Compliance with the National Construction Code

Background

The National Construction Code (NCC) contains a set of technical provisions and performance requirements for the design, construction, and performance of buildings and structures in Australia. The goal of the NCC is to enable the achievement of nationally consistent, minimum necessary standards of safety (including structural safety and safety from fire), health, amenity and sustainability objectives efficiently.

There are two compliance pathways available under the NCC. Deemed-to-satisfy compliance involves following the prescriptive requirements in the NCC. These requirements specify minimum standards for various aspects of building design, construction and performance. The other compliance pathway involves the use of performance solutions, where NCC compliance is achieved by meeting performance objectives and functional requirements.

Compliance with the NCC is mandated by law through various state and territory building legislative instruments. Building approvals and occupation certificates cannot be issued unless the NCC has been complied with. Architects are legally obliged to ensure that their designs and specifications comply with the technical provisions and performance requirements in the NCC under the regulatory frameworks administered by the ARBs.[1]

The Systemic Risks Report discusses architects’ compliance with the NCC, an issue raised in the Shergold-Weir Building Confidence Report (2018).[2] It considers the challenges that architects may face in complying with the NCC.[3] It also notes educational mechanisms to enhance understanding and application of the NCC[4] and touches on cultural issues within the architecture profession regarding compliance.[5] This chapter contains an analysis of the key issues discussed during the focus group deep dive into NCC compliance in relation to design and the provision of architectural services by architects.

Key issues and findings

The deep dive into NCC compliance focused on the importance of enhancing architects’ understanding of compliance with the NCC. The key issues that were discussed by participants for this theme are summarised in Table 3 below together with the main findings reached by the Steering Committee.

Table 3. Summary of key issues and main findings for focus group deep dive into NCC compliance

The next section of this chapter contains a discussion of the main insights and implications for this theme.

Insights and implications

Link between NCC compliance and quality built outcomes

As a threshold matter, focus group participants were asked to discuss the relationship, if any, between NCC compliance and quality built outcomes. There was disagreement about this issue among participants.

A number of participants made the point that the NCC only establishes minimum standards. It was also suggested that, while there may be an assumption that NCC compliance will ensure quality built outcomes, in fact, good design and quality built outcomes depend upon matters that go beyond what is required under the NCC. Other participants stated that the performance solution pathway under the NCC could be used to surpass the minimum standards reflected in the deemed-to-satisfy provisions of the NCC in order to achieve quality built outcomes.

These comments highlight the apparent ambiguity among some sectoral participants about the outcomes that the NCC is designed to achieve, particularly in relation to the quality of built outcomes. This ambiguity may affect architects’ understanding of the NCC. It could also affect the way the NCC is used in the context of designs and, more particularly, which compliance pathway is followed. There is work to be done to determine how NCC compliance can be used to ensure quality built outcomes, particularly in the context of different procurement processes.

Responsibility for NCC compliance

Some time was spent during the focus groups to gain an understanding of roles and responsibilities in relation to ensuring NCC compliance. Various participants observed that responsibility for NCC compliance may vary depending upon the procurement method used, the project type and the parties involved. This implies that responsibility for NCC compliance may differ from project to project, which may cause ambiguity and confusion unless clearly documented for each project. In this light, there is a need for more clarity about responsibility for NCC compliance in the context of particular procurement processes and in other contexts where responsibility may change.

There was general agreement among focus group participants that responsibility for NCC compliance is a shared role among project participants, but there is less clarity about specific roles and responsibilities of each participant. Some focus group participants indicated that certain parties in a project have defined roles regarding NCC compliance – specifically, the point was made by one participant that architects are responsible for NCC compliance of relevant aspects of the design, builders are responsible for NCC compliance of the construction works, building surveyors have ultimate responsibility to certify NCC compliance of the building project, and all parties collectively have responsibility to ensure NCC compliance of the built outcome. However, other participants suggested that responsibility for NCC compliance can be allocated to any party. Representatives from the insurance sector who participated in the focus groups referred to the practice in the construction sector where responsibility for NCC compliance is allocated to parties for aspects of a construction project that are beyond their expertise and/or control, particularly in the context of certain procurement models. Insurance sector representatives commented that they regularly see contracts that result in the unfair allocation of responsibility for NCC compliance from contractors to architects. This is concerning because it could mean that project participants, including architects, could be made responsible under contract for NCC compliance in relation matters that extend beyond their common law duty of care and expose them to undue risk.

Focus group participants also referred to “grey areas” regarding responsibility for NCC compliance. In particular, the interface between the provision of architectural services and the construction of a building may give rise to ambiguity about who is responsible for NCC compliance in the final built outcome. Such ambiguity could arise when design documentation is prepared by an architect and is then used by the builder to construct the building, with the builder improvising if the design documentation is not sufficiently detailed or unilaterally substituting aspects of the design. Responsibility for NCC compliance between the architect and builder could also be affected by the extent to which translation of the design documentation into the built outcome is overseen by the architect.

