The Building Confidence report prepared by Professor Shergold and Bronwyn Weir for the Building Minister’s Forum in Australia was released in April 2018. Two weeks later, the UK government released the Building a Safer Future prepared by Dame Judith Hackitt. The authors of these reports examine the building regulations in their respective countries and make recommendations to government for reform. Both reports were commissioned in the wake of the tragic Grenfell Tower fire.
The two reports look and feel quite different, as they should given the terms of reference and context for the two reports vary. Further, the building regulation scheme in the UK and the schemes across the eight jurisdictions in Australia have considerable differences. However, despite the differences, many have commented that the observations made in the two reports about building practices, culture and regulatory oversight are similar.
In this post I consider 8 areas where the issues identified in the Shergold Weir and Hackitt reports are similar. I look at the approaches to these issues in the recommendations made. This list is not exhaustive but it does highlight shared observations and where some of the deep cracks in the building regulatory systems of both countries lie.
- Support for performance/outcomes based building standards – The Hackitt and Shergold Weir reports both conclude that standards for the construction of buildings must be set in a way that allows for innovation and the use of new and emerging products and building methods. Shergold and Weir observe that despite the need for continual improvement of the National Construction Code, the benefits of a performance based code outweigh its negative impacts. Dame Judith says that an outcomes based approach is important so that the system is sufficiently flexible and allows for bespoke solutions. Both reports acknowledge that the performance or outcomes based model requires a high level of competency and transparency, both of which are lacking in current building practices.
- Architects and Designers – Both reports call for improving the adequacy of design documentation by imposing clear obligations on designers to produce designs which show that a proposed building will meet required safety standards. Dame Judith includes ‘Principal Designers’ and ‘Designers’ in her list of key duty holders. She says the role of a Principal Designer should include compiling full documentation demonstrating that key building safety risks have been considered and managed . Shergold and Weir recommend that there be a statutory duty on architects and designers to prepare building approval documentation which demonstrates that the proposed building will comply with the NCC.
- The role of private building surveyors – In the UK and in Australia, the building approvals processes provide options for certification and/or approvals to be undertaken by non-government (i.e. ‘private’) building surveyors. The two reports examine the lack of independence that is inherent in a private certification model. Shergold and Weir call for several minimum statutory controls to mitigate the inherent conflict of interest. They stop short of recommending any one model, leaving it for each jurisdiction to determine how it will allow for private surveyors to operate under their legislative schemes. However, Shergold and Weir call for Australian governments to review and recalibrate the governance over private building surveyors. Dame Judith makes the definitive statement that the ability of duty holders (owners, designers and builders) to choose their own regulator must stop. She recommends that all approvals be issued by the government’s ‘Local Authority Building Control’ (LABC) and that the private ‘Approved Inspectors’ act only as consultants to duty holders or alternatively, be engaged by government to increase the resources of LABCs. The different approaches in the two reports reflect the different models for private certification existing in the two countries. Notably, in Australia, there are 4 different models used across the 8 jurisdictions but in those jurisdictions where owners or builders can choose to engage a private surveyor or a local government to issue a building approval, the approval process that must be followed is essentially the same. In the UK, the approval process differs depending on whether a private surveyor, known as an Approved Inspector, or the LACB is appointed. Notably, when an Approved Inspector is appointed, there is no requirement for full documentation to be approved unless requested by the owner. In contrast, if the LACB is appointed, full documentation must be submitted for approval. The model proposed by Dame Judith appears to be similar to the model currently operating in Western Australia, South Australia and to some extent Tasmania.
- Increasing controls over changes to approved design – Both Shergold and Weir and Dame Judith Hackitt refer to the lack of oversight over changes to design in delivery models such as ‘design and construct’ and ‘value engineering’. Its seems in the UK there are very limited regulatory requirements for documentation and approval of design changes whereas in Australia there are some legislated controls but they are either weak or not effectively enforced.
- Improving record keeping – The two reports call for the improved transparency through better digital records and ensuring key building design and safety information is available to building owners and managers for the life of the building. This issue is linked to the ‘change control’ issue considered above. The consensus seems to be that there is a need to improve the adequacy and integrity of documentation, record it diligently (using new and emerging technologies) and ensure that future owners have access to it for the life of the building.
- Competency of building practitioners – Both reports make recommendations which go to improving the competency of key practitioners so that performance/outcomes based design and construction is undertaken by people with adequate qualifications and skills. The recommendations in the Shergold Weir report include that there be a harmonisation of existing government registration schemes across the 8 jurisdictions. They say these schemes should include a requirement for compulsory professional development for existing registered practitioners. They suggest governments consider collaboration with industry bodies but say that primary responsibility for auditing and disciplinary oversight of registered practitioners should rest with governments. Dame Judith calls for a comprehensive and robust competency framework to be established and managed by industry associations. The two reports refer to similar key practitioners which they say must be covered by these schemes.
- Regulatory powers – Both reports refer to the need for comprehensive regulatory powers to support effective enforcement. Shergold and Weir refer to the need for broad regulatory powers and functions across state and local governments (a feature of Australia’s federated system), whereas the Hackitt report emphasises the need to ensure broad powers with substantial penalties to provide effective deterrence.Increased collaboration between different regulators – Both reports identify a fragmented system of regulatory oversight which impacts on the ability to regulate effectively. Shergold and Weir recommend each jurisdiction establish a panel with representation from the relevant regulatory bodies with the objective being to provide regulatory oversight of the sector working together. Dame Judith recommends a Joint Competent Authority (JCA) which is a collaboration between the LABC, fire authorities and the Health and Safety regulator. The JCA would perform numerous regulatory roles jointly although it would not be a new authority.
As noted above, this list of eight issues is not exhaustive. Both reports also make recommendations going to the role of fire authorities, enhancing maintenance of fire safety systems post occupation and to building product safety and quality assurance. What can be seen from this brief analysis is that the issues governments face across the world are in many respects the same. Their complexity will continue to challenge governments as they strive to rebuild trust and confidence in their building and construction sectors.