Musings on Moving Forward with Fire Regulation and Building Control
By Kim Lovegrove RML, FAIB, Consultant to Lovegrove & Cotton – Construction and Planning Lawyers
Presented at the Fire Safety & Cladding Summit 21-22 August 2018 at Melbourne
Before one can mandate standards, one has to ensure that the standard is highly evolved and fit for purpose. Standards and regulations have repeatedly been found wanting throughout the world in recent years, whether those standards and regulations relate to fire retardant solutions or other scenarios like leaky buildings.
Ironically, some of the biggest failures have been in the West. Grenfell occurred in the birthplace of modern day Western building control, London. Meanwhile, the “Leaky Building Syndrome” bludgeoned “the land of the long white cloud” where I hail from – New Zealand – and has cost well in excess of 11 billion dollars. Similarly, Canada had the “Leaky Condo Crisis” that cost that modern economy billions. These are just a few examples of system failure that was abetted by less than optimum standards.
These are modern economies – they showcase modern building regulations and well-resourced legislatures and bureaucracies.
Currently there is a flurry of belated regulatory rewrite in the fire codification space. Why so much rewriting, revisiting and recalibration? Because the rationale, the assumptions and expectations that underpinned many of the regulations in the first place did not deliver that which was intended.
You see, law reform is like chess, every change in regulation is akin to a move on the chess board. Unless each move is carefully orchestrated, the consequences can underwhelm and can defeat. The metaphor, however, has serious limitations; for in the case of chess, the collateral is limited, i.e. one casualty, but misconceived building control can generate hundreds and thousands of casualties. So the job of the law reformer is gargantuan in its challenges and must always be seen as such. The moves must be right and the consequences well thought through.
Common Confounding Regulatory Considerations and Ideals
Ideology in particular economic rationalism, ‘greenification’/energy efficiency, breaking down trade barriers and globalisation have all played their part in some of the current regulatory disconnects. To free up economies you have to break down barriers, and with this comes regulatory adjustment (or lack of regulatory adjustment) to ensure that new product comes to market. Hence, a tsunami of non-compliant ACPs has washed into many countries.
Ironically, greenification and energy drivers culminated in a proliferation of energy-empathetic cladding. Insufficient regard was had to the impact that certain types of energy-saving products were conducive to rapid fire spread. One man’s meat is another man’s poison, as it were. The aims were laudable, compelling and, from an environmental and future generational point of view, altruistic. But the impact upon the fire resilient capacities of the likes of energy efficient cladding were not sufficiently well thought through.
There has, in recent years, been insufficient regard to regulatory ‘holistics’ and the challenging nature of the apposite sciences. The other day I was talking to Peter Johnson, a co-speaker and one of the most reputable engineers in the antipodes for many a decade. Peter assured me that fire engineering was incredibly complex. Another well-known engineer once described fire engineering to me as a dark art. It is evolving but as an engineering science is still a work in progress as the challenges of fire maelstrom continue to surprise and confront.
Some policy makers in certain parts of the world may not have understood how complex the area of fire code reform is and despite best of intentions may have misconceived and misunderstood the science and consequently the design of the regulations.
The Material Impacts on Policy
Little wonder the task has proved immense for well-meaning civil servants. They may well, in many jurisdictions, have done the level best but absent the law reform accoutrements of internationally benchmarked and best-practice fire regulatory science, there was bound to be risk of unintended consequences over the last couple of decades in the fashioning of new building regulations in the economic rationalist and modern free market economies. Alas, best intentions are not enough, hence the sceptics ode ‘the road to hell is paved with good intentions’.
Politicians are obviously desperate to find the answers, with compellingly good reason as they don’t want to see fire related death or major economic loss. But crises-driven law reform often results in compromised outcome and in the fire regulation space that can be very problematic. Yes, one has to hasten, but the diviners of new regulations and standards, I submit, should hasten with restraint, for fear of compromising scientific rigor and international, rather than provincial, best practice law reform management should be brought to bear. The old adage “speed kills” is poignant in this discussion.
The Challenge for Australia
The challenge in Australia for the adoption of uniform standards is immense. Australia has eight different governments regulating the one industry, so it follows that it is all very well to generate an enlightened standard but whether every jurisdiction will choose to adopt that standard is another question. That is up to the state and territory building control regimes for they are the gatekeepers and home to the building regulatory Tsars.
Currently there is no legislative mechanism for the adoption of uniform standards as each state and territory in its sovereign capacity determines what to adopt.
Alas, not ideal in the fire regulation and leaky building space. In such a paradigm, federalism shows its limitations. But the sooner the naysayers accept that federalism is here to stay in perpetuity, the less time can be wasted in ‘pie in the sky’ or utopian debate. The discussion has to be about how one engineers accord in a federal scenario to facilitate the promulgation of uniform and enlightened building regulations and standards.
The challenges confronting the nation in building control are immense, possibly greater now than ever. What, with the continued instability of the profession, the continued viability of private certification or lack thereof, non-compliant ACPs and the unfolding of a leaky building syndrome – from the viewpoint of protecting the interests of the Australian citizenry, there is a desperate need for national solutions, rather than secular or provincial solutions.
