Experience with the new NCC Performance Solution Process? 2

[Euler07]

Hi all, I'm just wondering what people’s experience is with the new NCC 2022 Performance Solution Process? It seems to be having a big affect on my projects personally. I’ve listed a few points below but I’m also wondering what the general experience has been from other people's perspective.

1. The NCC 2022 now states that all performance solutions must follow 4 steps. (Performance-based design brief, analysis, evaluation, final report). Has anyone gone through this process and what are people’s experience?

2. For example, we have a simple project in a corrosive environment where, after careful consideration and research, a specific composite material has been chosen. The design is simple and based on straight-forward solid mechanics and engineering principles. The building certifier is saying they will only certify the design if it is using steel, unless the client spends tens of thousands of dollars and 6 months on a Performance Solution Process.

The question is, who takes responsibility/liability? In this case the building certifier is forcing the engineer to specify a material which the engineer disagrees with, saying that it must comply with the prescriptive deemed-to-satisfy codes and that the use of special materials or construction is prohibited.

I can also think of many other past projects, such as many where we specified fibre-reinforced concrete in order to improve performance, that would now be knocked back unless the performance improving additives were removed.

3. As far as I can tell, the Performance Solution Process is the opposite of my engineering training. During engineering design, we would consider a range of options and do rough calculations/research on each option, refining decisions and calculations until we narrowed down to the final design. We may research twenty options with different material and construction methods, only to understand that an option is not preferred after hours of reading. We would not need the pre-approval of a dozen stakeholders in order to research an option.

In contrast, the Performance Solution Process requires that the solution be known in advance, prior to engineering design. You must propose a performance solution and the exact process that will be used to evaluate it, and have all the stakeholder agree. Only subsequently do you verify if the design is possible. Each possible option must go through the same process, and if there are any changes to the design process then you must re-write the brief and get re-approval from all the stakeholder.

The Performance Solution Process also places the opinions of uninterested laymen above or on par with those of the responsible professional engineer, forcing the engineer to take routes that they would not otherwise take in the normal engineering process.

4. How are people quoting jobs now? In my experience it now seems to be a gamble whether a building certifier will accept an engineering design or require a hundred page document justifying every decision and approval from a dozen stakeholders (noting that the final design remains the same regardless). I have simple projects which took an hour to design, only to spend dozens of hours trying to navigate the new NCC process. It is taking all my mental energy and attention, which would otherwise be spent focusing on the actual performance and safety of the design.

Hoping to get some other opinions and experience. Thanks.

 

[Retrograde]

I have never been through a Performance Solution Process, but my 2c.

unless the client spends tens of thousands of dollars and 6 months on a Performance Solution Process.

Would it really take this long? It seems to me the "brief" could be a simple one-page memo, you have already done the analysis and evaluation, the only "stakeholder" you need to be on board is the client and then prepare a brief report documenting the results of your analysis.

I can also think of many other past projects, such as many where we specified fibre-reinforced concrete in order to improve performance, that would now be knocked back unless the performance improving additives were removed.

Fibre-reinforced concrete is covered under AS3600 so not sure a performance solution is required.

 

[human909]

I would politely but firmly tell the "building certifier" that you are the engineer and you are certifying that X-Y-Z construction is structurally adequate. The builder certifier is out of their lane.

The polite way to do this is to submit to the relevant parties a structural adequacy certificate referencing the relevant design and all the relevant codes and the NCC.

I'd put forward that you as a qualified structural engineer can suitably achieve part d of A0.5. If you use 1170 and appropriate LRFD analysis then you are performing your job. If you certify that the structure is structurally adequate then who are they to question your judgment as the structural engineer.

A0.5 Assessment Methods
(d)
Comparison with the Deemed-to-Satisfy Provisions.b

 

[Euler07]

Thanks for the feedback Retrograde & human909.

Would it really take this long?

