Category: Design Management

Passive Fire Design – Intumescent paint systems

Passive Fire Design – Intumescent paint systems

In October 2020, a “Code of Practice for the Specification and Application of Intumescent Coatings for the Fire Protection of Structural Steel” was published by the Fire Protection Association of New Zealand.

It includes a requirement to keep all structure clear of the steel by a distance of 50x the dry film thickness of the coating. It is no longer acceptable to fix timber directly to coated structural steel to accommodate the protective foaming of the intumescent paint during a fire or for the fixing of linings. It will also be a requirement to have access to the steel to inspect the state of the coating when ‘life to first maintenance’ inspection is required.

Proprietary Systems

Proprietary Systems

Your design includes a proprietary system.  For example a glazed wall or curtain wall system, cladding or a façade cladding system, roof or sandwich panel, a membrane waterproofing system, flashing system – take your pick.  You are reliant on the provider’s information for design documentation (including details specifications and QA systems), on a licensed applicator/installer for the work on site, and on a producer certificate and/or warranty for completion.

When it goes wrong, are you in the cross-hairs?

Apart from being a natural target as the designer holding PI cover, it will depend!

In selecting the product or system for your design, you are entitled to rely on representations by the supplier, but as a professional person it is expected that you at least attempt to divide the facts from the “alternative facts”.  When the blow-torch is applied in the courtroom (several years later), you need to be able to verify that you carried out sufficient enquiry to establish that you made a prudent selection.  And that your selection was made on the basis of the particular circumstances of the project as they were known at the time.

When incorporating the supplier’s information into your design, you still have a duty to assess and make sensible use of their standard detailing to suit the project.  Wind loadings, seismic movement, future maintenance, installation complexity and many other issues will be relevant.  The question is not so much “will it be good enough” but “where, why and how will it potentially fail, and what are the consequences of that?”

The supplier’s information is not usually provided in the form necessary to deal with all the junctions and interfaces with other work;  QA/ fixing details/ lap details/ weathering details may be at odds with your expectations.  Your site-specific design needs to deal with that.  If you “tweak” a standard detail, it becomes your detail, not theirs.  The same if you use a standard detail in a non-standard way.

During the installation, what are your obligations to observe?  You may think that your responsibility is replaced or reduced by using a licensed installer under the supplier’s QA system.  But sooner or later, someone is going to suggest that despite that, you still had a duty to observe and comment on the work.  A licensed installer does not provide certainty of performance;  a supplier’s QA system in turn needs to be assessed and monitored.  At the very least you will have to verify that you reviewed the work to the extent required to be satisfied that the performance requirements and the QA measures were being carried out.

On completion, are you now completely reliant upon documentation by the supplier?  If so, what is in place to make sure you get it when you need it?  Can it be trusted:  it is not unknown for suppliers to sign off on defective work in the hope that it never comes back to bite them.  If the contract requires a warranty, make sure you get it.  But a warranty from a worthless company is worthless!  How hard is it going to be to “collect” on the warranty when required?

And now we are at the point – years later – when the proprietary system and/or building elements in association with it have failed.  Maybe the main contractor, supplier and installer have also “evaporated”.  Worse, close examination reveals that the system was used in a non-standard way, and with substitution of some elements of it, despite the producer statements and warranties.  The performance expectations and technical detailing has become more sophisticated over the years. 

Only now, dear member, do you realise that the fees you earned were inadequate to allow for the careful attention required by the circumstances of this project;  or for the potential future risk that under joint and several liability you (and your insurers) would carry the can for failures by others.

(See also “Reliance on, and co-ordination of trade and consultant advice”)

NZS 3604: Lintels, and Importance Levels

NZS 3604:  Lintels, and Importance Levels

Practical experience suggests that where sliding doors are concerned, the lintel deflections under NZS3604 sizings are problematic.  Just as NZS3604 floor joist sizings are perhaps going to give unwelcome “bounce”, we suggest that where there is a prospect that a sagging lintel may lead to a jammed slider, you would do well to consider a steel lintel or flitch beam and perhaps with a pre-camber.  If shims were provided at installation to take up expected deflection, make sure they are removed to allow for that later deflection to happen!