It follows that maybe it is time to reboot the concept of cooperative federalism that was a hallmark of early nineties law reform. Yes, maintain state and territory building regulatory sovereignty but equally through cooperative federalism adopt best practice standards and regulations that serve the common Australian good, the non-sectarian Australian citizens, consumers and building practitioners.
What is ‘Best Standard’?
In determining that which would be considered the best standard, that is in itself an interesting question. As a lawyer, I am loath to volunteer an opinion on point because in all honesty I am not qualified to proffer an opinion. That is the remit of the fire engineer and there is a high concentration of fire engineering luminaries on display at this conference.
What I am comfortable in saying is that it is very important that the best are available and the best standards need to be fashioned by the experts.
How does one define best standards?
This is axiomatic, they will be standards that:-
- prevent loss of life in fire events;
- are holistic in that the fire retardant system is designed to achieve the fire safety outcome which will of course ensure that in the event of a fire:-
- the fire is contained;
- occupants can avail themselves of swift and safe egress; and
- damage to property is minimal.
I do not think anyone would disagree with these objectives.
But the science that needs to be incorporated into standard design is a far more exacting affair.
Being an exponent of international best practice, when it comes to fire engineering standards design, in my personal view, entails that one must have regard to international best practice. The fire engineering domain and its consumer constituency should demand this.
Because so much of fire retardant product that finds its way into the construction ecology is imported and the same type of product i.e. ACPs are exported and utilized throughout the world.
It follows that the advancement of fire engineering and fire regulation is not a local phenomenon, it is global and the problem of vertical fire spread is global. Hence, best global practice should be the benchmark.
Once one has developed a best practice standard then there would be merit in the states and territories uniformly adopting it. Fires do not discriminate between states, territories, borders or hemispheres – they are inherently geographically and politically agnostic. It follows that the phenomena of vertical, or even horizontal fire spread for that matter, has no regard for conflicting acts of parliament. Fires do, however, respect the containment measures inherent in best practice fire-engineered fire retardant solutions.
The simplest way to ensure that uniform standards are adopted is to generate an enlightened standard that finds its way into the NCC and then each state and territory calls it up without compromise. The mechanisms are there.
How Can Regulations Evolve to Keep Up?
It’s all about R and D and the adoption of international best practice.
Fire engineering and best practice holistic fire management is an evolving paradigm and a relatively new profession.
The emergence of SHR’s (Super High Rises) has been a game changer. ‘Suburbs’ are increasingly vertical, pushing into the air rather than terrestrial. Higher and higher is the mantra.
Building regulation has not kept abreast of this game-changing paradigm shift. SHR construction has unfolded, in a sense, organically and has indeed accelerated past the design of ‘modern’ building regulatory ecology. Modern building regulations have been found to be not so modern and in many parts of the world the culture of compliance and enforcement has been found wanting.
The problem is that unless there is a crisis, regulation is slow to evolve and it is rarely proactive, generally reactive and in some jurisdictions atrophic, so by and large is off the pace. That’s just the nature of the beast pretty much across the globe.
To change that approach, the regulators will need to persuade their masters to give them budget for the establishment of internationally affiliated R and D units whose sole mandate is to continually monitor best practice international building control and construction solutions. There will need to be coalition of R and D units that exchange R and D globally. Coalitions and information exchanges must be established, this is one area where one can leverage off globalisation.
Annual reports will be published and dispatched to the heads of building control and they will be tabled with the responsible Ministers. Review of best practice regulation will occur annually in the quest to keep abreast of latest developments and technology and the identification of that which fails and that which works.
The reports will capture consumer and industry feedback along with early warning detection research. When a major fire incident occurs abroad, diagnostic research courtesy of collaborations with offshore information collaborators will ensue. Lessons learnt will find their way into local thinking and reporting up the line along with law reform recommendations. Global problems require global solutions hence global cooperation and exchange of R and D. In the age of the net, email and instant and accessible knowledge transfer, such access should not be challenging.
Yes this type of approach would be somewhat revolutionary, there would be no rear view mirror, policy on the run. But there would be a utilitarian dividend in that the early warning detector systems abetted by up to date benchmarked R & D would identify the ominous, before the ‘that which does not bode well’ finds expression and becomes a regulated status quo
Accountability of Manufacturers
In an article that I wrote for the Australian last year, I opined that the way to keep non complying product from domestic shores is to establish a national accreditation body that is designed to ensure that non-conforming product is kept out if the country.
Any offshore exporter to a domestic jurisdiction will be required to undergo vigorous onshore laboratory testing to obtain accreditation of product and access to market. The exporter will of course pay the accreditation body and testing regime for the tests. If the tests are successful, the federal accreditation body will formally accredit by way of stamp or code mark and the product will be incorporated into a product register.
The accreditation body will be able to approve and accredit the testing authorities charged with the responsibility of testing and approving imported product. Local manufacturers will likewise be subjected to the same rigour.
The states and territories will then generate consistent regulatory amendments to ensure that the building surveyors and officials only permit the use of the accredited product.
