Holistic Considerations concerning Performance Based Building Codes

By Kim Lovegrove RML, FAIB, Senior Consultant and Mediator, Lovegrove & Cotton – Construction and Planning Lawyers

This is a paper presented to the American Society of Fire Protection Engineers Focus Group Forum on a

Performance Based System for the USA in April 1996

This paper is prepared by Kim Lovegrove RML, FAIB (past conjoint Professor in building regulation and certification) who once worked as a national policy director and solicitor with the Australian Building Codes Board. The views expressed in this paper are personal and do not purport to represent the views of the ABCB.

Philosophical Considerations

• What are we trying to achieve?

• Why are we embarking on this path?

• Is the USA being caught up in a popular international current?

• If so, why are the other countries going down this path?

• Is this the right approach for the USA?

• Is the performance approach compatible with US regulation and culture?(Culture within this context means the legal, commercial and public policy framework and ethos). My research has revealed that the most common universal motivators for a performance based approach appears to revolve around a desire for:

• more flexibility

• more innovation

• cheaper construction costs there are nevertheless a plethora of related questions that need to be asked when one enters into the performance foray, namely:

• How will performance change the industry?

• What will be the real as distinct from the imagined economic benefits?

• How will it impact upon the law?

• Will the real beneficiaries in the USA be the legal profession?

• How will it impact upon construction standards?

• How will it fit with notion of liability, risk transfer?

• What level of expertise will be required?

• What consequential amendments will be required to Acts of Parliament to accommodate the necessary subjective elements associated with the greater use of discretion?

I fear that some jurisdictions have not addressed these fundamental questions. My investigations with regards to New Zealand and some European jurisdictions reveal some strong performance similarities within the technical sphere, but the regulatory and legal culture within which those technical regulations are slotted are not in the least bit similar when viewed inter-jurisdictionally. These differences will become apparent in due course.

False Assumptions

There is a disturbing incidence of false assumptions and misinformation percolating through the international research community. It appears that many of the studies that had been carried out by off shore researchers have ended up with inaccurate descriptions of the systems under study, in fact bearing little resemblance to the actual realities. For instance there is a misguided view that Sweden has a five tier performance code. This is quite incorrect. Similarly many practitioners from offshore jurisdictions think that Australia has one central building regulatory systems. Many of the Europeans that we recently met assumed that with a country of a token 17,000,000 people there would be one Building Act, rather than the 8 separate Acts for the eight states; i.e., eight Acts that individually adopt the Building Codes of Australia. The differences in these Acts are marked in terms of liability laws, private sector involvement in the regulatory process, and education benchmarks. Again in New Zealand there is no such profession as that of building surveyors, yet I have seen reports produced in Australia by people who should know better stating the contrary.

The great danger is that where influential research which imports false assumptions and errors of fact is relied upon by reformers, this will give rise to incorrect assumptions being incorporated into regulations. Where other models are utilised as reform blueprints there is a high chance of importing anomalies and false assumptions.

One of the front end tasks therefore is for the USA to retreat to the initial task of defining a philosophy that is pertinent to the USA. Therefore the fundamental question “What do we want?” vs. “What have others done?” has to be asked. Others may not have got it right. At this juncture it is appropriate to talk about some holistic considerations that should be taken into account in some detail.

It is my contention that a performance oriented model has to embrace a number of factors:

• The legislative and regulatory package

• The correct legal regime

• Risk allocation

• Complementary skills

• Economic rationale

• Public safety

In order to do this one must consider the likely ramifications and the ways in which a performance based approach will impact upon practitioners, local government, the public, the law and the economy.

The Legislative Framework

A performance based approach can impact upon liability, risk allocation, local government and practitioner responsibilities. Take the case of the local government, in countries where local government is involved in the building approval process. Then again be mindful of the research we have conducted in New Zealand. If New Zealand is any indicator, the acceptance of performance based building solutions may increase the risk of local government officers to law suits for the above mentioned reasons.

In jurisdictions like Sweden, where risk has largely been transferred out of local government into the owner’s domain, the position is different. Any jurisdiction that has significant local government involvement in the building permit process may have to face up to reality that performance orientated solutions pose more inherent risk for statutory officers than deemed to satisfy solutions or prescriptive approaches. If the legislation that calls up the performance provisions does not have the opportunity that will be derived from performance, [it] will of course be for the benefit of the legal profession this should send alarm bells ringing in the US because the US is notorious for its litigious society. In 1992 Dan Quayle was quoted as saying that the cost of litigation in the USA translates into 3% of GDP. The USA in particular therefore needs to be ever astute to the ramifications of a performance approach, both the positive and the negative. It has to assume that in the absence of well thought through legislative defences, one of the inherent features of performance, that is discretion, will increase liability exposure for those who choose to exercise that discretion.

