Unlocking the benefits of a performance based code
My thanks to the organisers for arranging this video.
Over 25 years ago, I accepted an invitation
to be part of the Building Regulation Review Taskforce and,
as a direct result, I am making this presentation today.
Be careful of what you wish for.
Now it's always tricky to look back on
what you've done a long time ago.
I've been around long enough for some of my
projects to have now been demolished in the interest
of progress so looking back can be a challenge.
But the question I think we have to ask today is have we,
we the Australian building industry - because
we're in this together - have we missed the point
of performance based approaches to building regulations?
To answer that question, we need to be clear
what the point is.
So indeed what was, or indeed what still is the point?-
To gain some insight, I Googled
'performance based codes'
and I'd have to say that what I read online,
and this wasn't necessarily Australian,
certainly misses the point.
I'm not going to repeat that nonsense here nor
am I saying that what was written there was wrong.
It just misses the point of what is possible with
performance based regulations if one takes
a different perspective.
So what is the point?
From my perspective, the point of performance
based codes is to achieve a quantified outcome by
logical and repeatable processes while allowing
the outcomes to be achieved with increasingly
innovative skills, techniques and materials or dealing
with the changed circumstances as they evolve.
Prior to putting performance based approaches into place,
most - maybe all codes were based on often quite
painful experiences of what worked and indeed
often what did not work.
Methods and techniques derived from that experience.
These often constitute the so-called
deemed to satisfy provisions of our current regulations.
Very often, but not always, these were part
of knee-jerk reactions to disasters.
Moreover, while these responses may have been
logical and testable when they were first applied,
there is no way of knowing whether they remain overly
conservative or indeed even safe as circumstances
change over time.
I will come back to that point a little later.
I think the first point to be made about performance
based regulations, they are not just about one
aspect of what is really quite a complex process.
It is a system of components that are interdependent.
A system of components that will either breakdown
or perform poorly if any one of those parts
is missing or doesn't quite fit.
The parts may be technical or they might be
process or they might be administrative.
It is a partnership or a collaboration of governments,
including the regulators, and the private sectors.
At times those collaborations will be adversarial.
At times they will be quite collaborative.
Frankly, I think we need more collaboration than adversarial
behaviour in formulating what is the best way to proceed.
Moreover, it involves people and their organisations
with their own objectives and their own agendas
often which are malaligned.
At a detail level, performance base systems
usually involve some of the following -
explicitly stated performance requirements often
but not solely the technical part.
It should be noted that in the building regulations
we have, those performance requirements are mandatory.
It includes details of how the system will be
run or administered.
We clearly also need to educate all the parties,
particularly as the system changes and evolves.
This is very much a cultural change of our industry
and indeed of our organisations and ourselves.
We need a process for accrediting those involved
in the building regulations, both in the
private and the public sector.
We need processes to check out and accredit new and
innovative systems and we need
supporting and complementary insurance products.
Interestingly, I did not mention deemed to satisfy requirements.
I will come back to that a little later.
If we look at the Australian regulatory system,
the components of the system are provided by a number of
key players: the ABCB - government and industry
with an independent Chair, the regulators - also usually
from government, the educators - mostly in
the private sector, those that accredit the industry players -
the regulators, those that provide insurance products -
which are usually the private sector,
and those involved in product accreditation -
a mixture of all three.
No doubt, you could argue with my distribution of
accountability but that would merely reinforce my
point that it's a system and the components are interdependent.
Above all else, I would suggest we need leadership.
That is why one of the reasons you delegates have
given up three days of your lives to be here and I thank
you for that level of interest and I wish you
well in your deliberations.
Now as you no doubt know - and probably better than I -
in the period up to 1997, building regulations and
most particularly fire safety design in Australia,
like elsewhere in the world, had largely been based on compliance
with prescriptive or deemed to satisfy requirements.
Even then, a limited number of projects used performance
based design through variations - modifications
to deemed to satisfy provisions for those specific projects.
However, from the end of the 1980s, there was a growing
interest in performance based building codes as part
of the various governments' microeconomic reform agendas.
