At their October meeting this year, Australia’s state and federal building ministers made an important decision in respect of the National Construction Code (NCC).

As reported by the Australian Building Code Board:

“Building Ministers agreed there is potential to improve and modernise the NCC. The agreed scope for the work includes how to streamline the NCC and the use of AI to improve useability. This streamlining effort will consider how to reduce regulatory burden and improve how the ABCB develops NCC provisions. This work will also look at how to remove barriers to the uptake of modern methods of construction.”

This follows the announcement by the Federal Government in August, and confirmed by building ministers, that a decision had been made to pause further residential changes to the Code until the end of the National Housing Accord period in June 2029, following finalisation of NCC 2025.[1]

In light of this, it is timely to consider how the Code could potentially be modernised and to suggest some ideas which may be worth contemplation.

In discussing this, several points should be noted.

First, by way of international comparison, the Code’s current content is contemporary in that it reflects the policy directions of governments by way of minimum and proportionate technical standards. It does this by using a performance (outcomes)-based approach to regulation.

Second, as with most building codes throughout the advanced world, the current NCC represents an evolution in societal needs and expectations. This extends from first principles of how to construct a building from a health and safety viewpoint to now include quality of life considerations such as accessibility, sustainability and livability.

Despite the so-called pause until 2029, this trend can be expected to continue in the future. Moving forward, this will add further complexity and length to the NCC.

Third, it should be noted that some have mischaracterised the Code as comprising approximately 3,500 pages of regulation. In fact, the mandatory requirements of the NCC would likely be contained within 200 pages (an exercise that was actually conducted in 2016 when a mandatory requirements volume of the code was produced for illustrative purposes). The balance of the document is comprised of content that can be used to demonstrate compliance with the mandatory requirements. Much of this has been included over the years through the advocacy of, or working in collaboration with, the building industry.

Finally, it is important to note that the NCC is not a static documenta as it needs to respond to industry innovation and societal needs. The Code has and will continue to go through periods of modernisation. The most recent of these was with NCC 2022, when a new information architecture was introduced in recognition of its future use in a digital format. This not only focused on improving accessibility and useability, it also recognised that relatively few of the NCC’s 250,000 subscribers would engage with 3,500 pages. Instead, users tend to bookmark frequently used content through the search functionality of the user interface.

Noting that the NCC is a living document which operates in an environment of constant technological change that includes the way users engage with regulation, there are undoubtedly opportunities to modernise its format, delivery, content and processes. Some of this can build on measures which have already been initiated. Other such opportunities will not have previously been considered.

Options for Modernisation

Below are my thoughts on some opportunities for NCC modernisation.

• The new information architecture and a creative commons for the free online NCC provide the opportunity to develop additional user capabilities that simplify and speed up access to relevant parts of the NCC. The opportunities created by this investment, which may still require further work at the backend, have not been fully realised and should be actively explored with the private sector.

• NCC 2022 also involved substantial change to language and formatting throughout the Code, supplemented by additional explanatory notes, handbooks and other supporting material. This was aimed at lowering the education level which is needed to understand the provisions of the NCC from 33 years to 13 years. Any consideration of whether this has been achieved or whether the education level needs to be further reduced would likely require expert analysis and consideration of other options.

• As technical regulation, the NCC is not written for a ‘mum and dad’ audience. However, reducing its complexity remains important if for no other reason than boosting compliance. Technology has the potential to help in this regard, including reconciliation between and cross-referencing of different Code requirements. For example, the provisions relating to energy efficiency and livable housing are likely the most complex in the NCC. This is not just in how they are drafted, but also how they engage with other parts of the NCC, such as condensation in the case of energy efficiency and water ingress in the case of livable housing.

• This could be accompanied by further explanatory information as to how these elements interact with each other. This could be useful even though Part A of the NCC and other ABCB educational materials already provide information as to how to interpret and navigate the NCC’s content.

• Current AI capability has the potential to improve NCC functionality for the purpose of content mapping and navigation. The previously mentioned change to the NCC’s information architecture provides the opportunity for third-party app developers to produce tools that perform basic code provision identification for project parameters and compliance checks. The International Code Council has developed an AI capability for navigating code content and joining relevant provisions within project parameters. It is also piloting tools with private software developers that can perform basic compliance checks against the I-Codes.

