It is widely reported that the standard of documentation supporting performance solutions is poor. There is a lack of basic information on matters such as the relevant performance requirements and the assessment methods applied. It is common for the person preparing the performance solution to rely on their own ‘expert judgement’ that the performance solution complies and on that basis they proceed to self-certify the design.
Performance solutions can, in some instances, be post facto rationalisations made to address design or construction that was not built in accordance with NCC requirements. This is not their purpose. Performance solutions require project stakeholders to collaborate and develop an agreed pathway. Each requires empirical analysis, modelling and/or testing.
Recommendations 14-15 of the well-known Shergold-Weir “Building Confidence” report advised that regulators should stipulate the “information which must be included in performance solutions”, and provide a “transparent and robust” process for approving them, and that performance solutions used on a building should be recorded in the occupancy permit.
The changes to the National Construction Code in NCC 2019 Amendment 1 address the first two of recommendations by implementing a required procedure for performance solutions.
The Australian Building Codes Board (ABCB), which is responsible for managing the National Construction Code (NCC) already publishes a document setting out its view on the correct procedure for developing and documenting performance solutions. Its 4-page guidance document, Development of Performance Solutions (dating from about 2015), sets out a 4-stage procedure:From ABCB “Process for the development of Performance Solutions – Consultation Regulation Impact Statement” 2020
Previously, practitioners may have been carrying out a similar procedure informally, in their heads, but from 2021 the process will need to be properly documented. The changes in the NCC 2019 Amendment 1 turn this prior non-mandatory guidance into a mandatory requirement.
New provision Part A2.2(4) in Volume 1 of the NCC requires the four steps in the diagram above to be taken in support of performance solutions. At publication, the NCC 2019 Amendment 1 version contained a note that Part A2.2(4) was under consideration and subject to impact analysis, but the ABCB has subsequently confirmed that it will in fact go forward.
The commencement date for the new regime on performance specifications is 1 July 2021, so there is plenty of time to prepare. But note that the ABCB advised in its email of 25 May 2020 that “appropriate documentation for Performance Solutions should be occurring now” and that the procedure outlined above “can be used for this purpose”.
While the increased cost and resources may be considerable, better documentation of performance solutions is to be encouraged, and this more robust procedure can help consultants resist poorly documented solutions put forward by others, and discourage the sort of “post facto rationalisations” noted in the Shergold Weir report.
The change may be beneficial in NSW, where from July 2021 the recently passed Design and Building Practitioners Act 2020 will require consultants to provide design compliance declarations (a form of certificate that comes with penalties up to $220,000 or 2 years imprisonment) confirming that their designs (and particularly performance solutions) comply with the NCC. Since compliance of many design elements is a cross-discipline question that may call for expertise from, for example, certifiers/surveyors, fire engineers, structural engineers and architects, each consultant will be able to take comfort from a formal assessment process that creates a permanent record of the steps that all relevant disciplines have taken to collaborate to approve the performance solution.
In our webinar The State of Play on Thursday 25 June, my colleague Natalie Sullivan and I will cover both the new performance solution requirements and an overview of the Design and Building Practitioners Act (NSW), plus some other industry updates.
Meanwhile, after many months of debate, the Design and Building Practitioners Act 2020 (NSW), received assent on 10 June and has become law. Lander & Rogers solicitors will explain its key features and impact in our next webinar on 16 July.
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This article is only general advice in respect of risk management. It is not tailored to your individual needs or those of your business, nor is it intended to be relied upon as legal or insurance advice. For such assistance you should approach your legal and/or insurance advisors.