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.

 

[human909]

Hi Smoulder. Could you please elaborate on your text you posted. Are you suggesting the ACT and regulations in NSW are not inline with what CVDP75 is suggesting and that A2G2(4) requirements do apply?

Similar advice is being prepared in VIC:
(I realise this is guidance, which is neither law nor regulation. So in a court this might not stand, but it is what most building surveyors are likely to go on.)

Essential Safety Measures ESM-10 | Methods of demonstrating compliance with the National Construction Code 2022

OLD:

https://www.vba.vic.gov.au/__data/a...-Code-Assessment-SUPERSEDED-18-April-2023.pdf

NEW:

https://www.vba.vic.gov.au/__data/a...ce-with-NCC-2022-UNDER-REVIEW-15-Feb-2024.pdf

To ensure a Performance Solution is formulated correctly the following process must be followed:
1. Develop a performance-based design brief with input from the appropriate stakeholders.
2. Carry out analysis.
3. Evaluate results.
4. Prepare a final report outlining steps 1 to 3.

@CVDP75
Given your previous comments and grasp of the relevant laws do you have any further comments on the guidance being given out at the state based level?

 

[CVDP75]

Hi Human909,

Guidelines are as you say, exactly that and nothing more. They can be inciteful in two regards. Firstly, they may be correct and assist in interpreting the law. Secondly, sometimes they are wrong and are used as political power instruments by administrators. When the latter happens, they need to be reminded that their powers are prescribed under the Act they administer and they cannot expand them via Guidelines. Put some time into understanding the term 'ultra vires'. It is the private sector's friend.

In the case of The Owners v Allianz Insurance (NSW Supreme Court), a building was designed to the NCC Guide rather than the NCC. The designers, which included certifiers, used the NCC Guide's definition to calculate building height rather than the NCC. But the NCC Guide method is different than the NCC. The judge ruled that the NCC Guide approach was wrong and that the NCC Guide should not have been used:

Relevance of the Guide: The Guide adds nothing material to the language of the text of the BCA under consideration or, if it does (for example, in its reference to the fire brigade) that addition is a gloss on the language of the BCA. The introductory paragraphs of the Guide expressly disclaim any pretence of the Guide rising higher than the text of the BCA.

At the end of the day, it is that text that must be construed. It is that text, not anything in the Guide, that was incorporated by reference in the Development Approval identified in paragraph 8 of the Statement of Agreed Facts. It is that text, not anything in the Guide, that was the subject of "adoption and application" by regulations made under the Environmental Planning and Assessment Act, 1979.

I have attached the case law for you. You will find the above text at paragraphs 109 - 110. The NCC Guide is full of errors and should never be put in a contract nor relied upon as law nor a textbook containing indisputable facts.

In commenting on Smoulder's comment, he/she is just pointing out where A2G2(4) is law in NSW at regulation level, with A2G2(4) applying in NSW. However, A2G2(4) is still ultra vires the NSW Act. NSW has their own problems.

 

[Smoulder]

@CVDP75 Can you post a court ruling about A2G2? Devil in detail. If no ruling then could go any way at court. Then could go other at appeal. Ruling that isn't 'against' anyone has limited use.

@Others I posted NSW laws to show certifier will just read out section 137 and will look right unless you have CVDP75's court ruling. But what problem do you actually have? Avoid unpaid work? Save face with client? You responsible for obtaining permit? Current job or future? In future exclude perf solutions from lump sum. Point out BCA approval problem for FRP/stainless etc. when doing options and make it client's problem. Just another scope trap to avoid. Current job you aren't being forced to change material. You have given advice and so has certifier. Client makes a decision and can even shop around for new certifier. Claim variation if they change to steel and look at normal options if rejected. Think about contract position and normal client relationship things if perf solution pursued.

This prob won't go away. If many projects use ultra vires to avoid then laws will prob be changed.

@Human909 Centuries of log buildings don't meet modern requirements. Fire, insulation, other non-structural are usually the issues. But can be structural like how tilt-up used to kill firies.

 

[Euler07]

Thanks all. I was after peoples personal experience and these are all valuable perspectives that I will internalise. My original intention was not necessarily to get into a debate.

But what problem do you actually have?

As you say, in terms of professional engineering this is a contractual / client communication issue. I'm wondering if you have a contract/quote clause you can share that covers the Performance Solution Process or Performance Solutions, or extra items requested by the building certifier? How would you take this into account in the quoting stage? I am hesitant to discuss with a layman client about our design and possible NCC 'non-compliance'.

