The union for engineers has hit out at draft regulations which will accompany new building legislation in New South Wales, saying that a failure to extend mandatory registration of design professionals beyond the apartment building sector will leave the way open roads, rail and other infrastructure to be designed by unqualified engineers.
The Association of Professional Engineers Australia (APEA) has slammed a draft version of regulations that will accompany the Design and Building Practitioners Act which became law earlier this year.
The regulations restrict the operation a new mandatory licensing scheme for building practitioners and engineers to work which is performed only on apartments and mix-use buildings which include apartments.
This, APEA says, has ignored a desire of Parliament when approving the legislation to require engineers to be registered for work across all types of buildings and assets.
The union says this leaves open a loophole which allows unqualified engineers to perform design work on roads, bridges and other critical infrastructure.
“We are frankly stunned at how brazenly the Government has decided to totally ignore the legislative provisions passed by the NSW Parliament,” NSW Director of APEA, Gordon Brock said.
“The Government’s approach would see unqualified people continuing to practice as engineers in NSW on roads, bridges, energy infrastructure and water projects, putting the community at risk.
“The Government’s building reforms would lock in NSW as the state of choice for unqualified people to practice as engineers with other states having closed the loophole.”
Passed into law in June, the Design and Building Practitioners Act is part of broader reforms in New South Wales which aim to restore confidence in the quality of buildings following cracking at the Opal Tower and Mascot Tower as well as the discovery of flammable cladding on high-rise buildings.
Amongst other things, the Act will require any architects, builders or civil, structural, mechanical, electrical or fire safety engineers who perform work on specified types of building to hold registration from 1 July 2021 onward.
Under that legislation, specific types of buildings for which the scheme will apply were to be determined by regulation.
Under the new draft regulation, its application will be restricted to work on buildings which are either Class 2 buildings as classified under the National Construction Code (NCC) or which contain Class 2 parts as classified under the NCC.
This means registration will be mandatory only for those who work on apartment complexes or other buildings such as mixed-use buildings which contain apartments.
Registration will not be required to work either on other types of buildings (offices, hospitals etc.) or on civil infrastructure such as roads or utilities.
This, Brock says, is concerning.
Whilst he applauds the fact that electricians, plumbers and others need to be licenced in the state, Brock says it is ‘absurd’ that the same does not apply to those who scope, design and help build and maintain the road, rail, water and electricity network.
“The crumbling of Mascot Tower and Opal Tower brought into sharp focus that this major loophole exists in New South Wales law,” he acknowledges.
“But it’s not just unqualified and unregistered engineers working on residential apartment buildings that we have to worry about. With the huge pipeline of infrastructure projects being brought forward to stimulate the economy in the wake of the pandemic, a failure to fix this issue now is a recipe for disaster.
“How does it make any sense that it will be illegal for an unqualified person to work as an engineer on an apartment building, but they can walk out the front door and go and work on the electricity system or build a road or design a bridge without engineering qualifications?”
The government, however, has defended its approach.
In a written response to questions from Sourceable, NSW Minister for Better Regulation Kevin Anderson said the decision to priorities engineers working on class 2 buildings was a direct response to recommendations of the Building Confidence report (BCR) prepared by Professor Peter Shergold and lawyer Bronwyn Weir and followed consultation across the engineering profession.
He said the government would continue to engage with the sector after the scheme’s introduction about how it might be broadened and to map out a timeframe for implementation.
Depending on the size of the new scheme, he says this may need to occur over a staged process.
As for projects such as bridges and roads, Anderson said these have been the subject of few failures.
“Professional Engineers Australia have been made fully aware that following the commencement of the new DBP scheme, the NSW Government will continue our close engagement with the sector and through that consultation will be looking to identify and agree the scope of the broader registration scheme and map out a timeframe for implementation,” he said.
“This may need to be staged depending on the size of the new scheme.”
Bronwyn Weir, construction lawyer and co-author of the aforementioned report, supports this position.
Weir says the government has been clear that Class 2 buildings were the immediate priority and that application of the scheme would expand after its implementation for Class 2 buildings has been bedded down.
As to how the scheme might evolve over time, Weir would like to see its coverage broadened to include detached homes as well as accommodation buildings and certain types of public buildings such as hospitals and schools.
As for commercial buildings, Weir notes that New South Wales is unlike other Australian jurisdictions in that current licensing arrangements for builders are limited to the residential part of the building industry and the state currently does not have licensing or registration of builders who perform commercial building work.
For this reason, any expansion of the new scheme to offices and, retail outlets and the like would likely require a broader policy shift along with other legislative reforms.
As for infrastructure such as roads and rail, Weir says these are not regulated by the NCC and were therefore outside the scope of the BCR.
As well, these structures are not subject to similar building approval process or other controls as is the case with building regulation.
As such, Weir said she is not aware about whether there is any justification for mandatory registration of engineers working within that sector.
“The NSW Government was very clear in the second reading speech that Class 2 (apartments) was the priority and the government would expand the application of these laws once they had bedded down the implementation for the Class 2 buildings,” Weir said.
“I agree with the proposal to broaden the application of these laws in due course and think that over the medium to longer term that should apply to at least Class 1 (detached residential), Class 3 (accommodation) and some Class 9 buildings such as medical, aged care and education facilities.
“The BCR calls for governments to consider different types of buildings and risks when implementing our recommendations, so I would expect to see governments that choose to implement our recommendations doing so in a nuance way in some cases. The multi-unit sector has been particularly problematic so I can see why NSW wants to focus on that as a priority.
“The implementation of these reforms will be a significant task, so selecting a defined class of buildings helps manage that change for industry and government.”