We recently published an article about amendments to s 16 of the Building Act 1993 (Building Act), which came into force on 4 July 2016.
In that article, we stated an implication of the amendments was that architects and other ‘building practitioners’ who undertake a similar role to architects, such as draftspersons and engineers, would be responsible for ensuring a building permit was obtained in circumstances where they were engaged to carry out building work. Further, it was noted that owners who engage an architect, draftsperson or engineer could be exempted from prosecution if a building permit was not obtained.
Our interpretation of s 16 has been queried. It has been suggested to us that the preparation of design documentation is not ‘carrying out building work’ and therefore an architect, draftsperson or engineer would not be caught by s 16(4) if they have been engaged to prepare the design only.
As noted in the article, s 16(4) provides that where a building practitioner or an architect is engaged to carry out building work, they must ensure a building permit is issued and the work is carried in accordance with the building permit and the Act.
The specific reference to architects in s 16(4) suggests it was the intention of Parliament to capture design professionals in this new obligation, particularly given a primary role of an architect is to prepare design documentation. The relevant part of the second reading speech referring to the amendments to s 16 of the Act is set out below:
Each building practitioner in the chain must ensure the building work they are engaged to perform is compliant and covered by a building permit. Every building practitioner or professional involved in a building project should be held accountable for their actions and input. We have seen, following the investigation into tragic deaths from the wall collapse in Swanston Street, that the current system does not provide sufficient incentives for people who control the carrying out of building work to effectively oversee compliance with regulatory requirements.
This will be rectified with a new provision that prohibits an owner of land from permitting any building work to be carried out on their land which requires a building permit, unless a building permit has been issued and is in force, and that the building work is carried out in accordance with the Building Act, the building regulations and the building permit.
However an owner of land will not commit an offence if the owner engages a building practitioner or architect to carry out the building work on their land.
A building practitioner or architect who is engaged to carry out building work, whether by an owner of land or by another building practitioner or architect, must ensure that, in respect of building work for which they have been engaged, a building permit has been issued and is in force, and the building work is carried out in accordance with the Act, the building regulations and the building permit.
The second reading speech does not state there was any intention to limit the application of the amendments. To the contrary, it states ‘Each building practitioner in the chain must ensure the building work they are engaged to perform is compliant and covered by a building permit’ and that ‘Every building practitioner or professional should be held accountable for their actions and input’.
Section 3 of the Act defines ‘building work’ to mean ‘work for or in connection with the construction, demolition or removal of a building’. In our view the preparation of design documentation is arguably work in connection with the construction, demolition or removal of a building.
The term ‘carry out building work’ could be interpreted as being limited to the physical carrying out of work or to managing or arranging the carrying out of work and not including the work of preparing design documentation. If that is correct, architects, draftspersons and engineers engaged to prepare only the design will not be responsible for ensuring that a building permit is obtained or that the work is carried out in accordance with the building permit, Act and Regulations. However, presumably, by referring to architects in s 16(4) Parliament intended that design professionals could be caught by s 16(4) when they perform certain roles in connection with the carrying out of building works. What those roles are is unclear leaving the application of the new s 16(4) to ‘building practitioners and architects’ engaged to carry out work‘ for or in connection with’ the construction or demolition of a building unclear.
Ultimately, we maintain the view that the amendments to s 16 of the Act could be interpreted to make architects, engineers and draftspersons for design work only responsible for ensuring a building permit is obtained and the building work is carried out in accordance with the permit, Act and regulations. If we are correct, then an owner who engages an architect, draftsperson or engineer for their project would be exempted from prosecution for not obtaining a building permit or complying with the building permit by s 16(5).
Finally, we note we do not hold a view on whether or not architects, draftspersons or engineers engaged to carry out design work only should be caught by s 16(4). This is a matter of policy. It may be considered that by applying s 16(4) broadly, consumers will be better protected because all building practitioners and architects in the construction process will take steps to ensure a building permit is issued. Presumably if design professionals are caught by s 16(4), given they may have no or limited involvement in the works post the design, a court would expect them to do only what was reasonable to ensure an owner obtained a building permit taking into account their role.
For advice on the operation of the Building Act 1993, please contact a member of our Compliance and Enforcement team.