Submission to Building Professionals Act 2005 Draft Report from:Adam Mularczyk on behalf of Local Government development engineers

Good afternoon,

I represent a group of Local Government Development Engineers, Asset Engineers, Managers and Technical staff that generally deal with development & subdivision works and the subsequent management of the assets created through developments & subdivisions.

Please find below our submission in relation to the review of the BP Act.

SUBMISSION IN RESPONSE TO INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005

Thank you for the opportunity to provide comment on the State Government’s proposal to revise the Building Professionals Act (BP Act) to achieve a more effective building regulation and certification system in NSW.

The terms of reference for the review were to consider the scope of which certifiers and the certification process operates and the respective legislations. Please accept this submission from a group of approximately 50 Local Government Development Engineers, Asset Engineers, Managers and Technical staff in response to the aspects of the independent review of the BP Act with appropriate consideration of the role of local government, particularly with regards to “Fit for the Future” asset management, safety and performance requirements.

Our Group acknowledges the importance of this review, and supports the improvement of building regulation and associated certification systems. This submission will focus on the proposal to allow the appointment of private certifiers as PCA for subdivision work and related impacts.

The subdivision of land commonly involves the creation and dedication of public assets and land to Council. Council’s principal objective of inheriting assets through development is that the minimum design life and fit for purpose safety performance is achieved as well as safety in design is adequately managed through suitable design outcomes. In order to achieve this objective, our Group is of the opinion that some of these issues may not be able to be satisfactorily achieved even with the best intentions and comprehensive policies. The following are comments and questions in relation to distinct aspects addressed within the independent review as well as the identification of other issues:

Standard Designs & Guidelines

Our Group supports the idea of the State Government developing a series of standard designs and guidelines for subdivision type works. However, the state must recognise that very rarely all elements are identical where a “standard design” can be applied. In the majority of instances, design guides are used to apply various and numerous requirements based on site constraints and specific engineering needs for the given applications. A clear understanding of this “concept” is required prior to the development of guidelines, standard designs, etc yet alone applied and further an understanding of this is paramount in consideration of this process.

It must also be pointed out that design compliant designs do not guarantee safety. Refer below for further explanation regarding this issue.

It is acknowledged that some consultants and contractors within the industry are frustrated with the current situation of neighbouring council’s having different requirements. It is also important to recognise that environmental factors in some LGA’s will necessitate the need for specific design responses. This flexibility should be identified in any future development of state wide guidelines. Council is interested in the likely timing of any such guidelines, and would be interested in providing input as I assume most other Councils within the state would be.

There will be many instances where problems occur due to staff in different Councils having a difference of opinion and not being able to agree. This could be due to past experiences, environmental factors (climate, soil types) as mentioned above as well as maintenance requirements, business models, material availability. E.G proximity to quarries, etc.

The Department of Planning and Environment commenced investigations into the provision of a default Design Guide and Construction Specification for such works when the act first provided for certifiers, approximately 18 years ago. This however didn’t proceed due to numerous competing priorities and variations in development requirements. These included greenfield site requirements, brownfield site requirements, as well as the issues identified above.

Here at Wyong Council we have worked with and liaised with some adjoining Councils. Four so far have indicated that they wish to adopt our Design Guide and Construction Specification, one of which has worked with us as part of a small working group. This could be a start of even a regional Design Guide and Construction Specification, similar to the Northern Rivers group. I am also aware of the IPWEA also embarking on the compilation of a series of standard engineering drawings.

Should this gain momentum, issues such as working groups, travel, disagreements, availability, reviews, costs and competition with other similar products could occur.

It must be pointed out that not only do these documents provide technical information they generally provide guidance and information on many aspects of the development process. This again will be different at each Council based on structure, resources, etc. These sections of the Design Guide and Construction Specifications will still need to be tailored for the individual Council’s.

Accreditation Scheme for Subdivision Certifiers

The review does not provide detail in relation to specific accreditation requirements for subdivision certifiers. Logically a subdivision certifier would require appropriate qualification or extensive existing “on the job training” in the field of civil engineering. A professional civil engineer with appropriate degree qualification and limited or no experience would not be suitable for the role. However, a person with significant “on the job training” in the field of civil engineering may be very suitable. Clearly, there are many persons of with varying levels of qualifications and experience and these issues need to be addressed.

There are numerous roles that would require development for inclusion in certification categories as well as the review of the existing categories. Areas such as water quality and water sensitive urban design, specialist pavements (concrete as opposed to conventional pavements and variations of each), road safety, etc. This needs to be carefully reviewed by groups with the appropriate level of understanding of the different areas of civil engineering and the respective aspects of each element.

