by Brian Morison, BDAV Executive Officer, 1994-2012
Over the years, BDAV members have expressed concern that documents prepared by them have been used for different purposes or modified without their knowledge and consent, and that applicants for permits have continued to use the member’s Registered Building Practitioner Number.
It is timely to remind members that the use of the plans by applicants – clients or builders – for a different purpose or modified without the knowledge and consent of the registered building practitioner raises serious liability issues if something were to go wrong.
As you are aware, an application for a building permit must provide evidence that each building practitioner to be engaged in the building work holds a building practitioner’s certificate issued by the Building Practitioners Board. This evidence usually takes the form of the Registered Building Practitioners Number.
The way to overcome this serious problem is to have a statutory prohibition to the effect that no plans or documentation can be used or modified without the express written consent of the building designer. Such an offence should incur significant monetary penalties prescribed by the Building Act.
It is perhaps time that all building practitioners should think of their RBP Number as a commodity (an article of trade) rather than just simply as evidence of the fact that you are required to be registered for the purposes of the Building Act.
It seems clear that some clients and builders use your RBP Number as a commodity to suit their purposes. While they may not be thinking in those terms, that is in fact what they are doing.
In order to reduce the incidence of this problem and to afford protection to members, BDAV strongly recommends that you give consideration to placing a clause in your contracts with clients and builders. To that end, BDAV recommends the following clause be included in your contracts –
“The Client shall not be permitted to use the Building Designer’s Registered Building Practitioners Number for any reason whatsoever without the express written consent of the Building Designer describing the exact purpose for which the Building Designer’s Registered Building Practitioner’s Number is to be used.
The Client shall not be entitled to use the plans without obtaining the express written consent of the Building Designer permitting the Client to use the Building Designer’s Registered Building Practitioner Number.
The Client and/or the Client’s Builder shall not modify or amend the plans without the knowledge and written consent of the Building Designer.
The terms of this Contract shall not be read as having given express or implied written consent by the Building Designer to the Client.”
The above clause may also be useful (in certain circumstances) where there is a contractual dispute over the payment of fees between the parties.
Coming back to the main theme, while there is still an obvious potential defence by building designers that they should not be held liable for the use of plans by clients for other purposes or as a result of the plans having been modified without their knowledge, building designers should not have to be placed in this defensive position at all. Clients should be aware that if they go down that path, then they are acting unlawfully and that, as a result, there must be contractual consequences.