All public buildings – including simple single storied buildings such as classrooms, libraries and public halls – are designated under NZS 1170.5 as having a BUILDING IMPORTANCE LEVEL (BIL).  Most public buildings have an BIL of 3 or greater, and NZS 3604:2014 does not apply to buildings which have an BIL of 3 or greater:  so all timber framing will need to be specified by a Structural Engineer as a Specific Engineered Design (SED).

Communications: Put It In Writing! (Or A Picture).

Communications:  Put It In Writing! (Or A Picture).

High in the list of reasons for claims are:

  • Inadequate ongoing communication between architect/client/contractor
  • Inadequate confirmation of contract performance
  • Partial, absent, or inadequately recorded observation role.

We offer a few basic comments below:  they are focussed on these three issues and on risk management, and are by no means comprehensive.

  • Engagement:  As soon as it is reasonable to do so, communicate to the client your understanding of the project, your role in it, and the fees and terms applicable.  Review this on an ongoing basis throughout the contract, update as required, and promptly confirm changes when it appears necessary to do so.
  • Design Brief:  Agree and record in writing, updated as the project progresses through typical stages of design and documentation.  Wherever possible, the design brief and later instructions should establish priorities:  information without context is inadequate.  For alteration work and where the client is familiar with the building, the Design Brief might be confirmed by a sketch plan with accompanying notes, but for new work it may be risky to rely on approval of the concept drawings as establishing the brief.
  • Action notes:  Requirements for action must confirm who is to take action and when.
  • Client communication:  Clients (and their lawyers) usually understand words better than architectural drawings:  be sure that their requirements are understood, recorded and confirmed by them.  And they will change, in which case the change also needs to be dated and confirmed.    
  • Milestones:  At each point at which the project reaches a milestone, confirm with the client before moving to the next stage, and inform them of the consequences of having to backtrack or change direction.
  • Progress reports:  We know that design is an iterative process.  If it was not, then we could start the detailing on day one of our engagement.  Each step of the way is likely to throw up conflicts and reconsideration of priorities:  that is not wrong, it is part of the process.  Clients need to be reminded of that, and kept abreast of progress, and of the way the changes are evolving, why, and the need for their ongoing involvement and decision-making. 
  • Site & meetings records:  Keep a record of all project meetings and site visits regardless of whose duty it is to formally do so.  Take plenty of photos.  These notes and photos will be your first line of defence in the event of future litigation claims.  Record at least the date, those present, the scope and purpose of the event, the work in hand completed or about to start, actions required of the architect and others;  and, if relevant, weather conditions, defects remediation, Health and Safety issues and general workmanship observations.
  • Observation v contract administration:   They are not the same.  You may be engaged for one or the other, or both, or neither.  Whatever the case there should be a clear definition of what your scope of work is and what it does not include.  Changes to that scope should be recorded, preferably with reasons and a note to the client confirming the consequences.
  • Periodic site visits:  If engaged for an Observation/ Contract Administration Role, then site visits on a periodic fashion as agreed at the start of the project should be undertaken, (perhaps weekly or fortnightly) depending on the scale and complexity of the project.  Site Observation by the Architect may also be required at key phases and to review a sample of critical work.  This task requires methodical care, attention, and careful record-keeping. 
  • Concealed work:  Generally, the Architect is liable for works which they could have reasonably been expected to have observed during their time on site assuming the necessary access is available.  Where work has been completed but unable to be inspected, there is an assumption that it has been carried out to the contract requirements.  But where “what can be seen” suggests that concealed work is unacceptable, the Architect cannot ignore the inference and should follow up.
  • Limited Observation:  Does such a thing exist?  This is dangerous territory:  there are many claims where the Architect understood that they were only required to look at “this” but (several years later, with faded memories and unclear records) the claimant’s lawyer has asserted that any professional on site for whatever reason could not have failed to notice and take action on “that”.  Be very afraid.
  • Supervision:  Periodic observation is not continuous site management/ quality control/ site supervision and is not a substitute for nor a guarantor of the contractor’s responsibility to carry out the contract as required by it.  The contractor is required to seek timely clarification of gaps ambiguities or errors in the documentation, or apparent conflicts with building code requirements, when and if necessary. 
  • Defective work:  The Architect is entitled to expect the inspected works are representative of all work of a similar nature on site, including type, spacing, fixing, quality of installation and finish.  Defective or inappropriately installed materials or finishes are not acceptable.  Substituted materials are only acceptable if approved in writing by the Architect.  All works are assumed to be plumb and level or sloped as required in accordance with the contract requirements without the Architect having to necessarily confirm, measure or verify independently. 
  • Warranties and guarantees:  If a warranty or guarantee is called for, there needs to be a process for obtaining confirmation that it is put in place.  Think carefully about what they are called for, what they might cover (materials and workmanship may be two very different things), and what responsibility you may have (if any) in the level of benefit they provide and how they are obtained as required by the contract.  It is not your responsibility to “vet” them, but the client will not be impressed if they turn out to be useless or unenforceable.  Your client needs to understand that warranties and guarantees can vary over time, are dependent on regular (or defined) maintenance, and can vary between similar products.
  • Completion:  The Architect is entitled to assume that warranties will be provided where called for in the contract, and that on completion the project will be properly maintained.

