On June 14, 2017, the world of design and construction was rocked as 72 people were killed (including two who died in hospital) and 70 others were injured after fire broke out at the Grenfell apartment tower in North Kensington in London’s west – the worst fire in the United Kingdom at a residential building since the Second World War.
That tragedy, along with other building related debacles at the local level, has seen state and Commonwealth governments undergo a range of inquiries and deliver a number of reports into building industry regulation and safety.
Of these, the most high profile involved an investigation into building industry compliance and enforcement systems which was undertaken for the Building Ministers Forum (BMF) by Professor Peter Shergold from Western Sydney University and legal practitioner Bronwyn Weir. In their 45 page report released last April, Shergold and Weir made 24 recommendations for change. Of these, four relate to action which the BMF will itself undertake at a national level. The other twenty require action from each individual state or territory.
Whilst the BMF has committed to implementing these reforms over three years, progress one year into this is patchy. Indeed, an implementation plan published by the BMF in March showed that whilst some states are making headway, others are lagging behind.
Of the latter group, the most obvious is Western Australia. Of the twenty reforms which require action from individual states/territories, WA has thus far partially implemented just one (relating to the licensing of building practitioners). On this note, it has initiated a two-stage process to review the registration requirement for builders, building related engineers and architects.
Outside of the Shergold Weir recommendations, the state also last year amended building regulations in a way which severely restricted the use of performance solutions where the National Construction Code (NCC) requires external walls to be non-combustible.
Beyond this, however, the only other actions the state is taking involve a review of the process for certifying and approving single residential dwellings and a planned review of commercial building approval processes set to commence in June.
When compared with the response of other jurisdictions, this falls short. Tasmania has fully or partially implemented seventeen of the Shergold Weir recommendations. Queensland has fully or partially implemented sixteen.
This leaves gaping holes in the WA’s response. All up, six states and territories have fully or partially implemented a recommendation which would see requirements for building practitioner registration that would require practitioners to undertake compulsory training in the National Construction Code, hold professional indemnity and/or warranty insurance and show evidence of being a fit and proper person to hold a licence. WA, however, has thus far merely given ‘in-principal support’ for this. Likewise, WA has merely given ‘in-principle support’ to recommendations to require on-site building inspections at predefined stages during construction and to give regulators a broad suite of powers to monitor buildings and take enforcement action. Each of these recommendations has been fully or at least partially implemented by six other states and territories.
Another state which is behind is Victoria, which has fully or partially implemented just four recommendations. These involve mitigating conflict of interest issues for private building surveyors, setting out required information in occupancy certificates about where performance solutions have been used and for what purpose, providing a robust process for the approval of performance solutions and requiring on-site inspections at set stages during construction.
To be fair, Victoria argues that it is taking a systematic and thorough approach rather than a fast one. Shortly after Grenfell, the state established a Cladding Taskforce to assess the extent of non-compliant cladding on buildings, advise on rectification of existing buildings with flammable cladding and recommend changes to the regulatory system going forward. In its interim report published late in 2017, the Taskforce indicated that as many as 1,400 buildings may have flammable cladding. It also made sixteen recommendations for priority action as well as a further ten recommendations for further consideration.
Whereas WA’s current reform efforts focus primarily upon change which might happen following reviews, meanwhile, Victoria has made change across several areas. On advice from the cladding Taskforce, the planning minister has issued a ministerial guideline which specifies that building surveyors should not issue permits for applications which include certain high-risk products unless the Building Appeals Board has determined that the proposed application complies with the National Construction Code.
Other changes the state has made involve:
- Amendments to the Building Act in 2017 to provide greater information gathering and entry powers to local councils and the Victorian Building Authority to monitor building compliance, beef up penalties either for illegal construction or for work which does not accord with a building permit, improve accessibility around building practitioner disciplinary history and increase the rigour around inspection work.
- A new set of building regulations in June last year which set clear requirements for the assessment of performance solutions by building surveyors and changed requirements for mandatory building inspections to include inspection of fire and smoke resisting building elements.
- Further amendments to the Building Act in 2018 to establish a framework for trade and subcontractor registration, allow for the minister to specify classes of buildings for which the VBA can act as a municipal building surveyor and beef up the VBA’s enforcement powers by providing destructive testing where necessary.
All this, however, still leaves action yet to happen with regard to at least sixteen other areas. Among other things, these include having consistent requirements for building practitioner registration; requiring building practitioners to undertake compulsory training in respect of the National Construction Code; making public its audit strategy for regulatory oversight of commercial building construction; implementing a code of conduct for building surveyors; requiring architects, engineers and building surveyors to engage with fire authorities during design and requiring building approval documentation to be prepared by appropriate categories of registered practitioners.
Both Western Australia and Victoria deny suggestions that their states are behind.
In Western Australia, a spokesperson for Commerce Minister John Quigley said the state was committed to implementing the the Shergold Weir recommendations and has made it a, ‘top priority’, to ensure that buildings are safe and comply with relevant standards.
Through the aforementioned reviews, the spokesperson says Western Australia is progressing the implementation of the recommendations.