It seems that this is the case. I've watched presentations by the ABCB and even they recommend hiring a BCA consultant in order to guide you through the process. My clients have asked for quotes from BCA consultants and the price starts at around $10k, excluding other consultant fees.

Fibre-reinforced concrete is covered under AS3600 so not sure a performance solution is required.

AS3600 seems to exclude non-steel fibre and fibre used for ground slabs, which is essentially all of our projects. But I'm hoping my questions are more broad and not focused on specific projects

I would politely but firmly tell the "building certifier" that you are the engineer and you are certifying that X-Y-Z construction is structurally adequate. The builder certifier is out of their lane.

We would have done this in the past when the NCC simply said that an engineer's certificate is enough to show compliance. But the latest NCC (Part A2G2) now explicitly mandates the 4 step Performance Solution Process and building certifiers are hiding behind this. It seems that the ABCB has also told building certifiers that it is a conflict of interest to help in the Performance Solution Process, therefore when asked questions or for clarification, building certifiers may refuse to answer.

Btw, here is the process if anyone is wondering.

https://www.abcb.gov.au/sites/default/files/resources/2021/Performance Solution Process.pdf

https://www.abcb.gov.au/sites/default/files/resources/2022/Handbook-performance-solution-process.pdf

 

[Retrograde]

All good points Euler07

Side topic: what method(s) would you normally use to design a fibre reinforced ground slab? Particularly something like an industrial building slab.

 

[human909]

Thanks for the link Euler. Seems like a massive power grab by building certifiers. If Engineers can't be relied upon to perform engineering then who can?

I haven't read the full 4 step process document you posted as I am posting on my mobile phone at the moment. Hopefully you can navigated those 4 steps in a quick and efficient manner once you sort out a template.

It seems that the BCA sounds increasingly out of touch with the need for engineering flexibility especially in industrial construction.

Even in residential. There still is plenty of non cookie cutter homes being built. Try finding guidance for log homes in the NCC. Or straw bale homes, or a whole bunch of things.

 

[Just Some Nerd]

My experience is typically in RC mid-rise and some associated steelwork portions, but generally speaking we never even try to carry out a performance solution on the structural side of things (how the hell are you going to do it let alone get it through is in my mind an unresolved question no matter how minor). Fire engineering and various services will routinely do performance solutions (obviously at some cost to the builder of course but fairly minor in impact) but I'm yet to come across one done by a structural engineer.

----------------------------------------------------------------------

Why yes, I do in fact have no idea what I'm talking about

 

[human909]

but generally speaking we never even try to carry out a performance solution on the structural side of things (how the hell are you going to do it let alone get it through is in my mind an unresolved question no matter how minor).

Your experience reinforces the thought process that has guided this outcome. If a comprehensive report is required for simple engineering simply because the suitable material code isn't listed in the NCC then that is a problem.

We have been building structures out of logs/straw/mud for millennium. But apparently we can't do that anymore without a comprehensive report. Surely you see the issue here.

 

[Euler07]

Thanks all.

As far as I can tell, this will soon influence most structural engineers, whether you've already encountered it or not. The reality is that most engineering designs can be interpreted as performance solutions by someone and the onus will be on the engineer to prove that the design complies with deemed-to-satisfy provisions, and to follow the 'performance solution process' for each individual project regardless of how many tens of thousands of projects you've already used the exact same design on.

This separation of engineering into two categories is antithetical to my training. I was trained that stress = My/I for any material, M = wL^2/8 for any simply supported beam, and I didn't have to memorise thousands of pages of standards in order to justify to a layman that the design is 'deemed-to-satisfy'.

I would also add that, according to the ABCB themselves, many deemed-to-satisfy provisions are arbitrary and not based on engineering principles. They state that it is unknown to what extent the deemed-to-satisfy designs are conservative or perhaps grossly unconservative. I know of buildings that complied with the Australian Standards and ended up in lawsuits because the building was uninhabitable, and in those cases compliance with deemed-to-satisfy was not considered to be an adequate defense since the building was not 'fit for purpose'.

