Australia: Architects and engineers now part of the Chain of Responsibility for building products

In brief - Recent changes to the Queensland Building and Construction Commission Act 1991 (Qld) mean architects and engineers can be held liable for non-conforming building products

The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) has recently been amended to specifically include architects and engineers in the chain of responsibility (CoR) for building products. As a result, architects and engineers will owe a number of duties and can be held liable in circumstances where specified building products are found to be "non-conforming".

These significant changes were introduced under the Plumbing and Drainage Act 2018 (Qld) (PD Act) on 11 September 2018 and are already in force.

What is the "chain of responsibility"?

The CoR is a frequently used term in the QBCC Act. Essentially, the CoR is a mechanism used by the QBCC Act to promote the safe design and construct of buildings. The CoR achieves this by imposing a duty on any person captured in the supply chain of a building product, to ensure that the building product is safe and suitable for its intended use. 

The CoR applies to a wide range of persons, including suppliers, installers, manufacturers and now even architects and engineers. 

When an architect or an engineer becomes a person in the "chain of responsibility"

Prior to the QBCC Act changes, architects and engineers were captured by the CoR if they were the building product designer. Now, however, if an architect or engineer simply specifies a particular product to be associated with the building in their design, they will be deemed a person in the CoR.

Duty to ensure product is not "non-conforming"

The primary duty imposed on parties found to be persons in the CoR, is to ensure "as far as reasonably practicable" that specified building products  conform with their intended use.

A building product will be considered to be "non-conforming" if: 

• its use in the building would not be safe 
• it does not comply with the relevant regulatory provisions, or 
• it does not perform or is not capable of performing at the standard it was represented to perform at

Duty to provide accompanying information

If an architect or engineer specifies a building product to be used, they must pass on all "required information" about the building product to all recipients of the building design they have prepared. For example, this may include an asset owner and the relevant building contractors. 

The QBCC Act specifies the required information that must accompany the design,  includes:

• the suitability of the product for each intended use, and
• instructions about how the product should be used in relation to the building

Duty relating to recalled products

Under section 74AH of the QBCC Act, architects and engineers will also be prohibited from specifying a building product for a building that they know or ought to reasonably have known is the subject of a recall order. This includes recall orders that have been made in another state. 

Even for building products that only become recalled after the engineer or architect has recommended the product for the building design, architects and engineers will still have an obligation to:

• inform each person that the architect or engineer gave the design to that the product is subject to a recall order, and
• amend the design to remove the recalled product, or 
• provide each person that the architect or engineer gave the design to, with a written notice specifying an alternative building product that can be used 

The architect or engineer is expected to comply with this duty at their own expense.

Duty to help a responsible person

The QBCC Act now requires architects and engineers to provide reasonable help to a "responsible person" in circumstances where a recall order has been issued. 

A "responsible person" is defined in the QBCC Act as being a person who:

• designed, manufactured, imported or supplied the building product 
• installed the building product, or 
• is an architect or engineer who specified that the building product should be associated with the building

If a responsible person receives a recall order, produces a copy to an architect or engineer, and requests their assistance, the architect or engineer will be expected to provide reasonable help. Examples of reasonable help are set out in the QBCC Act and include: 

• ceasing to specify the particular product that the recall order relates to in future designs, and 
• contacting persons that the architect or engineer gave a design specification to in relation to the recalled building product 

Other changes under the Plumbing and Drainage Act 2018 (Qld) 

The changes introduced under the PD Act impose serious new obligations on architects and engineers deemed to be persons in the CoR. Given that these amendments are already in place, architects and engineers should familiarise themselves with these provisions to ensure compliance. 

The PD Act has imposed changes to other Queensland legislation, including the Building Industry Fairness (Security of Payment) Act 2017 (Qld). You can read more about this in our recent article, Security of payment regime in Queensland undergoes important changes. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.