Articles

The National Construction Code (‘NCC’), previously the Building Code of Australia (‘BCA’) is the national building code in Australia that contains highly technical requirements for construction and building. It is Australia’s: –

“Primary set of technical design and construction provisions for buildings. As a performance-based code, it sets out the minimum level for the safety, health, amenity accessibility and sustainability of certain buildings”.[1]

Some history

The BCA 1996 drew its inspiration from the New Zealand (‘NZ’) building code produced by the then NZ Building Industry Authority. The conversion from the NZ template for Australian contextualisation was commenced by the Australian Building Codes Board in 1994 and concluded in 1996.

What is the ABCB?

The Australian Building Codes Board was established by way of an intergovernmental agreement. It is a cross – jurisdictional collaboration between the nine governments of Australia. The ABCB is located in Canberra. The ABCB`s Board comprises representatives from the 9 governments and some industry representatives along with an independent chair person. Central to its mission is the production and updating of the NCC.

The previous incarnation of the ABCB was the AUBRCC, the Australian Uniform Building Regulatory Codes Council.

How does the NCC gain legal effect?

The NCC achieves legal effect by being called up by the overarching state and territory building regulatory instruments. For example, the Victorian Building Regulations call up and give the NCC force of law in Victoria.[2]

The states and territories retain the jurisdiction to vary certain provisions of the NCC and have done so, not infrequently in the past. In fact, our firm is reliably informed that there used to be a variations reduction committee to do as the name of the committee suggests: reduce variations to the NCC.

What is a performance-based building code?

“The NCC is a performance-based code containing performance requirements for the design, construction, performance and liveability of buildings. To comply with the NCC, a solution must achieve compliance with the governing requirements and the performance requirements. The governing requirements contain requirements about how the performance requirements must be met. A building, plumbing or drainage solution will comply with the NCC if is satisfies the performance requirements, which are the mandatory requirements of the NCC. Many of the performance requirements are qualitive in nature. Rigorously quantifying these requirements will provide objective levels of performance for practitioners to target.[3]

“A criterion 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… If a prescriptive provision is about being compelled to do something ‘to the letter’ so as to achieve the legislative outcome, the performance route is about achieving an equivalent outcome via a non-prescriptive route…

“The actual notion of performance is in fact somewhat of a misnomer.  After all, mostly performance building codes are a potpourri of performance provisions and prescriptive provisions. … A more accurate and insightful title would be objectives-based code or performance option code.”[4]

The NCC comprises ‘deemed to satisfy provisions’ and ‘performance solutions’ or what were previously known as alternative solutions

What are deemed to satisfy provisions?

Deemed to satisfy provisions are prescriptive provisions “(i.e., like a recipe book, they tell you how-, what and in which location things must be done)”. They include materials, components, design factors and construction methods, that if used are deemed to satisfy the Performance Requirement.[5]

What is a performance solution?

A performance solution is “a method of complying with the performance Requirements other than by satisfying the DTS solution of the BCA.”[6]

What is the purpose of a performance code?

The purpose of a performance code is to provide greater flexibility.  A purely prescriptive code is more rigid, somewhat of a ‘straight jacket’ as that is the nature of prescription. Prior to the introduction of BCA 1996 in jurisdictions like Victoria the previous regime was more prescriptive. In circumstances where there was a novel design scenario that did not comply with the prescriptive provisions, application had to be made to a government-ordained Referees Board (this has now been superseded by the Building Appeals Board) applicants could apply to the board to seek approval of design proposals that did not comply with the prescriptive regime. If the Referees were satisfied that the design scenario did not compromise the regulatory mandate the referees had the power to approve the design. Once approved, the local authority could issue a building permit for same.

The introduction of the performance system removed that resort, the straight jacket was removed, and instead, building surveyors were endowed with the power to issue building permits based upon performance-based solutions, as long as they were satisfied that the proposal was not at odds with the objectives and performance thresholds in the BCA.

What are the risk implication of performance codes?

I sought Professor Kim Lovegrove’s views on this question as he has some corporate memory and experience in this field. He said that when private sector building permit delivery was introduced in Australia in the early nineties there was no contemplation at that time of the introduction of a performance-based building code.

He also advised that if a performance-based building code was on the horizon, it is likely that recommendations would have been made to limit the ability of building surveyors to issue building permits solely in accordance with deemed to satisfy provisions rather than via the arterial of alternative solutions. Reason being that the enabling of a natural person building surveyor to issue performance-based building solutions involves a massive concentration of risk being brought to bear upon individual building surveyors.[7]

It is his view that a high level of discretional power is too great to visit upon a natural person that is not optimally isolated from the building site. Rather, that power should have been referred to independent statutory bodies reminiscent of the above-mentioned Referees’ Board.

This never occurred, the game changing performance-based building permit delivery system and the equally ground breaking introduction of private building certification coincided with one another.

Nevertheless, performance building codes in one way or another have been introduced in many developed economies round the globe in light of the flexibility they afford and the opportunities that they bear for innovation. In a rapidly changing world where technological advances often race ahead of the evolution of regulatory architecture, it is important that there is a mechanism within regulation that allows economies to keep in lockstep with beneficial advances without compromising the integrity of the building regulatory ecology.

Where work may still need to be done is to better calibrate overarching statutory administrative provisions with the performance codes. As performance codes bring flexibility so too, they bring greater discretion. With greater discretion comes greater risk so administrative provisions need to have holistic belts and braces to manage those risks.

By Professor Kim Lovegrove, Senior Lawyer, and Tsigereda Lovegrove, Law Graduate, Lovegrove & Cotton – Construction & Planning Lawyers

Tsigereda Lovegrove is a law graduate having recently completed her law degree at VUT. After moving from Ethiopia in 2009 Tsigereda studied a diploma in management, and then began working with Lovegrove and Cotton as an office manager whilst she was undertaking her studies. Once she is admitted to practice as an Australian legal practitioner, she wishes to continue with the family tradition of construction law with the view to building upon the legacy of a firm that was established in 1993.

Tsigereda is also a past Consulate attaché in which capacity she assisted the Ethiopian Honorary Consul with the running of the office and diaspora interactions. Tsigereda is the Secretary of the International Building Quality Centre, Dispute Resolution Group.

This article is written for general information only and is not to be construed as a legal advice. If you require legal assistance, please contact Lovegrove and Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

[1] ABCB, National Construction Code, accessed at <https://ncc.abcb.gov.au/>.

[2] See Building Regulations 2018 (Vic), cl 10.

[3] ABCB, Our Initiatives, accessed at < https://abcb.gov.au/initiatives>.

[4] Holistic considerations concerning performance-based building codes – a paper presented (absentia) to the American Society of Fire Protection Engineers 1996 by Professor Kim Lovegrove MSC RML.

[5] ABCB, Compliance with the NCC, Using a Deemed-to-Satisfy Solution, 2, accessed at < https://www.abcb.gov.au/sites/default/files/resources/2021/UTNCC%20Compliance%20with%20the%20NCC.pdf>.

[6] Victorian Building Authority Performance Solution procedures and Documentation Practice, Note 63 – 2018.

[7] As Kim was the Assistant Director of Building Control in Victoria in the early nineties and instructing officer to parliamentary counsel on the development of the Building Act and then head of policy at the ABCB in the mid-nineties his corporate memory of the above geneses has credibility.