A Competent Person
Understanding the Concept of Competent Persons & Competency
When South Africa’s National Building Regulations were updated in 2008, several new definitions were added to the legislation, and some were rewritten. One of the most important changes was to the term competent person, because a “competent person” is now required to draw up plans and submit them to the local authority. In the past, an owner builder could do this without the mandatory assistance of an architect or designer, simply because the concept of competency, and more specifically the definition of “competent person” was vague in the extreme.
What the Law Used to Say About Competency
Previously the building regulations stated that: ” a competent person means a person who is qualified by virtue of his experience and training.” So if you knew how to draw plans, and followed the rules set out in Part A: Administration in the regs (as well as any additional requirements laid down by your local municipality), you could go the full DIY route.
In fact, when we first wrote The Complete Book of Owner-Building in South Africa, in 1992, having just owner built our own home (with the help of a qualified draughtsman), we got to know the head of planning at the Western Cape Regional Services Council, and had a few laughs about the standard of plans submitted by some people. On one occasion, he told us, somebody had submitted hand drawn plans on notepaper. I don’t know the ins and outs, or what changes were demanded by council, but the house was built without the owner having to employ any type of professional to help him with the shoddy plans.
At the time, an owner builder who claimed to have the required “experience” could often “walk” the plans through council to hurry the process up. Not any more.
What the Law Says Now
The new definition of a competent person means “a person who is qualified by virtue of his education, training, experience and contextual knowledge to make a determination regarding the performance of a build or part thereof in relation to a functional regulation or to undertake such duties as may be assigned to him in terms of these regulations.”
And that is just the beginning.
There is a completely new regulation in the 2008 legislation:
AZ.4 Complying with the requirements of the National Building Regulations
Apart from anything else, this regulation explains the concept of a “competent person” further, stating that he or she must be registered in “an appropriate category of registration” in terms of:
- the Architectural Professions Act, 2000
* the Engineering Profession Act, 2000
* the Natural Scientific Professions Act, 2003,
* any other relevant Act.
It also states that a competent person “shall prepare and submit to the local authority a rational design or rational assessment where compliance” of the regulations is satisfied. Furthermore, this person (be it an architect, a designer, draughtsman, engineer or architectural technologist) is required to inspect the building and certify (once it has been completed) that it has been constructed, erected or installed as specified on the approved plans.
A1 Application
In spite of the vagueness of the old legislation, the authorities have always considered it necessary for qualified people to design houses and draw up plans. Previously the law stated that a person performing such function was required to be registered as an architect OR to have “a specified qualification, certificate, status or other attribute or to have had experience or training of a specified nature or for a specified period”.
It is clear that this was a loophole, which is why A1 now states that the “designing, planning and the supervision of the erection of any building or structure” must be a qualified professional, namely someone who has a qualification in terms of the laws listed above, or the Professional and Technical Surveyors’ Act, 1984.
Responsibility
Historically South Africa has a record of appallingly shoddy workmanship in the construction industry, with fly-by-night operators building structures that simply didn’t stand the test of time. So it stands to reason that professionals should take control of the industry.
If an owner builder wants to take full control of a project, the very least they will have to do is appoint and retain the services of somebody who is registered in a professional category of registration in terms of one of the councils for the professions identified in the Council for the Built Environment Act, 2000.
Even if an owner builder is able to draw his or her own plans according to the requirements of the Building Regulations (but isn’t a “competent person” in terms of the Act), the professional they “employ” will need to submit the plans to the local authority and make a declaration that specifies the complexity of the project (low, medium or high), specifies site sensitivity in environmental or heritage terms (low, medium or high), and state in a precise manner how the functional regulations will be satisfied.
Hi Anthony,
We have the documents for download on this page here ownerbuilding.co.za/nhbrc/. But what I suggest is that you contact the NHBRC directly and tell them how you are building and then ask for an exemption as an “owner builder”. They have a restriction that you can not sell the house for 5 years but as you do not want to sell that will be no problem. The NHBRC website with all contact details is here nhbrc.org/
Hi I’m planing to build a house for my family with my own funds my plan was drawn by a profesional. Architect and aproved by council how do I aply tor exemption what documents is needed
If the municipality will not approve plans, then you can’t build. End of story. Apart from which it seems pretty stupid to build with the flood line. So the short answer to how you can build legally is – You can’t.
what does the regualation say when one need to build a house on 50/1 flood line area. how can one go about legally since the municipality refuse to approve plans, saying they need to take pre-cuation for the area with the engineers. does the regulation allow an individual to take pre-caution with his/her own engineer for thier own property so that the municipality can approve the plan?
Ash, If that person is considered “competent” to do so, then yes. But there are many branches of engineering, and I would hazard a guess that not all are competent to draw up house plans.
The regulations state that a competent person “who is qualified by virtue of his education, training, experience and contextual knowledge to make a determination regarding the performance of a building or part thereof in relation to a functional regulation or to undertake such duties as may be assigned to him in terms of the National Building Regulations” must draw up the plans and follow through on the project. (That’s their generic definition.)
This is what the regulations (A1 Application (1)) say:
“The designing, planning and the supervision of the erection of any building or structure or the performance of any function in connection therewith in terms of these Regulations is subject to the provisions of any law in terms of which the person undertaking such work or performing such function is required to be registered in terms of the Architectural Profession Act, 2000 (Act No. 44 of 2000), Engineering Profession Act, 2000 (Act No. 46 of 2000), Natural Scientific Professions Act, 2003 (Act No. 27 of 2003), or Professional and Technical Surveyors’ Act, 1984 (Act No. 40 of 1984), or any other relevant Act.”
… because these are the qualification required to make a person a “competent person”. But in reality there may be a number of professional people involved with the build.