As for ideas about being behind, the spokesperson said the state would base its response upon the three comprehensive reviews and would not be rushed in order to merely ‘tick a box’ or compete on timing.
Furthermore, the spokesperson pointed out that straightforward comparisons between states are difficult as regulatory frameworks and local industry sizes differ across jurisdictions and a one-size-fits-all approach to reform will therefore not work. As an example, the spokesperson says that in Western Australia, private building certifiers do not grant building permits. Instead, these are still granted by local governments, who also enforce compliance with applicable building standards. In regard to recommendations around the role or private building surveyors and inspections, therefore, the approach taken by WA will differ from that taken by other jurisdictions.
It should also be noted, the spokesperson says, that WA already registers a number of building industry practitioners. These include both residential and commercial builders, building surveyors, plumbers and architects. While the registration system may be expanded to include other design professionals, the spokesperson says the first step is reviewing the registration requirements for the existing registered professions to ensure they are adequate.
“The State Government rejects the suggestion that WA is behind other jurisdictions in implementing the recommendations of this important report …”, the spokesperson said.
“… WA’s Implementation Plan provides an honest and transparent assessment of its current regulatory system. It goes beyond the report’s express recommendations and takes a holistic view of how the broader regulatory system can be improved.”
Likewise, a government spokesperson in Victoria cautions that direct comparisons across jurisdictions are fraught with difficulty. The report’s recommendations, the spokesperson said, are broad and involve significant detail. In Victoria’s case, the recommendations had been regarded as not yet being complete for the purposes of the implementation report in cases where they were not considered to be implemented in their entirety or where further evaluation is considered necessary to ensure that the controls which align with the recommendation adequately addresses the risks or issues articulated in the report.
As for the state’s progress, the spokesperson said the Government was taking building non-compliance seriously and was continuing to progress reform measures which contribute to the implementation of the findings both from the Shergold Weir report and the report of the Victorian Cladding Taskforce. Changes implemented over the past two years, the spokesperson said, involved beefing up enforcement capabilities of the Victorian Building Authority and Municipal Building Surveyors, establishing clear requirements on the assessment of performance solutions and providing scope to establish a mandatory scheme of continuing professional development (see above).
More encouragingly, some states are making better progress.
By pure scorecard, Tasmania leads the way. Of the twenty state/territory based recommendations, the state has completely implemented thirteen and has partially implemented a further four. What’s more, those recommendations upon which it is yet to act on are the ones which have less direct impact on site. These include establishing formal mechanisms for regulator/local government/private building surveyor relationships, establishing a building information database and requiring a comprehensive building manual to be provided to owners.
Of the main states, Queensland leads followed by NSW.
Of the recommendations in the Shergold Weir report, Queensland has fully implemented five and partially implemented a further eleven. In 2017, the state became the first (and, so far, only) state in Australia to take comprehensive action on non-complying products by introducing legislation which imposes a duty of care upon every participant in the supply chain to take reasonable action to prevent dangerous or non-complying materials from being used in buildings. This was part of a ten point plan which saw the state implement reform across a broad range of areas in building. The state also announced in January that it would consider a range of reforms in building certification.
All this has come as Queensland more broadly has long held the mantle as the leading state in Australia for building industry regulation. A strict licensing regime means that almost all professionals and tradespeople who either perform work which could impact the quality and safety of the building or make design decisions which impact building quality or safety are licensed and qualified. Robust enforcement means that those who do the wrong thing are dealt with. Disclosure of the disciplinary history of registered building practitioners in Queensland is second to none: using a simple search on the Queensland Building and Construction Commission web site, consumers, subcontractors or any other party can search any practitioner and see either any disciplinary action they have had against them or any adjudication decisions they have had against them under security of payment legislation.
Also appearing to do well is New South Wales, though progress in this state may not be as extensive as it first appears. All up, New South Wales has fully implemented four of the twenty recommendations which require action at the state level and has partially implemented ten more.
As part of a ten-point plan to improve fire safety in 2017, the state enacted new legislation which enables the Government to ban use of dangerous products (thus far, only aluminium composite panels with a polyethylene core of greater than 30 percent are subject to the ban). Last December, the Government also announced a four-point-plan to improve building certification through more auditing, a new disciplinary policy, the banning of certifiers who breach a code of conduct from working on new strata developments for twelve months and the provision of more information about certifier disciplinary records to home owners.
That said, the state’s performance in building reform must be qualified.
For a start, those moves to merely ban dangerous products fall far short of the aforementioned moves in Queensland to introduce a new duty of care amongst all supply chain participants to ensure that products which are into used in a way which does not comply with the National Construction Code. Where a ‘dangerous product’ is found in buildings, responsibility in respect of paying for rectification still rests with consumers, who are forced to rely either upon statutory warranties or upon common law action to recoup expenses and claim compensation.
Moreover, action on previous recommendations been limited. Last January, Michael Lambert, the NSW Government-appointed expert who wrote a report for the government on ways to improve building safety following a fire at a Bankstown apartment in 2012 told The Guardian that apart from action on certification, ‘very little has happened’, on his 150 recommendations.
Around Australia, government must implement the Shergold Weir recommendations if building practices and safety are to be improved.
Thus far, progress of some states is not fast enough.