The Mandatory Designer’s Brief: A Regulation with Serious Consequences

A disruptive legal change has detrimentally affected Australia’s AUD 200 billion construction industry with the Australian Building Code adopting clause A2G2(4). A2G2(4) mandates stakeholder approval for a performance-based design brief, where previously, a designer could freely formulate any building design provided the performance criteria of the Australian Building Code were complied with. Now, even if a building’s design is compliant with the performance criteria, any stakeholder can wield veto power and stop the design procedure completely via holding out. A2G2(4) introduces not just the financial risk of a stakeholder holding out, but stifles innovation. Moreover, A2G2(4) may not align with the Australian statutory building acts that govern the Australian Building Code, casting doubts on its legality. This paper analyses A2G2(4) for its economic and legal problems and details the legal framework that can be used to determine if A2G2(4) is illegal and subsequently can be overturned by the Courts.