There are nevertheless ways by which the risk that flows from performance can be clearly defined and defense can be created via legislative instruments to minimise or offset that risk. For a jurisdiction that wishes to minimise risk exposure for councils and statutory officers (responsible for checking to see whether performance based building applications comply with the relevant Acts and regulations), statutory immunities are critical.

There are precedents for such immunities. One of the Australian States, Victoria, in its Building Act 1993 has two sections that provide that, if a building surveyor relies upon certification by a prescribed class of expert that a construction proposal complies with the relevant provisions of the Building Act and the Building Code of Australia, then that building surveyor is exonerated from liability as long as that reliance is in good faith.

This defence and immunity vests the risk and the accountability with the expert who furnishes the compliance certificate. The legislation also defines the prescribed experts, which in Victoria happens to be engineers in the sub categories of mechanical, civil and electrical or building surveyors and building inspectors. Such legislation complements in my view are critical to a viable performance regime because they minimise local government exposure and vest the responsibility for performance based solutions with experts who are trained to deal with performance based proposals. I would go so far as to say that the jurisdictions that include this type of immunity will engender far greater performance intake than those that don’t. Furthermore I would suggest that if the New Zealand Building Act was amended to accommodate like immunities and like recognition of risk transfer to experts, then their performance culture would be much more readily embraced and the lawyers would be far more relaxed about the risk exposure of their council clients.

Risk, Accountability and Capacity to Account Financially

Risk has been touched upon. The legislation has to clearly define who bears the risk. It also needs to prescribe whether practitioners or persons are qualified to bear the risk. Hence the requirement within some jurisdictions for practitioners who issue compliance certificates to be qualified practitioners. Furthermore, they can only practise and proffer expertise that is pertinent to their training. The sub categories of engineering in the Victorian context are a case in point.

This presupposes that there is some system of accreditation of expertise or legislative recognition of expertise. In Victoria and the Northern Territory of Australia this is done by statutory registration systems where building practitioners in defined categories are not allowed to practise unless they are registered. Prerequisites of registration are that they are both qualified and insured.

In Sweden and Holland sophisticated systems of accreditation of expertise exist. In Sweden the quality assurance engineer has to be accredited by nationally accredited certifying bodies. They can only practise in their competence category, which is either simple, medium or high level of complexity. Again the legislation should involve itself with ensuring that there exists the capacity for experts to exercise performance related discretion and ingenuity. This we have found out is critical because a performance culture requires much more skill.

Capacity to Account

One of the reasons historically that has made local government such an attractive defendant is the “deep pocket syndrome”, where councils are inevitably joined as to co-defendants in legal proceedings on account of their capacity to pay for liabilities. In Australia, plaintiff lawyers affectionately refer to local government as “insurers of last resort”. This was also the case in the UK until the case of Murphy vs. Brentwood changed the accountability of councils.

The community by and large likes people to be able to account for their acts of negligence whether they be lawyers, architects or builders. Hence when accountability and risk is transferred away from the councils to private sector practitioners, there is an assumption that they have the financial capacity to account for the losses that they may have occasioned. Such transfer will occur in jurisdictions that wish to allow experts to certify performance solutions. This is because the rigours and demands of performance are such that councils will not have a monopoly of performance based expertise. If either councils or the public have to rely upon performance certification by experts, then accountability can only be rendered effective if the practitioner can indemnify the consumer against any loss that may flow from negligent certification. The issue of insurance then comes into the equation.

The jurisdictions that have been able to transfer risk out of government into the private sector by way of statutory immunities and delegation or outsourcing of responsibility have generally only been able to do so by the legislative prescription of compulsory insurance. The Northern Territory and Victoria in Australia are cases in point. Both of these jurisdictions permit building surveyors to rely upon independent private sector expert certification but all of these external certifiers have to be insured by law. The rationale behind this is to ensure that the public can be financially recompensed by practitioner insurance in the event of negligent certification.

Skill and Expertise

Every jurisdiction examined has revealed that performance can only work if there is a higher level of expertise in the construction industry. Expertise has to be allied with the particular demands and subtleties of performance requirements. Mere adherence to a prescriptive route requires little imagination and more often than not it is the product of route learning. On the other hand, if someone elects to go down the performance route, he or she will in many situations be going down unfamiliar territory. The expert will need to prove to the satisfaction of the owner and the public officer that the performance solution complies with the objectives of the regulations. This may require testing, verification methods and new technology. In any event it will require a much higher level of skill.

New Zealand has identified that one of the reasons that has led to slow embracement of the performance culture is that the benchmark of skills is too low. Hence the New Zealand Building Industry Authority is spending $750,000 per annum in the foreseeable future to redress the skill deficiency. (This may seem like “nickels and dimes” to the USA, but note that New Zealand has a population of a mere 3,000,000.) Since the introduction of performance, Sweden, Holland and England have invested tremendous resources in education. In both Holland and Sweden performance has spawned a new industry for the certification of experts (referred to it as the “certification Mafia”). In England building surveyors and building officials have evolved into far more highly skilled practitioners than prior to 1985. They are now perceived as professionals akin in stature to engineers.

