Giorgio Marfella
Welcome, everybody, and apologies for the slight delay. My name is Giorgio Marfella. I'm the chair of the Architects Registration Board of Victoria and I welcome everybody here today on this webinar.
Before we begin, I'd like to acknowledge as always, the traditional owners of the lands in which we are situated. In particular, I pay my respect to the owners of the land of the Kulin Nation and the Wurundjeri people, which is the land in which the ARBV is located, and I pay my respect to the past, present and emerging leaders.
So, what we'll discuss today is some matters related to design issues and we have two eminent speakers. We have Frances Hall from Weir Legal and Consulting and Steven Boxas. Steven, he's our State Building Surveyor who was nominated only a year ago, I believe. And so, what we'll do today, we'll have both presentations starting with Frances, who will give us an overview on matters of risk that are related to the delivery of architectural services, in particular in relation to design issues.
And then Steve will follow up giving an overview of these design issues. Of course, they have repercussions across the entire industry and how in his role he is going to try to tackle this. Now before I hand over to Frances, I'd like to remind this is a formal CPD opportunity. If you do have handy your phone or you might have to scan a QR code or you'll be provided a link. I believe it's already, in fact I’ve actually been told that there's a link in the chat so, you have an opportunity also to ask some questions along the way. And with this, I'll just hand over to Fran. Fran, would you like to take it from here? Thank you.
Frances Hall
Thank you very much Giorgio. In terms of the order of operations today, we're actually going to throw to Steve first, but I might just show you just at the start this is the QR code. If you haven't found it in the chat yet, that is the link to the quiz for you to take so that you can get your CPD points. So, I will share that screen again later on, so don't worry if you don't get it now. You can either access it in the chat or at the end, but what I'll do is I'll stop sharing my screen now and I'll throw to Steve. Thanks Steve.
Steven Baxas
Thank you Fran. Hi everyone. Thank you for having me here today. So, I'm going to share my screen, bear with me for a second and I'll just, hopefully you can all see that now.
So again, a very, very brief acknowledgment, I'd like to respectfully, acknowledge the traditional owners and custodians of the land. Today I'm presenting from the Wurundjeri People Country of the Kulin Nation and pay respects to their elders, past and present.
So today's presentation, I'm going to cover quite a few things and I'll try and sort of get through it reasonably quickly because I want to leave time for questions. But look, thank you very much for having me here today. It's a really fantastic opportunity to meet with you all. I know many of you, have met many of you before and have presented to your association before. But I'm going to talk a little bit about the establishment of the Building and Plumbing Commission later this year. We still haven't got a date, but we're working on that and we're waiting for that all to go through Cabinet.
It is called the Building and Plumbing Commission BPC, for short.
I'm going to talk about my role as the State Building Surveyor and the new statutory functions and powers that it now possesses since February last year, so almost a year now, since they went through the Parliament and received Royal Assent. I'm going to very briefly touch on Municipal Building Control Plans, but that's not really the focus for today. Getting designs, design documentation right is really the focus of what I'm going to talk about today, including work that we're doing on Design Standards Working Group, and some of the stuff that we've already released.
We're gonna talk about the Documentation Practice Guide, waterproofing and design preparation, and where building permits are being staged and the problems and challenges that poses for all of us.
And D&C contracts and novation. So that's a really big issue that I think Fran can also talk a little bit more about later. So, let's kick off with the BPC.
So, October 2024, Victoria's new integrated building and plumbing regulator was announced.
So later this year the VBA will be joining forces with staff from the Domestic Building Insurance Division of the Victorian Managed Insurance Authority. That's a heck of a mouthful, for short VMIA, and the Domestic Building Dispute Resolution Victoria, which is DBDRV and that's going to create the new, bigger and better regulator.
So effectively, the new regulator, the new Commission, will be a one stop shop for consumers on building and plumbing related matters. That's effectively the main change, and that's why we're changing. It's not just changing name and we know that's happened in the past. This is actually a full and proper redesign, including, you know, hundreds of new staff. So, this change is the most significant reform that we've seen in this industry for decades, and it puts consumers and consumer protection clearly at the front in terms of the Government's regulatory priorities. Creating an overarching, more powerful regulator that addresses the life cycle of the building process will create a better consumer experience, and that's the hope here, and support and proof standards and quality in the building industry overall. So, this new entity will be a real game changer for consumers and practitioners, and for people in Victoria. We'll see the end of the, what we now all know as the last resort insurance scheme and the introduction of protection for buildings over three storeys in height as well, which has been missing for probably 15 odd years.