 

[Just Some Nerd]

Your experience reinforces the thought process that has guided this outcome. If a comprehensive report is required for simple engineering simply because the suitable material code isn't listed in the NCC then that is a problem.

We have been building structures out of logs/straw/mud for millennium. But apparently we can't do that anymore without a comprehensive report. Surely you see the issue here.

Don't get me wrong, I don't think it's a good system. OP's original question was about if anyone had experience with structural performance solutions and I was just trying to inform that I'm not aware of a single case of it happening in practice. For concrete buildings and conventional steel structures, I can guess with a degree of confidence that people aren't doing performance solutions for every little deviation from AS3600/AS4100 and aren't getting punished for it (who is going to check that after all). Using a material without a related standard that covers it is not so easy to get past a certifier though, but I would be interested to know what for the sake of curiosity what sorts of materials we expect are most likely to get tripped up in this.

As far as I can tell, this will soon influence most structural engineers, whether you've already encountered it or not. The reality is that most engineering designs can be interpreted as performance solutions by someone and the onus will be on the engineer to prove that the design complies with deemed-to-satisfy provisions, and to follow the 'performance solution process' for each individual project regardless of how many tens of thousands of projects you've already used the exact same design on.

Somewhat touched on this above but yes, I doubt there are projects over a given size that will 100% comply with deemed-to-satisfy provisions structurally. So far everyone is skating through on the fact that certifiers accept it at face value when we declare that our designs all comply with X/Y/Z standards - not necessarily a bad thing, but technically not following the letter of the law.

Bit of a sidetangent with regards to interpretation by others - the latest Practice Standards in NSW states that their next version is going to have mandatory obligations for third-party review for certain building types, will be interesting to see what result we end up with here. I believe NT already has something like this in place and am not sure if any other states have it, but I wonder if reviewers would ever start nitpicking at this sort of thing.

 

[CVDP75]

Hi Euler07,

The NCC process you refer to which is A2G2(4) came into effect on 1 July 2021 under the NCC 2019 Amendment 1. It was a result of a recommendation from the 'Building Confidence' report produced by Peter Shergold and Bronwyn Weir published in February 2018. As it is in the NCC, it has been produced at federal level by the ABCB. However, each state and territory adopt the NCC under their respective building statutes. You did not say which state you work in, but this clause is what is known in law as 'ultra vires'. Here is a website that explains ultra vires at a basic level:

https://www.armstronglegal.com.au/a...w made by the,the constitution of that state.

A2G2(4) is ultra vires, as the state (or territory) you work in, under that building statute it will not require 'stakeholders to agree' or 'performance briefs'.

If you tell me which state you work in, I can tell you more about how A2G2(4) is ultra vires and what the solution is to your problem - no need to tell me who you work for, where you work, what you work on. All I need to know is which building statute is relevant to your situation.

Cheers,

CVDP75.

 

[human909]

Hi CVDP75. I work in VIC and would be interested in how this applies. Thought over 50% of my projects are currently in NSW and QLD so I'm curious about those states as well.

That NCC process seems a nightmare for industrial engineering. Though like I mentioned, there are numerous edge cases everywhere which could be problematic. I'm glad to see it doesn't apply to loads just materials as I frequently need to venture far away from AS codes for some loading criteria.

That said I deal with stainless steel a fair bit and it seems unclear whether AS4100 applies or not. While AS4100 doesn't explicitly rule it out, there are numerous references suggesting it doesn't apply. The fact that we have a specific code for cold formed stainless but not hot rolled leaves more questions.

 

[Euler07]

If you tell me which state you work in, I can tell you more about how A2G2(4) is ultra vires and what the solution is to your problem

Thanks CVDP75, this is useful information. We provide engineering services in every state (since many of our clients have outposts Australia wide and need their pre-fabricated buildings certified for each state). However, at the moment the state in which we have the most difficulty is Victoria so advice regarding that state would be most helpful.

