Podcast: Lawyer in the Hot Seat, Part 2

Hi Ray,

This is a symptom of the confusing nature of the D&BPA.

It is possible to have a regulated design that does not entail “professional engineering work” as defined in s31 so long as it otherwise satisfies the requirements for a regulated design.

There is, however, still a requirement for the specified design professional to provide the design declaration if a regulated design is required.

This is due to the requirement for a regulated design to be provided by a registered design practitioner before a building practitioner can carry out building work:

19   Designs and design compliance declarations to be obtained

A building practitioner must not, except with reasonable excuse, carry out any part of building work for which a regulated design is to be used unless—

 (a)  the practitioner has obtained a design from a registered design practitioner for the work and a design compliance declaration for the design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and

(b)  the declaration states that the design complies with the requirements of the Building Code of Australia and other applicable requirements prescribed for the purposes of section 8(1).

9   Compliance declarations by registered design practitioners

(1)  A registered design practitioner must provide a design compliance declaration to a person if—

 (a)  the practitioner provides the person with a regulated design prepared by the practitioner, and

 (b)  the design is in a form suitable for use by that person or another person in connection with building work.

5   Regulated designs

(1)  For the purposes of this Act, regulated design means—

(a)  a design that is prepared for a building element for building work, or

(b)  a design that is prepared for a performance solution for building work (including a building element), or

(c)  any other design of a class prescribed by the regulations that is prepared for building work.

So, it’s not that a design professional is not required, as much as that to the extent that the engineering professional can certify the design and that certification also constitutes works excluded from the definition of “professional engineering work” it won’t be “professional engineering work” under the D&BPA but the engineer will still need to be engaged to provide the declaration.

For ease of reference, the exclusions for professional engineer work in the D&BPA are:

Section 31:

…

(2)  However, engineering work is not professional engineering work if—

(a)  the work is only provided in accordance with a document that states the procedure or criteria for carrying out the work and the work does not require the application of advanced scientifically based calculations, or

(b)  the engineering work is prescribed by the regulations as not being professional engineering work.

And in the regulation:

Reg 14:

14   Certain work is excluded from being professional engineering work

(1)  For the Act, section 31(2)(b), engineering work is not professional engineering work unless the work is carried out directly in relation to the design or construction of a building, or part of a building, that is—

(a)  a class 2 building, or

(b)  a class 3 building, or

(c)  a class 9c building.

Example—

The Act and this Regulation apply to a mixed-use building comprising class 2, class 5 and class 6 buildings, including the building’s class 5 and class 6 building parts.

 (2)  In this clause—

construction includes—

(a)  the making of alterations or additions to a building, and

(b)  the repair, renovation or protective treatment of a building.

or a relevant authorisation,