If any reminder about the need for adequate levels of building control during construction of houses, offices, apartments, hospitals and shopping centres was necessary, recent media images of a townhouse teetering on the edge of a massive pit after the side of a nearby building site in Melbourne’s east has provided that in abundance.
While the collapse is believed to have been caused by heavy rain (and no suggestion of fault or negligence is intended), the developments are the latest in a series of incidents that can underscore what happens when things go wrong. In Melbourne’s West, around 4,300 poorly built homes suffer from ‘slab heave’ – uneven movement of a house footing and slab – and have suffered from cracked walls, jammed doors and windows and tilting floors.
At a Docklands apartment complex, meanwhile, highly combustible cladding which did not meet standards relating to fire safety as specified in the Building Code of Australia caused flames to rip 15 storeys up the side of a building in which more than 500 people had to be evacuated.
Melbourne is not the only area of concern. In Sydney, a University of Sydney survey of 1,550 strata title owners in 2012 found that 85 per cent of newly built apartments were defective, and that seven out of 10 owners had experienced defects such as water leaks and internal cracks. So poor is the building control system in New South Wales, an Engineers Australia report said in June, that a major fire in a high rise Sydney apartment building similar to that in Melbourne was inevitable.
To be sure, Australia is far from the only country to experience problems. In what is known as the ‘leaky homes debacle’ in New Zealand, for example, thousands of homes were built over several decades which did not meet the waterproofing standards of the New Zealand Building Code.
Where is Australia falling down? By and large, while Australia has largely achieved a consistent set of rules in terms of the National Construction Code, the regulation of professionals and tradespeople involved within the building process varies considerably among states. Whereas Queensland, the ACT and Tasmania have three tiers of licensing, for example, Western Australia has only one licence and one grade. Victoria has separate classes of licence for commercial and domestic building. In most states, specialist contractors such as plumbers, electricians, plasterers and the like are known (rightfully so) as ‘trade contractors’ but in Victoria, they are considered to be builders, albeit with a restricted license as opposed to the unrestricted ones held by general builders.
Within some states, too, some of the rules appear to be somewhat odd. Queensland, for example, has a separate licence for an ‘architect’ and a ‘building designer.’
One problem associated with all this, former president of the Australian Institute of Building Surveyors and Adjunct Professor Robert Whittaker AM FAIB NBPR-1 says, is that along with a lack of consistent requirements regarding registration and what it covers in some states as against others, there is across different states and even within some states a lack of consistent statutory definitions of the roles of each type of practitioner. This, he says, gives rise to situations where there is also no statutory liability nor any requirement to hold indemnity insurance.
Whittaker says that in New South Wales, for example, while those referring to themselves as architects are required to be registered, there is no statutory definition of their role, and they are not held responsible for whether or not their design indeed complies with the Building Code of Australia.
“If you can’t agree on the same language, and the same terminology to describe what the person is, then you don’t have the consistency over what their obligations are, and therefore you don’t have any statutory liability,” Whittaker said.
Another problem, Whittaker says, revolves around a lack of effective enforcement action against trade contractors – a situation he says is placing builders at risk in terms of liability and consumers at risk in terms of poor quality workmanship and safety.
“Let me know of the last time you have heard of a trade contractor, or restricted builder in Victoria’s case, lose his licence, even though he has stuffed up something for the builder,” Whittaker said. “For some reason, they are a protected species.”
Another problem area revolves around the regulation of building surveyors, construction lawyer and Conjoint Professor Kim Lovegrove says. In a paper presented to the Queensland and Northern Territory Chapter of the Australia Institute of Building Surveyors in June, Lovegrove outlined a number of problems regarding legislation within the building surveying fraternity. A reactive approach which sees surveyors typically investigated only when complaints are made, he says, fails to ensure that practices of all surveyors are up to standard.
Notwithstanding the professionalism and integrity of the majority of practitioners, meanwhile, fee cannibalisation and unrealistically low quotes are inevitably creating pressure for corners to be cut. In such an environment, allowing surveyors (who are typically hired by builders) discretion to sanction alternative solutions in which design scenarios do not comply with deemed to satisfy provision of the Building Code of Australia could well lead to structures which have been compromised – especially given the modern environment and a desire on the part of developers to minimise the cost of construction.
“So is the building control regime in Australia failing the public?” Lovegrove asked. “By and large, no, but it is probably deteriorating.”
A final area of challenge revolves around enforcement. In Victoria, for example, one source says that while regulations which are in force are generally adequate, confidence in that state’s building control regime was difficult to justify simply because rules were not being effectively administered and applied.
In terms of solutions, Lovegrove wants an overhaul of regulation regarding surveyors, whom he said should be appointed by owners rather than builders and limited to assessing approvals on the basis of compliance with prescriptive regulations; given suitable powers to issue compliance notices and enforcement orders; and subject to ethical requirements which are codified in acts of Parliament (NSW already does this). Lovegrove would like to see a mandatory auditing regime and a floor for fees to ensure these are adequate so as to enable the performance of duties in a satisfactory manner.
Since terms like ‘building surveyor’ and ‘principle certifier’ are not well understood outside the construction sector, Lovegrove would also like to see their name changed to ‘construction regulators’ or ‘building code enforcers’ instead.
Whittaker, meanwhile, would like to see consistent language with clear statutory definitions for each type of professional and consistent requirements for licensing.
“I would like to see, the word engineer defined consistently across the country,” he said. “The word builder I would like to see defined consistently across the country. I would like to see Victoria do away with ‘restricted builders licences and let’s call them trade licences like everybody else.”