 

[CVDP75]

Each state and territory of Australia administers its own building Act, in the case of Victoria, this is the Building Act 1993. This is because under the Australian Constitution, there is no reference to building law, and therefore the federal government does not pass a federal building Act for every state to comply with. In Queensland this is the Building Act 1975 and in New South Wales this is the Environmental Assessment and Planning Act 1979. Statutory law such as a building Act usually set out basic legal principles, who has legal powers, how disputes are solved, etc, and in the case of buildings, they must be safe and healthy to use, and fit for purpose. It is left to regulations as to how to design buildings. But a regulation cannot be put into effect without being authorised by an Act, since an Act of Parliament is passed into law by democratic vote but a regulation is written by government departments. Therefore there will clauses in an Act that allow the introduction of regulations. The NCC is just a type of regulation and is in this case a building code with two main parts: a 'deemed-to-satisfy' which is a cookbook and assumed to be correct (but can be wrong), and a performance-based building code.

In the case of the Victoria Building Act 1993, Section 7(1) allows building regulations to be made for the design and construction of building in Victoria. This section of the Act allows the Victoria Building Regulations 2018 to be put into effect. In Building Regulations 2018, it is regulation 10 which incorporates the BCA(NCC) into law. It works like this in every state as the BCA (NCC) is drafted by the ABCB which is a federal department, and the whole objective of having a national building code is to make trade between states and territories easier. However, it does not end there. Because each state and territory passes its own building Act by its own state Parliament, it is that Act that is supreme law. Nothing in the NCC can legally override the Act. So, because each building Act requires buildings to be safe and healthy, the NCC cannot have provisions in it that are unsafe or unhealthy. Also, the NCC cannot give legal powers to persons who do not have the same legal power under the Act. When regulations have clauses which have this effect, regulations are 'ultra vires' and illegal. Each state supreme court can rule that regulation 'ultra vires' and wipe it out.

In the case of A2G2(4), the problem is that it is an illegal regulation that mandates a procedure of 'stakeholder approval', when the Building Act 1993 says no such thing. There is no such thing as a 'stakeholder' under the Building Act 1993. The Building Act 1993 allows designers to design any way they want so long as what they do is safe and healthy and fit for purpose. The ABCB have put in an illegal 'approvals clause' in the NCC which requires a 'brief' and 'stakeholder approval', when the Building Act 1993 does not. The ABCB have made a mistake with their administration of the NCC and they won't admit it. Only a bad regulation could have the effect of negatively impacting industrial engineering and pre-fabricated building markets, two completely different markets but both have to get 'stakeholder approvals', which is impossible and plain wrong. The crux of the matter is that if you comply with the performance requirements of the NCC, then you have legally complied with the NCC (in the eyes of the Courts) and have done no wrong. I have self-represented myself in courts a few times now and won against big law firms and I know the game even though I am an engineer by profession, I have been reading law for about 7 years now, and go to court occasionally without a lawyer and win when I know I have a winning case.

I have not gone into how A2G2(4) got there in the first place, that is another story. But the way to solve this problem is to go to the State Supreme Court and plead that A2G2(4) is 'ultra vires' the Building Act 1993. It is one day in court and quite easy to do (if you know how), as it does not involve a civil claim of litigation against another person. There is no new legal precedents to set in winning this. This kind of legal problem is routine for the courts to solve and they have been doing it for about 100 years in Australia.

I hope this helps. Happy to answer any other questions.

 

[Euler07]

I'm not aware of a single case of it happening in practice.

Yes, this was my experience also until the last year. In the past, all we would do is write a single page letter explaining that the design was a performance solution and that it met the performance requirements with some brief rationale; and I have also seen this a lot from other engineers. However, I have not seen an example of the new process and even after extensive searching the only examples are from the regulatory bodies who provide vague extraneous examples without a final report to use as a guide.