Our current issue is that we provide engineering design/certification as we would in the past, but the building certifier now says the engineering is 'non-compliant' (because there's no 4 step Performance Solution Process reports or stakeholder approval). The client then blames us for not providing a compliant design that can get building approval. Do you have any advice and what you would suggest in this situation?

(Note that it is impossible to predict what part of the design the building certifier is going to choose. We have a project that went to 2 different certifiers and each said a different part of the design needed a performance solution process. Each certifier will decide based on their own personal understanding of the NCC).

Client makes a decision and can even shop around for new certifier.

Unfortunately, this is no longer possible in Victoria. Once a certifier is chosen then the client cannot pick a new certifier without the permission of the original certifier. (In my view, this opens the client up to attempts at extortion, but this is for another day).

Happy to answer any other questions.

Thanks for the explanation of the legal aspect. What you say does indeed match my limited experience with court cases as judges will generally only care whether a building is 'fit for purpose' and will disregard the process that was taken.

I might consider your approach if this was a personal project. In which case, my question would be: what would happen after the ruling? The building certifier is still needed to get building approval? If the judge rules that that clause of the NCC is 'ultra vires', roughly what next steps would be taken to get building approval?

However, the specific issue we have now is a professional one where we are designing hundreds/thousands of buildings per year in different states. It would not be possible for us to advise clients to take this approach. Based on your understanding of the law and the NCC, do you have any advise for a professional engineering company in this situation?

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

Unfortunately, this is indeed the case. Only 'referenced documents' can be used in a deemed-to-satisfy solution. International standards are considered to be a performance solution and this would now need to follow the 4 step Performance Solution Process (including stakeholder consultation). Non-referenced Australian Standards are also considered to be Performance Solutions.

Just to clarify: international standards have always been performance solutions. This is not the issue. The use of performance solutions is encouraged by the ABCB and, prior to 2021, it was quite a simple process. All that was required was:
"A certificate or report from a professional engineer or other appropriately qualified person that— (e) certifies that a material, product, form of construction or design fulfils specific requirements of the BCA; and sets out the basis on which it is given and the extent to which relevant standards, specifications, rules, codes of practice or other publications have been relied upon to demonstrate it fulfils specific requirements of the BCA."

The problem is that in 2021, clause A2G2(4) was added which requires:
"Prepare a performance-based design brief in consultation with relevant stakeholders"

In the context of high-rise fireproofing, I could understand the intent of this clause and the cost of providing this would be insignificant to the project. But in the context of a normal day-to-day engineering design, this clause places engineering consulting in a precarious and almost impossible situation. It went from being a half-hour report written by the engineer, to a situation that is out of the engineer's control.

Once again, I appreciate the feedback everyone.

 

[CVDP75]

Hi Human909,

To answer your questions:

I might consider your approach if this was a personal project. In which case, my question would be: what would happen after the ruling? The building certifier is still needed to get building approval? If the judge rules that that clause of the NCC is 'ultra vires', roughly what next steps would be taken to get building approval?

A2G2(4) is a regulation that is ultra vires. As it is ultra vires, all that happens when taken to court is the judge rules the clause (effectively) 'null and void'. This applies to the entire State of Victoria, not just one project. It is a type of legal proceeding known as a declaratory judgement. It does not need a project for it to occur, and is nothing more than asking a judge to answer a question in law, in this case if A2G2(4) is ultra vires or not, which it has to be as the Building Act 1993 does not specify the procedures that A2G2(4) mandates. After the ruling, A2G2(4) does not apply - ever, and you go back to how you solved problems before A2G2(4) came into effect in 2021. No need for performance-based design briefs, stakeholder approvals, etc.

However, the specific issue we have now is a professional one where we are designing hundreds/thousands of buildings per year in different states. It would not be possible for us to advise clients to take this approach. Based on your understanding of the law and the NCC, do you have any advise for a professional engineering company in this situation?

Unfortunately, A2G2(4) applies across all of Australia. There is no way around it unless the regulation is ruled ultra vires in court. Every project, every client, and every engineer will be affected by it when they try to do performance-based design. It makes no difference what area of engineering you work in. It even applies to architects. As a result of the new cost of performance-based design, clients will learn to stay away from performance-based design wherever they can. Bad news for engineering.