• Any use of AI for more advanced applications would at a minimum require the full quantification of all of the NCC’s Performance Requirements. This is the case as interpretation cannot be based on qualitative provisions that result in subjectivity.

• The potential exists for AI to seamlessly navigate both NCC content with that of relevant referenced Australian Standards. However, this is subject to the resolution of current paywall issues which are associated with access to Australian standards.

• In addition to enabling more sophisticated AI capabilities, quantification of the NCC’s Performance Requirements will simplify the NCC for the purpose of consistency in interpretation, by clearly articulating its policy targets.

• Irrespective, the completion of quantification for all of the NCC’s Performance Requirements is necessary, particularly for structure and fire. This will help to reduce multiple interpretations of various provisions – which can lead to delays, cost increases and/or under-performance. It will help streamline the approval process as it enables the authorities having jurisdiction to clearly understand what the level of performance needs to be and whether or not the design will achieve this.

• There is an opportunity to conduct a strategic review of the Performance Requirements, to determine if there is any unnecessary duplication and overlap. This would be particularly useful for those that have already been subject to quantification changes in the NCC.

• A more fundamental reset of the NCC would be to review the Deemed to Satisfy Provisions (DTSP) to determine redundancy, currency and gaps. This would involve significant resources and take considerable time.

• Another more radical approach to modernising the Code would be to redesign the NCC from the ground up using a risk-based classification system with proportionate inspections. This would also provide an opportunity to standardise and rationalise state and territory building inspection regimes and to utilise the building complexity methodology inserted into NCC 2022. This model has been identified as good practice by the International Building Quality Centre.[2]

• Intent guides should be developed for Volumes Two and Three of the NCC. These would replicate the guide that exists for Volume One. These can help reduce misinterpretation and contention around understanding the purpose of the NCC’s Performance Requirements in particular.

• Diagrams are always a useful way of simplifying technical requirements. However, written clauses will remain the legal test in relation to the requirements.

• The use of explanatory notes within the NCC is extremely valuable. These may in themselves point to opportunities to how the provisions to which they relate might be written to improve language and therefore useability.

• Modern methods of construction (MMC) represent an area of technological advancement within the industry that has the potential to contribute not only to increasing the supply of housing but also to reducing carbon emissions and waste. The NCC does not prevent MMC, but there is some technical finessing that will assist with its ability to demonstrate compliance. Its greatest potential, however, is to help facilitate MMC by being an integral part of a standardised national administrative arrangement that includes plan review, inspection and compliance. This can be facilitated through amending the NCC’s A5 evidence of suitability provisions. However, this again requires boldness on the part of the states and territories.

Improving the NCC updating process

In addition to changes to the document itself, there are also opportunities to improve the updating process.

In relation to this, here are my thoughts:

• The exercise of amending and maintaining the NCC as a contemporary instrument is not straightforward. It involves different subjects; many actors with different interests; the need to establish evidence to determine what represents minimum necessary standards; good regulatory practice that includes developing workable technical requirements; conducting consultation; undertaking an appropriate level of impact analysis; and obtaining jurisdiction consensus and adoption. The degree to which this can be simplified depends on the willingness to compromise on practices designed to ensure rigour, transparency and proportionate outcomes.

• There are benefits and drawbacks to shorter and longer code amendment cycles. International benchmarking identified that most comparable codes operate between a one-year cycle and a five-year cycle. On one extreme, a one-year cycle leads to frequent churn and therefore a lack of opportunity for industry to embed changes to the code before the next edition is produced. At the other extreme, a five-year cycle results in such a build-up of change that the resulting edition can be overwhelming for industry to absorb and does not allow adequate time to properly examine some of the complex priority subjects.

• The cadence of the NCC is an issue whatever cycle is adopted. However, an extended cycle was strongly supported by industry and three years is deemed the balance between too fast and too slow. The bigger issue, as demonstrated by NCC 2022, is when governments use a longer cadence period to load up multiple and significant policy amendments at the same time with inadequate transition periods for industry to adapt and absorb.

• The buildup of proposals for change (PFC) under a three-year amendment cycle is also an issue, including managing the cut-off period. However, the counterbalance to this is that under a one-year cycle the NCC is again in a constant state of flux. Prioritisation of proposals for change (PFC) is the appropriate way to manage this exercise. This falls on the shoulders of the ABCB office to establish appropriate and equally applied criteria for the purpose.