And when the plans are submitted, the competent person appointed by the owner must make “a declaration by a person registered in a professional category of registration in terms of one of the councils for the professions identified in the Council for the Built Environment Act, 2000 (Act No. 43 of 2000) in the relevant portion of Form 1 contained in SANS 10400-A as to how the applicable functional regulations shall be satisfied.”
Sometimes more than one competent person may be involved – and there may be drawings from several professionals, e.g. an architect or draughtsman and an engineer. I think in reality engineers usually do quite specialized drawings.
Hello…
You stated under A1 Application – “A1 now states that the “designing, planning and the supervision of the erection of any building or structure” must be a qualified professional, namely someone who has a qualification in terms of the laws listed above…”
Does this mean someone registered as a Professional Engineer under the Engineering Profession Act, 2000 can draw up building plans and submit to Council?
JP, the National Building Regulations Part F, Site Operations restrict “Unreasonable Levels of Dust and Noise”. The times they specify in terms of restrictions are:
Before 6 am and after 6 pm any day of the week.
Before 6 am or after 5 pm on a Saturday.
On Sundays or public holidays.
The link I have given you here is to our sister site, Building Regulations. There are quite a few comments we have had from people with similar problems – so read these as well.
Also have a look at the second comment (Martin) on the page about boundary walls and fences on our Building Regulations website. Same problem!
You can force your neighbour to restrict his building activities to these hours – e.g. make him stop at 5 on a Saturday and prevent him from working on a Sunday – by reporting him to the local authority and insisting they take the appropriate action. But it doesn’t seem that this will help much.
The breaking down and rebuilding aspect is puzzling. What on earth could be his motivation? I’m not sure what to suggest. There may be something in your local authority by-laws in terms of public nuisance. The Reader’s Digest Family Guide to The Law in South Africa has a section on Nuisance that defines it as “something which hinders your right of enjoyment as an owner or occupier” of a property. It says that, “As an owner or occupier you are entitled to reasonable full enjoyment of your property for ordinary purposes and only unreasonable, unnatural or exceptional use will constitute nuisance. A balance must always be maintained between anyone’s right to do as he wishes on his own property, and his neighbour’s right not to be disturbed.
“A nuisance must continue for some time, and a single incident is unlikely to constitute grounds for action.”
They give several examples of incidents that would be regarded as “annoyance” rather than “nuisance”. Smoke from a braai now and then; a party; musical instruments being played. But say that “continuous stench from your neighbour’s drains” would constitute nuisance. They also say that “Noise may also constitute a nuisance”. If neighbors were to hold parties several times a week, they say that a court would probably take action.
“A court will intervene only if the noise is more than a neighbour could reasonably be expected to put up with in the circumstances.”
The book is quite old – third edition 1986 – but I doubt this has changed. But what it will mean is that you will have to consult a lawyer. Good luck.
Hi,
Over the past 3 years, our neighbour has been constantly breaking down and rebuilding various sections and parts of his house which is right next door to our actual living areas i.e. bedrooms, living rooms etc.
He will build or upgrade his bathroom and external windows and then less than a month later he will begin breaking the newly installed window frames, lintels and walling down again. This process among others has been repeated over and over again over the past 3 years or so. Every single day of the week apart from on the odd Sunday, contractors and their labourers are at work with tools ranging from jack hammers, drills, sanders, grinders, hammers from 07h00am until 18h00. We have asked him on countless occasions when he plans on completing this never ending construction and rebuilding of his premises and have only ever been told “it is none of your business”.
I am sure that there are/must be regulations that restrict the constant construction, rebuilding, adding on to one premises specifically with regards to the constant battering of noisy tools and equipment that make living without a headache seem a far off reality.
Please could you, if at all possible assist me to try and solve this never ending nightmare of endless noise.
JP
Jason, the National Building Regulations apply to all types of buildings, everywhere in the country – at the seaside, on mountain-sides, in cities and in rural areas. Have a look at our sister site HERE for more info about the regs. However, local authorities have their own by-laws that apply IN ADDITION to the NBR, so I suggest you contact the local authority in that area, viz Langeberg Local Municipality for more information. Their offices are based in Ashton, here’s a LINK that will give your their contact details. Building permits will be issued by their offices – but like all buildings, you will need to have plans drawn up by a competent person – as the article on this page states.
Hi there, I have been trying to find out what the process is to apply for building permits on agricultural land. I am looking at purchasing some agricultural land, but it is a mountain and hence not suited to agriculture but I would still like to build on it. How do I find out what the building regulations are for this land in Montagu Western Cape?
Thanks
Hi Victor,
The forms are here to download on this page: http://ownerbuilding.co.za/nhbrc/ Or on the NHBRC official site here: http://www.nhbrc.org/ Their phone number is there and you can call them directly.
What are the requirements for regestering with NHBRC?
What do I need?
Hi Louis,
Yes you do on all building and extensions exactly the same as any residential area in the country. There might be bye-laws in your area that your local council may have decided that makes certain differences to other council areas but the regulations apply to all properties in South Africa.
Hi,
We have got a small holding(10ha) just outside Pretoria. It is not in a residential area.
Do we need a compotent person to do our plans and submit them to local authority?
Hi Johan,
Yes you will need plans, and they must be drawn up by a “Competent Person”. As it says on this page that he or she must be registered in “an appropriate category of registration” e.g. the Architectural Profession, the Engineering Profession, the Natural Scientific Profession or any other relevant Building or Construction profession. You say that you want the garage to “form part of the border line” then the other thing you will be required to do by your local authority is to get “permission” in writing from your neighbor that he or she has no objection to the building on the boundary line. Contact your local municipality and they will let you know what is needed.
Hi there,
I want to build a double garage, that will form part of the border line between me and the neighbour. What is needed from me. Do I need to draw up plans for a double garage.