In the 1990s, there was agreement that 60-year-old legislation in respect of income taxes in Australia could be made clearer and easier to understand.
As a result, the Income Tax Assessment Act 1936 was replaced with the plainer language Income Tax Assessment Act 1997.
At 11 volumes in length, the legislation remained difficult for ordinary folk to comprehend. Nevertheless, the simpler wording aided practitioners looking up specific legislation as well as legal and accounting students looking to come to terms with it all.
Now, the Australian Building Codes Board (ABCB) is trying something similar with the National Construction Code. Under the ABCB Readability Project, the Board is attempting to make the Code more accessible to those wishing to read it. As well as regular users such as regulators and existing practitioners, this includes ‘students, product manufacturers or home owners.’ The aim, the ACBC says, it not to alter the Code’s intent but rather to communicate it in a clearer manner.
“Readability is the concept that a document can be comprehended by anyone, whether you have a high school certificate or Master’s degree,” the Board says on its website. “The NCC is considered by some to be a complex document that is difficult to interpret, whether they are regular or newer users such as students, product manufacturers, or home owners.
“Improving the NCC’s readability is intended to ensure that its requirements are as easy as possible to understand no matter who you are, or how regularly you use it.”
Following a review conducted by communications advisory firm BBS Communications, the ABCB’s primary efforts revolve around five areas:
- improved general structure, format and flow of the Code
- removal of ‘clutter’ (such as deleted sections like Section I and clauses with *****)
- greater use of plain language
- improved location and visual display of information; and
- meeting web document accessibility (i.e. WCAG 2.0) obligations.
Whilst some changes, particularly to Volume Three, will be incorporated into the current NCC updating cycle, the majority will be reflected in NCC 2022.
This raises questions about how the Code can be improved.
Vanessa Bird, Victorian Chapter president of the Australian Institute of Architects, says the Code is complex and difficult to interpret in parts and that efforts to improve its clarity are welcome.
As an example, she points to escape distances in Class 2 Buildings (multi-residential). Whereas the former Uniform Building Regulations specified the number of exits required, maximum distances between them and the maximum length of the ‘travel part’, Bird says this has been replaced by clauses which can be interpreted in various ways and are applied differently by different building surveyors.
In another example, Bird points to an explanatory note or Industry Alert issued by the Victoria Building Authority in Victoria last February on NCC compliance with external walls. The note on one single clause, she said, was six pages in length and included discussion on definitions of attachment – a more complicated situation than she says was necessary.
Locating information, too, can be problematic. This is especially true in Volume 1, Bird says. As an example, ‘clearances for toilet swing doors’ is located under ‘Health and Amenity’ whereas many would look for this under ‘Access.’ Issues like this, Bird says, would be resolved in an electronic version with an effective search function.
Finally, Bird says there are too many exceptions to what should be a clear intent, such as preventing the vertical spread of fire. Bird says performance specifications are often unclear in this area and require interpretation from building surveyors.
Speaking particularly on the last point, Bird says one consequence is uncertainty and an excessive reliance upon building surveyor interpretation. Thanks to growing complexity, Bird says both architects and builders are becoming increasingly reliant upon surveyors. The former now need to consult surveyors during the design phase of the project to confirm interpretations rather than waiting until the end of documentation to check off compliance with known parameters. Builders, as well, are relying upon surveyors for anything they are unfamiliar with.
As a result, she says surveyors are busier, more difficult to access and are being saddled with unduly onerous levels of professional responsibility.
In response, Bird would like clearer language of expression and intent; greater use of diagrams and drawings; better structure, location and ‘flow’ of information; minimum initial and ongoing NCC education (for all practitioners); stronger references to Australian Standards and clear information such as a national register of approved materials for each building class.
To avoid unintended consequences, new items should also be tested throughout the industry. With the possible implementation of disabled access to all dwellings, Bird says it is important to consider how (if at all) this will be achievable in hilly or mountainous environments and what impacts, if any, this would have on flood prone areas.
A different perspective is offered by consulting structural engineer Richard Drew. Speaking from an engineering standpoint, Drew said challenges arise not so much from ambiguities in language within the NCC itself but rather from the interface in language structure between different layers of regulation which exist across state/territory building acts, state/territory building regulations, the NCC and the standards referenced by the Code.