The Warren Centre in 1989 suggested that a risk and
engineering based approach to fire safety design
should be adopted to allow for more cost-effective design.
From 1989 to 1991, the Building Regulation Review
Taskforce reviewed and then reported on building
regulations in Australia.
In 1991, we had the creation of a draft
National Building Fire Safety Code using a
risk assessment based methodology.
In 1994, we had the establishment of the
not-for-profit Fire Code Reform Centre coordinating
fire research in support of a performance based
Building Code of Australia and use of risk assessment
for fire engineering analysis.
As it happens, I wrote the first business plan
for the Fire Reform Centre.
In 1994, we had the creation of the Australian Building
Codes Board to develop the first performance based
Building Code of Australia.
1997 through 1998, we had the adoption of the
Building Code of Australia into legislation in States
and Territories, and in parallel we had the introduction of
private certification for building approvals
in building regulations of some States in Australia.
But I'm getting ahead of myself.
The Building Regulation Review Taskforce was
established by the 1989 Special Premiers' Conference
to review technical regulations affecting buildings
and to recommend improvements to those regulations.
There was at the time a clearly recognised need
to reform the system for regulating land development
and building activity in Australia.
This photo taken at a very early Taskforce meeting is
black and white showing just how long ago it was -
at least it seemed a long time ago.
My role was Deputy Chair of the Taskforce.
At the time I was head of Public Works in the ACT.
I was invited by Dr John Nutt, who chaired the
Taskforce, to join as his Deputy for a range of reasons.
They included not only my background as
a consulting engineer, but also to provide some understanding
of the likely political and public servant
mindsets that we were likely to encounter.
As it happened, by the time the Taskforce
reported in 1991, I had re-joined Arup.
The need for reform of building regulations was
defined in terms of a range of problems that were
perceived with those existing regulations.
Those problems included a lack of a clear objective
for building regulations and the transparent link
to social goals, that regulations appeared to
restrict industry from applying the latest design
skills and construction techniques, that there was
a clear lack of uniformity of administration of the
building regulations and application between the
States and Territories and indeed within local
government areas in various States, that the approvals
process was complex and non-transparent, that there
was a lack of predictability for applicants under the
approvals processes, and many regulations were
outdated and not related to current social goals.
That there was a lack of incentives for approving
bodies to improve efficiencies, that there was
a lack of any incentive to introduce quality assurance
programs and, at the end of it all, there was the
potential for significant cost savings without the
reduction, or indeed perhaps with the improvement,
of the social outcomes that we were seeking.
Now as far as I can recall, no one thought that
reform was unnecessary.
On the other hand, if they did, they remained silent.
At the time in 1991, it was estimated that some
$1 billion was wasted on unnecessary regulation and
that, of that, at least $250 million could be saved
through the reform of technical regulations alone.
That was in 1991 dollars.
Probably a lot more today but I'll leave that to
others more qualified than I to say.
The Building Regulation Review Taskforce carried
out an extensive work program and research program to
review and investigate our building regulations.
I probably spent more than half my time on
Building Regulation Review Taskforce activities.
Included in those activities was an extensive
consultation process, a national industry survey,
building regulation reform forums in all capital cities,
circulation of some 5,000 copies of our
draft report in March '91 and the analysis of all the
submissions - the many submissions that we received.
The key point that derived from all this was the need
to reform, not just the parts of the system,
but that we needed to reform the whole
system of development approval.
A narrow focus on a particular element was not
seen to realise the benefits that we were seeking.
We suggested a strategic approach to reform building
regulations within a five year program to say 1996-'97
and the review after that for further actions.
I am not sure that all of that in fact happened.
The Taskforce key recommendations were
for the establishment of a national body -
the Australian Building Regulation Corporation for
management of building regulations
and a council of relevant Ministers to drive the process.
The ABRC, as it was called, to be owned by the Federal,
State and Territory governments as management
shareholders and funding from a levy collected by
each State and government, that State and Territory
governments agree to a set of principles to promote
consistency in building control including adoption
of the BCA nationally, adoption of national
consistent dispute resolution processes,
a national system of accreditation for building
products, system and techniques, a 10 year
liability limitation, that the Crown be bound by
the Building Code of Australia, uniformity
and transferability of qualifications.
