NEWS BULLETIN: JULY 2020
Company prosecuted for not having an architect to oversee architectural services
In a benchmark court decision of the Downing Centre Local Court, the NSW Architects Registration Board (The Board) has successfully prosecuted Tecton Group and its Director, Tania Pappas, for failing to have a registered architect supervising its provision of architectural services on a multi-residential apartment development.
The decision in brief
The Court found that Tecton Group provided architectural services for an apartment development in Kogarah Bay, in Sydney’s south, without having an architect employed at the time to supervise or oversee the work. The services in question were provided by a non-architect without any architect supervision.
The Development Application documentation and accompanying Design Verification Statements named a nominated architect who was on leave from Tecton Group for the period of time in question. The absence of an attestation signed by the nominated architect was considered evidence of the fact that the nominated architect did not have oversight of the project and did not prepare any of the documentation.
The court also found that Tecton had failed to notify the Board of changes to its nominated architect within the period of time required under the Architects Act 2003, despite the Board’s attempts to resolve the breach.
The company director Tania Pappas, who is not an architect, was convicted for contravention of the same provisions under section 83 of the Architects Act. The criminal conviction sees Tecton being fined $17,000 (with costs), and Tania Pappas fined $4,500.
The nominated architect was also separately the subject of a complaint initiated by the Board, with the outcome being a finding of unsatisfactory professional conduct for failing to properly supervise the provision of architectural services by Tecton Group while they were the nominated architect.
Details of the decision
The Board commenced proceedings against Tecton Group with the charges pursuant to the following sections of the Architects Act:
Subsection 11(1)
An architect corporation or architect firm must ensure that at all times there is at least one nominated architect who is nominated by the corporation or firm and responsible for the provision of architectural services by the corporation or firm.
Maximum penalty: 200 penalty units
Subsection 12(1)
If a person (other than an architect) provides an architectural service that the person has offered to provide using an architect or that the person has represented will be provided using an architect, the person is guilty of an offence if the architectural service is not provided by, or under the supervision of, an architect.
Maximum penalty: 100 penalty units (in the case of an individual) or 200 penalty units (in the case of a corporation)
Subsection 29(2)
If a nominated architect ceases to be responsible for the provision of architectural services by the corporation or firm concerned, the corporation or firm must notify the Board of that fact within 7 days of that cessation.
Maximum penalty: 50 penalty units.
Professional and public confidence
In NSW, planning legislation enshrines the role and value of architects in the design of residential apartment buildings. State Environmental Planning Policy No 65 (SEPP 65) – Design Quality of Residential Apartment Development of the Environmental Planning and Assessment Act requires that a registered architect must be involved in all multi-residential developments.
SEPP 65 stipulates that the architect must also sign design verification statements during the planning approvals process for the development. In other words – they must vouch for the validity of a design ‘as approved’.
As a further protection, the Architects Act requires companies who offer architectural services to ensure that there is at least one nominated architect present and responsible for the provision of architectural services at all times those services are offered, or relied upon by clients or consumers.
“Architects hold recognised skills in design, documentation and project delivery. As a profession with a regulatory body, architects are also held to the highest standards of service and conduct. This is unique within the construction industry, and it’s for this reason that in NSW, architects are the only design professionals legally permitted to design apartment buildings. The practical reasoning behind this is that poor design is difficult to reverse, and imposes high remedial costs on building owners and the wider community.”
—Dr Kirsten Orr, Registrar, NSW Architects Registration Board
The Tecton decision underscores the key principles behind the statutory regulation of architects – namely, the protection of consumers under the Architects Act, and holding architects to the highest professional standards, as set out in the NSW Architects code of Professional Conduct.
Lessons for architects
Requirement to have a nominated architect
The Tecton decision is a reminder that the Architects Act requires companies who offer architectural services to ensure that there is at least one nominated architect present and responsible for the provision of architectural services at all times those services are offered, or relied upon by clients and consumers.
Standards and expectations of nominated architects
The Tecton matter considers the standard of responsibility required of the nominated architect for an architect corporation or firm.
Subsection 27(2) of the Architects Act requires that a nominated architect must be a director, partner, or member of the governing body of the corporation or firm or involved in the management of the corporation or firm. At the very least the nominated architect must be an employee of the corporation or firm. The nominated architect cannot be a contractor or consultant.
The nominated architect’s responsibilities for the provision of architectural services may include:
- Being aware of the nature and scope of the architectural services being provided by the corporation or firm;
- Knowing the identity, qualifications and experience of those individuals designated to provide, or assist in providing, these services;
- Having processes in place to ensure that individuals report relevant information to the nominated architect;
- Having written directives or written policies in place to make clear to colleagues their obligations to the nominated architect;
- Either working from the same location as those providing the services or having a regime of regular meetings to ensure familiarity with the work being undertaken;
- Not assuming the role of the nominated architect for a volume of work that is beyond the reasonable capabilities of one person to supervise; and
- Not being the nominated architect for more than one corporation or firm if such an arrangement would prevent the proper discharge of their obligations as listed above.
Notifying the Board of changes
If a company’s nominated architect changes, the obligation under the Architects Act is on the company to inform the Board within seven days. For administrative purposes, the nominated architect is able to complete and return Form 08CF to the Board to have themselves removed as the nominated architect, however under section 29(2) of the Architects Act the onus to inform the Board lies with the company.
Liability of directors
Under section 83 of the Architects Act, any company director or person concerned in the company’s management is deemed to have contravened the Act if they knowingly authorised or permitted the contravention.
“The spate of high-profile building failures in the apartment sector is casting a wide-reaching shadow over the construction industry. The Tecton decision is significant in upholding the Board’s mandate to promote awareness of the value of architects, and to protect the public and consumers of architectural services.”
—Dr Deborah Dearing, President, NSW Architects Registration Board
In late June, the NSW Architects Registration Board issued a press release to media about the Tecton decision. Working towards this decision is just one of the ways in which the Board discharges its roles of promoting awareness of the value of architects, and protecting consumers of architectural services.
If you would like to learn more about the ins and outs of being a responsible architect please register here for one of the Board’s free lunchtime webinars. Next dates are 17 July and 31 July.
For further information contact:
Dr Kirsten Orr
Registrar, NSW Architects Registration Board
M. 0403 617 760
E. [email protected]
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