In the interim, as A2G2(4) has not been struck out by the courts, you must comply with it. Of course, this creates major contractual problems, as this entire discussion shows. As an engineer, most of the time you know what the right answer is for problem a client has, or you know the right procedure to adopt to get the right answer. Those things you can price for easily, as you did before A2G2(4) came into effect. But now, regardless of your expertise, you have to get 'stakeholder agreement' which could be impossible in some cases. This can lead to breach of contract and cause the engineer to have legal problems. So, you need to protect yourself from A2G2(4). What I suggest is something like this:

"Our fee for the scope of works to addresses 'Issues X, Y, Z' and develop a solution that we believe complies with performance requirement A, B, C of the NCC for 'Issues X, Y, Z' is (give fee), and is independent of the NCC procedure defined in A2G2(4). The fee for adopting the procedure in A2G2(4) of the NCC (which requires a performance-based design brief (as described in the NCC), other parties/stakeholders to approve the scope of work, technical basis for analysis, criteria that other parties/stakeholders must approve by law, and other procedural steps described in A2G2(4)), by necessity will be a variation as A2G2(4) requires mandatory consultation and approval with other parties/stakeholders that have yet to provide their mandatory input."

You cannot price for the approval steps mandated in A2G2(4), as A2G2(4) depends on the decisions and biases of others. Therefore, you can only exclude the risk the A2G2(4) creates for you in your contract and deal with it as a variation when that variation comes along. The problem is A2G2(4) is a bad regulation, and regulations are type of law. All the negative outcomes that result from it are just the effect. It is therefore a legal problem and not an engineering problem. Only correct application of the law can solve legal problems. In this case, it needs to be taken to court and ruled ultra vires and wiped out completely, or the ABCB remove it. The ABCB are not going to remove it as they sold the idea to every state and territory minister that has building and construction portfolio that A2G2(4) was a good idea. Ministers on matters as detailed as this have no idea what they are agreeing to so they just trust their staff and advisors.

 

[human909]

Thanks for your continued input CVDP75. (Though you accidently attributed Euler07's comments to me, no biggie)

Although you have been quite comprehensive I don't think it has quite been fleshed out explicitly WHY the regulations are ultra vires. Or maybe the rest of us engineers don't have enough of a legal brain.....

I'll attempt to take a stab. Here is a section from Victoria's code:

7 Building regulations
(1) The Governor in Council may make regulations
for or with respect to prohibiting or regulating—
(a) the construction, use, maintenance,
demolition and removal of buildings;
(b) any matter relating to the safety of buildings
and places of public entertainment;
(c) the use and maintenance of places of public
entertainment.
(2) Without limiting the generality of subsection (1),
regulations under this Part may—
(a) provide for any matters set out in Part 1 of
Schedule 1; and
(b) establish standards and requirements relating
to any matter referred to in subsection (1)(a),
(b) or (c) or Part 1 of Schedule 1; and
(c) require the carrying out of building work and
maintenance on existing buildings and
building work.
(3) The standards established by the regulations may
be expressed in terms of performance, types of
material, methods of construction or in other
terms.
(4) The regulations may provide for buildings
constructed with particular materials, designs or
methods of construction to be deemed to satisfy
the prescribed standards.
(5) The regulations may apply to existing buildings,
whether or not building work is being or is
proposed to be carried out on those buildings

From my reading that gives the regulations pretty BROAD powers along the lines of implementing the NCC regarding standards of builds.

It does not seem give the regulations powers to enforce stakeholder consultations type processes.

EDIT:
They are going further too.
This is from last month:

https://www.abcb.gov.au/sites/defau...ness-of-performance-solutions-fire-safety.pdf

And this is a video from 2 days ago:

https://www.youtube.com/watch?v=bdvVFDnL1Yg&t

 

[CVDP75]

Apologies for the error in names.

You are on the right track on this issue looking at Section 7 of the Act. Section 7 enables regulations to be produced. What matters is the purpose of this section, and its purpose is to set building standards in the regulation. You will note that this section discusses 'standards'. A standard, in a legal sense, is a legal threshold. It need not matter how you get there, so long as you get there. Safety is one of those standards. A2G2(4) is a procedural clause. It requires consultation with stakeholders, stakeholder agreement, disclosure of design methodology, etc. There is nothing in the Act that requires a designer (such as an engineer) to have to go through such a procedure. It is therefore ultra vires ('beyond the powers') the Act.

