Performance solutions is the new name for what used to be called alternative solutions less than two years ago. Apart from the renaming, little else has changed.
The same loophole still exists in our National Construction code that replaces the previous Building Code of Australia. Why these names were changed is unknown, but changes invariably follow on the heels of bad press.
Alternative solutions may have had a name change because the public was becoming aware of underhandedness by some larger building companies as they attempted to make more and more profit by cheapening certain elements of each new home – sealing of wet areas, for one.
Bad press is why the Building Control Commission became the Building Commission in 2001 (seen as freeing-up the industry) and in turn (following rorting and corruption in the Building Commission), the name was again changed to the Victorian Building Authority in 2013.
Freeing up regulatory powers invariably results in a drop in quality of work.
Volume builders first gained extra profit because of their bargaining power, and very soon after via their lack of quality supervision, where they gave their supervisors more and more jobs until they had insufficient time to visit (when they needed to), the sites they managed. The responsible registered builder(s) in these firms rarely visit the sites they build on.
Soon after the collapse of HIH (part of FAI) in 2001/2, building warranty insurance cover was doubled to make it appear to be fair, when in fact the actual cover was grossly reduced (via the reduced time of cover for non-structural defects).
But far more importantly, it shifted from First Resort Insurance to Last Resort Insurance and placed the onus on home owners to chase their builders (who wouldn’t rectify their decrepit defect-riddled homes) to bankruptcy. This, instead of retaining the status quo where the insurer was the body in charge of builder registration, builder misdemeanours and breaches of regulation, and grossly defective work by builders.
The results of these changes have been a general drop in the quality of building work and devastation to thousands of new home owners each year. Governments Australia-wide are simply not looking after people’s interests at all, but are hell-bent on protecting business no matter what it takes.
The effect of this freeing up of constraints for builders (and building practitioners) was the soaring of regulation breaches, which were from then on invariably borne by building consumers, many thousands of whom have suffered enormously as a result.
But instead of carrying out an audit and making warranty insurance once again first-rate, the Victorian Government has seen fit to expedite all disputes by adding a new repressive forum, the DBDRV, where head-banging occurs just as it does in VCAT compulsory conferences and to a lesser extent VCAT mediations.
In this environment, is it any wonder that builders saw an opportunity to make even more profit, by thinking up alternative solutions (now called performance solutions) based on so-called expert judgement?
Our National Construction Code still permits this loophole at Clause 1.0.5 (c) in Volume 2 for houses/units and Clause A.0.5 (c) for apartment buildings and the like. I haven’t seen this actually mentioned by anyone else, let alone an authority.
It is predominantly the reason flammable cladding has been permitted, why faulty electrical cabling has been installed in thousands of multi-storey buildings, why safety glass is often not safe, and why exploding-grade balustrade glazing is now the go.
Builders have been free to import cheaper (risky) materials, and many of the people in charge of specifying materials for use in buildings are obviously not experts at all!
That’s how simple it really is.
But the hidden agenda of all of our Australian governments – the one to protect business (if necessary at the expense of consumers as with the recent insertion into the Building Act of section 37B) – will involve years of copious hamstrung investigations, enquiries and the like before coming up with some watered-down conclusion that beggars belief.
It’s all rubbish!
The federal government’s hidden agendas simply will not put any pressure on imports complying with our Australian Standard Codes (especially regarding imports from China), because we want free trade agreements. This inaction has basically reduced our standards (at least temporarily) to an abysmal level.
It took almost four years for the Victorian Government to mention a ban from further use of the combustible cladding used on the Lacrosse Towers (and similar risky products). No order has yet been given to remove such risky cladding from those buildings already built.
And so the main driver of big business – maximum profit – is satisfied every time a cheaper product-based performance solution occurs via our permitted so-called ‘expert judgement’ clause in our top Australian Code.
There are only three reasons that give a builder the right to carry out an alternative solution to what was contracted when building a new home.
- The owner agrees to the change in writing and the contract is adjusted accordingly
- It is not possible (for unforeseen reasons) to carry out the contracted portion of work
- The performance solution will last as long or longer than what was contracted and the owner agrees to the change
This is all based on (proper) expertise, but that is the stumbling point. The expertise is hardly ever really expert at all.
Why the apartment tragedies unfolded
Obviously the marketing of the product (Alucobest) as ‘being suitable for cladding for multi-storey residence towers’ was not correct.
Also, the separation between apartments at the cladding outside was inadequate to safeguard (without adequate additional fire services) against individual owner carelessness or equipment failure, and the so-called ‘variation’ was based on an alternative solution (now called a performance solution) which was founded on inadequate expertise and was therefore not sufficient to be approved by the relevant building surveyor at least.
Alternative solutions of cheaper imports from countries with different standards should not be permitted based on so-called ‘expert’ judgement without first adequately testing to the other stricter requirements set out in the National Construction Code.
This is one of many reasons why a thorough definition of defect that includes inferior and potentially inferior performance solutions based on expertise is so important to establish Australia-wide as soon as possible.
It seems the federal government has still not given the necessary funds to the CSIRO for fully test suspected flammable cladding in a “wall test model.”
Expert judgement for performance solutions is invariably not expert at all and should be expunged!
Sadly, almost every piece of legislation in the building industry has hidden agendas built into it to protect enterprise at the expense of consumers, as do several of our codes, including our top building code – the National Construction Code.
This top code exemplifies the lack of care built into our system as did its predecessor the Building Code of Australia.
It permits disasters to occur, by allowing performance solutions to slip through unnoticed at permit stage under the auspices of ‘expert judgement’ – thus avoiding the rigours of testing used under other methods.
The so-called expertise of the builder who chooses the flammable cladding because it is cheaper, the so-called expertise of the architect or draftsman who includes same into the specification and notes it on the drawings, and the so-called expertise of the relevant building surveyor who stamps approval for its use on a multi-storey apartment tower seem to be permitted under this National Construction Code rule. That so-called expert judgement was used to create towers clad similarly to those 18 towers which have caught fire since just 2010 worldwide (one of them in Dubai twice).
Anything which hints at negligence has been studiously avoided by virtually everyone including the pressured press.
It’s the same at VCAT, where any cheaper alternative rectification thought up by a so-called expert is given every chance to succeed, whilst arguing over alleged defects thought up by so-called dispute experts who have no proper definition of the term “defect.”
It really is a veritable circus in the residential building industry.
It is so difficult to unravel the truth on the full extent of the problem, when fire engineer experts are lied to by the marketers or manufacturers, and products are being used in Australia despite dozens of fairly recent tower fires world-wide; and because there has been inadequate testing by the CSIRO due to substantially reduced government funding.
A few negligence claims could be the only way to stop this loophole if the governments are hell-bent on continuing to do nothing.