of Architects in the course of providing architectural services, and that includes the Code of Conduct set that set out in the regulations and what the ACT and the regulations do is sort of set a standard for the professional conduct of an architect.
Frances:
So when problems arise of this type
Frances:
Then Architects may run the risk of making a complaint to the ARBV and of disciplinary proceedings being instituted.
Frances:
So we're now up to the third question in our quiz, which is what are the two types of legal proceedings that Architects could face as a result of issues arising from a lack of consultation?
Frances:
OK, so we've had lots of responses and they're all pretty good.
Frances:
So the answer to that is that the two types of proceedings are civil proceedings.
Frances:
So damages claims and disciplinary proceedings, so potentially a referral to the Architects Tribunal.
Frances:
So David, I'll throw back to you.
David:
Right.
David:
So the question is, how can Architects address all these issues?
David:
Well, if uh, having sort of been.
David:
Clear up until now, obviously striving to achieve a negotiated contract, conditions that allows a allows an architect to undertake the project comprehensively is the best thing you can do that but we know the, the forces though that that that are against this and obviously you've got to be able to do this for a reasonable fee.
David:
For both yourself and the other consultants and a reasonable program and a reasonable budget.
David:
And uh and of course.
David:
This is, Frances said.
David:
It's not a bad thing to include the architects code of conduct in your fee proposal.
David:
As far as getting the message across to your client as to what responsibilities you do have, and that thoroughness is the key.
David:
I think.
David:
If you're not happy with the contract conditions and certainly you know there, there are many friends just mentioned design and construct a novated type clients, projects where, where and.
David:
You don't necessarily fully appreciate all the conditions.
David:
And where it becomes, I guess I'm not a lawyer from both sides reviewing it that you you've got to make sure you're comfortable with it.
David:
And I think there are certainly times where if you can't have the issues quite clear as to your responsibility and I think it it's a case of, yes, you've got to say all the things you are going to do.
David:
But there are obviously circumstances too, where you must say what you won't be involved in doing it because they either restricts it or you're not capable.
David:
But you need to be quite clear about this and I think the regular regularly relates to or regularly considers situations where the client architect agreement just never had sufficient detail where the communication had broken down between client and Architect and the whole thing was you know has been unsatisfactory.
David:
So, so again, you must avoid getting into those situations and consult other colleagues earlier if you fear you're heading in the wrong direction.
David:
But I'm and as I say it.
David:
Sometimes we might be all better off playing golf or doing some other activity rather than taking on to owners conditions on a project. So.
David:
Can consider the project very carefully and also I guess with your with the team of consultants ensure that you have all the information and everything that you require early on in the project.
David:
Much better early rather than later.
David:
With frame, was there anything further you want to say just in prototype in relation to any of those all items there?
Frances:
Ah, thanks, David.
Frances:
I think I think you covered it really well, but yeah, I I do think it's it's really worthwhile ensuring that a lot of attention is paid at the stage that you're entering into the agreement.
Frances:
Consider how much risk you're prepared to take on and how much liability you're prepared to take on for this particular project, and make sure that the contractor will terms reflect what you're prepared to accept and.
David:
Yeah, I think often we're very enthusiastic about projects.
David:
This is a new project as a great opportunity for, you know, the design.
David:
Ohh opportunities are great, but often the risk just doesn't get
David:
reviewed sufficiently.
David:
So yeah, that'd be caught out.
David:
So that takes us to question 4.
David:
The responsibility for overall coordination of the project documentation by the architect is greatest when a the architect has engaged subconsultants B.
David:
When the client or builder has engaged the subconsultants or C, it is the same level of responsibility irrespective of who has engaged the sub consultants.
David:
OK.
David:
Well, C is the correct answer.
David:
The majority I have indicated C and yes, there may be some situations where the project or manager or builder takes on this responsibility, but it would have to be clearly nominated in the client architect Agreement.
David:
It would be highly unusual and of greater risk to the client and to the project manager and builder who are not formally qualified to prepare the documentation.
David:
So.
David:
So yes, C is most definitely the right one.
David:
Thank you.
Frances:
OK.
Frances:
So we're going to round off this discussion with me just telling you a little bit about where there's sort of where the sort of future might lie in terms of design liability.
Frances:
Many of you may be aware that there have been changes in the last few years in NSW in the legislation there.
Frances:
And what and what has happened in NSW is that the design and Building Practitioners Act and accompanying regulations were passed in 2020.
Frances:
What they do is require the registration of all practitioners who are involved in the design of a building of a class to three or 9C, so that covers your apartment buildings, and it also covers aged care and so that registration requirement includes not only Architects but other types of building designers.
Frances:
Now Victoria already sort of requires.
Frances:
And registration of design practitioners.
Frances:
But where NSW goes further is that it has created a process where the designer of a building has a statutory liability for the compliance of the design.
Frances:
So what that means is that if you are the architect for the building, then under that act you are liable for the compliance of your designs.
