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Performance based building codes have become more prevalent in the last three decades in many countries. When the writer worked at the Australian Building Codes Board (‘ABCB’) in the mid-nineties, Australia ventured into this new domain as did a number of countries in the early nineties. A paradigm has emerged where building codes are promulgated in circumstances where building statutes are not amended to introduce the overarching administrative machinery to best manage performance settings. This paper submits that without the design and promulgation of overarching administrative laws the optimum benefits that can be derived from performance codes will not in many instances be achieved.

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 the Australian performance context 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 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.[1]

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.”[2]

Some history and background to the NCC

In the early nineties, the then ABCB team utilised the New Zealand (‘NZ’) performance-based building code as a law reform template as NZ had in the early nineties promulgated their first performance-based building code. The Australian conversion started in 1994 the writer (who used to be the Director of Policy and Legal at the ABCB) attended a milestone meeting where the Chair of the ABCB the late, Jim Service AO, laid down a critical path of 2 years for the completion of Australia performance-based building code.

The project was completed in two years and Building Code of Australia 1996 (‘BCA’), was born. In the ensuing years the 8 states and territories of Australia called up the BCA. As Australia is a federation there is no uniform promulgation or regulatory call up mechanism to give the code legal effect, the power to call up the code to date and continuing is embedded in the eight separate state and territory building acts. This would be typical of federal systems in many countries.

The promulgation of the BCA coincided with the introduction of private building certification. Australia was one of the first jurisdictions in the world to introduce a system where one could either obtain a building permit from a private building surveyor or local government. NZ went down this path so too, Japan but the system in NZ floundered and was short lived as the insurers by 2008 vacated the market place on account of a reluctance to continue underwriting of what they considered to be a high-risk profession. The private certification system in Japan however proved resilient because of the very robust probity and licencing controls that exist in that country.

Even though the introduction of performance codes in the antipodes heralded a tectonic shift in risk, the 8 state and territory  acts of parliament that were empowered to call up the code did not introduce uniform overarching regulatory levers and belts and braces to manage the shift to an objective based code.

As a result, building officials regardless of whether they were domiciled in local government or the private sector were given the power to issue building permits for performance-based designs in most jurisdictions.

Why was the risk shift to performance so great?

The nature of performance or objective based codes is that they provide an option to a prescriptive compliance route. Under this paradigm designs can be approved by building officials by way of alternative solutions (now called performance solutions in Australia). The prescriptive provisions were and are still called deemed-to-satisfy (‘DTS’) provisions (codified technical vernacular for technical vernacular for prescriptive provisions).

To illustrate how profound this change was, consider this, the DTS provisions of the code had been forged and honed over any years through code writers and consultative committees in the ABCB like the Building Codes Committee.  Under the reset an applicant could obtain performance-based designs that may not have complied with a DTS but as long as the building official was satisfied that the design complied with performance aspirations of the code and was not at odds with the objectives of the BCA then a building permit could be issued.

The introduction of a discretion-oriented approval system

BCA 1996 and its NZ counterpart introduced a discretion passed alternative pathway. Although game changing, neither country promulgated any  overarching legislative mechanisms fashioned to manage a discretion-based system. Coupled with this, as stated above, was the introduction of private certification in, where a natural person, flesh and blood was emboldened to sanction performance-based designs; regardless of the buildings size, complexity or use, the shifts were for fear of labouring the point seismic.

The importance of Peer review

No jurisdiction introduced a mandatory peer-based review regime for the sanctioning of performance-based designs in Australasia. This is not said as a criticism it merely is an assertion of fact.

The writer in his law reform off shore law reform retainers often refers to one of the old school peer review systems as international best practice. Its modern incarnation is the Building Appeals Board of Victoria which superseded the Referees Board. Before BCA 1996 was introduced the Referees Board gave applicants the ability to apply for a modification to the previous technical code. As the prior technical regulations (i.e., the Victoria Building Regulations 1983) were essentially prescriptive this often worked against innovation so the applicant could apply to said board for a ‘mod’.

The referees, were ministerial appointees, independent and venerated for their expertise. Typically, 3 would preside over a modification application with skills bespoke to the particular applications. If satisfied that the design proposal was not at odds with the regulations the Referees could sanction the mod. In the writer’s view this was a very good independent peer review methodology as it brought to bear:

• Poignant skills;
• Was armlength;
• With the concentration of high-level independent expertise provided a high level of surety that the submission if approved would be utilitarian in its application; and
• Hence on the one hand catering for innovation and on the other hand increasing protection the public.

The above system courtesy of the overarching legislation provided a sound and holistic regulatory ecology to manage non prescriptive design approval processes. Emphases placed upon the fact that the Referees Board was a creature of the then Building Control Act 1981, not codified provisions. Interestingly according to Professor Stephen Kip, a leading Australian building industry thought leader and building industry luminary, the referees’ system had its geneses the Melbourne Building Act 1849, where building referees resided in local government and there was a fee for service mechanism for referee adjudications.

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 such 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 in a good practice building regulatory holistic ecology  the code is one part of the sum of all parts. It is submitted that this 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.

Not many jurisdictions in the writer’s view have been able to achieve this balance. 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 draftspersons 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 a case on point in this regard.

Some key take outs

• A best practice holistic performance system needs 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 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 licenced 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 peer review undertaken by government agencies along the lines of the above-mentioned referees board.

The above elements in the key take outs are in the writer`s submission 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.

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. Best practice legislative ingredients will include:

• A Building Act or overarching act that calls up the building code.
• Local government or government agencies will be able 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 a peer review system modelled along the lines of the said Referees Board.
• Key actors that are involved in the design of and an 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 whom prepare the design application have skills that are correlated with the opposite licenced category. For insurance fire engineering designs will be prepared by licenced fire engineers, likewise commissioning and inspection of same.
• Key actors will 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 if need be.

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.

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.

Tsigereda Lovegrove, is the Practice Manger at Lovegrove & Cotton who assisted with the preparation of this paper.

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

[2] 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.