Unlocking the benefits of a performance based code

This clip is an informative presentation by Dr Care at the Building Australia's Future 2015 Conference, which provides both an historical and a future insight on the construction industry's adoption of a Performance based code. It discusses the barriers and benefits, and the need for industry sectors to work collaboratively in developing Performance based solutions.


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

subcontract tradies.

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.

Really? Why?

Nationally consistent dispute resolution procedures?

No progress.

A national system of accreditation for

building products, systems and techniques?

Achieved although State systems remain.

Really? Why?

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 fa├žade

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

deserve attention.

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.

Thank you.