Cad File Transfers

Cad File Transfers

Digital File Request

NZACS members are increasingly being asked to provide ‘digital’ or ‘CAD’ files from clients and/ or contractors at the end of projects or even during the project construction period. Increasingly, electronic files are the norm at every phase of the construction period, so it is important you understand the risks associated with providing digital (and editable) information which, once it has left your keyboard, is outside your control.

Types Of Files:

Currently (2018) there appear to be 3 main types of digital files most commonly ‘requested’ during or at the conclusion of a construction contract. It is important to know which type of file you are issuing (or has been requested) and for what purpose.  Very crudely, these most common digital files are as follows:

IFC:

Industry Foundation Classes file

IFC is a data model that is used to describe building data and geometry across building disciplines and across phases of the building life cycle. You can use IFC models to share data regardless of what software application they use to get their job done. IFC models contain a structures combination of geometric and non-geometric data. This data can be displayed, analyzed and modified in different ways in multiple software applications. An IFC file is an export from a BIM tool that is intended to be imported into another BIM tool, either for design coordination, phase handover or for similar data exchanges that require interoperability.  In design the main use are 3D design visualization and clash detection.

DWG:

‘DRAWING’ file

A DWG is a binary file format used for containing 2D design data, originally developed by AutoCAD via AutoDesk. DWG files are basically CAD (Computer Aided Design) drawings consisting of vectors (linework) and meta-data written with binary coding. The DWG format is probably the most widely used format for CAD drawings, it shares the 2-dimensional properties of the design file with any application that supports .dwg file format. Unlike IFC it’s not used as a 3D reference document, instead its used for more simple tasks, such as tracing/ overlaying data against another consultant’s work or merging multiple 2D documents together into one document.

PDF file:

The Portable Document Format (PDF) is a file format developed in the 1990s to present documents, including text formatting and images, in a manner independent of application software, hardware, and operating systems. In real terms this form of file transfer allows CAD files to be easily transferred without being able to be edited. Basically, PDF has become the default format for ‘issuing’ electronic drawings and documents and is the most common form of file transfer today. Note, however, some PDF files can be editable, if allowed. Note also there are applications which can ‘convert’ PDF files into editable CAD files but the resultant 2-D ‘data’ is very limited due to the loss of all background supporting layers, objects etc.

Which One To Issue:

NZACS member must understand at the beginning of the contract what type of digital file they are being asked to provide at what stage and for what purpose. No disclaimer is bullet-proof, but it would be prudent to take sensible measures to ensure any digital file transfer is completed without unduly putting the member at risk should an issue arise in the future. Below is what NZACS would consider prudent when issuing digital files to clients and/ or contractors.