He describes a cascading effect whereby each layer of regulation adopts its own distinct language and structure. Whereas the language adopted within the standards is easier for practitioners to understand, that in building acts and regulations is more legalistic and less comprehensible. Partly as a result, he said the language and structure used within each of the different layers of regulation do not always interface seamlessly with other regulation layers.
This matters, he says, as practitioners sometimes need to deal with these different layers of regulation. Take, for example, the structural elements of the building. To understand how to design for particular forces (wind, earthquake, and so on), you refer to the standards. If you want to understand the level of importance particular forces are to the building in question and what forces you need to use in the standard, however, you need to refer back to the NCC (which will tell you, for example, that you need to design for a one-in-500-year wind or a one-in-1,000-year earthquake). Further, to find out what is needed for inspections of structural elements, you need to consult the building regulations.
Going forward, Drew says improvement in how these regulatory layers interface with each other would be welcome. This requires close consultation with practitioners. A process in Victoria whereby the Victorian Building Authority is reviewing regulations in that state is a promising step, he said.
Jonathan Barnett, an international fire engineering expert and chair of the Engineers Australia Society of Fire Safety, questions whether simplification of NCC wording should be the priority.
For starters, he points out that the primary readers of the Code are not consumers but practitioners, who should be trained to understand and interpret the provisions of the Code which are relevant to them.
At any rate, he says, the complexity of modern buildings dictates that both the Code and the standards it calls up will always be complex.
Furthermore, he says, caution should be observed that any effort to clarify Code language does not create more confusion. In August, the ABCB released a public comment draft for an out-of-cycle amendment to the NCC which was designed largely to simplify and clarify the language of the Code relating to the use of external wall claddings and attachments.
Since that was published, however, Barnett says some architects and builders have in fact become less certain about what the Code means. Whilst the intention had merely been to simplify wording. the intent of the relevant provisions had in fact been altered.
Rather, Barnett would like to see action in two areas.
First, he would like an expert committee to which practitioners could turn for written interpretation in respect to areas where they are uncertain how the NCC should apply. This would operate in a similar manner to the income tax arena, where those uncertain about how the law applies in their specific circumstance can seek a private ruling about their circumstance (which they can legally rely on).
This, Barnett said, would give practitioners certainty in respect of areas in which they were unclear. This is important, he said, in light of Supreme Court rulings in both New South Wales and Victoria several years ago which have stipulated that the guide to the NCC (then known as the Building Code of Australia) does not have any legal authority.
Moreover, he says the NCC guide should be enhanced to include explanations about the intent of the Code in each area and a history of the Code and relevant provisions in the area concerned.
This is important, he says, as provisions of the Code are easier to understand if you look not just at the wording but also the intent of those provisions and how this has been guided by history.
In the example of cladding and fire safety, the Romans wrote a building code to deal with cladding and fire risk after the Great Fire of Rome in the year 64AD was caused by a combination of combustible cladding, buildings which were too close the boundary, and a lack of fire brigade access. The British did likewise after the Great Fire of London in 1066. Looking back at this history, you can see that the clear intent of fire safety related aspects of the Code in respect of cladding revolved around preventing the spread of fire throughout cities. Once they understand this, practitioners can reflect upon the broader objectives surrounding what relevant provisions in the Code are trying to achieve.
Further, looking only at the wording of the Code can create confusion. Following the Lacrosse fire and subsequent MFB report, Barnett himself produced a white paper on what the NCC said at the time about cladding for use by fire engineers. Whilst doing so, he discovered that some aspects of the Code had indeed been widely misinterpreted.
He says understanding the Code’s history and intent is critical.
“If you go back and look at the history of the Code, you can understand why things are written,” Barnett said.
“And if the language isn’t quite right, if you understand what the intent of the writer was, then you can understand what the words mean. If you just look at the words, you can confuse yourself.”
According to Barnett, consequences of any failure to ensure that the Code, its intent and its history are well understood are serious.
Any ambiguity in the Code can erode the safety and quality of the built environment by providing a window of opportunity for builders and developers to push for less costly (and potentially, less optimal) solutions, he said.
The National Construction Code is a complex document.
If the ABCB has its way, the document a few years from now will be a little easier to comprehend.