A partnership approach with Engineers Australia and/or IPWEA is recommended, with recognition of CPEng & NPER status for engineers. It is also important that existing subdivision engineers and other related technical staff within Council’s, who are not degree qualified, are given an achievable pathway to gain accreditation. Further detail around any proposed scheme requires further consultation within the Local Government development engineering area. I am aware of recruitment that is currently occurring for non-degree qualified staff to fulfil development engineering roles that best suit the structure of the respective Councils, the skills and competencies of the individuals.

Skills Shortage

There currently is a significant shortage in not only degree qualified staff, but suitably experienced non-degree qualified staff. This skills shortage is well recognised by the industry with a Parliamentary Senate Enquiry a few years ago. The IPWEA also have a continued acknowledgment of the skills shortage through portfolio processes, etc to address this issue.

Independent Certification

To provide for greater independency, consideration of the engagement of Certifiers could be done through a third party, not the developers. The BPB or other partnership created through Engineers Australia and/or the IPWEA could fulfil this function.

Mandatory Inspections

Currently mandatory inspections are not legislated for subdivision works. There are varying scopes and types of works and due to these variations it would prove difficult to develop a set or sets of mandatory inspections. Inspections may be not required for works, unless these works have adjoining other types of works. The different impacts of different works of varying degrees on each other can generate very different outcomes, treatments and inspection requirements. Many of these may situations may only be apparent during construction or may not be apparent till well after construction, which could be many years later.

Where unplanned changes or alternate treatments are required during the course of construction, certifies cannot alter the design and inspections will change. Works can easily fall outside of specification.

Without the legislative requirement for such inspections, private certifiers would be unlikely to undertake the required inspections and the quality of assets dedicated to Council is very likely to significantly decline. Council’s will be left with assets which fail to meet design life, placing significant financial burden on Councils to maintain poor quality assets.

I understand that no Council is prepared to accept poor quality assets, particularly due to the current significant asset backlog. State wide, this asset backlog is several billion dollars and there cannot be any further increase on this.

We believe that it would be extremely difficult to try and cover all scenarios in the development of clear mandatory inspections.

I understand that several members of our group may be prepared to provide input in relation to the development of inspections and requirements should they be required, however this will be a very difficult task.

Road Safety for Road & Road Related Areas

We have serious concerns regarding the appropriate management of road and road related assets as they relate to safety. As mentioned herein and in a number of Austroads guides, designs that are compliant with guides and standards do not guarantee safety.

These issues not only relate to roads and intersections but shared paths, pedestrian paths, development access intersections, shopping centre car parks, transport interchanges, etc.

The following is an extract from an Austroads Guide used and recognised by the industry that identifies that standards and guides do not cover all situations, they are generally minimum requirements, when combining minimum requirements undesirable outcomes are created, and so on.

Extract Austroads Guide to Road Safety - Road Safety Audit

External Influences & Liabilities

Our Council was involved in a third party claim. The claim was as a result of a road crash involving pedestrians and a motor vehicle. The claim, however was due to impacts other than the design of the road network where the crash occurred. These elements wouldn’t be considered by certifiers as they may be outside of the scope of the works, but are caused as a result of the works. This included the staging of subsequent adjoining developments, the pedestrian desire lines caused as a result of the development and the resulting consequences.

Safety in Design

All design and construction for development related infrastructure need to consider “Safety in Design”. This starts with the initial design of the infrastructure, the construction, regular and specialist maintenance, asset management, refurbishments, etc.

Infrastructure that is design compliant will not necessarily demonstrate safety in design principles and present Council with ongoing WH & S issues through the routine maintenance, operation, etc. of the infrastructure.

Corporate Risk

Council’s Risk Sections have as an interim measure placed this review of the BP Act on their Risk Register as a serious risk to the organisation.

Assets Units have advised that “the risk of unplanned capital works due to lower standard developer works is a risk to the Asset Group’s risk register. If the current control of internal assessment by the Council Development Engineers was removed then the uncontrolled risk level would be returned to High and I think be unpalatable for Council to accept.”

Self-Insurance

As a follow on from the above, increased risks associated with the subject proposal may potentially impact Councils that are self-insured. This aspect needs to be carefully and extensively explored to ensure that self-insured Councils are not disadvantaged in anyway.

Handover of Works, Disputes, “As Constructed” Documentation & Contributions (s94 & Water & Sewer)

Developers generally try to complete subdivisions to have the final plans of subdivision released as quickly as possible from Council. The handover of these works to Council to come into public ownership may present issues. These issues can include defective work, non-complying works, insufficient “as constructed” documentation (survey, testing, CCTV, certification, materials testing, etc), incomplete works, additional works, incorrect payment of contributions (s94 & water & sewer) and incomplete servicing (communications, electricity, street lighting, gas, etc).

