15 Keys to Best-Practice Building Regulation 11

Monday, September 9th, 2013
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In any area of regulation, Australia can learn draw significant lessons not only from various approaches adopted throughout different jurisdictions around the country but also from experience around the world.

The construction industry is no exception, and based on my experience, at least 15 core elements stand out in any best-practice building sector regulation regime.

1.       Dedicated Building Act

An example of what not to do can be seen through the Environmental Planning and Assessment Act in New South Wales, which essentially represents a disorganised patchwork of planning, building and local government regulations which do not work together in a harmonised way.

Instead, far better approaches can be found in New Zealand, Japan Singapore and Victoria, where specific Building Acts deal specially with building regulations in a deliberate and effective manner.

2.       Strong building consent/occupancy permit regime

Under no circumstances should work be allowed to start without permits. Nor should permits be allowed to be issued until plans and specifications comply with building regulations, relevant technical codes and standards, and buildings should not be able to be occupied until occupation permits are issued.

3.       Licensed officials only

Only licensed and suitably qualified building surveyors should be able to grant statutory permits and certificates.

4.       Building officials as creatures of statute

Building officials play a crucial role in building control. Their profession should be respected accordingly and they should be given statutory powers regarding inspections and issuing of enforcement and non-compliance notices and orders.

5.       Mandatory inspection powers

There must be mandatory inspection powers, where officials are called upon by Act of parliament to inspect building work and either approve such work or otherwise as appropriate.

6.       Robust licensing regime

All main actors in the building control system – builders, engineers, architects, draftspersons, building inspectors, surveyors and even planners – should be required to be licensed and registered under a strong licensing regime.

7.       Strong licensing body

Likewise, a robust licensing body must be in place to register, discipline and de-register practitioners as appropriate.

8.       Mandatory Practitioner Auditing

To ensure their practices are up to standard, all licence holders should be required to undergo yearly audits. These should be paid for by the licence holder but the auditors should be accredited by the registration body.

9.       Power to Prosecute

Effective powers must be in place to ensure those responsible for non-compliant work can be prosecuted and emergency repairs can be performed without undue delay.

10.   Mandatory insurance

Insurance is the only means by which consumers are guaranteed compensation for unsatisfactory workmanship. It should not be optional for any building practitioner.

11.   Clear liability sunset periods

Limitations regarding time-frames in which legal proceedings for defective building work must be initiated should be clearly set out. Ten years from the day the occupancy permit is issued is ideal.

12.   Fair apportionment of liability

Current systems across a number of jurisdictions in Australia which apportion liability among multiple parties and limit the liability of individual defendants to their judicially assessed share of overall responsibility are sensible and fair.

No one should be made to pay more than the share of the liability for which he or she is responsible.

13.   Building Codes

Building Acts must be supported by strong Building Codes which set out the full gamete of technical requirements and rules. These should inter-operate with the Act in a manner which is perfectly seamless and completely harmonious.

14.   Fast, cheap dispute resolution

Building Acts should specify fast and cost-effective dispute resolution procedures in theatres which are specifically dedicated to building disputes and which have the power to appoint expert witnesses who are suitably qualified to identify and quantify rectification costs.

15.   Prescriptive and performance or objective based design solution pathways

Provided the solutions are appropriately sanctioned by independent peer review panels, performance building codes which allow the choice of prescriptive and performance or objective based design solution pathways have merit.

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  1. Barry Wilson

    I have also had to be registered in several different states in order to have my designs approved. I thought that this was to stop at federation? Section 92 of the Australian Constitution says that there will be free trade between the states. My trade has not been free as I have had to pay registration fees to each of the different state that my work goes to, or alternatively I have had to pay an impost to get someone else who is registered in those states to sign off my documents.

    • Brett Bates

      Absolutely Barry. Kim makes some excellent suggestions for a way forward. However Item 1 on any agenda surely must be the uniformity of Australian regulations covering building construction and the issuance of the range of occupational licences that serve it. Starting with a uniform set of standards for an incremental grade of builder licence reflective of formal set of qualifications being attained.

