Alternative Solutions for Fire Performance: Is There a Gap in the Building Regulations?

Whilst the VBA is quite rightly concerned that building surveyors ensure detachment and impartiality when assessing alternative solutions, recent exchanges of views have highlighted that there may be a ‘gap’ in the legislation governing alternative solutions for fire performance requirements.

Specifically, whilst Regulation 113 of the Building Regulations 2006 enshrines the importance of alternative solutions for fire performance being verified by either a fire engineer or a building surveyor that did not design the building work, satisfying the test of conflict of interest avoidance, that Regulation still allows other alternatives when determining such alternative solutions. The question is, have these alternatives been properly considered by all parties, and is it really what parliament would have intended in matters of fire safety?

In a recent memo to the Victorian branch of the Australian Institute of Building Surveyors (AIBS), the VBA highlighted the importance of building surveyors avoiding conflict of interest in carrying out their regulatory role of ensuring compliance with the Building Code. This was equally important in fire safety matters, particularly given the high potential impact to safety if fire performance is not adequately met.

There is nothing new in this. In other states and territories across the nation, the importance of building surveyors, building certifiers and accredited certifiers avoiding conflict of interest in their public, regulatory function is a consistent theme. This means that the building surveyor (or certifier) must not:

• be involved in the design in any way; or
• must not have a pecuniary interest in the development; or
• must not be related in a family or business sense to the developer or a party with a pecuniary interest in the development;

in relation to the development or project where the building surveyor or certifier is appointed.

There may be other bases to say there is a conflict of interest, but these are the main factors. In New South Wales, there is more detailed legislative proscription as to what is and what is not a conflict of interest; nevertheless even in Victoria it can be grounds for a misconduct inquiry should a conflict of interest be even perceived to have manifested on a building surveyor’s activities.

So what is the VBA’s current concern? Well, they are particularly concerned about alternative solutions in regard to fire performance requirements under the Building Code.

As I described in a recent article, the VBA has been carrying out audits of building permits in recent times and in regard to a few building surveyors whose registrations have been cancelled, the Authority has taken responsibility for some outstanding building permits.

As regards the alternative solutions for fire performance, the VBA want all relevant building surveyors to ensure that these alternative solution assessments are only undertaken by registered fire safety engineers and then independently checked and certified by another registered fire engineer or an independent registered building surveyor.

For example, when an RBS relies on a certification of a structural engineer for a design, the RBS would also request an independent third party certification from a registered engineer with the correct experience. Therefore, the VBA advises that it expects the same process for fire performance alternative solutions.

The AIBS has however quite rightly noted that a full reading of Regulation 113 (Building Regulations 2006) contains sub-clauses (a) to (g) and these are all phrased as alternatives to enable the RBS to determine that an alternative solution complies with a fire performance requirement of the Building Code. We know they are alternatives given the use of the word “or” after each of the sub-clauses.

Sure, there is mention in sub-clauses (b) and (c) that compliance certificates under s238 of the Building Act can be obtained from an independent fire safety engineer or alternatively an independent registered building surveyor (provided that neither were involved in the design), and these options enshrine the prohibition against conflict of interest. The peer review, if you like, cannot be from someone who was involved in the preparation, creation or formulation of the alternative solution (as that is regarded as design).

The only other alternative mentioned in the VBA’s recent memo was that in sub-clause (d), being a determination of the Building Appeals Board under section 160A of the Act that the alternative solution complies with the performance requirement.

While the AIBS has suggested that the section 160A referral would be a good idea for all such alternative solutions, it is unclear whether this would be practical given the existing workload and demands on the Building Appeals Board. At the least they would need to sit more often than they do currently, one would expect.

The VBA did not mention though that the RBS may hold the prescribed qualification set out in sub-clause (a)(i) or an equivalent qualification deemed acceptable under sub-clause (a)(ii), in order to determine the compliance of the alternative solution. In other words, the satisfaction of sub-clause (a) is another option in Regulation 113 that stands apart from the need to obtain a compliance certificate as contemplated above.

We are not sure this is what was intended by parliament or those with a stake in influencing the law on point. Because read literally, it could mean that regardless of whether or not a relevant building surveyor has a conflict of interest he/she could assess the alternative solution under Regulation 113 – provided of course he/she meets the requirements on qualifications set out in sub-clause (a).

In fact, we suspect the lawmakers would wish to ensure that there is no scope to circumvent conflict of interest requirements (intentionally or otherwise), particularly in areas involving fire safety. While most practitioners of course do the right thing, the conflict of interest provisions are expected to be water-tight.

By Justin Cotton, Partner and head of practitioner advocacy

Lovegrove & Cotton

Ph 03 9600 1643

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