Articles

1.1 Why Was the Change So Significant?

Performance-based or objective-based codes offered an alternative to the traditional prescriptive rules. Traditionally, building designs had to strictly follow predefined rules (deemed-to-satisfy or DTS provisions). With performance-based codes, designs can be approved if they meet the overall goals of the code, even if they don’t follow the DTS rules exactly.

1.2 Criticisms of Performance-Based Codes

Critics were concerned that some applicants might choose performance-based instead of prescriptive to lower the cost of construction and cost-cutting considerations could override public safety considerations. They contend that a subjective and discretion-based approval system could undermine the rigorous standards necessary to approve novel design scenarios.

Moreover, critics highlight that the deemed-to-satisfy provisions of the code have been “forged in the furnace” of extensive government-controlled debating, mooting, and often testing involving interaction with experts, stakeholder bodies, and actors. This level of scrutiny and validation is typically absent in a discretion-based performance approval regime. In a sense, it’s like a one-off site-specific amendment absent the independent involvement of key actors such as the above.

1.3 The New System of Approvals

1.3.1 Discretion-Oriented Approval

The Building Code of Australia (BCA) 1996 introduced a system where building officials, i.e., building surveyors, had more discretion. They could approve unique designs as long as they met the performance goals. This was a big change, especially with the introduction of private certifiers who could approve these designs.

Where corporate memory is useful, something the writer “has in spades” on account of his having in the nineties both worked for the ABCB and the department of Building Control in Victoria, is that when private certification was introduced in the early nineties, there was no contemplation of a performance-based building code being introduced in Australia.

Private certification predated the BCA 1996 by three years, and it is the writer’s view, and always has been his view, that every state and territory should have amended their promulgating acts to channel that power to sanction alternative solutions to independent decision-makers, by independent government-controlled agencies that were totally distanced from the actors involved in the building project. 

However, that would have required a high level of cooperative federalism which during the post-Bob Hawke era has not been in play.

1.4 No Mandatory Peer Review

No jurisdiction in Australasia mandated peer review for these performance-based designs. However, Kim Lovegrove suggests that independent peer reviews, like the old Referees Board in Victoria, are crucial for ensuring designs are both innovative and safe.

2. The Importance of Peer Review

2.1 Learning from the Past

Before BCA 1996, Victoria had a system where independent experts appointed by the Referees Board could review and approve modifications to building designs. This system provided high-level, arms-length expertise and ensured that the designs were practical and safe. Lovegrove believes that a similar peer review system is essential for the operation of modern performance-based codes from a consumer protection point of view. He adds that it is still not too late to reinstate it.

3. Creating a Holistic System

3.1 A Balanced Approach

For performance-based codes to work well, they need to be part of a larger, well-organized system of regulatory infrastructure. This means that the people who write the codes need to work closely with those who draft the related laws, i.e., the lawyers and those with technical qualifications. 

This collaborative approach ensures that the codes are not only technically sound but also legally deliver upon the aspirations of the legislature courtesy of the intervention of the lawyers in the legislative drafting process. Currently, no such formal connectivity exists.

3.2 Legislative Oversight

The enabling act of parliament needs to have a dedicated chapter or part in the statute devoted to the oversight and regulatory management of performance-based codes. This section should identify the government agency responsible for approving performance-based designs and detail the composition of this agency.

It should state that it is obligatory for performance-based designs to go through this government-controlled agency. The statute should also enshrine appeal rights, stipulate who the applicant will be, and specify the level of certification required of the submitting parties and by whom before a performance-based design can be submitted for approval.

3.3 Key Takeaways

• Collaboration is Key: The people designing the laws and codes need to work together closely, combining technical qualifications with legal expertise.
• High-Level Expertise: Those who design and approve building projects need to be highly qualified, with skill sets that are bespoke to their tasks.
• Independent Review: A system of independent peer review and involvement of arms-length agencies in performance approval is critical to maintain objectivity and safety.

Conclusion

Performance-based building codes offer a flexible approach to building design, allowing for innovation and creativity. However, for these codes to be most effective in terms of innovation and consumer protection, they need to be integrated into a holistic regulatory system. 

This system should include collaboration between code designers and lawmakers, mandatory peer reviews, and high qualifications for all involved parties.

Additionally, the binary of legally qualified draftspersons to draft umbrella complementary call-up building regulations and technical code writers is not always in play, which can generate unintended consequences and, in this writer’s view, is not best practice. By adopting a more holistic legislative approach where the binary of building act and building code are better integrated, buildings can accommodate the innovative, be safe and functional.

For more detailed information, you can visit the [Lovegrove & Cotton Building Codes section](LC Lawyers) or read the original paper here.

About the writer 

Adjunct professor Kim Lovegrove is the founder of Lovegrove & Cotton and is a building regulatory law reform consultant with over 30 years of experience. He was the principal Legal Adviser on the development of the Victorian Building Act 1993 and was co-leader of the team that developed Australian National Model Building Act. Internationally, he has consulted for the World Bank on best practice approaches to the design of building regulations in Mumbai, Shanghai, Beijing, and Tokyo, and was retained by the Japanese government on two occasions to participate in law reform think tanks.

Kim chairs the International Building Quality Centre (IBQC), promoting global best practices in building regulation. He is an Adjunct Professor at the University of Canberra and Southern Cross University, and is a Conjoint Professor at Western Sydney University. His Honours include the Royal Medal of the Lion and the Order of the Star of Honour of Ethiopia.

Disclaimer: The information provided in this article is for general informational purposes only. It is not legal advice. The views expressed in this article are those of the author only and are not to be taken as reflecting the views of any affiliated organizations or entities.

---

Footnote:

Kim Lovegrove’s original paper, “Holistic Considerations Concerning Performance-Based Building Codes,” was presented to the American Society of Fire Protection Engineers in 1997. You can access his other papers here.