  2. Peter Micevski

    With the Australian Construction industry set to soar, it is essential that there is a uniform best-practice building regulation regime implemented across Australia to ensure that construction in Australia is carried out to a high standard..

  3. Michelle Janczarski

    These are certainly critical elements of best practice building regulation. Fair apportionment of liability is particularly important, especially as between owners and builders – standard form contracts are often skewed in favour of one party, and building regulations should help ensure that the other party receives a fair outcome.

  4. cmcfadyen

    For best fit the 15 key points best describe the Scottish Building Standards system. a proven system that has stood the test of time through the last 50 years.

  5. Ian Childs

    The other element is the transfer of operation to the owner / facility manager and the need to have either a soft handover (soft landings) or the provision of any and all certification, product certification, installation & commissioning evidence of performance, any alternate solution (including declaration of any added or reduced operation and servicing cost over the building's lifecycle), emergency planning and training necessary for the occupation and a path for prompt, traceable remediation of deficiencies.

    You may think that this is appropriately covered in O&MM's but those that I've reviewed are in the main, poorly done.

  6. Bob

    One large arena that is overlooked above is that of construction materials approval, testing and application protocols. i.e. that proposed materials are fit for purpose in the given environment of any proposed project.
    The management of imported products and systems (and off-shore, factory-built modules), comes to mind.

  7. Michael McLinden

    Being on the border of NSW and Victoria I experience the different approaches to Building Control as a certifier(NSW) or Building Surveyor (Vic).
    It can be very frustrating at times and as an umpire your are never popular with everyone. I am seeing each state circumvent the National Construction Code to introduce their own fades and ideas.
    I do like the Building Professional Board in NSW.
    I do believe that Town Planners in Victoria have to be held accountable for their decisions or as most would say lack of decisions. Maybe they should be registered practitioners as well be held accountable for there decisions and professional conduct.

  8. Lee Wilson

    Great article Kim, a discussion that needs to be on the table.
    1 – The building surveying industry needs to be looked at really closely and a national approach needs to be adopted. Every state is administered differently, which is reasonable, given that State/Territory legislation exists, but the industry needs to be consistent across each area including competencies, accreditation/registration process, mandatory CPD requirements and most importantly recognition of the industry & clarity in the roles undertaken.
    2 – Other professionals such as Access Consultants need to hold registration, have appropriate insurance and do mandatory CPD. Those undertaking work in performance-based building codes need some level of training, qualification or benchmark (such as the current accreditation process) when working on alternative solutions or documents being accepted as part of a certified design.
    3 – The Peer Review process is I believe a critical part of the puzzle. There needs to be a fast-tracked process for this to occur, whether it is done by the relevant building authority or allocated to a panel member of an approved/pre-qualified panel. More work is needed in this area.
    regards, Lee

  9. Mick

    Could we also include a mandatory requirement for trades persons to speak English.

    The 457 visa tradies do not understand my request for installation of a ceiling manhole to allow me to inspect the ceiling areas on a mandatory final inspection.

  10. Leighton Clsrk

    Well put Kim. On review, one can see that we are getting there, in Victoria, at least. A few things. I don't think we should overlook contractors. In my view, framing carpenters should be licensed along with other contractors. This is the way to stop the poor workmanship. In regard to proportionate liability, licensing contractors should improve the situation whereby contractors will take real responsibility and liability. The system, including VCAT, should acknowledge that contractors are the ones who do the "bad" work. Contractors should be held responsible. This doesn't seem to be the case in Victoria. My last one is that if it were up to me, I would ensure the building surveyor and his team play a more significant role with inspections. If a wall being out of plumb is a defect, shouldn't the building inspector see it and comment? I can assure you that most laymen, including owners, think that this is what they actually do. Thanks again