Disclaimer And Digital Files:

If a member provides a CAD file(s) we would advise taking the following steps when issuing editable CAD (.DWG or similar) files:

  • Files are DWG 2-D files stripped of all layer names/ combinations/ attachments/ links or embedded elements. IFC files are NOT to be issued.
  • All identifying logos/ title blocks/ names etc are removed.
  • All dimensions and notes are removed.
  • All bespoke 3-D elements, objects and/ or details are removed, exploded or attached. All links are removed.
  • The client counter-signs a disclaimer which may look something like this (subject to a proper legal review): At your request, and subject to your signing and returning this transfer agreement, we are providing you with editable .DWG files (CAD files) prepared in accordance with the terms of our conditions of engagement (“T&C”) with you for this project. They may be “work in progress” and/or subject to matters beyond our control and you must satisfy yourself that they are suitable for your purposes. We reserve the right to remove data not required by the T&C.  You must not use or permit others to use the data for purposes beyond the scope of work relevant to our T&C without our express written permission (not to be unreasonably with-held).  Subject to the T&C, you agree to defend, indemnify, and hold us harmless for damages and costs arising out of the modification distribution reproduction or use of these files, and you must maintain confidentiality and legal privilege where that is relevant. Any unauthorized modification or reuse of the files shall be at your sole risk, and you agree to defend, indemnify, and hold us harmless for all claims, injuries, damages, losses, expenses and legal fees arising out of the unauthorized modification or use of these CAD files. Finally, all files are confidential and may be legally privileged. If you are not the intended recipient of the CAD files, any disclosure, reproduction, copying, distribution or other dissemination or use of these CAD files is strictly prohibited. If you have received these files in error, please notify the sender immediately and delete the CAD files. Please countersign this statement and return

Further Information

NZIA Practice Note PN 6.102 provides some good guidance on how to draft a covering letter.

NSW ARB Information Sheet ‘Access to Electronic Files’ dated May 2015 also provides good advice.

ACP Panels

ACP Panels

The UK Grenfell Apartments fire has, as you know, created angst about ACP panels, and MBIE has published their thoughts about compliance issues in NZ (http://www.mbie.govt.nz/about/whats-happening/news/2018/suspension-of-six-codemark-certificates ).  Members who have used – or intend to use – the products have expressed concern about the potential for a claim against them, and whether they would be covered in that event.

Aon has researched this issue:  the NZ situation is not the same as in Australia or the UK.  The products used here are different and not currently considered to present significant risk, although the research is ongoing and not conclusive.  There may be incidences of materials used in specific projects where the supply chain and product composition is not fully known.

ACP panels are not (at this stage) excluded from the cover arranged through NZACS, and the policy would respond under the same preconditions as for other claims.  Nor is there a view – in NZ – that ACP panels present a special risk to be reviewed by local insurers.  But this is a potentially major emerging risk overseas, and reinsurers may respond accordingly.  The finer points of the policies for 2018/19 have not yet been negotiated.  So at this stage we can only await events.

If you are considering using these products, you need to be able to verify that you have been prudent in assessing the potential risks, and have specified accordingly.  BCAs may put up some hurdles. We advise caution.

Passive Fire Design – Problems, Risks, References

Passive Fire Design – Problems, Risks, References

Passive fire protection includes fire rated walls, fire doors, fire collars, and intumescent coatings/sealants.

See also separate article “Passive Fire Design – Intumescent paint systems”

The Problems

Smoke can be forced under pressure through any gaps in passive fire construction. While most of these gaps are associated with cable and duct penetrations through fire walls, even the walls themselves have been found to be incorrectly built. These issues require design, inspection, and follow-up in the course of new work; and in alteration projects have the potential to create budget blow-outs for the unexpected remediation of existing work.

Problems arising out of the design of Passive Fire Protection have included budget blow-outs because it has been only “generically described” and inadequately allowed for under a Provisional Sum; where the scope of work has not been clarified by a specific schedule of requirements for penetrations; where intumescent coatings have been compromised by affixed framing for linings; where compliance verification has not been provided sufficient for the issue of a building consent; and where the co-ordination of the fire design information with the architectural documentation has been lacking, or misunderstood.

Problems arising out of the construction observation role have arisen out of failure to obtain timely verification of fire door compliance; failure to inspect work in detail; reliance on a representative inspection (or contractor’s declaration) to inform overall compliance; lack of co-ordination between the services consultants and others in respect of penetrations; inability to inspect in detail because of the intermittent nature of observation versus the ongoing construction; and a misunderstanding of the role of the Fire Engineer in respect of site observation.

Risk Management

If a fire engineer is engaged to provide a Fire Design Report, the other consultants are required to design and document in accordance with it and to provide verification of that. Where verification is beyond a standard solution provided by a supplier/installer or product data sheets, it will require to be reviewed by the fire engineer.

