An engineering technologist is under investigation for allegedly drafting and signing documents using the identities of chartered professional engineers without their consent.

This raises concerns about the reliability of consented designs for over 1,000 buildings across New Zealand, directly affecting building owners and local authorities, and highlights the need for reforms currently underway.

MBIE has released an Options Paper on the Review of the Building Consent System which deals, among other things, with producer statements and their use in the consenting process.  The construction sector is encouraged to engage in this review as reforms are long overdue.

Background

Any building work which requires a consent must meet the requirements of the Building Code, including that the structure will be strong enough to resist earthquakes, strong wind, snow etc. Local authorities regularly rely on chartered professional engineers (CPEng) signing producer statements to confirm that the structural requirements of the Code have been met.

On 20 May 2023, concerns were raised with Engineering NZ that Jonathan Beau Hall, an engineering technologist and director of Taupō-based Kodiak Consulting Limited, had allegedly drafted and signed off on producer statements and designs using the identities and credentials of a number of CPEngs without their permission. Mr Hall is not a CPEng.

While the exact extent of the problem remains unknown, it appears to be nationwide, affecting over 1,000 properties built after 2016 across 42 local authorities. Most affected properties are newly built houses, but there are also some home renovations and small commercial buildings involved.

Property owners who engaged Mr Hall or his company will be most affected. For most people a home is their largest asset and the realisation that their new house or renovation may not meet the Building Code will be extremely upsetting. It is too early to say how many houses will need remedial work but it is easy to understand property owners’ nervousness while they wait to find out. It is encouraging to see reports that many (if not all) local authorities are taking proactive steps to check their records and contact affected owners. Councils are often drawn into defective building claims with ratepayer money ultimately compensating affected owners. Solutions which can provide peace of mind to house owners without unduly burdening ratepayers should be encouraged.

Preventing future risks

MBIE has confirmed it is pressing ahead with reforms to further regulate the engineering profession, including mandatory registration for all engineers and a specific licensing regime for high-risk work. Offences for carrying out unregistered and unlicensed engineering work will be introduced, albeit with relatively modest penalties. Those reforms have been a long time coming and it may take until 2030 before all the reforms are in place.

New regulations may provide greater sanctions, but will not necessarily prevent future frauds occurring. Engineering NZ is no doubt right to point out that the vast majority of engineers who sign off producer statements and designs do so legally and legitimately. However, this incident highlights the importance those documents play in the consenting process. Remarkably, however, producer statements hold no legislative authority under the Building Act 2004. Previously, consenting authorities could, at their discretion, accept a producer statement as establishing compliance with the Building Code. That specific authority was not, however, incorporated into the Building Act 2004. Instead, producer statements are in the same category as other information on which a consenting authority might rely in deciding whether it has reasonable grounds to be satisfied a design complies with the code. Unhelpfully, this means authorities are left to use their judgment and internal processes when considering how much weight to give them.

MBIE is currently consulting on a review of the building consent system, including the role producer statements should play in that system. Topics being considered include who should issue producer statements, whether indemnity insurance should be compulsory, and whether alternative compliance pathways should be explored. MBIE’s preferred approach is to amend the Building Act to again refer to producer statements and how they should be used. One factor may now be how their authenticity can be verified.

An options paper on the Review of the Building Consent System (found here) was released in June 2023 and submissions close on 7 August 2023.

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Special thanks to Shaan Kumar for his assistance in writing this article.