Scope of architects’ obligations to ensure NCC compliance

There was no dispute among focus group participants that architects must ensure that their designs and design documentation comply with the NCC. However, an important distinction was drawn between NCC compliance of a design and the demonstration of compliance of the design with the NCC. The point was implicitly made that, while architects are legally obliged to ensure that the design complies with the NCC, demonstration that the design complies with the NCC is not specifically required under applicable regulation. In fact, the governing requirements of the NCC refer to the evidence needed to show that the NCC requirements are met and the solution is "fit for purpose". It covers the use of materials, products, forms of construction and designs. Examples of evidence to be prepared and retained include certificates, reports, calculations and any other documents or information showing compliance with the NCC requirements.[6]

A number of focus group participants raised the related issue of the level of detail of design documentation. The point was made that insufficient detail in architectural documentation can compromise the delivery of compliant built outcomes. Building surveyors pointed to audit information indicating that insufficient design documentation can lead to non-compliant built outcomes. Yet, the point was made that the procurement model may dictate the level of design documentation that is required; for some projects the architect may only be required to provide the schematic design and further design and documentation may be undertaken by others. The question arises as to who should be held responsible for any NCC compliance issues in this scenario, particularly if the absence of detailed design documentation leads to building defects. The sector would benefit from greater clarity about the different levels of detail of design documentation, the possible consequences of each level of detail for project outcomes, and the process of interpreting and building in accordance with the design in each case. More analysis is also needed to determine whether limited design development requirements in the context of D&C procurement are more likely to lead to non-compliance with the NCC and/or more defects.

Focus group participants also raised the issue of the interface between the architect’s design services and the services provided by other design professionals, like engineers. The point was made that the architect is often the “glue” that holds all these professionals together and that, further, architects are responsible for coordinating other design disciplines and documentation, but this is not always clearly documented contractually. This is also a cause for concern because, once again, under these arrangements, the architect could inadvertently assume responsibility beyond the standard duty of care at common law and increase exposure to legal risk. Clarifying roles and responsibilities for NCC compliance among design professionals may help to address this issue.

Factors that can compromise architects’ ability to ensure NCC compliance

Focus group participants identified various factors that can compromise architects’ ability to ensure NCC compliance, including the following:

• Procurement approach: The procurement approach may limit architects’ control, including over the interpretation of design documentation by the builder, and this may compromise NCC compliance in the built outcome.
• Obligations regarding design compliance: The obligation under the NSW DBP Act to issue a design compliance declaration may be challenging, particularly when architects are made responsible for other design professionals involved in a project.
• Regulatory features of the NCC: The NCC can be difficult to interpret and apply, does not comprehensively cover design issues (such as building materials), and its application can be hampered by obstacles to accessing Australian Standards that are referenced in the NCC.

Once again, these factors that can compromise architects’ ability to ensure NCC compliance are largely beyond their control. The impact of the procurement approach on NCC compliance is likely to be largely linked to project priorities and compliance attitudes of the parties involved in a construction project, particularly the client and contractor. It is likely to be difficult for architects to help ensure NCC compliance of built outcomes once responsibility for, and control of, the design process is shifted away from them and/or they have limited oversight of the interpretation of designs in practice, which may occur in the context of D&C procurement.

There is clearly a need for better communication about how architectural documentation should be interpreted and applied on site to ensure NCC-compliant built outcomes. More work could also be undertaken to determine whether gaps and limitations associated with the NCC identified by focus group participants have an impact on NCC compliance and, if so, how these limitations could be practically overcome.

Mitigation of the risks of NCC non-compliance

During the focus groups, building surveyors suggested that the performance solution pathway under the NCC could be used to enhance the quality of built outcomes, but that sectoral participants may prefer the deemed-to-satisfy compliance pathway because compliance is easier to demonstrate. This implies that it may be more challenging to demonstrate compliance using the performance solution pathway compared to the deemed-to-satisfy compliance pathway, which may explain why this pathway is comparatively under-utilised, at least in relation to small-scale construction projects. Yet, during the focus groups on D&C procurement, it was suggested that D&C procurement leads to a “performance-based approach” in relation to the design because insufficient time may be allocated for the preparation of detailed design documentation. Greater guidance may be needed to illustrate how NCC compliance can be achieved using the performance solution pathway, particularly for design aspects that could lead to defects (such as waterproofing).

Enhancing awareness of NCC obligations

Focus group participants also discussed the level of awareness among architects of their NCC compliance obligations and considered action that could be taken to raise the level of awareness. Focus group participants suggested that there is no evidence that architects are unaware of their obligations to ensure compliance with the NCC. However, it was noted that small architectural practices may rely heavily on building surveyors or “BCA consultants” to verify compliance and, anecdotally, this may also be the case for some larger practices as well.

Such reliance may help architects discharge their obligation to comply with the NCC and to reduce architects’ exposure to legal liability. However, it may also lead to limited awareness of the details of the NCC and may mean that compliance issues are not detected by reviewing architects. In turn, this may compromise architects’ ability to advocate and defend their designs from a compliance perspective. Nonetheless, the use of BCA consultants in a more constructive manner, particularly to educate architects about specific NCC compliance issues, could mitigate this.

Concluding remarks

The deep dive into NCC compliance revealed some important issues that relate to architects’ understanding of and compliance with the NCC. Specific roles and responsibilities to ensure NCC compliance are not well understood, particularly in the context of D&C procurement. In addition, the apparent ambiguity among sectoral participants about the outcomes that the NCC is designed to achieve, particularly in relation to the quality of built outcomes, may affect architects’ understanding of the NCC and the way they practically use the NCC in the context of their designs.

Architects’ ability to demonstrate that their designs are NCC-compliant may be compromised when the scope of design services procured from the architect is limited, such as in the D&C context. Design documentation that is not sufficiently detailed may lead to NCC non-compliance in the built outcome. Regarding the demonstration of compliance of design with the NCC, more education and guidance may be needed for architects regarding how this can be achieved through the current assessment methods under NCC. This will, in turn, reduce the risk of NCC non-compliance in built outcomes.