My submission on PN22. See below…
PN22 is not needed; follow the Building Act (and comply with other statutes and common law).
I will not discuss PN22’s flaws in forensic legal and economic detail, as it is not necessary. But it is interesting why there was a PN22 in the first place. Based on an SFPE NZ letter dated 19 January 2023, it appears that the impetus for the original PN22 came about as a result of audits of private-sector fire reports submitted to the FENZ DRU under section 46 – 47 of the Building Act and included auditing FENZ DRU responses. Specifically, there were two audits (2006 and 2009), which, in part, concluded there were issues with private-sector fire reports.
I fail to see how such audits carry any weight in law, and my reason is that unless that government department is authorised by statute to conduct such an audit, then their findings cannot be acted upon. Neither the Building Act nor the (law at the time) Fire Service Act 1975 (in my opinion) authorises such audits by third-party consultants of fire reports produced by the private sector. Moreover, the audits are the opinion(s) of the author(s) of the audit – that’s it – and cannot be acted on, whether the opinion is right or wrong. Whether or not fire reports produced by the private sector that are held by government departments can be released to other consultants for auditing (and if so, on what terms) is a question I have yet to come to a conclusion on.
It is the Office of the Auditor-General that is responsible for auditing government departments, and their powers are specified by Parliament under the Public Audit Act 2001. Under this Act, the Auditor-General may examine a public entity’s compliance with its statutory obligations (section 16(1)(b)). The Auditor-General may also inquire, either on request or on the Auditor-General’s own initiative, into any matter concerning a public entity’s use of its resources (Section 18). So, any concerns about whether a government department is complying with the law should be reported to the Auditor-General so that the Auditor-General can do their job. The Auditor-General is independent of any other government department and reports to the House of Representatives without instruction from any Minister. The Auditor-General’s findings can be acted upon by other government enforcement agencies, as the Auditor-General’s findings are evidence and, therefore, potentially have legal weight.
As for any ‘defects’ in any fire report produced by the private sector, the Building Act addresses this. A building consent cannot be issued unless the submitted plans and specifications comply with the building code (section 49(1)). Every building consent authority must be accredited to the conformance standard: Building (Accreditation of Building Consent Authorities) Regulations 2006. This includes being able to process building consent applications for compliance with the building code, inspection of buildings during construction, certification of building work, and issuing compliance schedules. So, a building consent authority should simply not approve any submitted plans and specifications that do not comply with the building code, give the reasons why, and allow for those plans and specifications to be amended as required, as they have the skills (as per their accreditation) to audit each set of submitted plans and specifications that comes before them (otherwise their accreditation comes into question).
Thus, the production of the original PN22 should never, in my opinion, have ever got off the ground, but it did. Now, PN22 seems to be coming back from the dead on the basis of a similar argument that perhaps should have been shut down well over 10 years ago.
Now a few thoughts on each section of the draft PN22 (far from detailed):
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Section 3: References to other guidelines (e.g., Construction Industry Council), which are not secondary legal instruments. Delete the entire section as it should be a matter of routine that professionals can produce plans and specifications that comply with the building code, and empirically, this must be the case as there are over 10,000 commercial building consents issued every year across the country. Moreover, there is no ‘process for carrying out performance-based fire engineering design’. That is a total myth that is only sustained by erroneous guidelines. The Act allows Designers, when doing a performance-based design, to design however they like, and if the outcome is plans and specifications that comply with the building code, a building consent cannot be denied.
