Building regulation in Australia: how did we get to here?

How did we go from individual state and territory codes to the National Construction Code, and what does the future hold for building regulation?

IVAN DONALDSON

Former General Manager, ABCB

Building regulations are legal instruments intended to ensure that buildings provide minimum acceptable performance for their occupants and the community.1

Developed over a long period of time, they initially focused on ways to design and construct buildings that reduce the risk to life and property from fire, structural failure and natural hazard events.

Progressively, other aspects of building occupants’ health and safety have been included such as protection from falls, improved glazing and the prevention of the accumulation of unacceptable moisture.

The 1980s to 1990s was a period of transition from prescription alone to a performance-based national code, originally a Model Code, adopted in part by individual states and territories.

This change occurred for a variety of reasons, including: „ micro-economic reform in the 1980s and early 1990s that favoured contestable services, international competitiveness and deregulation „ a widening of areas for inclusion in response to community expectations „ complexities and limitations of trying to capture all issues in a single regulation for all building types and uses „ a desire to balance regulatory and market solutions more effectively.

Three elements define Australian building regulations:

1. The 2020 InterGovernmental Agreement (IGA)2

This Agreement is central to an understanding of the subject.

Oversighted by Commonwealth, state and territory ministers responsible for the sound development of the building industry,3 it drives the Australian Building Codes Board’s (ABCB)4 priorities, including the content and direction of the National Construction Code (NCC)5 .

The strategic intent is to improve building outcomes, increase confidence in the building and construction industry, enhance public trust in the safety of the industry, and deliver a more efficient, internationally competitive industry through national reforms to regulation.

Its present focus is its response to the complex compliance and enforcement issues raised by the Building Confidence report (BCR)6 written by Professor Peter Shergold AC and Ms Bronwyn Weir.

2. National Construction Code

The goal of the NCC is nationally consistent, minimum necessary standards of relevant safety (including structural safety and safety from fire), health and amenity and sustainability objectives.

The performance-based NCC does not require particular materials, components, design factors or construction methods and provides a choice of compliance pathways.

3. Systems of compliance and enforcement

In 2012, an ABCB report found that reform over the previous 20 years had delivered, and continued to deliver, over $1 bn savings per annum to the community, and that a further $1.1 bn per annum in savings was still achievable.

Some of this unrealised reform was NCC specific. However, it also depended on further reductions in local government interventions, elimination of state and territory variations and greater administrative harmonisation.

The modern historical background

Historically, building regulations focused on fire, structural safety and health, the latter having particular

attention on water services and wastewater management. But, by the late 20th century, regulation was unable to deliver good community outcomes, with: „ no nationally adopted code „ no national body to manage a national code „ no performance standards „ no fire engineering guidelines „ no rigorous change proposal analysis.

Building codes were not free and there were too many local variations to the Model Code, preventing consistency.

From 1989–91, the issue came to a head. A major review of the state of building regulations clearly demonstrated that there was a cost impact of the regulatory burden on building affordability.

It was also evident that the competitiveness of the building and construction industry was constrained by differing regulatory requirements across Australia, and that prescriptive standards were discriminating against new products and technology.

Following the review, governments agreed that, wherever possible, all states should adopt performancebased, scientifically robust building regulations, developed with strong industry and professional input and drawing upon a common set of technical data. The result was the creation of the ABCB, a new code and, eventually, the NCC.

The market continues to play an important role in building regulation, through contributions by professional services, product and material suppliers and building practitioners. However, there are critical life safety public good issues that clearly justify government intervention through regulation because minimum levels of building performance could lead to less-thanoptimal health and safety outcomes if left to the market, for example in the prevention of fire spread to neighbouring property.

Why a performance-based code?

Prescriptive regulations assist enforcement officials when reviewing plans and checking construction for compliance with the specifications. However, it is often difficult to ascertain the intent and actual level of performance delivered by these specifications.

In other words, prescriptive regulation dictates how a building must be built, rather than why and for what purpose.

In the performance-based approach we now have, the focus is instead on clear statements of functional and performance expectations.

The simple and concise language used enables all stakeholders to have a clear understanding of the regulatory intent and the means of demonstrating compliance. This, in turn, allows for better scrutiny, discussion and debate from a broader cross-section of the community.

With a focus on outcomes rather than specifications, performance-based regulations are also better equipped to take advantage of market capabilities to quickly and appropriately respond to changes, pressures and threats impacting the built environment, without compromising the core objectives of health and safety.

A performance-based approach also creates more opportunities for innovative buildings and solutions by giving more flexibility to the designer and a better indication of expected outcomes.

PHOTO: CLEM ONOJEGHUO / UNSPLASH

The Building Confidence report initiative

Whether the benefits identified for further reform can be realised in the future will depend on the governments’ responses to the challenges identified in the BCR and other reviews.

