by Howard Moutrie
This article applies to the particular requirements in NSW but may also be relevant in other states in some cases.
In NSW, a Construction Certificate is required to show that the proposed work is deemed compliant with the relevant codes and therefore provides an approval to construct. In other states, this may be called a Building Permit or Building Approval. On larger projects in NSW, it is common practice to utilise multiple Construction Certificates for the one project. This allows the construction to commence earlier than if the project was fully documented and has obvious time and cost benefits to the developer. Previously in NSW, as with some other states, this occurred as a staged Construction Certificate, though this is no longer allowed, and now separate Construction Certificate must be issued for each stage of the work. These stages may include earthworks, basement floors, low level floors, and upper-level floors, etc.
The issue for Access Consultants is that the certifier may ask for an access report or design statement of compliance for these early stages when, not only may there be no work required to be accessible, but the other areas of the building where access is required are not sufficiently designed or resolved. In my experience, some certifiers acknowledge this and do not require an access report for the early stages, however, there are others who insist that a report must be provided. A few interesting points to note:
- The requirement for an access report is at the discretion of the certifier unless the DA Conditions specifically require an access report.
- On major projects, where multiple Construction Certificates are normally used, the Design and Building Practitioners Act will normally apply, and the Act does not recognise access consultants and the compliance of the accessible design is the responsibility of the Architect.
- Based on Point 2 above, the preparation of an access report is really to inform the Architect and give them a degree of confidence in signing off the design and should have no part in the certifiers assessment.
The issues, for the Access Consultant, with multiple Construction Certificates include:
- Signing off the design when all the required information to assess compliance is not available.
- The additional work (a cost) in providing multiple Construction Certificate reports when only one may have been included in the fee.
- Approval for the lower levels or the structure of a project being provided and subsequently constructed only to find that there has been insufficient allowance for services, finishes etc and the required clearances have not been provided for accessibility.
An interesting situation arose a few years ago when the NSW Building Commissioner deemed that the BCA applicable to a project was the edition in force at the application for each individual Construction Certificate. This had the impossible repercussion that if a project was documented over a period when the BCA was updated, that different versions of the BCA could apply to different parts of the building. This further exacerbated the issue for Access Consultants. Fortunately, some common sense prevailed and the Planning and Assessment Regulation was amended so that the BCA applicable was that in force on the “relevant date”, that being, for single-storey buildings the day on which the application for the construction certificate was made, and, for multi-storey buildings, the day of application for the Construction Certificate for building work involving the entrance floor (being the floor containing the principal pedestrian entry). Any subsequent Construction Certificate for the multi-storey building would be bound by the BCA applicable for the entry floor.
So, as Access Consultants, how do we address the issues related to multiple Construction Certificates? The following identifies some solutions to the various issues.
Refusal to provide a report for the early stages. Although possibly a valid response if an access report is not required by the DA conditions, it is a potentially dangerous response. The certifier may insist on the report and claim they are being delayed because the Access Consultant will not provide the report. This will not help your relationship with your client and may be costly if your client considers that your actions are delaying the project and costing them money – they may take legal action against you.
Design Statement in lieu of a report. If your fee includes only a single report, a simple one-page Design Statement of Compliance could be used for the early stages. Your statement should qualify that the statement only applies to the work covered by the relevant Construction Certificate. This could say, for example, “The scope of this statement addresses Construction Certificate X which does not include any building work required to comply with BCA Part D4.” Alternatively, you could also use the qualification that I have offered in the second last paragraph of this article.
Provide a basic report. Rather than provide a full report you could provide a basic report which only addresses the relevant issues. Depending on how you format your reports this could take the form of your standard report, with the majority of the items noted as “capable of compliance”. However, Certifiers often do not like the use of that term so instead you could say “to be addressed under a future Construction Certificate” or something similar. This still involves a significant amount of work which may not have been allowed in your fee. An alternative approach could be to retain your standard “preamble” and then just say something like “The scope of this construction certificate does not include any work required to comply with BCA Part D4. The report will be revised to include compliance with the relevant parts of the BCA for a future construction certificate application.” In addition to the foregoing, the report should clearly state the Construction Certificate for which it is issued, therefore limiting the scope of the report to the work covered by that Construction Certificate.
So, which is the best solution? It is up to you to determine what works best for you on each project – the response may be different for different projects. Unless I was committed to providing a report for each Construction Certificate, I would think that providing a Design Statement is the easiest solution. The solution becomes more difficult when the early work Construction Certificate does in fact contain work which is required to be accessible, for example, if the Construction Certificate contained the basements and the entry floor. In this scenario, I would still be inclined to issue a Design Statement and only issue the full report when all work has been fully designed/documented. You would need to make a judgement call on which approach you feel is most appropriate. In this case, however, it is still important to qualify your statement. A suitable qualification may be “Based on the drawings provided for this Construction Certificate, the work included in this Construction Certificate relating to access for people with a disability has been assessed as compliant with the relevant parts of the BCA, however, we have not assessed how the requirements for compliance of any future Construction Certificate may impact the scope and compliance of this Construction Certificate.”
So, in summary, I think as access consultants we are going to be faced with providing “sign off” for multiple Construction Certificates on larger projects. The task is simpler if we have a client who advises us before we submit our fee that there will be multiple Construction Certificates, but that won’t always be the case. The main point to take from this article is to qualify any statement of compliance until you have all the relevant information for the project. It is also prudent to state in any fee proposal that the fee is for a single report and any other statements will attract an additional fee.