Don’t assume that because a fire engineer has been engaged, they will also provide passive fire protection advice. Fire engineering is a different discipline to passive fire protection, but many fire engineering design practices also offer passive fire protection advice.

If your client commissions a fire engineer, their scope should include input into any non-standard design situations, and a site observation role. Even if this requires a significant increase in the fire engineers’ scope of work, it is appropriate that the verification of fire compliance should lie with the consultant best placed to deal with it.

Some Building Consent Authorities have recently been asking for a ‘coordination statement’ from the Fire Design Report author to confirm that they have reviewed all Architectural, HVAC Mechanical, Lighting and Hydraulics documentation and verify compliance with the Report. This is a matter for the fire engineer, not the architect.

As part of the pre-design information gathering for existing buildings, consider a building survey to check fire stopping and other passive fire protection, including fire doors.


Passive fire constructions and fire-stopping situations should be detailed and/or scheduled based on the performance requirements of the Fire Design Report. This might be done by the fire engineer, or a passive fire protection designer, or the architect. If the latter, and you are unsure of any aspect of that report or how to meet its requirements, seek advice and input from the manufacturers of the systems or the fire engineer.

Work with reputable suppliers/manufacturers to check that your details are acceptable; get the input of the passive fire protection designer for non-standard situations.

Where there are acoustic performance requirements, workshop the design of these constructions with your acoustic and fire engineers. Site observation includes a review of the construction of passive fire elements. If you have not been engaged for that work, make that clear in your terms of engagement.

The relationship role between fire engineer and architect must be clearly and unambiguously recorded and adhered to. There should be no gaps in their respective oversight roles which could be exposed in any subsequent judicial inquiry into the cause and nature of a building fire resulting in loss of property and life. This is probably seen as being a statutory duty of care obligation for the building owner and their professional consultants under the HSAWA.

Reliance on a contractor’s and/or sub-contractors’ producer statement (PS-3 Construction) is not a guarantee that the works have been correctly completed.

Useful References

• In January 2019 Auckland City Council issued a position statement “AC1825 Auckland Council position statement for acceptance of fire stopping”. This is a useful document even if you aren’t working on Auckland City projects.

https://www.aucklandcouncil.govt.nz/building-and-consents/understanding-building-consents-process/ask-for-guidance/Documents/ac1825-position-statement-fire-stopping.pdf

• Fire Protection Association of NZ website:

http://www.fireprotection.org.nz/home

• In September 2011 IPENZ issued Practice Note 22 which set out guidelines for documenting fire safety designs because of a concern about poor such documentation. It’s worth familiarising yourself with this document if you regularly work with fire engineers.

https://www.building.govt.nz/assets/Uploads/building-code-compliance/c-protection-from-fire/Fire-safety-design-guidelines/pn22-documenting-fire-safety-designs.pdf

• In August 2019 The NZ Society of Fire Protection Engineers issued a draft of a proposed guide for Fire Engineering Construction Monitoring.

• ‘Build’ Magazine Issue 171, pages 39 to 60.

https://www.buildmagazine.org.nz/issues/show/action-on-passive-fire-protection

• BRANZ Guide to Passive Fire Protection in Buildings.

https://www.branz.co.nz/pubs/passive-fire-protection/

Fit for Purpose Statements

Fit for Purpose Statements

In short:

If a “fit for purpose” statement is required of the architect, the alarm bells should be ringing loudly. You should not accept that obligation without careful consideration, and it would be prudent to seek legal and insurance advice before doing so.

We have dealt with these issues in past Communiques which are all available on the website: see, for example: “Completion Statements”; “Changes to the Scope of Services”; “Hold Harmless Clauses”; “Limited Services”; “Non Standard Terms Of Consultant Agreements”; “On selling the project and selling out on the architect”.

Scope versus responsibility:

In the normal course of full service commissions the architect will be required to review the work on site for the purposes of certifying progress payments, practical completion, and final completion. Dependent on the project, that role may overlap with other consultants, but the scope of such attendances by the architect is (or should be) as described in the terms of engagement and in the general terms and conditions of the building contract, and the fees agreed accordingly.