• A proposed amendment included for NCC 2025 neatly resolves one of the arguments against a three-year amendment cycle. This amendment enables the most recent version of an adopted standard referenced in the NCC to be used prior to its updating in the code.

• An advantage of a one-year cycle is that it reduces the likelihood of a jurisdiction becoming impatient with an amendment it wants to include urgently and therefore the risk of a variation being introduced. In reality, however, the move to a 3-year cycle has not reduced the volume of variations and often a proposed amendment cannot be turned around in a single year when following good practice process.

Beyond the NCC

Finally, there are opportunities for improvement beyond the Code itself.

In relation to this, I make the following comments:

• In considering modernisation of the NCC, it is worth also mentioning the opportunity to review the governance arrangements of the ABCB. A recasting of the ABCB’s Intergovernmental agreement (IGA), long overdue for a review, is a useful starting point. This is particularly the case as the last iteration confused roles and responsibilities and added complexities. As an example, it introduced the Senior Officials Group and Building Regulators Forum into what is already a crowded space without clearly articulating a value-added purpose to the work of the ABCB. In terms of streamlining the development of Code content, it would also be helpful to clarify the role of the building ministers as opposed to the board of the ABCB.

• With foresight, the ABCB was established as a partnership between governments and the building industry. This arrangement includes participation on the board. This could be further enhanced by specifying within the IGA that membership is based on a subject matter expertise. This will further aid in industry’s contribution to helping determine where the NCC can be improved and changes prioritised. It will also help to overcome matters of practicality in implementation.

• Management of the NCC includes the roles of the eight jurisdictions in its implementation. State and territory variations and additions undermine the advantages of a national code within a federated system. This is particularly the case as they relate to departures from the performance requirements. Such variations can therefore lead to cost increases, delays, and, in some instances, non-compliance through lack of practitioner awareness.

• Although less pronounced, some local governments have used their planning schemes to set higher requirements for some features of construction than those set in the NCC. Again, the states (territories governments exercise this responsibility) have the ability to prevent these interventions through their implementation of the NCC and administration of their respective planning systems.

• Over the years, there has been discussion about the ABCB performing the function of a National Interpretative Service for Code content, not on a site specific or project by project basis, but on topics that have a high level of enquiry as to how an NCC provision should be interpreted. Rather than this occur on a state-by-state basis, or in some cases through multiple interpretations by authorities having jurisdiction, a subject that jurisdictions believe would benefit from interpretation could be elevated to the ABCB to essentially provide an adjudication on, that all state and territory regulators and authorities having jurisdiction would be bound by.

• Housing productivity can be affected by the supply/availability and cost of building materials, products and components. Diversifying supply chains has been recognised in New Zealand as a contributing factor to cost escalation and resulted in legislation that creates pathways for the recognition of overseas products evaluated under accredited international schemes to reputable international standards. Although this might involve extending the remit of the ABCB, it would be the logical custodian for performing the function of coordinating a similar mechanism for Australia.

• Implementation of that part of the National Product Assurance Framework the ABCB has responsibility for, arising from Recommendation 21 of the National Implementation Framework for the Building Confidence Report, would have the benefit of helping establish confidence in the market and amongst consumers about the reliability and quality of building products being used in buildings, also reducing defects that lead to delays, disputation and cost escalation.

• A bold vision would see the ABCB, on behalf of the states and territories, coordinating other features of the National Implementation Framework[3] for the Building Confidence Report, which would benefit from national oversight, such as the national registration framework.

Don’t forget new challenges

In applying a focus on modernising the NCC whilst limiting changes that might add to the upfront cost of residential construction, it is important not to lose sight of the continuing need to be on top of subjects that may warrant a response and the work for which could be happening whilst the so-called pause is in place.

An example is ensuring the minimum standards for building resilience to extreme weather events are fit for future climate conditions.

Whether the current level of resources available to the ABCB and its constrained funding arrangements will limit the ability of the organisation to conduct substantial modernisation of the NCC is another matter.

[1] This excludes essential safety and quality changes.

[2] https://www.ibqc.org.au/ibqc_guidelines

[3] Abcb.gov.au/BCR