The regime is designed to overcome the very real and logistically nigh-on-impossible difficulties in holding offshore manufacturers to account. The litigation involved in pursuing off shore manufacturers is labyrinthine and enforceability of judgement most difficult.
Raising Accountability of Practitioners
Depending on which country/state or territory, within the sovereign context, one lives in, the accountabilities of practitioners differ profoundly. The Australian jurisdiction NSW’s Building Professionals’ Board only registers residential builders and building surveyors. The Victorian Building Authority registers builders, draftsmen, engineers, quantity surveyors, building surveyors and building inspectors. If one wants consistent cross-jurisdictional accountability, from a legislative oversight point of view, and compulsory insurance for all principal actors, one has to uniformly adopt broad church registration cross jurisdictionally.
A key element of accountability is compulsory registration; insurance and practitioner conduct oversight regimes. Absent same there is little ability to mandate qualifications and ‘vocational egress’ criteria i.e. the cancelation of licensee for conduct unbecoming.
Without compulsory insurance, there is no ability for consumers to be sure of indemnification. Insurance provides no utopian panacea, but is the best way, albeit with well-ventilated limitations, of guaranteeing legislatively aided financial redress. Absent compulsory insurance, there resides the spectre of men of straw defendants.
An upping of the ante of further accountabilities of building surveyors will probably cause a market failure, particularly in the likes of NSW where, from an insurance indemnification point of view, too few are required to carry too much. The north of three-storey residential exclusion in respect of residential builders having to carry compulsory warranty cover has been a boon for the builders but profoundly deleterious for other insured building practitioners, like surveyors who in light of the vacuum become very conspicuous co-defendants.
The crisis of indemnification of private certifiers is playing out with the rapid ticking up in fire cladding and leaky building litigation as insurers are already, or about to:-
- Double to triple insurance premiums in the case of many building surveyors
- Impose exclusions for non-compliant ACP buildings
- In some instances vacate the market in terms of underwriting private certifiers.
The maths doesn’t stack up for them; too little premium, too much risk.
If further disproportionately higher risk allocation demands are brought to bear upon certifiers, absent the reintroduction of high rise warranty and multi-actor registration, private certification will fail. And this may occur very soon.
That will mean by default, building enforcement will have to return to local government. But here’s the thing: Does local government want it back? Can it resource it? Will it assume that liability reservoir and visit rate increases for resumption of local government building control on councils? Or is it beyond the point of no return? These are questions that must now be tackled as the viability of private certification is being tested like never before.
A lack of preparedness on the part of insurers wiped private certification out in NZ in the early nineties – the same thing could well happen here. The catalyst will be a wave of fire cladding body corporate litigation and a proliferation of leaky building litigation.
Consumer Protection Going Forward
Broad church compulsory insurance of building practitioners is paramount.
Were insurance to be jettisoned, the safety net would disappear. For fear of labouring the point insurance is an imperfect form of security but it’s a dam side better than the alternatives.
Mandatory users pays annual auditing of key building practitioners should be introduced to ensure that problems are picked up at an early juncture in the construction critical path. The complaint based auditing approach is flawed as it requires construction failure or consumer disquiet as precursor to action. Trends have to be identified early so that the problem can be arrested. This is the best type of consumer protection going forward, this can only be achieved if the spectre of the enforcer looms large in the consciousness of practitioners. This more than anything else will drive cultural change.
Building surveyors must be denied the ability to sanction and approve alternative solutions. Their powers must be limited to sanctioning deemed to satisfy provisions. The natural person discretion based power to approve alternative solutions needs to expire, sooner rather than later.
Dispute resolution needs to be overhauled. Dedicated construction dispute resolution divisions need to be established in the dispute resolution theatres and the adversarial system needs to be challenged.
Tribunals need to nominate accredited expert witnesses that will be remunerated by disputants on a 50/50 basis with the view to dispensing with the adversarial dynamic where plaintiff and respondent expert witnesses adopt contrary positions on the same construction subject matter.
The independent expert, will inspect, diagnose, quantify and then appraise the tribunal of his or her findings. Those findings will be binding. Such an approach will cut the cost of dispute resolution in a profound sense.
In conclusion, an observation based on 30 years of construction and law reform lawyering is this:
Best practice regulation and best practice fire regulation should not be ideologically driven, say, by economic rationalism. Nor should it be dominated by one prevailing current to the detriment of the public imperative of non-compromised safety of the citizen. When regulations are tipped too far in favour of the contemporary or fashionable ideologies and mantras, the prospect of achieving holistic responses to fire safety hazards is diminished. Best practice fire regulation is based on fire engineering principles that have been subjected to the furnace of robust debate and to the most enlightened science.
For best practice regulations to bear the most utilitarian fruits within the Australian context, a cohesive cooperative federal approach is to be encouraged. It will also require international collaboration as fire regulation is ever-increasingly facing the tests of global free trade, where borders – at least in terms of the movement of product – are of lesser material significance. By deploying nuanced regulatory mechanisms to ensure suitable and proportionate accountability for manufacturers of building product and practitioners responsible for the use of said product, Australia will be in a stronger position to face off non-compliant product.
Kim Lovegrove RML FAIB is a Law Reform Consultant and Mediator with Lovegrove and Cotton.