Bit of a sidetangent with regards to interpretation by others - the latest Practice Standards in NSW states that their next version is going to have mandatory obligations for third-party review for certain building types, will be interesting to see what result we end up with here. I believe NT already has something like this in place and am not sure if any other states have it, but I wonder if reviewers would ever start nitpicking at this sort of thing.

It's been like this in South Australia for many years (called a Regulation 61 certificate). But thankfully it's another engineer who checks the design and the process / amount of time it takes is relatively known.

That said I deal with stainless steel a fair bit and it seems unclear whether AS4100 applies or not. While AS4100 doesn't explicitly rule it out, there are numerous references suggesting it doesn't apply. The fact that we have a specific code for cold formed stainless but not hot rolled leaves more questions.

I know what you mean . I seems like every week I'm looking to see if something complies with some code or other and the feedback is "we don't know". The building certifier then finds some internet link saying it doesn't comply and knocks the job back.

There is currently an over-reliance on Australian Standards. The country is so small and there are only a handful of people doing pro bono work to write the standards. In the age of globalisation and the internet, I don't see a reason why international standards/manuals can't be used. Well, they can be used but only if an extensive approval process is carried out.

We currently have a project where we used an American code with a well documented American design guide. Unfortunately, we were informed that this is not considered deemed-to-satisfy and a Performance Solution Process needs to be followed for this also.

I also know of another engineering company that had their glass design knocked back because the exact configuration of the build wasn't shown in the example diagrams in the glass standard. In that case also, the building certifier said it needs to now follow the Performance Solution Process and that a list of laymen stakeholders need to approve the design. I could go on...

That NCC process seems a nightmare for industrial engineering. Though like I mentioned, there are numerous edge cases everywhere which could be problematic.

human909, refer to the link below. Even standard tilt-up panel warehouses use performance solutions . I would be surprised if there's a single building that is completely deemed-to-satisfy. Especially with all the innovative products now available.

https://nationalprecast.com.au/wp-c...nce-Note-Precast-external-walls-the-NCC-1.pdf

*Edit:

I hope this helps. Happy to answer any other questions.

Thanks CVDP75, this is great info. I'll go through this and let you know if I have questions.

 

[human909]

Each state and territory of Australia administers its own building Act....
..

Thanks for the extremely comprehensive reply. It sounds like you have a handle on the law, I should do the same. I have done some deep dives into various laws in other fields but I must say I start drowning when I read the NCC and I've only read snippets of the various state's acts. Given my obligations I should know the law.

This conversation just shows that many engineers in Australia (likely elsewhere) don't have a great grasp on the law and their own legal requirements. Which in some ways is a little worrying, in other ways it is also understandable. We are engineers not lawyers.

The Building Act 1993 allows designers to design any way they want so long as what they do is safe and healthy and fit for purpose.

Am I leaping too much? Are you saying that most of the NCC can be completely ignored if one chooses to? (As long as I ensure it is 'safe and healthy and fit for purpose'.)

That is extremely useful to know. Not that I'm planning to do so, but almost every building surveyor I've dealt with insists that NCC is included in the list of relevant codes used in design. Also I'm pretty sure that the professional registrations process VIC/QLD require engineers to have a working knowledge of the NCC. Though it would hardly be the first time organisations/government implement things contrary to the own laws.

Unlike Euler07, I haven't had too many big headaches from building surveyors on structural issues. Though normally they require that I list the NCC as the code I have followed. (Where in fact all the NCC does is bounce me to AS1170, AS4100, AS3600 etc.) I have found increasing requirements from building surveyors that AS1657 is listed in my documentation. Which I consider is generally outside of my role as a structural engineer. I have generally dodged doing this.

Building surveyors just like to see a thousand boxes ticked and certified even if they are not relevant or outside of the scope of the person they are asking to certify things. I have been aware of this, but your comments above suggest it is MUCH worse than I imagined.

 

[human909]

Euler07. It certainly seems like you've had it tougher than me. I've generally managed to get my things past building surveyors without too much headache and without certifying things I don't want to certify.