Frances:
And that is whether or not you've signed a contract to that effect and that that liability exists no matter what class of building your designing.
Frances:
So the legislation also requires building designers to make a declaration that their design is compliant with the NCC and with other relevant standards.
Frances:
So what that means is that at the time that a building permit is issued, not only are there design documents there, but there is also a declaration that is signed by the architect or the other building designer that says yes, this design is compliant.
Frances:
And what it means is that irrespective of how your contractual model operates, this law means that you are liable for the compliance of that design.
Frances:
Now what that means is that it, it forces everyone to focus on Compliance at the start of the project and not just at the end of the project.
Frances:
It means that architects and other building designers have to be very sure that their designs will be compliant and that effectively forces them to consult Millie with other practitioners.
Frances:
I think what it also means is that the sort of project structuring that we've seen in recent years, that means Architects are engaged only for preliminary design or where they're designs are changed via the DNC model, the value management process, that won't be acceptable.
Frances:
So I actually see that as a very positive change, because I think it means that developers and other I suppose owners.
Frances:
I can't seek to minimize the role of architects and other building designers, and it means that everyone is forced to think at a really early stage about compliance.
Frances:
And I think that's actually a really a really positive thing for Architects and it provides them with some protection, even though it does kind of involve that statutory liability.
Frances:
So in terms of where that goes that that only exists in NSW right now, but it could well be replicated in other jurisdictions and we know that the ACT is moving that way and it also could potentially be on the table.
Frances:
Many of you will be aware that there is Building legislation reform going on in Victoria.
Frances:
It's going at a very slow pace and no sort of really concrete changes have yet been announced, but there is the potential for these sorts of design liability and amendments to be incorporated in the new Building Act in Victoria.
Frances:
So.
Frances:
So what?
Frances:
This space, umm and there will obviously be ramifications of that if those changes occur in Victoria.
Frances:
Umm, now I'm conscious that we're running very close to time, but if anyone would like to post any questions, we can have a look at those and potentially answer a couple.
Frances:
So I might just give you a minute or so to post any questions that you might have.
Frances:
And so I might just jump in.
Frances:
I can see one question.
Frances:
The question is, how far does the term coordination of consultants stretch in terms of liability for their non performance slash non-compliant slash emissions?
Frances:
So really it's going to it.
Frances:
It is going to depend on the circumstances.
Frances:
So what you need to look at is what do what do the contracts say of each party that's involved.
Frances:
So what's the what is the obligation of the Architect?
Frances:
Are they the lead consultant?
Frances:
Have they?
Frances:
Have they accepted design liability?
Frances:
What is the scope of work of that consultant and what have they agreed to be liable for?
Frances:
So that's one side of things.
Frances:
The other side of things is more the duty of care side and that will really depend on the circumstances.
Frances:
So where it's clear on the facts of the matter that the Architect ought to have identified an issue and gone to the consultants and consulted with them to get an answer, then they are very likely to be held liable in a civil sense.
Frances:
If they fail to do that by the same token.
Frances:
Uh subconsultants if it's clear that they have not addressed the scope of their work properly, then they may also be liable.
Frances:
So I'm sorry if that's a bit of a vague answer, but it, but it really does each case sort of turns on its own facts and the best way to kind of be sure about what your obligations are is to have the contractors clear as possible.
David:
I think I think acknowledging too that there are certainly things that some consultants do, particularly engineering computations, which clearly the architect is very reliant on the engineer being right.
David:
So it probably depends on the technical aspect and whether it's reasonable for the Architect to understand that information or not.
David:
So yeah, certainly the areas where it's, it's great, yeah.
Frances:
And so we're probably got time just for one more question and another question.
Frances:
I can see there is.
Frances:
What about the type of contract?
Frances:
Egg is ECI being encouraged more from a legislative perspective over DNC.
Frances:
So ECI as I understand it is early contractor involvement, which involves the principal contractor being involved at a an early design stage.
Frances:
I can't speak to what is being encouraged in in NSW, where the this more strict regime has been brought in, but I think any kind of model that increases consultation at an early stage and minimises the opportunity for.
Frances:
Substitutions and variations at a later stage is the preferable contract.
Frances:
I think that it minimises the risk for everyone.
Frances:
David, did you have anything to add to them?
David:
Uh, yes.
David:
Look, I agree.
David:
I think I think on particularly large and complex projects, it can be very good at it, obviously and.
David:
What happens next?
David:
I guess yeah.
David:
I mean typically any building or contractor involved in early thought involvement ideally wants to take the project through.
David:
But I think if you can get that assistance, if there's an arrangement that works well, I think it's highly desirable to, but usually can relate to a better outcome for everybody.
Frances:
OK.
Frances:
Well, I think we should probably leave it there for time reasons, but thank you everyone for joining the webinar and I hope that it's been useful for you.
David:
Thank you.
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