These items in addition to others have the potential to generate a refusal to accept works and major disputes that can include the PCA, the developer, Council and the Contractor.

Licensing of Civil Contractors

Unlike other trades within NSW, civil contractors are not required to be licensed to undertake civil development related subdivision works. There is currently a major difference in capability of civil contractors. The incorporation of licensing within the industry would be welcomed. It would assist in part against Council’s inheriting low quality assets and potentially reduce involvement and time spent on site by Council.

A prequalified value based accreditation scheme, similar to the state governments RMCC System applied by Roads & Maritime Services would suffice. This however would also limit opportunities for smaller operators embarking into the civil industry through minor works. RMS currently uses the RMCC system to assist in providing high quality assets to the NSW public. Since the adoption of the requirement, the quality of RMS controlled roads in NSW has improved significantly. Local governments should be afforded the same right and protection to achieve equivalent objectives for their rate payers.

Non Complying Assets

In the event that non complying or defective assets are dedicated to Council by a developer that has engaged the services of a private subdivision certifier, what mechanisms are to be put in place to allow a Council to have the cost of replacement or rectification placed on the party at fault?

An extended warranty period of 15 years should be an absolute minimum to be applied to contractors and developers to help safeguard against defective works. The extended period would be useful in civil works, as often buried defects are not apparent initially. Refer below.

This type of run-on insurance was tried when Certification was first introduced approximately 18 years ago. It has been altered a number of times since, with the current arrangement providing very little support to Council’s that inherit these assets.

Consideration should be given to the provision of an extended warranty period, a 2% defect bond similar to that proposed to be applied to developers to cover the cost of defect within newly constructed unit blocks should be applied to civil projects. Council’s being the beneficiary of the funds to make good minor defects to public assets.

Examples of Defective Works

I have been involved with a development whereby a certifier approved particular works. When the particular elements of the works were combined it created a flawed outcome resulting in significant pavement failure that occurred approximately five years after the works were certified and after the certifier had passed on.

The cost to remedy the failure was in excess of $100,000. There had been numerous changes to the insurance provisions of certifiers since the act provided for certifiers. No longer does it provide run on insurances as it needs as many of these assets have a long design life.

Easement Issues

There have been a number of instances where incorrect easements have been applied, irrespective of what has been provided on the conditions of consent. There appears that there is not an appropriate level of understanding of the terms of easements by some certifiers.

This is an area that would require strict attention should consideration of the allowance of PCAs to operate other than Councils.

Review Fee for 88B & 88E Instruments & Other Fees

If councils are required to provide a certification role for the wording of covenants, easements and restrictions in 88B & 88E Instruments, it is reasonable that a fee be applied for undertaking the service. Is it intended to include a fee structure in the legislation, or would council’s include an applicable fee in their Pricing Policy.

Fees would also be required for the review of other documentation and processes, some mentioned above to ensure cost recovery.

Summary

In summary, most of the group:

  • Supports the introduction of neutrality for subdivision certification, providing mechanisms are adopted to address all of the above issues and best protect council against inheriting assets that fail to comply with relevant standards, specifications, meet design life and present safety liabilities. It is however acknowledged that appropriate mechanisms may not be able to be achieved;
  • Requests that mandatory inspections for subdivision works be incorporated in the proposed changes to the BP Act subject to these being addressed for each development identifying associated impacts and the required treatments and inspections. This is under the premise that the many issues raised can be suitably managed.
  • Acknowledges that Guideline compliant designs do not guarantee safety. This is specified in the Austroads Guide to Road Safety Part 6 and Part 8 and also recognised as a requirement of “Safety in Design” These issues as part of any change to the act or process needs to be addressed as critical elements of the process.
  • Supports the provision of independent certifiers as suggested above.
  • Think that a prequalified value based accreditation scheme, similar to the state governments RMCC System applied by Roads and Maritime Services be developed for civil contractors constructing public assets to be dedicated to council; and
  • Seeks clarification in relation to the requirements of accreditation for Council subdivision engineers and technical staff.
  • Requests that appropriate mechanisms be established through consultation with Councils to manage defective and unsafe works or works that inadvertently affect adjoining sites.

The group welcomes the opportunity to have further input into the proposed changes to the BP Act. Should you require further information, please contact the undersigned.

Kind regards

AdamMularczyk
Team Coordinator
Engineering Assessments
Wyong Shire Council