The usual risks associated with those arrangements are covered by your PI policy.

We have seen many instances where the involvement of the architect during the construction phase does not match the responsibility assumed for it. A typical situation is when the architect is engaged at an early stage for limited design work, which is then brought to completion by the combined efforts of the project manager and design-build contractor, with the architect remaining for the purposes of finish elements and design intent and with very minor involvement in site observation or contract administration. Other consultants may be brought into the project at various stages. Nevertheless, the architect is required to vouch for the completed product. This usually takes the form of a “fit for purpose” statement.


To what extent do fitness for purpose statements by the architect pick up the responsibilities of those others?

Change in scope v change in responsibility:

A project manager may interpose between architect and client; the arrangement of the building contract may call for some design-build delivery; the consultants may be novated to the building contractor; on-sale of the whole project or parts of it (e.g. apartments) may change “the client”. Some of these changes may be without, or with only very limited input from the architect. They may impose some added role and responsibility beyond the original terms of engagement.

A similar risk arises when the architect is retained for early design stages but others carry out the construction documentation. The extent to which the first architect remains responsible for the later stages of the project will vary dependent on the project: unless the arrangements are clear at the outset, that risk is very largely beyond the control of the first architect.

Funding arrangements can be problematic:

We have had cases where the project funder has changed and the new funder requires assurances from the architect without which the project will stall. Where the sale and purchase agreement includes a requirement for the architect to sign off on each individual apartment and in addition on the whole development. When a monthly certificate must be provided by the architect to the effect that on the applicable date all contract and compliance requirements are being (and have been) met.

If the architect is retained for observation and contract administration, the proper execution of those roles should meet all the assurances a funder requires in seeking a “fit for purpose” statement, and if not, the scope of the assurances must be beyond the role of the architect. Conversely, if the architect is not retained for observation and contract administration, they are not in the position to be able to provide such assurances.

As a general principle, your contract is with your client; not the project funder, nor the project manager. An architect’s scope of services and responsibility is defined in the NZIA AAS (or similar) and the architectural fee is related to this service, responsibility and risk profile. A unilateral change by the client or project manager or project funder may be little different to taking something for no payment. It is even less acceptable when commercial leverage such as “do it or you won’t get another job” is applied.

The funder has a contractual relationship with the client. If that arrangement requires additional services by the architect, that should be by way of a variation to the terms of engagement with commensurate fee adjustment. It is NOT acceptable that the architect be required to accept separate contractual obligations to the funder or to other consultants.

Risk management:

In the calm light of day, these situations are clearly perilous. But they can gently unfold (the “boiling the frog scenario”) or be sprung along with commercial pressures such that the architect may feel they have to take on the risk and just hope that it is never manifested. That would be unwise: there is a prospect that an insurer might argue that you had knowingly taken on a risk beyond that of a normal prudent architect and beyond that for which the policy applies. Especially when, these days, a prudent architect would be aware of the possibility for the developer to have “disappeared”, the building contractor “gone bung”, the project manager having arranged things on an “all care no responsibility” basis, and that joint and several liability may require the architect to pick up the costs to a far greater extent than would be merited by their actual role in later problems.

There is no easy answer other than to make it very clear at the outset what you are required to do, and that any subsequent changes require your explicit agreement in writing as a variation to the engagement terms and at commensurate variation in fees. When considering such changes, you will need to be mindful of – and if necessary seek legal and insurance advice upon – changes to your responsibilities that may be beyond those contemplated in your PI policy cover.

It matters not whether advice is contracted for or not!

In 2020, advice issued by NZIA was that “if you give advice without a contract you may have problems with PI insurance”.  NZACS says that it is even simpler than that:  if you give advice, you are exposed.  It matters not whether that advice is contracted for or not, whether you are paid for it or not, or whether it is given in response to a question asked of you as a professional person or offered as helpful unsolicited commentary.  If you hold yourself out as a professional person, and others rely on your utterances, you must expect to be held accountable for them.

Generally speaking, if you provide advice as a professional, then your PI policy under the NZACS scheme will have you covered for the potential liability.  But if you are asked for an opinion on anything which is within your area of expertise, then you must respond in the same responsible measured and prudent fashion as you would for any other engagement, and view it as “business as usual”. 

