Articles

Any country can draw upon best practice approaches to enlightened building regulation that are evident in jurisdictions not just locally but offshore. It is always very important to benchmark one’s building regulatory regime with other countries and jurisdictions to ensure that the most utilitarian building control systems are emulated.

The construction industry is no exception, and based on my experience as a law reformer and practicing construction lawyer spanning back some 30 years, at least 15 core elements stand out in any best-practice building sector regulation regime.

Dedicated Building Act

Better to have dedicated building acts of parliament rather than a ‘potpourri’ or ‘casserole’ of different statutes regulating different spheres all merged into one.

Jurisdictions that feature dedicated building acts can be found in New Zealand, Japan, Singapore and the Australian jurisdictions of Victoria and the Northern Territory, where specific Building Acts deal specially with building regulations in a deliberate and effective manner.

Strong building consent/occupancy permit regime

Building work should never commence without building permits or building consents. Nor should permits be allowed to be issued until building officials are satisfied that plans and specifications comply with building regulations, relevant technical codes and standards, furthermore, occupation of buildings in circumstances where occupancy certificates have not been issued should be illegal and prosecutable.

Licensed officials only

Only licensed and suitably qualified building surveyors or building officials should be able to grant statutory permits and certificates. The licensing regime must have very strong probity regimes in place to ensure that the building officials unerringly embrace the public imperative of safe and habitable buildings.

Building officials as creatures of statute

Building officials play a crucial role in building control. Their profession should be respected accordingly and they should be given very strong statutory powers regarding inspections and issuing of enforcement and non-compliance notices and orders.

Mandatory inspection powers

There must be mandatory inspection powers, where officials are called upon by Act of parliament to inspect building work and either approve such work or otherwise as appropriate. Absent the establishment of mandatory inspection powers the inspectorial regime can be too laissez faire too ad hoc. Light-touch enforcement can be very dangerous and can undermine the ecology of sound building control.

Robust licensing regime

All main actors in the building control system – builders, engineers, architects, draftspersons, building inspectors, surveyors and even planners – should be required to be licensed and registered under a strong licensing regime.  They should also be required to pay annual registration fees to ensure that the cost of running the regime is in part subsidised by those whom operate within it.

Strong licensing body

Likewise, a robust licensing body must be in place to register, discipline and de-register practitioners as appropriate.

Mandatory Practitioner Auditing

To ensure their practices are up to standard and devoid of ethical blemish, all licence holders should be required to undergo yearly audits. These should be paid for by the licence holder but the auditors should be accredited by the independent registration bodies. There are plenty of examples of user pays auditor regimes, such as the Law Societies, which offer some of the best user pays independent auditing regimes.

Power to Prosecute

Effective powers must be in place to ensure those responsible for non-compliant work can be prosecuted and emergency repairs can be performed without undue delay. Punishments have to be commensurate with the magnitude to the offence, severe breaches will require sever punishments. One can’t have light touch regulation and tokenism.

Mandatory insurance

Insurance, albeit by no means a perfect solution nevertheless provides the only means by which consumers can avail themselves of compensation for compromised construction outcomes. Insurance should never be optional for building practitioners.

Clear liability sunset periods

Limitations regarding time-frames in which legal proceedings for defective building work must be initiated should be clearly set out. Ten years from the day the occupancy permit is issued has merit.

Fair apportionment of liability

Liability apportion liability among multiple parties and limit the liability of individual defendants to their judicially assessed share of overall responsibility are sensible and fair.

No one should be made to pay more than the share of the liability for which he or she is responsible.

Building Codes

Building Acts must be supported by strong Building Codes which set out the full gamete of technical requirements and rules. These should inter-operate with the Act in a manner which is perfectly seamless and completely harmonious.

Fast, cheap dispute resolution

Building Acts should specify fast and cost-effective dispute resolution procedures in theatres which are specifically dedicated to building disputes and which have the power to appoint expert witnesses who are suitably qualified to identify and quantify rectification costs.

Prescriptive and performance or objective based design solution pathways

Provided the solutions are appropriately sanctioned by independent peer review panels, performance building codes which allow the choice of prescriptive and performance or objective based design solution pathways have merit.

The Design of Regulation

Whenever legislation is fashioned or undergoing major reform the department with carriage of the reform initiative should ensure that there is engagement with independent experts revered for their knowledge of best practice regulation. Equally important is stakeholder consultation which necessitates genuine dialogue with both consumer and industry representatives. Inclusiveness is paramount. Regard should also be had to international best practice and by the same token identification of system failure to ensure that, that which has failed abroad does not find its way on shore.

Sustainability of funding regimes for enforcement.

As licencing and probity regimes are expensive to run it is very important that the resourcing of same is immune to the vagaries and rise and fall of economic cycles. Unless regulation is enforced and well-resourced even the most enlightened of building codes can be rendered impotent or benign. It is therefore critical that there are funding mechanisms that subsidise governmental treasury dependence. Significant funding can be generated by:-

• Annual registration fees
• User pays auditing regimes
• Compulsory annual CPD
• Levies albeit nominal on insurance revenue

The Latvian supermarket roof collapse that killed more than a score of people was in part attributed to the disbanding of the National Building Inspectorate. As enforcement and compliance is key the auditing and inspection regimes must be maintained in optimum fashion in perpetuity hence funding for same needs to be such that it is sustainable and recession proof.

Lovegrove & Cotton Law Reform Division

Lovegrove & Cotton have been engaged to advise governments both locally and offshore for nearly thirty years on best practice building control. The firm is always happy to be retained to assist jurisdictions with satisfying their request for best practice building control. To find out more about our experience on point, click “Law Reform”.

By Adjunct Professor Kim Lovegrove MSE,RML, Consultant to Lovegrove & Cotton – Construction and Planning Lawyers