Are by-laws compulsory laws ? Part 2
DESIGN : DEAR PLUMBERS 27
By
D . S ( Vollie ) Brink Pr . Eng . MSAICE , MPMISA
Before 1977 there were no common national building regulations in this country . Every city and town with a municipality had its own chief building inspector with building inspectors and their own home-grown regulations . This is a topic that has become important , as by-laws are being ‘ used ’ as if they are compulsory regulations and for this reason , I am devoting the previous as well as this Dear Mr Plumber to it .
Vollie Brink is one of the industry ’ s longest-serving wet services engineers . He continues to serve on SABS committees and has been involved in the Green Building Council ’ s Green Star rating system . Brink continues to consult for various organisations while enjoying a well-earned retirement .
In many cases the design of a project is referred to a rational design committee where you are confronted with a group of people who all have different opinions and don ’ t agree among themselves . There is no such requirement in the National Building Regulations ( NBR ).
In some cases , even an ordinary deem-to-satisfy-rule design is referred to such a group for scrutiny and even then , there is no consensus . Many developers feel they are ‘ punished ’ for developing in some towns . This is certainly not conducive to promoting development and is far from the original principle to have common , standard , regulations throughout the country .
Why are we moving back to the old undemocratic system which did not work ?
In my opinion much of the original documentation which was extremely valuable has been changed and is now creating a situation where people are bullied to “ do as I say , or I won ’ t issue a certificate of approval ”. The legal situation is that the owner is the legal responsible person who must appoint a professional , competent person if he or she is not competent in terms of the NBR .
Yet the owner appoints such a competent person in terms of the NBR , but then this person is overruled by an official of a department , who rather instructs the engineer what to do – otherwise he / she won ’ t accept the design . The problem is , if the instruction by this official fails , who is thereafter responsible for the claims and costs considering the instruction was based on their ‘ local by-laws ’?
The engineer cannot take responsibility for an instruction of the official and his / her Professional Indemnity insurance will not cover the costs of claims . The issue is , ‘ what is the legal status of the local by-laws to instruct a Pr . Eng . or registered architect on how to solve a problem ’?
For instance , the present situation whereby municipalities fail to provide water to developments is causing serious complications where the developer of new developments is ‘ forced ’ by reference to local by-laws to provide sufficient quantities of water storage facilities . People with existing properties do not have to provide these water facilities : it is only applicable to new developments and refurbishments in existing towns .
Are we really going back to the past where every municipality made their own rules and regulations whereby we are working under orders of an official ? It seems that so many people still do not understand the institutional hierarchy of the NBR Act , which is so easy to understand , and which are as follows :
• The NBR Act .
• NBR Regulations : there are only a limited number of Regulations for each part of the NBR . These regulations are compulsory and the only part that is compulsory . These regulations are in the Annexures .
• Deem-to-satisfy-rules : these rules are not compulsory , unless the owner decides to follow the deem-to-satisfy-rules through the designer .
• SABS standards : these standards are not compulsory unless it has also been promulgated as regulation such as SANS10400-XA . However , these standards are compulsory for the ‘ deem-to-satisfy-rule ’ design method .
The spirit of NBR was – and still must be – to promote cost effective housing and buildings for all and to promote such developments for economic development . New buildings and new businesses are the basis of economic development and job creation . The building regulations must support this and not stifle development .
However , there are designs put before the building control officials which do not comply to the basic principles of health and safety , economy and sound engineering and which are not done by persons who are competent or professionally registered in terms of the engineering codes and the NBR Act .
Unfortunately , the correct definition of ‘ competent person was never addressed since the last major change ‘ to the NBR and it seems that it was deliberately ignored . The present definition is ‘ not competent ’ and is consequently abused by persons who are not competent whereby they present themselves as competent .
Some BCOs allow persons with absolutely no qualifications and no professional registration to sign for designs and even rational designs and even to sign and submit Form 2 and on completion Form 4 .
If this is deliberately allowed is it not a contravention of the NBR Act ?
The outstanding correct definition of a competent person in terms of a fire engineer and even the other parts of the NBR has become critically important and need urgent attention . The issue of water supply and storage for fire protection has become a serious issue and needs urgent attention . It needs participation of the municipal water engineers and talks at a high level , such as the Department of Water Affairs .
We have to solve these issues in a non-confrontational manner to the benefit of all bodies involved and for the best of the country and its people . PA
October 2023 Volume 29 I Number 8 www . plumbingafrica . co . za