In the age of globalisation and the internet, I don't see a reason why international standards/manuals can't be used.

It is my understanding that they can be used. I certainly used them commonly.

Where is the Australian code of dust explosions? And I don't mean the AS/NZS 4745:2004 that is a pretty useless document.
Where is the Australian code for silos? AS3774 has been withdrawn. Yet we still still have booming agricultural industry in need of grain storage.
And as I mentioned above a associate of mine designs and certifies log homes. I believe he relies on a Canadian code.

Well, they can be used but only if an extensive approval process is carried out.

I'm not sure that is the case. Again this might be an overreach by building surveyors that you have experienced.

 

[CVDP75]

To answer your question if you are "leaping too much if you want to ignore the NCC?", the answer is yes, but it is a good question. Regulations are nothing more than 'fleshed out detail' of the objective of a statute such as a Building Act, and it is law (generally) to comply with regulations as much as it is any other law. But, regulations can be wrong, and when they are wrong, as an engineer you can be liable for these errors. For example, if there is an error in the NCC and an engineer 'blindly' works to it creating an unsafe structure, you can have a claim against you. Conversely, regulations can specify provisions which are 'over the top' and if you don't comply with it but the structure is still safe, you can argue in court - and win - that the regulation on that matter was wrong (i.e., ultra vires) and therefore you are not liable.

What matters when it comes to avoiding liability is to understand what the substantive legal thresholds are that the courts work to. Most of the time it is the negligence standard. If a design is safe, you cannot be held negligent. If a design is unsafe you are going to have a problem with the law.

Unfortunately, engineering programmes at university do not prepare their students to understand key aspects of the law that they will have to work to when they graduate. Engineering, at the end of the day, is a legal exercise in collecting facts (data) and ensuring that those facts answer the relevant questions in law (such as the performance requirements in the building code). A2G2(4) has nothing to do with answering questions in law. It is a mistake by the ABCB. The ABCB have no right to put in the NCC a procedure which requires engineers to get 'stakeholder approval' from people who are not qualified to give answers nor have even signed a contract to provide design services (and take liability for them).

Regards,

CVDP75

 

[human909]

Thanks again for an excellent explanation.

What matters when it comes to avoiding liability is to understand what the substantive legal thresholds are that the courts work to. Most of the time it is the negligence standard. If a design is safe, you cannot be held negligent. If a design is unsafe you are going to have a problem with the law.

Well that has been my logical and ethical approach in my engineering. I work in a fairly niche area so I do find myself with some quite curly structural design questions often in areas where structural design and mechanical design state to cross over.

 

[Smoulder]

NSW

THE ACT

4.64 Regulations—Part 4 (cf previous s 105)
(4) The regulations may provide for the adoption and application of the Building Code of
Australia

6.33 Regulations: Part 6 (cf previous s 109Q)
(1) The regulations may make provision for or with respect to the carrying out of building
work or subdivision work and, in particular, for or with respect to the following—
(a) requirements to comply with provisions of the Building Code of Australia or other
specified standards in relation to building work or subdivision work,


THE REGULATIONS

69 Compliance with Building Code of Australia and insurance requirements under Home
Building Act 1989
(1) It is a condition of a development consent for development that involves building work
that the work must be carried out in accordance with the requirements of the Building
Code of Australia.

122 Complying development involving building work
(5) An application for a complying development certificate must also contain the
following—
(a) if the building work involves a performance solution under the Building Code of
Australia—a report about the performance solution prepared in accordance with
the requirements set out in the Building Code of Australia, A2G2(4),

137 Compliance with Building Code of Australia
(3) A certifier must not issue a complying development certificate for building work that
involves a performance solution under the Building Code of Australia unless the
certifier—
(a) has obtained or been given a performance solution report, and
(b) is satisfied that—
(i) the report was prepared in accordance with the requirements set out in the
Building Code of Australia, A2G2(4), and
(ii) the building work plans and specifications show and describe the physical
elements of the performance solution, if possible.