Also, and I have not brought this up before, but all words in a regulation must be consistent with the Act. The word stakeholder is not in the Act. It has no meaning. When a word in a regulation cannot be given a meaning that is consistent with the Act, it is uncertain. This is another ground for the courts to rule a regulation invalid. How is someone supposed to comply with a regulation if it uses terms that are not defined? Of course, even if it was to be defined in the NCC, whoever a 'stakeholder' is, they do not have the authority under the Act to approve by way of 'stakeholder agreement'.

Section 7 of the Act is actually quite narrow in terms of its powers and purpose. The Governor in Council cannot introduce regulations that grant 'stakeholders' any power of any kind. But this is exactly what has happened. So how has this happened? It has happened because of the way regulations are drafted. The Victoria Building Regulations 2018 are drafted by the Office of the Chief Parliamentary Counsel (Victoria). They are department of very sharp legal minds that write regulations for all sorts of statutes for Victoria and usually get things right. But the NCC is drafted by the ABCB. The ABCB are not legal experts. The NCC (including A2G2(4)) has not been audited by the Office of the Chief Parliamentary Counsel for its legal consistency with the Building Act 1993. The NCC is just adopted by each state under that state's regulations. This kind of problem is not uncommon when it comes to drafting regulations. The 'top' laws such as Acts of Parliament, Governor in Council Regulations are well written (in terms of legal consistency, but the policy is another matter), but the stuff under it is not. But it is the stuff under it that we all work to. So if something goes wrong here, everyone suffers the disruption just as much as if there was a problem with the Building Act 1993.

The good thing is bad regulations can be wiped out in the state supreme court with less than one day in court. It is actually quite easy if you know how and is certainly no murder trial.

The ABCB have gone off track with the NCC. The NCC should be nothing more than performance requirements for performance-based design, and a user-friendly and error-free deemed-to-satisfy. They are now including procedural clauses which restrict how people can do a performance-based design which has got nothing to do with what the ABCB's primary role is.

I tried warning dozens of people about A2G2(4) about 3.5 years ago, and that all efforts should be made to stop it coming in. I could not get any of the people I worked with at the time to take notice. But a few days after it came into effect, I had people asking me what the solution was.

Engineers, as a profession, would benefit from having a much better understanding of the law. It is not a dark art, and is a powerful tool when you have a good understanding of it.

Here is a quote from a state supreme court judge in Queensland in 1993 for well-known case called Paradise Projects Pty Ltd v Gold Coast City Council. In this case, the judge rules a bylaw ultra vires:

"Accordingly I would rule that by-law 31(2) is ultra vires.

The by-laws which I have concluded to be ultra vires are typical examples of lazy drafting. It is much easier to frame general prohibitions than to define exactly what is intended. Those who draft ordinances should identify their true target rather than attack the community with grapeshot. Unless this trend is identified and curbed by the courts, we may find practically every form of human activity contrary to some by-law or regulation, or that a permit is required for virtually every form of everyday activity. If the courts do not control these excesses, nobody will. I have no doubt that by-laws 1(e) and 31(2) go well beyond the powers entrusted to local authorities and that they should be removed from public operation."

Every year, dozens of regulations across Australia, whether they be bylaws or some other type of instrument issued under a statute, get tossed out by the courts for being ultra vires.

Hope this helps.

CVDP75

 

[human909]

To Summerise

Until A2G2(4) is ruled ultra vires in the relevant state or other changes are made to reverse the obligations, we engineers are stuck with the A2G2(4) procedure. So CVD75 comments are inconsequential in daily practice (though legally correct). So despite CVD75 assessment being legally correct, it is is likely not applicable this all gets sorted out via the court or other methods.

CVDP75 I really appreciate your insight, and have been taking your comments as truth and fact, despite the confliction with regulation & guidelines. I ]understand enough about law to know that there is plenty in regulations, guidelines or authority published material that is in fact not LAW.

So as correct as CVPD75 may be. We are still stuck with these obligations in the near term.


As an BIG aside. I'm not law ignorant. I'm just fully up to speed on the relevant Building Acts. I've done deep dives in other areas enough to confidently challenge authorities on their request. I ride bicycles and enjoy my weekend. I've confidently ridden my bicycle in Victoria without concern regarding home much alcohol I've consumed that evening. I've ridden through RBT sites, I'm confident in refusing police requests should they occur.**
**Point being, knowing your law is fantastic!