Who Runs The Site? When Your Subdivision Becomes A Construction Project

WHO IS ACTUALLY RESPONSIBLE FOR THE SITE?Check principal-contractor duties before construction starts.

You have development consent, a builder selected, and civil works about to start on a two or three lot subdivision. What you may not have realised is that, if the cost of the construction work reaches a certain value, work health and safety law treats the whole thing as a construction project, with a principal contractor and a written management plan that must exist before anyone picks up a tool.

The value threshold is not high relative to civil works, and the duty is not optional. It is worth sorting out before the machines arrive, because the obligation attaches at the start, not at the end.

The deal question: is this a construction project?

Safe Work Australia's construction work code of practice answers that directly. A construction project is a project that involves construction work where the cost of the construction work is $250,000 or more. The code explains that a construction project covers all the activities involved in the construction work, and that the cost can be determined by the contract price for carrying out the work.

On a subdivision that is easy to reach. Roads, kerbs, drainage, retaining, earthworks, water and sewer reticulation and service trenching are all construction work, and their combined contract value on a small subdivision can exceed the threshold without the project feeling large.

What changes once it is a construction project

Under the model work health and safety regulations, each construction project must have a principal contractor, and there can only be one principal contractor for a construction project at any one time. The current model code sets out the meaning of principal contractor and the associated duties.

The duties are concrete, and three of them matter to a developer's programme:

• Site signage. The code requires appropriate signage for the construction project showing the principal contractor's name and telephone contact numbers, including an out of hours number, and the location of the site office if there is one, clearly visible from outside the workplace.
• A written management plan. Safe Work Australia's code states that a construction project costing $250,000 or more must have a written work health and safety management plan prepared by the principal contractor before work on the construction project commences, covering matters such as how contractors and subcontractors will be managed and monitored, and how risks associated with falls, falling objects and high risk construction work will be managed.
• Safe work method statements. High risk construction work requires a safe work method statement, and on a construction project the statement has to take the project's management plan into account.

The duties come from the regulations, and SafeWork NSW's version of the code cites them by clause: WHS Regulation clause 292 (meaning of construction project), clause 293 (meaning of principal contractor) and clause 309 (WHS management plan - preparation), together with clause 308 on signage. The clause numbering and wording in your jurisdiction are worth confirming against your own regulator's version.

The checks a capable student would run, in order

1. Value the construction work honestly and early. Add up the civil contract value, not the project value. If it is near the threshold, treat it as over it and put the controls in place.
2. Name the principal contractor in the contract. Because there can be only one, decide whether it is your builder or you. If you are engaging the builder to manage and control the workplace, the contract should say so, and the builder should confirm in writing that the plan and the signage will be in place before work starts.
3. Ask for the management plan before mobilisation, not after. The plan is a pre-commencement deliverable. Make it a condition of the notice to commence.
4. Identify the high risk construction work. Excavation, work near services, work at height and demolition all bring their own requirements. Ask which activities need a safe work method statement and who prepares it.
5. Keep the documentation. If a notifiable incident occurs, the management plan has to be kept for a specified period, so it is a record, not a temporary document.

The trap: assuming the builder quietly takes care of it

The trap is assuming the duty has been allocated simply because a builder has been engaged. It is a legal allocation, not an inference. If the contract is silent and the site signage does not exist, the parties can find themselves arguing after an incident about who was supposed to have done what - and that is the worst possible time to discover the answer.

The second version of the trap is treating the $250,000 figure as a project-size test. It is a construction work cost test. A modest subdivision with a substantial civil package is caught. So get the valuation right at the start, and confirm it with the regulator for your jurisdiction if it is close.

What this means for cost and programme

There is a real cost: preparing the management plan, engaging the right people to write it, signage, inductions and the time of the principal contractor. Those costs belong in the feasibility. More importantly, there is a sequencing cost. The plan must exist before work commences, so the mobilisation programme has to allow for it. A builder who arrives on site on Monday morning while the plan is still being drafted has created a compliance problem on day one.

The Think Property Club lesson

Part of leading the specialist team is knowing which obligations attach to the project as a whole rather than to one trade. Work health and safety is exactly that kind of obligation. You do not write the management plan, and you are not expected to. You do make sure it exists, that the role is allocated in the contract, and that the site signage and the plan are in place before the first machine starts.

Your next actions before mobilisation

• Total the civil and construction contract values and record, in writing, whether the project is over the threshold.
• Confirm in the building contract which party is the principal contractor and state the pre-commencement deliverables.
• Require the written WHS management plan and the site signage as conditions of the notice to commence.
• Ask which activities are high risk construction work and confirm who prepares and reviews each safe work method statement.

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