Strengthening roles and responsibilities

There is broad consensus across the sector that roles and responsibilities are not well understood, that building consent authorities hold too much responsibility for providing assurance of compliance with the Building Code, and there are weak incentives on other system participants to get building work ‘right the first time’.

On-site project management can lack cohesion, with no one person responsible for the sequencing and coordination of the work, and there is no certainty, clarity or consistency about the role and purpose of producer statements, who should be able to provide them and how they should be used because they have no legal status in the Building Act. This also creates uncertainty for building consent authorities about the extent to which they can rely on producer statements.

The options paper highlighted gaps in the allocation of regulatory responsibilities, and sought feedback on the following options:

Options to improve clarity of roles and responsibilities and strengthen accountability

Option 1: (non-regulatory) Publish further guidance to address identified gaps in participants’ understanding of their responsibilities (preferred)

Option 2: (regulatory) Require all designers to provide a declaration of design compliance with the application for a building consent (preferred)

Option 3: (regulatory) Requiring someone to be responsible for on-site coordination and sequencing of building work.

Options to clarify the role of producer statements 

Option 1: Centralise and update MBIE guidance on producer statements

Option 2: Amend the Building Act to refer to producer statements and how they should be used, through non-prescriptive legislation  (preferred) 

Option 3: Prescribe all aspects of producer statements in the Building Act including who can issue them and what they must be required for.

Submitters were asked whether they agree with MBIE’s preferred approach to progress option 1 and 2 as a package for clarifying roles and responsibilities, and for clarifying the role of producer statements through non-prescriptive legislation. MBIE also sought feedback from submitters to inform detailed policy design. There was strong engagement from the sector on this chapter with 198 submissions, including 23 building consent authorities.

Overall, there was general agreement from submitters that more clarity is needed on participant’s roles and responsibilities as well as the need to strengthen accountability for designers and for someone to be responsible for on-site sequencing of building work to ensure risks are appropriately identified and managed and that work is done right first time.

There was also strong support from submitters on the need to clarify the role of producer statements in legislation in terms of their purpose, use and who can provide them. Most submitters were of the view there should be at least some restrictions on who can provide a producer statement.

Requiring all designers to provide a declaration of design compliance

There were 190 responses to this question from submitters.

There was strong support for requiring all designers to provide a declaration of design compliance

82 submitters supported the preferred approach (for the declaration of design compliance and guidance). Many submitters agreed that this would strengthen accountability of designers and ensure quality plans and specifications, enabling a faster more streamlined system.

71 submitters somewhat agreed with the preferred approach, with the main reason being that they thought the design declaration on its own would be sufficient. 27 submitters did not support the proposed option including the majority of designers who submitted on this question. Reasons provided by submitters who did not agree with the proposed option (which generally overlapped with risks identified by submitters) were:

• a design declaration of compliance provides no additional benefit and would create more paperwork and associated compliance costs which is not necessary due to overlaps with the existing requirement for designers to provide a design memorandum, and producer statements which some submitters viewed serving a similar purpose
• that there should be a single mechanism for design experts/industry to provide certification of their designs rather than creating additional forms
• that this option will not improve the quality of design work without changes to existing occupational licencing regimes including strong competency assurance framework that includes a robust auditing and complaints process, strong disciplinary action, and increased competency requirements for designers.

Most submitters that agreed with MBIE’s preferred approach agreed the design declaration of compliance should be submitted by a person subject to competency assessments and complaints and disciplinary processes. Submitters also commented that this would need to be supported by a strengthened occupational licencing regime for designers including adequate complaints and disciplinary processes, sufficient penalties, and adequate competency testing.

Submitters had mixed views on what information should be provided in the declaration, with most agreeing it needed to cover all relevant code clauses. While many agreed it could be a modification of the current design memorandum, others suggested it include some or all of the information required by the producer statement for design.

Many submitters also suggested specific items that should be included in the form, with the most common being:

• a design summary of description of the means of compliance, by building code clause
• an indication of the level of competency, qualifications or experience of the designer
• an indication of level of insurance cover, or other evidence of adequate means to cover any civil liabilities.

Submitters had mixed views on whether the declaration of design compliance should also replace the current certificate of design work (for design work that is restricted building work). Of the 174 submitters that responded to this question, 75 agreed, 46 disagreed and 53 were not sure. Many of those that agreed with replacing the certificate of design work thought a single form that could be used for all design work would be simpler and at less risk of causing confusion for the users.

Design coordination of plans and specifications

The options paper also sought feedback on the types of scenarios where a design coordination statement might be required, and the responsibilities and accountabilities of the person providing the design coordination statement.

Common suggestions included where there are multiple designers involved in the project, or for complex or commercial consents. Some submitters did not support making this a mandatory requirement in any scenario, while others noted it is already required in some cases by building consent authorities or the client.

Many submitters did not comment on the responsibilities and accountabilities of the person providing the design coordination statement, and the views of those that did were mixed. While some suggested the person should be responsible for ensuring alignment or integration of the different design elements, others suggested the responsibility for design coordination should not fall on a single person and that any coordination statement should be signed-off by all parties involved in the design. Submitters also noted many designers may be reluctant to take responsibility for coordination, due to concerns about taking on additional risk and liability. 

On-site coordination and sequencing of building work

There was strong in-principle support for requiring someone to be responsible for managing the on-site coordination and sequencing of building work.

Submitters were asked if there should be a requirement for a person to be responsible for managing the on-site coordination and sequencing of building work.