Further recommendations included the creation of
a model administrative code to promote nationally
consistent administration of building regulations,
the provision of private certification of design,
construction and occupancy of buildings, the provision
of support to achieve the technical reform of building
fire regulations based on an appropriate fire risk model
and including the development of a national
building fire safety system code.
And in housing, the development of a separate
system of construction including a national housing code,
a national housing standard and a national home
building manual, provision of a streamlined buildings
approval process through a 'one-stop shop' approach
whilst maintaining quality safeguards and consumer
protection and the licensing of home builders and
There were a range of further recommendations.
So how have we done?
The establishment of a national body?
Essentially achieved. The Australian Building Code Board,
although as I understand it, ministerial oversight
remains ad hoc at the very least.
The ownership and funding of that body?
I think only Victoria has a building levy.
In terms of the principles that we were seeking to adopt.
The adoption of the BCA nationally?
That's been achieved.
The Building Code of Australia.
The BCA 96 and the National Construction Code
although State and Territory variations remain.
Nationally consistent dispute resolution procedures?
A national system of accreditation for
building products, systems and techniques?
Achieved although State systems remain.
A 10 year liability limitation?
Initially achieved but not in all jurisdictions
and now understood generally, to be unavailable.
Binding of the Crown? Sort of, although there
are ministerial waivers still in place.
And the uniformity and transferability
of qualifications? No real progress.
On the remaining key objectives.
A model administrative code? Not achieved.
Independent private certification?
Generally achieved, although I think the application of
it is problematic and the role of, for example,
the Fire Brigades remains problematic.
Technical reform of the Building Fire Safety Regulations?
Real progress made here.
The Fire Engineering Guidelines were published
by the Fire Code Reform Centre in April '96
and were later revised in 2001.
In 2005, these Guidelines became the
International Fire Engineering Guidelines
through a partnership with Canada, New Zealand and the USA.
In terms of housing. The National Housing Code
Standard and Building Manual?
Only the Code was developed as Volume 2 of the BCA.
In terms of streamlined building approvals? Partly achieved.
In terms of licensing home builders and subbies?
There is no national system in place.
So how have we done overall?
I would give it a 3 out of 10 and that's probably generous.
But we have introduced performance codes,
particularly the Fire Safety Engineering and
the National Construction Code.
All major achievements so all is not lost.
In looking back at what we did as a Taskforce,
what would I change?
The big thing for me is probably the
deemed to satisfy requirements. I know why we did it.
I think it's called real politic.
We did it so as not to alienate those wedded
to existing deemed to satisfy requirements.
We retained the emphasis on the deemed to satisfy
because to jump straight to performance based codes
with adequate quantification would have been a great deal
of work, particularly as most, maybe all, deemed to
satisfy requirements have no quantifiable justification.
But, of course, that has its downside with unquantified
deemed to satisfy requirements.
We don't know where we are.
We don't know whether we're safe or unsafe.
We don't know if we're conservative - how conservative?
And then if something goes wrong we have the very real
threat of a knee-jerk political reaction.
Perhaps we should have been braver.
On the other hand, there have of course been very
many notable successes, most notably successful projects.
One Shelley Street in Sydney.
Fire engineering on this project enabled a large,
open atria through the building that in turn gave
connectivity within the business and also enabled the
building to achieve 6 Star Green Star performance rating.
It also reduced the extent of passive fire protection
to the building allowing extended travel distances
to an exit that enabled greater building efficiency.
The Royal North Shore Hospital is a building over
25 metres which means it needs both sprinklers and
zone smoke control system under prescriptive requirements.
Zone smoke control systems are highly complex in a
hospital as the building is broken down into many fire
and smoke compartments.
The result is a very expensive system that
are also very hard to commission, expensive to
maintain and unreliable due to their complexity.
This project developed a rationalised
smoke control system designed around evacuation
and firefighting approaches.
That saved New South Wales Health many
millions of dollars, dollars that can be used on
a wider distribution of our health care.
