Legal Advice - Construction observation & other issues

Just to add to the overall mix of requests for documents not required by the Building Act (and therefore not required for compliance) a recent FENZ memo and a BCA have asked for the FFFC to be completed and returned…FFFC is NOT required - this has been clarified previously by MBIE and the Act, is again very clear…

I have asked Mike to add this to the list that SFPE are working on via Tony Parkes following the previous legal advice.

Hi All,

I have been sent a letter from MBIE that confirms our legal opinion that the PS4 is voluntary, construction monitoring is voluntary, FEB is not required (outside of the VM2 design) and liability rests (in MBIEs view) with the individual fire engineer. I am waiting for a reply from MBIE to my response to their letter.

We are obviously very pleased that MBIE have agreed with the legal opinion we provided.

:slight_smile:

No doubt this subject is not yet dead but maybe everyone is tired of it? It has arisen over the years as I think is well known. Just a few observations on the legal opinion from Brendan Cash by paragraph number:
4- it is well known that the legal status of PS’s does not come from the Act but there is always ‘legal status’ in case law and I think there are many decisions made were PS’s were ‘legally’ recognised. So this statement that is oft repeated is not conclusive. If it was there would be no discussion and would have been settled years ago.
5- It is up to the applicant to demonstrate if the work were completed in accordance with the plans and specifications it would comply with the Building Code. If the designer proposes PN22 then it would be reasonable to request this be followed otherwise it would not accept it.
6- ‘…unlikely to be many…limited occasions where a BCA could rely solely or to any extent on such a PS4’ - these statements are arguments for the opposite.
12 ‘if CCC can be established without a design coordination statement or PS statement there is no basis …etc.’ - ‘IF’…no argument here. Again another statement that can argue in favour of a requirement for a PS4. All that is needed is the words 'if it cannot…’ or even ‘if it is reasonable’ (which I believe is the language of some case law and not surprisingly also the BA 2004.
13- ‘cannot require’ is not supported by some case law and if a BC is issued based on a PS1 design which specifies a level of CM, then that may be a condition of consent - I understand this is the advice from IANZ and MBIE. That any such 3rd party inspections may be authorised under section 90 of the Act as ‘agents authorised’. The nomination/agreement of the applicant to provide such construction monitoring to confirm compliance with the design would be the basis for the ‘consent condition’ and as such prior to CCC.
15- MBIE may issue ‘guidance’ but is this a conclusive argument? Isn’t Case law where the test should be applied? ‘Kwak vs Park?’ Hasn’t it also been established in case law that issuing Producer statements is ‘building work?’ The fact that they are 'not in the Act is irrelevant. If they are argued and established in Court this is where the status/ use and reliance is tested isn’t it?
24, 25 & 26 are again acknowledgements that PS4’s may indeed be required and relied upon. Th issue argued here is the responsibility of the BCA in acceptance criteria - ‘unlikely to be many situations …’ is not an argument for ‘not at any time’ and whose responsibility is it to decide these ‘not many times’ and ‘competence or the author’ and ‘quality of the PS?’ - it is as the lawyer argues the BCA. So he has argued for the case not against it in my opinion.