PN22 rev 2 draft out for comment

For those who haven’t seen the email from Martin, there is a draft update in Practice note 22 (documenting fire designs). There are significant changes, so all SFPE members need to read it and put in their 2c.
I am still going through it at present. I have concerns about liability and expecting the fire engineer to detail items such as the compliance schedule - where services are specified by others, and hence the design and maintenance standards must also be by them.

In the meantime, to kick off the discussion, I have been asked to post the following from a SFPE member who can’t log in at present.
Geoff

Hi All,

Despite our differing views on compliance and the role of the stakeholders in the design and construction area (which I appreciate and respect) I think that there is a significant issue that we need to get together with in regards the direction of the new draft PN22 document.

From my differing viewpoints, as a CPEng Fire Engineer, Owner of an IANZ accredited processing organisation, ex MBIE and co-author of the IFEG including my other work history, there are some horrific errors in terms of BCA requirements/risk and liability to the fire engineer and on the face of it the document is, quite simply, an overreach in terms of what it requires.

For example, how many FE understand fully F6, F8, H1, D1 etc and what the compliance inspection, maintenance and reporting procedures are for the various systems in a building…especially as MBIE and IANZ are continually shifting the goal posts on the requirements and the method of recording that information and the difficulties of aligning Form 2, the body of evidence and Form 5. An IANZ TE works for me and so I understand this area and what the issues are.

I also wonder how many FE claim competency and understand and want to sign off the architectural details, appraisals and multiproof, not to mention willing to gather, check, collate and confirm information on building elements on items that have not been specified yet (such as smoke curtains). I would strongly content that this is not a FE role…

*I also see that there is erroneous information about the role and what the BCA requires, I question if that should be in this document. *

*All that said of most concern is the expectation that the fire engineer works well outside their individual competency, and potentially the ethical code, and the issues with the increased liability to both the individual and the company. *

*I wonder if this draft has received legal and insurance liability input from the insurers…especially in light of the case in Wellington currently at the Supreme Court…where the engineers are being sued well past the 10 year limitation period for “providing information on which the BCA made a decision”. Notably this is at the Supreme Court, which shows that the lower Courts all agree that the engineers can be sued and the 10 year limitation does not protect them….(let that sink in for a bit…). *

*Apart from that what is proposed will, in my view, add significant cost to the process and open the door for others doing fire designs that are not FE CPEng and don’t follow the practice note…do we want this at this point in the building cycle when the market is rapidly constricting and the signs are that it will not improve for at least a year? *
Alan

I have had a couple of people ask me for my 2c on the PN22 given the recent Regulations Review Committee (RCC) hearings, and at a general level I share the concerns regarding liability, as I studied many a failed project (some settled out of court) as well as failed delegated legislation and failed guidelines that have resulted in massive claims against private sector engineers as part of preparing for the RRC hearings that I did not cover in my parliamentary submissions.

I won’t go into forensic detail about my thoughts on PN22 as there is too much to cover, but PN22 is not law (unless you put it in a contract) and never will be. Follow the Building Act and its associated secondary instruments issued under the Act (guidelines issued under Section 175 of the Act is not law), and the common law and liability will be no higher than the minimum (assuming the secondary instruments are not ultra vires). But a summary of my thoughts are:

  1. In Mt Albert Borough Council v Johnson (1979), the Court of Appeal ruled that the private sector (generally) pays 80% of any claim in tort, with councils picking up the 20% (this is before the joint component of joint and severable liability kicks in). Therefore, look after yourself first and make sure that the plans and specifications comply with the building code for the work you have done under contract. This liability ratio is still applied today as a starting point, so when there is a claim, it is the private sector that gets hit the hardest first – and this will never change – so learn how to make it work for you rather than against you (a big subject in itself).

  2. In Body Corporate No. 207624 v North Shore City Council, Chambers J of the Supreme Court made it very clear about the importance of the Building Code: “No one can be party to the construction of a building which does not comply with the building code”. You do not need to contract beyond what is required under the Building Act (as a Designer) and if the plans and specifications comply with the building code, you are entitled to a building consent.

  3. Putting PN22 in a contract will (likely) expand your liability beyond what is required under the Building Act as you are going beyond what the Act mandates by contractually agreeing to do so, so consider leaving PN22 out of any contract and simply use it as a ‘list of things worthy of consideration’, as there are some valid points in PN22 (my view). But keeping PN22 out of a contract frees up your choices rather than compels you to comply with an instrument that has not been passed into law as a secondary instrument (PN22 has not gone through, say, the Parliamentary Counsel Office for quality control to determine its consistency with the Building Act and associated regulations, other statutes, and the common law).

  4. It’s worth noting that there may be future changes in the Building Act. For instance, the Determination system could become non-compulsory in the future, and some disputes might go directly to the High Court in the future where Determination precedents hold no weight. The Petitions Select Committee is considering a submission to make Determinations optional (by changing Section 182 of the Building Act), as there is an argument that Section 182 is inconsistent with Section 27(2) of the New Zealand Bill of Rights Act 1990 and the common law right to access the courts for things like resolving property rights disputes.

In summary, nobody else owes you a duty of care to ensure that PN22 complies with the law, so whatever you sign up for you have to look after yourself.

If anyone wants a copy of the case law and/or legal references to read and further challenge their understanding of these issues as they relate to PN22, feel free to contact me. If I have the time to respond and consider the request, I will.

Christian

Whata J (2011) for a leaky building claim against a building surveyor in the High Court: “I reject for that purpose a supposed “industry standard” of the time. That may or may not set an acceptable benchmark.