Selling your own house could create a conflict between whether your statements are made as the “vendor” or as a professional person providing an unbiased professional opinion.  If the former, your PI policy is unlikely to respond.  Care is required.

Cross-leases covenants and planning controls

Cross-leases covenants and planning controls

AAS conditions of engagement require that “The Client agrees to provide the Architect with a Brief and a Budget, which clearly defines: ….. (d) all information reasonably available to the Client that relates to the Site and is reasonably necessary for the Architect to perform the Agreed Services in accordance with this Agreement.”

In many projects, the client relies on the architect to source that information. Moreover, a recent UK legal case has indicated that the architect may have a duty to review and check client-provided information rather than rely on it as provided: if the client says the fence line is the boundary, and the position is relevant to the design, then formal confirmation is necessary.

The NZRAB case:

This highlights the need for the architect to become aware of and alert the client to the potential for “issues” to arise if the boundaries are uncertain and require to be confirmed by pegging out on the site, or if cross-leases, unit titles, easements, covenants, building line restrictions or resource management controls may affect the project design. An architect is not expected to be an expert in such things, but is expected to be alert to them and provide written notice to the client requiring them to seek independent legal, surveying, or planning advice.

Achieving the impossible:

We have had recent claims where the clients insisted that the design not incur resource consent requirements, and yet their design demands make that inevitable. We suggest that if, after a preliminary or concept design confirms this is a potential sticking point, you make it very clear in writing that they either accept the restrictions and compromise their demands as necessary, or accept the risk and costs of testing their demands against the proper resource consent processes. It is not your job, as an architect, to second-guess or predict the outcome of a resource consent application, nor the costs of achieving it.

Land Covenants, Unit Title Restrictions and Cross Lease Restrictions

• A covenant is a set of rules and restrictions that affect how a property can be used. Typically it will be imposed at the time of subdivision or redevelopment.
• In a Unit Title property, it is usual that the Body Corporate must agree to any alterations, and they will have rules setting out the basis on which alterations or new work can proceed. If changes to the unit trigger changes to the unit allocations, this can become an expensive and protracted process.
• Some multi-unit housing is in the form of company shares, where the company controls and owns the property and leases it to the occupants by way of an occupation licence, and (like the Unit Title arrangement), there will be a process and rules for alterations and new work.
• In a cross lease arrangement, each of the owners owns the overall property collectively, and each unit it is leased to an occupant, with lease terms controlling how the unit is used and may be altered.
It is in the nature of these arrangements that they are subject to the vagaries and personalities of and between neighbours. These can be problematic, and expressed in subjective ways, rather than being rational or objective.
We have had claims where, for various reasons, members have fallen foul of restrictions on the sites or the building on them. Some examples:
• Architects becoming the focus of a dispute between neighbours
• Sketch designs unrealisable when accurate survey and legal information is later available
• Existing fences and/or buildings straying over boundaries
• Misunderstandings about the use of common property, accessways, and rights of way
• Alterations to cross-lease properties without first seeking the approval of other cross-lease owners
• Ditto to unit title properties, where the need for approvals and re-assessments of unit allocations has not been recognised before the design proceeds
• Retail tenancies within shopping malls, where lease conditions have been assumed, instead of being checked
• Colour schemes not being complied with; ditto height controls, cladding materials, “standard of design”, viewshafts, site access for construction……
Land Covenants, Unit Title restrictions and Cross Lease restrictions should be shown on the certificate of title (and/or in a lease or Body Corp agreement), and it is not in your area of expertise as designer to interpret them, nor to advise the client in respect of them. But you do have a duty to recognise when and where they exist, or might exist, and to draw your client’s attention to the need for proper advice – maybe from a lawyer and/or surveyor. That advice needs to be provided to you in writing before or at the earliest stage of your design.
It will be your problem if your design does not meet the design criteria (if any) set out in a covenant. But where your client needs to seek approval from others, you should record that in writing and make it clear that it is their responsibility, not yours. Likewise, if it takes numerous design iterations to fit your client’s aspirations to their neighbours expectations, that is your client’s problem, not yours. The approval should be recorded in such a way that there can be no later doubt about the relevance of subsequent changes.