Introduction

The promulgation of performance-based building codes has become more prevalent in the last three decades in many countries. When the writer worked as deputy executive director and head of policy and legal at the Australian Building Codes Board (ABCB) in the mid-nineties, Australia ventured into this domain as did a number of countries during that decade.

A trend has emerged where building codes are called up absent the promulgation of overarching administrative machinery that serves to manage the performance settings. This paper submits that without the promulgation of overarching administrative provisions that are bespoke to manage the increased risk calculus of performance codes, the optimum benefits that can be derived from performance codes are in jeopardy.

This paper supersedes the paper ‘Why Performance Based Building Codes need Sympathetic Building Acts to achieve Holistic, Sustainable Utilitarian Outcomes’ published on 9 February 2022. It supersedes the same because the writer invited commentary from a number of internationally pre-eminent experts to provide feedback and they have been kind enough to afford that accommodation in the published paper’s commentary stream. The experts are quoted throughout the paper.

What is a Performance Based Building Code?

A good definition of a performance code can be found on the ABCB website, although it has specific application to Australia it pretty much encapsulates the universals that underscore a performance code construct.

“The National Construction Code (‘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 it satisfies the performance requirements, which are the mandatory requirements of the NCC. Many of the performance requirements are qualitative in nature. Rigorously quantifying these requirements will provide objective levels of performance for practitioners to target.”

Another definition is found in a paper written by the primary author of this paper.

“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.”

Performance Codes Change the Risk Landscape

As performance codes or performance options codes provide a non-prescriptive road map to compliance with the code and regulatory objectives, performance codification gives rise to a number of profound resets, namely:

• Far more freedom, that if unchecked can compromise built outcomes.
• The security that is afforded by resort to the ‘well–trodden’ path of prescriptive compliance may not be in play.
• Far greater discretion will be afforded to the key actors involved in the performance design and delivery chain.
• The performance outcomes will more than likely be project specific and non-generic in their application.
• By virtue of the outcomes being situationally and project-specific, the performance methodologies will not have been ‘road tested’ in the field as it were in the laboratory of experience, rather there will be a heavy reliance upon expert assessment and the speculation of likely performance outcomes.
• There will be heavy reliance upon expert appraisal and modelling to facilitate performance solutions.
• The calibre of the expert in terms of expertise will be critical.

Chief Gary English, Chief Executive Officer, Underground Command and Safety Western Washington University, volunteered a comment in the said paper. He stated that:

“Regulations (code/standard) provide the boundaries but performance based leaves room for interpretation. Designers/contractors strive to meet the requirements to meet safety, but may tend to aim for a lower cost (profit motive) Authority, i.e., the individuals tasked with interpretation (enforcer of the regulations) who must be proficient in an amazing range of systems, made more difficult by the need to deeply understand exactly what performance should achieve… Ultimately, if things go wary, in the US the courts become the final adjudicator which can be expert vs expert presentations, often well after the structures have been completed.”

Picking up a couple of Chief Gary English’s observations, “performance leaves room for interpretation”. It is the ‘room for interpretation’ with performance that gives the writer a measure of trepidation, for the following reasons:

• Interpretation is subjective.
• Interpretation is fallible.
• One interpretation can be at odds with another interpretation.
• What is the motivation that will underline the interpretation, or the criteria applied?
• Is the interpretation such that it will increase the benchmarks of public safety or will it be one that is profit motivated?
• Lawyers and the bevy of post-incident diagnostic consultants have a great deal to work with when they are afforded the opportunity to analyse failures after the event, when decisions are discretional and capable of multi-interpretation.
• When experts are subjected to the blow torch of cross-examination, the rationale that underpinned the interpretation will in many instances be under siege. This does not always bode well in a court of law.

It follows that whenever an expert is called upon to design or sanction a performance solution, the expert must embrace the gravity of the decision and the interpretative discretion and bring to bear a robust scientific rigor. Interpretations in terms of how a codified provision is likely to apply to practice are not inviolate and can become incredibly contentious, particularly where there is much at stake.

Mark Chub, Chairman, Board of Directors and Trustees, The Institute of Fire Engineers, (in the same above-mentioned commentary stream on the said paper) volunteered that:

“It is true most building codes assume a utilitarian orientation. That’s a big reason why they don’t achieve optimum outcomes. What works for ‘most people’ does not work for the most vulnerable. And those that most likely to benefit have different stakes in the game.”

The Need for a Holistic System

In a paper that the writer penned for the Society of Fire Protection Engineers (SFPE) in the USA in 1997, that which he considered central to the thesis of ensuring that performance building codes could fit well within a viable building regulatory ecology, was that codes could sit within a holistic system. Hence the title of the paper Holistic Considerations to do with Performance Based Building Codes.

The title was emblematic of the idea that in a good practice building regulatory holistic ecology, the code is one part of the sum of all parts. It is submitted the adoption of holistic tenets and maxims cannot happen organically or by chance; rather performance codes in terms of how they are applied and managed, have to be called up and given effect in terms of their application and use by overarching administrative statute law.