In 2018, the authors of the BCR formed the opinion in their report that “the nature and extent [of problems identified in relation to the building and construction industry] are significant and concerning”. They concluded that the current compliance and enforcement frameworks were inadequate at preventing noncompliance in building work.

The report’s goal was “to enhance public trust through effective implementation of building and

With a focus on outcomes rather than specifications, performance-based regulations are also better equipped to take advantage of market capabilities to quickly and appropriately respond to changes, pressures and threats impacting the built environment, without compromising the core objectives of health and safety.

construction standards that protect the interests of those who own, work, live or conduct their business in Australian buildings”. It recommended a national best practice model, or framework, to strengthen the effective implementation of the NCC.

The BCR’s recommendations have been agreed to by ministers, and an implementation plan developed. Action is being taken, often at state level, with some elements being dealt with nationally. However, the BCR’s call for a more holistic approach to the problems has not yet been taken up.

Moreover, challenges continue to be faced by the industry including commercial pressures, housing affordability, building quality, global supply chain disruption and technological change, as well as the state of the building regulation regimes. The result is that: „ consumers are not getting a good deal on health and safety, price or quality „ manufacturers are not getting a good deal because of uncertainty, lack of regulatory support and government complacency about risk „ product suppliers and manufacturers are not getting a good deal because the playing field is uneven.

What ‘here’ looks like from 2030

Big changes have occurred, and the regulatory landscape is very different today than it was last century. For example, we now have: „ an IGA that emphasises nationally agreed strategic and policy priorities „ a free, performance-based NCC that is adopted and delivered by all states and territories „ a national technical/policy centre of excellence—the ABCB—to manage the NCC „ a wider scope for the NCC that now includes plumbing, sustainability, energy efficiency, access for people with disabilities and acoustic amenity „ a rigorous analysis gateway to test

NCC change proposals „ a BCR blueprint for change that has earned the support of all jurisdictions, is welcomed by industry and is largely in the process of implementation.

Nonetheless, the regulatory system and those who administer it have so far been mostly deaf to the persistent calls from industry for meaningful change over and above the BCR.

Why should that be? Perhaps there is something fundamental at play. Is it because we are all too preoccupied with the present, and failing as a society to see the real risks to our future health, safety and security?

The curse of short-termism afflicts all of us, so it is often difficult to take on the burden of our future world. But do we have to wait for death and destruction before we appreciate the need to address catastrophic risk based on the science and the real costs and benefits involved?

What can we conclude?

Building regulations are almost as old as the built environment itself. They evolved to address changing community circumstances and expectations and have changed in response to catastrophic events and community needs.

The core business of life safety is a constant focus of our building regulatory system, but there is unfinished business to make it fit for purpose and deliver the outcomes that everyone expects.

Industry has been actively seeking solutions, including FPA Australia, but change is still needed.

What more should we do?

The 2020 IGA needs to be revisited, because it contains too many ‘best endeavours’ and not enough commitment to national solutions.

There is no constitutional, legal or political barrier to replacing the existing system, from jurisdiction-based to national, that cannot be overcome by commitment and political will.

One very positive thing for the future is that industry and practitioners often lead the call and make the effort to create change.

For example, in 2017, the Building Products Innovation Council7 developed an Action Plan for building regulation reform to complement the work of the BCR.

It urged government to work with industry and the community to develop an agreed set of comprehensive reforms for building regulations and to better coordinate and utilise Australian technical and conformance expertise to address new building technologies, resolve complex performance solutions and deal with cases of product non-conformance.

Similarly, in 2019, Swinburne University studied the feasibility of creating an Australian Technical Evaluation Network.8 The concept aimed to better deal with ongoing concerns about non-conforming building products by striking a balance between the need for market acceptance of innovative products, new technologies and more complex performance solutions, and good life safety outcomes.

It is not all down to government. We as an industry need to keep up the pressure. We all need to have the necessary vision to ask of the state of contemporary building regulations the question that the celebrated scientist Professor Julius Sumner Miller posed 50 years ago about other subjects entirely: “Why is it so?”

FOOTNOTES

1. Meacham, BJ (Ed). Performance-based building regulatory systems: principles and experiences. A report of the Interjurisdictional Regulatory Collaboration

Committee. IRCC; 2010. 175 p, 16. 2. InterGovernment Agreement (IGA) between the Commonwealth, States and Territories on Building Regulations and the ABCB, January 2020. 3. Building Ministers’ Meeting. 4. Australian Building Codes Board. 5. National Construction Code. 6. Building Confidence Report, 2018. 7. Building Products Innovation Council, 2017. 8. Scoping Study for an Australian

Technical Evaluation Network, 2019.