It also allowed compartment sizes based around the
functionality to assist the staff with staff
efficiency and better health outcomes for patients.
The Water Cube in Beijing completed for the
2008 Olympic Games highlighted Australia's innovative
architecture and engineering skills to the world.
It's design used a performance based approach
to allow the use of ETFE façade
and unprotected structural steel.
It also avoided a firewall down the centre of the main
pool which while innovative would have probably made
a great episode of the Games for those of you
who are old enough to remember it.
Even the Sydney Opera House renewal project since
2003 have been undertaken using performance based fire
engineering allowing safe design without the need to
try and make the building comply with prescriptive
provisions that would have ruined the iconic building.
So that's where we are - many successes and some challenges.
There are many remaining concerns.
Private certification - is it really working?
How do we resolve the potential conflicts of interest?
What are the clarity of the roles and
how do we enforce those rules?
Fire safety engineering standards which started
out so well seem to be falling back.
We need to change that.
The lack of fire safety engineering accreditation
which is an essential component of a proper
regulatory system is not keeping up.
The BCA - lacking measurable performance requirements.
This remains a major problem.
Refer also to my regrets.
Limited hazard analysis and risk assessment - also an
essential component of a performance based system,
and little audit or enforcement of professional practice.
This is clearly an issue that requires attention.
Further concerns surround major fires,
primarily losses with deemed to satisfy designs.
Despite the general falling of the number of incidents,
and specifically the loss of life incidents,
there remains major building fires generally
associated with deemed to satisfy solutions.
Issues around sprinkler and detection systems,
poor inspection regimes and inadequate maintenance
The conflicts between the Building Code objectives and
the Fire Brigade legislation conflicts - that exists,
and there is a misalignment that continues to be
a major political failure.
The Fire Brigade's lack of fire safety
engineering resources - most Fire Brigades are
under-resourced, but particularly as far as
fire safety engineers go and the lack of accreditation,
audit and enforcement.
There are also perceived to be many barriers to these.
The risk of not obtaining an approval, delays due to
lack of resources and lack of understanding
costing many millions of dollars.
Design costs of alternative designs are
seen to be prohibitive.
Delays and costs due to referral to the fire
services are problematic.
Many regulators are seen to have a poor opinion
of alternative solutions which are certainly related
to the education of proponents and of regulators.
Risk-averse certifiers and the whole issue of
insurance cover for building remains a problem.
And, of course, the lack of quantified performance
requirements remains an issue.
So there's a lot to be done.
The ABCB needs, and I believe has, a strategy
to enable performance based designs to become
the first choice in the processes.
The ABCB strategy comprises four components -
a recommitment to performance based national construction
code, the quantification of the performance requirements
that we wish to have, resolution of the role of
other institutions including their objectives,
for example, the Fire Brigade,
and building capacity of practitioners.
That recommitment must come from the whole of our
industry - the government, the regulators
and the private sectors.
Recommitment from the delegates to this conference
will be a great start. I urge you to recommit.
To be successful, we need to promote
flexibility and innovation.
We must ensure that alternative designs achieve
and are seen to achieve the necessary performance.
This would also deal with the unquantified
deemed to satisfy requirements.
One example of the institutional impediments
is the role of the Fire Brigade together with the
appropriate resourcing and skills to fulfil that role.
This remains an objective.
This does not mean that the Fire Brigade's objectives
are wrong, just misaligned with building regulations
and it requires a political decision to align those two.
Lastly, but perhaps most importantly, we need
to improve the capacity and capability of all
the practitioners involved in the process.
So, to conclude, in the 25 years since the
Building Regulation Review Taskforce, we have done some
things very well - setting up the Australian Building
Construction Board, introducing and refining
the Building Code of Australia and the
National Construction Code, the advances in fire safety
engineering and the related performance based codes,
but there are still many things that we are yet to achieve
and our regulatory system is limited by its weak links
especially the education of all practitioners,
the quantifying the deemed to satisfy provisions
and resolving the misalignment of building regulations
and other institutions.
I commend to you the pursuit of those weakest links.
Once again, my apologies for not being with you
and all the very best with the conference.