In Australia we are about to commence the preparation of national training modules to accompany the introduction of the performance code. It will be based upon world best practises and adapted to Australian demands. I have in fact had carriage of this initiative within the ABCB and development of the modules is already on foot.

Structural and Semantic Issues to do With Actual Performance Codes

One of the questions posed in the Focus Group briefing documentation was whether all facets of the performance based code should be located in the technical document, i.e. a performance based code, or whether some facets of the code should be located in Acts or regulations. Our international investigations reveal that different countries have adopted different approaches. It is not terribly clear as to why this is so. In Australia and New Zealand the objectives, functional requirements, [and] deemed to satisfy solutions are all contained in the draft model. The code is called up by the Building Acts and the regulations.

There is also a great deal of variation to do with key words and terminology. Analysed performance means different things to different legislatures. There is even great debate in Australia about the difference between a pure performance provision and a deemed to satisfy or a prescriptive provision. In Holland, for instance, numerals and threshold numbers are often considered performance indicators, whereas in England they are not. There is a plethora of opinions with regard to the criteria that demarcates performance provisions from prescriptive provisions. There is therefore a compelling need to develop some underlying inalienable logic. Failure to do so has the potential to render a mockery of the performance approach.

The actual notion of performance codes is in fact somewhat of a misnomer. After all, most performance codes are a pot pouri of performance provisions and prescriptive provisions. In fact, in both Holland and Sweden we were advised that some provisions best expressed in prescriptive constraints were required. It is a deceit to describe performance codes as pathologically pure. A more accurate and insightful title would be objectives based code or performance option code.

A criteria for performance under any code is that performance is taken to mean performing in accordance with the objectives of the regulatory regime. If a performance solution does not comply with the level of performance required by the objectives, then it fails to perform. This however is the easy part; the more complex notion is determining how to describe methods of performance, [and] how to differentiate between a performance provision and a prescriptive provision.

If a prescriptive provision is about being compelled to do something according to the letter of a regulatory directive to achieve the legislative outcome, the performance route is about achieving an equivalent outcome via a non prescriptive route.

Summary

As outlined in the introduction, this paper has dealt with holistic considerations as distinct from technical issues. It is based upon observations that have been collated by way of international investigations.

The most telling theme that appears to be emerging is that there has been a tremendous amount of ingenuity allocated to the devising of performance oriented codes in certain jurisdictions but less attention has been devoted to the surrounding regulatory environment. Some jurisdictions have used offshore models as performance code “blue prints” without giving sufficient attention to the contextual considerations such as the way in which a performance code will marry with the surrounding regulatory systems, models of government and apportionment of risk.

It is equally telling that some jurisdictions have embraced the performance approach far more readily than others. It is the writer’s conclusion that the primary factor in determining whether the performance approach will work is whether there is in place a compatible regulatory framework that will accommodate regime. If the appropriate regulatory framework is ill conceived or lacking in key respects, there seems to be mounting evidence to suggest that the performance approach will not realise its full potential.

Against this backdrop, some yardsticks for a model system can be broadly summarised as follows.

The correct suite of legislative and regulatory complements necessary may involve:

• Assessment of liability provisions to determine how performance will impact upon the nature and burden of risk and liability. The notion of whether councils are in a higher risk position with a performance based approach than traditionally is an important consideration. If local government risk does increase, the legislation has to be amended to obviate or reallocate that liability to achieve clear risk transfer. This may necessitate regulatory recognition of prescribed classes of building practitioners or experts who are considered to possess the expertise required to sanction performance solutions in terms of their compatibility with regulatory objectives.

• Assessing the extent of “upskilling” required amongst the practitioner fraternity and the notion of whether the legislature should concern itself with the prescription of minimum educational benchmarks.

• Given the assumption that many building practitioners involved in the performance system will be from the private sector, their capacity to account is critical.

• The incorporation of a clear set of philosophical objectives to delineate the fundamental tenets of a performance approach. Consideration as to how these objectives should be enshrined within the regulations in such a manner that gives them clear legal effect.

• Consideration as to whether the drafting of performance vernacular such as key terms or words should be defined within the document

About the author

The author of this piece, Kim Lovegrove RML, FAIB, is a mediator whose practice revolves around either the negotiation or mediation of complex and at times sensitive disputes, be they of the geopolitical, civil or high-end commercial derivation. Kim Lovegrove has been retained by governments to facilitate law reform outcomes, micro-economic reforms, economic reforms and the design of best-practice dispute resolution systems. Kim is also a recipient of a humanitarian award courtesy of the Crown Council of Ethiopia and has a diplomatic lineage as both his father and late grandfather held prominent positions in the United Nations (UNESCO). Kim Lovegrove RML, FAIB is also past conjoint professor and has presided over a state practitioner registration regime as a ministerial appointee. Kim can be contacted for deployment courtesy of enquiries@lclawyers.com.au