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Section 4: Again, there is no ‘Fire Design Process’ under the Act. Delete. Worse still, it specifies a ‘Fire Engineering Brief’ that has no basis in law outside of the C/VM2 and mandates that it be approved by the BCA, FENZ, and peer reviewers. The Act does not grant such approval powers and never will. The entire concept of a ‘Fire Engineering Brief’ suggests that fire engineers need to rethink what they are really doing – getting someone else to grant a building consent on that other person’s terms despite that person not having the authority to dictate such terms, and the Designer sacrificing procedural freedom during the design process that they are entitled to under the law. The underlying issue is that fire engineers, and engineers in general, have not developed the skills of statutory interpretation, an important area of law (and is not complicated) that is well-covered in various law books but usually not even known to engineering departments that teach engineering, whether it be fire engineering or otherwise. Consequently, the entire fire engineering profession globally has got off on the wrong foot and fire engineers rely on a “per-project get every person’s requirements” exercise, try to make it work, but find out it fails because it is too difficult and full of subjective opinions and unreasonable demands from ‘stakeholders’, so the end result is to stay away from performance-based design, or write ‘industry-sanctioned guidelines’ which could be even worse. The proper way to do performance-based design (whether for fire safety or any other discipline) is to learn how to interpret statutory law, design to that law (in this case, the building code), and reference it appropriately not just with engineering data (facts) but legal references. This is a large topic that I won’t go any further on here, but it is worth noting the word ‘stakeholder’ is not in the Building Act and, therefore, has no legal weight. It is the building code that specifies the legal thresholds and is, therefore, the design criteria, not ‘stakeholder requirements’.
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Section 5: Delete with prejudice. The whole purpose of this section seems to be to encourage Design Coordination Statements. It is not required under the Building Act, and if you sign one, your liability (likely) goes up whether you have agreed to it via contract or not.
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Section 6: Fire Design Documentation Guidelines: This section prescribes roles despite the Act not doing so. It is a contractual freedom of the Designer as to how to design and who will take responsibility. Refer Vector Limited v Electricity Authority CA481/2017 [2018] NZCA 543 at [53]:
Seventhly, any asserted constraint upon freedom of action or association, including the freedom to contract, must be justifiable by reference to a lawful power. Where the source of the power is said to lie in statute, the statute must authorise the constraining power, either expressly or by necessary implication. Plainly that principle applies where the right constrained is a fundamental one, such as the right of citizens to contract with one another.
Delete entire section.
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Section 7: BCA requirements are specified in the Act, and regulated in Building (Accreditation of Building Consent Authorities) Regulations 2006. Peer reviews cannot be enforced by a BCA as a BCA does not have the legal power under the Act to compel practitioners in the private sector to contract for the purposes of a peer review. Recommend delete.
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Section 8: Monitoring building work during construction is, at statute level, the BCA’s role; refer Section 12(1)(b), and Building (Accreditation of Building Consent Authorities) Regulations 2006, regulation 7(2)(e). An engineer can freely contract with a Client to do site inspections, but the building owner is not compelled to contract with a fire engineer on this matter anymore than a fire engineer is compelled to provide a PS4. Delete the entire section and replace it with statutory requirements and common law entitlements.
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Section 9 Compliance schedules: Delete and replace with ‘refer Section 103 of the Building Act’.
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Section 10 References: Delete and replace with Building Act.
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Appendix B: Delete with prejudice.
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Appendix C, D, E, F: Delete.
It may be worth noting that under the Fair Trading Act, if you advise your client that something is required but the Building Act does not require it, the Commerce Commission may prosecute you (this is a deep subject that I won’t go into here).
Also, if you all agree to produce designs in a procedural manner that reduces competition, you may be prosecuted under the Commerce Act for cartel conduct (again, a deep subject I won’t go into here).
It would be better to revamp PN22 as a technical guide that does not specify how to do your job, but rather a list of items derived from the Building Act, common law, and case law from the HC/CA/SC for failed buildings, and relevant technical facts, so that engineers get better at the law and better identify legal errors in any plans and specifications so as to reduce the potential for being litigated, rather than make it up and hope for the best. And as it is supposed to be for Designers, it should be lead by Designers.
As a simple solution to dealing with PN22 should it not be revamped, the following may help:
- Never put PN22 in a contract (same for construction industry council guidelines).
- If PN22 is specified by a BCA, their request is ultra vires, and return the RFI (or similar) for a question that relates to compliance with the building code (or other request that they are entitled to make under the Building Act).
As a final thought, every communication that fire engineers have over ‘problems in their industry’ is a potential ‘dinner bell’ for litigation firms. The logic behind openly publishing things like ‘uncertainty over how fire design documentation was being incorporated into the plans and specifications produced by other members of the Design team’ (proposed Introduction to PN22), is something that could perhaps be thought through a bit more.