Of the 183 that responded to this question 126 agreed, 32 were not sure (including 6 who said it depends on the job), and 25 did not agree.

Many submitters agreed there is often fragmentation on building sites as there is no one person responsible or accountable for the sequencing and coordination of building work.

Submitters generally thought the preferred approach would address a regulatory gap and reduce the likelihood of faults and defects occurring but were concerned about costs for the building industry to meet this requirement including whether there would be enough adequately skilled people to do this work. Some submitters were of the view that these increased costs would be passed onto consumers. Conversely, some submitters highlighted that ensuring building work is better coordinated and sequenced will help reduce time and costs for homeowners as there would be less delays and a reduced likelihood of defects.

Some submitters proposed that homeowners (if they have experience in building or engineering) could take on this role with an exemption.

Submitters were also asked if there should be restrictions on who can carry out on-site sequencing and coordination. Over half of submitters that commented on this question agreed there should be restrictions on who can perform this role.

The most common reasons of those opposed to someone responsible for on-site sequencing and coordination were:

• it's impractical to require one person to take on the role when so many trades are involved
• there would likely be increased costs for consumers
• the potential cost and availability of indemnity insurance to cover any additional liability arising from clarification of responsibilities.

Some submitters were of the view that construction workers need to know how to manage, coordinate, and sequence building works on-site to reduce the need for this role. A small group of submitters stated on-site sequencing and coordination is already done by the builder, project manager or client.

Over half of submitters thought there should be restrictions on who can carry out on-site sequencing and coordination and many of these submitters agree it should be a person with a site licence

Submitters were also asked whether there should there be restrictions on who can carry out the on-site sequencing and coordination role, and if the current site licence would be sufficient to fulfil this function.

Of the 141 submitters that responded to this question 74 thought there should be restrictions, 15 did not.

Some submitters were unsure if there should be restrictions, stating that it would depend on the size and complexity of the build, as well as the integrity of the Licenced Building Practitioner scheme which these submitters identified as needing improvements.

Common reasons submitters provided by those who did not see a need for restrictions, included that this is already covered by the existing site licence, there are many competent builders unqualified in project management that are capable of carry out this role, competencies are more important than a site licence and that regulating at this level will slow down the flow of building work.

52 submitters agreed that the site licence would be provide a sufficient framework but from this group, 27 submitters were of the view there would need to be changes/improvements to the site licence to make it suitable. These changes included requiring additional competency requirements, experience and potentially qualifications as well as regular monitoring of the site licence holder’s performance.

Many submitters also highlighted the need to work through and to ensure that the market can deliver competent, experienced people with site licences. Some submitters also commented on the need for a phased approach for the introduction of any new requirements to mitigate these risks.

Producer statements

Submitters strongly support introducing producer statements to the Building Act and many prefer more prescriptive legislation

Producer statements are widely used but they have no legal status in the Building Act. There is no certainty, clarity, or consistency about the purpose of producer statements, who should be able to provide them and how they should be used. This also creates uncertainty for building consent authorities about the extent to which they can rely on producer statements.

Submitters were asked if they agree with MBIE’s preferred approach to introduce producer statements to the Building Act with non-prescriptive legislation, together with guidance.

Of the 190 submitters who responded to this question, 60 submitters supported MBIE’s preferred approach. 42 submitters, while supporting the introduction of producer statements to the Building Act, preferred a more prescriptive approach in the legislation particularly in terms of prescribing who can issue producer statements, as well as when they should be prescribed, and to a lesser extent the form and content of the statement.

Some submitters commented on the potential overlap between the design declaration and producer statements and that they need to be considered as part of an overall assurance system.

22 submitters did not support the introduction of producer statements to the Building Act. Common reasons for this included that the producer statement system is too complicated, that it should be up to building consent authorities to determine the worth of a producer statement, that there is an over-reliance on producer statements, that producer statements create an unnecessary burden of compliance and that the existing system is working well as it is. Some submitters also commented that complaints to professional bodies take a long time to progress while authors can continue to operate, and that there is also no consistent auditing system for producer statements.

17 submitters preferred MBIE guidance without introducing producer statements to the Building Act.

Submitters were also asked if there should be restrictions on who can provide a producer statement. Most submitters agreed, while a small number were not sure or did not agree. In terms of the restrictions on who can provide a producer statement common suggestions included:

• engineers and other qualified design professionals who are subject to a complaints and disciplinary process and have appropriate professional indemnity insurance
• those doing specialist design work and monitoring of that work
• other descriptions included qualified professionals, suitably experienced people and people licenced in that particular trade.

Submitters were also asked what the purpose and weight of producer statements should be.

Submitters generally agreed with the purpose of producer statements as set out in the options paper including to provide assurance for building consent authorities that the design or work complies with the Building Code reduces duplication of effort and provides consistency. A small group of submitters were of the view that the purpose of producer statements set out by Engineering New Zealand in its practice note adequately describes the purpose of producer statements for engineering work.

In terms of weight, only 25 submitters responded to this question. Of the submitters that commented on weight, they were mostly of the view that discretionary or extra weight should be applied to producer statements rather than giving them full weight. A few submitters thought they should be weighted according to their importance or complexity.

There was strong support for the proposed criteria to assess the reliability of producer statements

Submitters were asked what the appropriate criteria is to assess the reliability of producer statements.

The majority of submitters agreed either in full or in part with the proposed criteria to assess the reliability of producer statements set out in the options paper with particular emphasis given to the competency of the producer statement author (including qualifications, professional affiliations such as memberships and registrations), experience and the author’s scope of skills and expertise.

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