The Shergold-Weir “Building Confidence” Report was delivered in February 2018 and published in April 2018, in response to the fatal Grenfell Tower fire in London, the expensive Lacrosse fire in Melbourne, and a number of high-profile product failures including asbestos contamination in supposedly asbestos-free materials.
Commissioned by the Building Ministers Forum, the Report laid out 24 proposed reforms. Despite the Report’s strong call for national uniformity, it took 15 months for the Building Ministers Forum to issue a communique which promised only to establish an “implementation team” as part of the ABCB to develop a national framework to guide the states in implementing the Report’s recommendations.
The Report gave government three years to implement its 24 proposed reforms. Eighteen months later and one Federal election later, with half that term already expired, how far down the road have we come in the key areas identified by the Report?
Improving the Design Documentation Process
Some of the key recommendations in Shergold-Weir concern the need for building approval documentation to be prepared by appropriate registered practitioners, to demonstrate compliance with the National Construction Code (NCC), and in particular for amendments and variations to receive the same scrutiny as the approved design (Recommendations 13 and 16).
The Design and Build Practitioners Bill currently before NSW parliament responds to these recommendations. If passed, the Bill will apply to prescribed classes of building, almost certainly including multi residential. Among the positive aspects are that the bill makes it effectively mandatory for a registered design practitioner to prepare certain aspects of design (chiefly fire safety, waterproofing, load bearing elements, wall and roof structures, as well as performance solutions of any kind). It also imposes positive obligations on builders to build in accordance with the design, to record variations, to have variations approved by designers, and not to commence work until they have a “final design” (not defined). When a designer provides their design in “final form” (also not defined), they must also provide a “design compliance declaration” that confirms the design complies with the requirements of the Building Code of Australia. Before application for an occupancy certificate, the builder must also provide a “building compliance declaration” which confirms the building work complies with the design and with the BCA. The form of declaration will be prescribed in the regulations, and providing a false or misleading declaration incurs fines up to $220,000 and/or 2 years’ imprisonment.
Since designers already had an obligation to comply with the NCC, the certification aspect really just imposes a new layer of penalties. What could do more to change the culture of non-compliance is mandatory on-site inspections in accordance with a to-be-developed national guideline (Recommendation 18), but the Bill does not respond to this important proposal.
In another critical area, the Report calls for better regulation of performance solutions. The Design and Build Practitioners Bill in NSW takes some steps towards addressing the approval process (Recommendation 15). However, Recommendation 14, which proposes regulating the information that must be included in performance solutions, does not appear to have attracted the same attention, apart from the new design brief process for fire safety performance solutions outlined in Schedule 7 of the NCC.
The Report also calls for third-party review of designs, and for fire safety systems to be designed and certified by registered fire safety practitioners (Recommendations 17 and 19). NSW responded with amendments to the Environmental Planning and Assessment Regulation 2000 which require a fire safety engineer to provide a report on any alternative solutions before a complying development certificate can be issued (for all classes except class 1a and 10). In Victoria, the Building Regulations 2018 provide that, in order to approve performance solutions relating to fire, a building surveyor must either hold specified fire safety qualifications, or obtain a certificate from a surveyor or engineer who does.
Registration and Capability of Practitioners
Recommendations 1-2 of Shergold-Weir call for better regulation and training of building practitioners, and among the response to that has been the Professional Engineers Registration Act 2019 in Victoria. In NSW, the Design and Build Practitioners Bill provides a framework for mandatory registrations of designers and builders, but only those who perform the regulated types of work encompassed by the Bill. The call for national consistency does not appear to have been heeded.
It’s unfortunate that Recommendation 3, which calls for mandatory CPD on the National Construction Code for building practitioners, has received less attention. Consultants can only reject non-conforming products if they have a clear and confident grasp of NCC requirements. However, individual practitioners are too often left to navigate the complexities of the NCC alone, or to turn to product suppliers for guidance. A structured program from the Australian Building Codes Board, in conjunction with professional registration bodies, drawing on the expertise of industry leaders, would provide that knowledge.
Focus on Building Surveyors/Certifiers
Recommendations 4 and 9-12 focus specifically on strengthening the role of building surveyors (“certifiers” in some states). In response, ACT and Tasmania have introduced a code of conduct for building surveyors, and Victoria has appointed a State Building Surveyor. In NSW the Building and Development Certifiers Act 2018 provides for a code of conduct to be introduced later by regulations, as well as stipulating registration and insurance requirements for building certifiers, prohibiting certification where there is a conflict of interest (including where the certifier advised on design or development application of that building) and introducing high fines and imprisonment for certain false certificates.
These changes largely penalise building surveyors, rather than alleviating the power imbalances built into the procurement process that put them under pressure to approve non-compliant departures and prevent them exercising their full authority. Some key Shergold-Weir recommendations appear not to have been followed, including requiring certifiers to be engaged by owners/principals rather than builders (Recommendation 9), and requiring certifiers to notify authorities when a builder has made significant departures from approved documentation (Recommendation 11).
General Regulatory Environment
Among the responses to the Report’s call for bettor regulatory powers (Recommendation 6) are new laws for banning certain building products in NSW and Queensland, specific bans or restrictions on aluminium composite panel cladding in NSW, Queensland, Victoria and Tasmania, and new “chain of supply” laws in Queensland. The Victorian Building Authority has announced a goal of conducting inspections for 10% of the building permits issued across the state (Recommendation 7).
Largely unactioned to date are two helpful but burdensome recommendations: establishing a building information database that provides a centralised source of building design and construction documentation (Recommendation 12) and mandating the creation of a comprehensive building manual for commercial buildings to be given to the building owners (Recommendation 20).
While many positive changes have been made, too many of the reforms focus on more certification and associated penalties, without addressing the underlying power imbalances and structural issues that contribute to shortcomings in compliance. The regulatory changes do little to incentivise developers and other clients to use their power over builders and consultants to encourage compliant buildings instead of prioritising cheaper, quicker construction.
As reports of non-compliant construction continue to mount, there is still a great deal to be done in response to the Shergold-Weir Report’s important recommendations.
Our upcoming Audience with the NSW Building Commissioner on Wednesday 27 November is an opportunity to hear more about current and future regulatory developments in this area. Places are still available. (Discount codes for Planned Cover clients have already been circulated via our mailing list – please contact us at firstname.lastname@example.org if you have not received it.)