The above is not an isolated view. Dr Brian Meacham, stated that:

“Robust building regulatory systems need appropriate enabling legislation, robust regulations, and strong regulatory infrastructure, including competent practitioners, insurance schemes, etc., along with ethical products of products and services in the regulated area. Failure can occur when any single component fails, and the magnitude of the impact increases and the number of components experience failure. So we should not expect any one component to solve all problems, or to be surprised when multiple failures result in tragedy. Likewise, we should not shy away from approaches that can help, when appropriately implemented such as performance based codes and risk informed design. What we should do is advocate for proper use and application of the concepts.” (comment in the commentary stream “Why Performance Based Building Codes need sympathetic Building Acts to achieve holistic sustainable and utilitarian outcomes.)

Neil Savery is the managing Director of ICC Oceania a past executive director of the Australian Building Codes Board, and a board member of the IBQC, stated in the said commentary stream that:

“There is no question in my mind that for performance-based codes to work effectively they need to operate in tandem with administrative laws that provide a complementary regulatory framework. This becomes even more important in an environment where regulatory responsibilities are essentially outsourced, but even where they aren’t, accountabilities need to be clearly set out and compliance monitored.”

This is because, as my good colleagues Dr. Brian Ashe and Stephen Kip mentored me, performance-based regulation is an extremely sophisticated and powerful tool that if used incorrectly can have significant consequences. In turn, as I have learned from Prof Jose Torrero – Cullen (of UCL and another IBQC board member), innovative solutions to complex design challenges, which increase the scale of the built environment expand upwards and methods of construction exercise the boundaries of engineering and materials, require competent practitioners. This includes education, registration, ethics, etc.

The writer finds Neils views particularly persuasive as Neil, like the writer, has the rare distinction of having worked as a law reformer in both the codification and administrative domains, at both state and federalism levels, and is intimately au fait with the challenges that characterise this legal and technical setting.

Competency and Ethical Responsibility

In similar vein, internationally recognized fire engineering luminary Peter Johnson, Fellow – Fire Safety Engineer Arup, stated in the said commentary stream:

“Agreed, building codes alone cannot do the trick. There need to be good levels of competency shown by all practitioners, demonstrated through professional registration and regular audits of professional practice which regulations must enforce. Strong professional responsibility and accountability combined with ethical behaviour is required for all safety decision making associated with design/analysis of building solutions but supported by the right education/training and mandatory and enforceable codes of conduct.”

Not many jurisdictions, in the writer’s view, have been able to achieve the right balance of administrative and codification regulatory interactive harmony. A possible reason for this (save for some Scandinavian countries like Sweden) is that there is often a siloed approach to the development of regulations as the technically qualified artisans typically develop the codes in isolation of, and absent any interaction with, the lawyers and parliamentary draftsmen that develop the administrative building laws that are embodied in the building acts of parliament.

In other words, the approach is non-binary; Australia, in light of federal constitutional restraints, is illustrative of this widespread policy architecture phenomenon and the constitutional disconnect between the legislature and the code draftsmen. The NCC is prepared by an intergovernmental collaborative department, the ABCB, in the capital city, but the legislation that calls up the NCC is drafted by the parliamentary counsel in the 8 different sovereign states and territories.

The Disconnect Between Legislation and Practice

There is a clear disconnect in a non-binary siloed approach, the disconnect is underscored by the fact that although a high level of technical dexterity is involved in the development and drafting of building codes, when ‘the wheels fall off’ and the performance clauses are tested in terms of their application and interpretation, the adjudication will, as observed by Chief Gary English, take place in a dispute resolution theatre. Said theatre will either be a court of law, a tribunal, a coroner’s court, or a government enquiry. The conductor will invariably be a judge or senior jurist and the key instrumentalists will be senior members of the legal profession.

Technically qualified experts will, of course, be key witnesses but they will be called upon to prosecute the interpretative perspective of the adversary that engages them, albeit professionally, candidly, and in accordance with the ethical protocols that govern the delivery of their expert enunciations.

Key Takeaways

• If law reform mandarins are motivated by best practice, holistic performance systems need to be developed in a binary fashion where those that design the legislation and call up the code have a symbiotic and interactive relationship with code drafters.
• As performance codes are non-prescriptive, as they allow for site-specific project permit specific applications, there has to be much greater reliance upon the discretion and expertise of the actors that both design and approve.
• This presupposes a high level of expertise on the part of apposite actors and this level of dexterity may not always be in play.
• It thus follows that best practice performance code constructs will require key performance actors to be licensed and registered and endowed with qualifications that are ‘tailored to task’.
• Without the promulgation of qualification and experience entry points, it is not easy to guarantee a pipeline or critical mass of sound skill sets.
• The role of independent peer review is critical as there needs to be a separation or barrier between the designers and the approvers.
• The designers are understandably close to the project and client contact is intimate, this can sometimes undermine independence and objectivity.
• It is thus paramount that those that approve and provide sanction of designs are independent of the project.
• Such can be the adverse consequences of compromised construction outcomes that have at their essence an abuse of performance-oriented discretion, there need to be strong probity and oversight controls to ensure that any appetite for expedience driven by commercial imperatives is kept in check.
• Performance-based discretions are best deployed in a local government or government-controlled setting, rather than a private building surveying setting.
• Private certifying settings, however, can operate where there is mandatory totally arms-length peer review of alternative design permit applications undertaken by government agencies along the lines of the Victorian Building Appeals Board.
• It is the writer’s strongest contention that the above elements in the key takeaways are not able to be implemented unless there are overarching statutes (often referred to as building acts) that incorporate the requisite features.

It is not the domain of building codes that are predominantly concerned with the articulation of technical provisions to assume or by default in an opaque or ill-defined sense supplant the role of statute. Such presumptuousness is dangerous.

Best Practice Performance Constructs

Best practice performance constructs provide the dual benefits of innovation, allow for the introduction of new, sustainable, and resilient concepts which by the same token protect the public, must be underscored by administrative provisions and promulgated institutional frameworks in the overarching acts of parliament that are sympathetic to and steer the utilitarian use and application of performance-based discretion.

A Best Practice Building Regulatory Ecology

Great care must be applied by policymakers with regards to the development of performance ecology. Mark Chun’s observations on point below are both instructive and sobering and provide a suitable cautionary backdrop for policymakers intent on designing performance policy regulation.

“Does any public policy achieve optimal outcomes. If market failures justify government intervention, the issues at play must be sufficiently complex that they cannot be remedied transactionally. In my experience, most government interventions choosing the least bad, not better or best outcomes.

It is true that building codes assume a utilitarian orientation. That’s a big reason they don’t achieve optimal outcomes. What works for ‘most people’ does not work for the most vulnerable. And those most likely to benefit have different stakes in the game.

Building Codes, including performance based ones, still focus on negative externalities. Meanwhile, the most significant recent fire failures have evidenced a different market failure; information asymmetry. This takes two forms: adverse selection or moral hazard.

Adverse selection means those with the most to gain have an interest in sharing the information they need to reduce hazards and manage risks.

Consequently, residents of high-risk residential buildings often bear the brunt of bad choices because they have no effective means of holding owners and regulators responsible or accountable.”

It is the writer’s view that it is the role of statute to codify responsibility and accountability and is also the role of statute to recognise the existence of the vulnerable and to contain within it the statutory arsenal that serves to disincentivize those that can disenfranchise the vulnerable.

Best Practice Statutory Elements to Overarch the Promulgation of Performance Codes

It follows that best practice legislative ingredients that will enhance the effectiveness of performance codes will include:

• A Building Act or overarching act that calls up the building code.
• Administrative powers within the Act that permit local government or government agencies to sanction performance-based design applications on account of their independence of the project.
• In circumstances where private certification is in play, there will be building regulations that promulgate a peer review system (modelled along the lines of the below-footnoted Victorian Referees Board).
• There will be explicit sections in said statute that prohibit performance sanctions by private certifiers without resort to said independent peer review.
• The Building Act will legislate to ensure that key actors that are involved in the design of and approval of performance-based decisions will be licensed by a government registration body or such body that is approved by government.
• The Building Act will set down the minimum qualification criteria and experience criteria. The qualifications will be rigorous and the legislation will require that those who prepare the design application have skills that are correlated with the opposite licensed category.
• Fire engineering designs will be prepared by licensed fire engineers, likewise commissioning and inspection of the same.
• The legislation will require key actors to be insured to ensure that the public is protected and indemnified from performance-based outcomes that go awry.
• Key actors will come under the jurisdiction of a central licensing regime that has the power to investigate and discipline. Said regime will be a creature of statute.
• The legislative promulgation of a peer review system is imperative in a performance code context.

Conclusion

Absent the duality and symbiotic marriage of building code and a building act with the accoutrements of sophisticated overarching statutory belts and braces, it is the writer’s submission that a performance-based code ecology cannot be considered to be best practice and is likely to generate unintended consequences.

If a legislature is intent on introducing a performance-based building code, if it is not prepared to coincide the introduction of same with the overarching legislation then it should be prepared for a set of consequences that may well be at odds with the good intentions that motivated the reforms at the beginning.

The writer thanks the above-mentioned international experts for their generosity in volunteering some very insightful contributions to this very important discussion. The writer will also in the near future seek the IBQC’s Board support for a set of good practice guidelines to be developed on point. If that sanction is forthcoming, the writer will invite said experts to participate in the drafting coalition.

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.

Relevant Articles

• Without well thought through overarching building legislation Performance-Based Codes change the risk landscape. 
• Why Performance Based Building Codes need sympathetic Building Acts to achieve holistic, sustainable and utilitarian outcomes

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.