So, in preparation, the VBO is working alongside DBDRV and VMAA to make the changes happen, and we'll see an entire new operation authority working out of one office.
So, more information will be communicated to industry and we will have many opportunities, you'll all have many opportunities for engagement, and we'll need your views leading up to the changes. It's a, it's an incredibly jam-packed reform agenda. Six bills going to Parliament, a numerous number of regulation changes that will all have RISs. So, you'll have plenty of opportunity to have your say and I encourage you strongly to please read these things, because it's through consultation that we get these things right. So, there's a lot happening. Please be involved.
So, four elements of building reform. The announcement of the formation of the BPC has also heralded a suite of new powers and improve, that will improve effectively our consumer confidence in the building system. The new Rectification Order, you may have heard of, power will allow the regulator to act against the builder after an occupancy permit is issued. So, the Rectification Order also applies, it's intended to apply prior to the issue of the OP as well. More often than not, defects are found after. So, it you know, this is really important because it's only after a building is you know occupied that homeowners and occupants of apartments realise that there's defects in the building. We'll also require developer bonds for apartment buildings over three storeys in height. There's an additional requirement. And above all this to notify the VBA six months prior to the issue of an occupancy permit, so that the building can be inspected and assessed.
And hopefully we can ensure that we catch some of these things before the building is actually occupied.
So, the domestic building insurance will be expanded and will be a first resort insurance. This is an absolute game changer. So, this means that the builder no longer has to be insolvent, had disappeared, died before a DBI claim can be made, as is currently the case with the Last Resort Insurance Policy system that we currently have.
Apartment owners will also be better protected with a Developer Bond introduced for mid to high rise buildings. So, we're talking about buildings 4 storeys and above. So, the bond will be held for a period of time, that's yet to be finalised, and there's lots of discussion with the Department about this at the moment and will be available to rectify defects and non-compliances that manifest that are detected in the building post occupancy. So, the work that's been underway at the moment will determine how long this bond will be kept for and will also require certain steps. It's anticipated that there'll be some mandatory inspections that will need to be done post occupancy, in an attempt to try and find non-compliances, defects and in fact incomplete work. So, this this bond will also apply, and can be claimed for works that are not completed.
So, the this Developer Bond is also the foundation for the Decennial Liability Insurance in the future and that's where we're aiming, that's where we're trying to get to.
So, the additional powers address the significant gap that has existed in the system for a very long time. So, the ability to issue a post occupancy permit Rectification Order is quite significant.
I'm going to talk a little bit about that the new BPC. So, in summary, establishing the new BPC will create a single-entry point for consumers. This is the best opportunity that we've had in 30 years to improve consumer confidence and consumer outcomes.
A focus of mine as the SBS, will be in improving practitioner competency and knowledge and this is the key to unlocking real change. Insurance itself can't, isn't the solution for all the problems that we have here, and I'll be addressing some of those additional things that I'm asking practitioners and architects to do. So, by equipping builders, plumbers with information they need to do the right thing and by providing guidance to other building professionals, in particular building surveyors and architects, we will be helping to reduce defects from occurring in the first place.
So, the VBA has pivoted its education focus and you may have seen some of this, to target the most, you know, frequent, non-compliances and in using this as a basis for the current practitioner education series. So, we're reaching more people in more places on social media. This is something that the VB has done, it's quite new and we're quite surprised by the impact that it's had with the VBA’s videos highlighting non compliances on construction sites. This seems to be something that people really want to, are really attracted to and watch. We're receiving at the moment, more than 1.2 million views in the last 12 months, so it's quite significant to the way that we were communicating with industry prior to that. These are by far the most popular videos, as I've already stated, and we're going to do more of these because there's a lot of interest in these. So, I recognise that the new powers I've discussed today have been long advocated for by many people, particularly people that are here watching this today. There's still lots to do and lots of lots of detail to sort of work through as we finalise a new system that will work for everyone. We will continue to work closely with industry and as I said earlier, I strongly advise you and encourage you to please be involved and have your say as the government attempts to roll these things out, particularly the public consultation phase.
So next steps.
There's a lot of detail to be worked through, as I said, particularly with the BPC’s new powers, and how they're going to work. We'll continue to have consultation and stakeholder meetings and include all of you in both the building and plumbing sides as well. We have these two boards at the moment, the BSAP and PSAP we call them, the Building Special Advisory Panel and the Plumbing Special Advisory Panel. And if you could funnel your comments through them as well, they're a very integral part of this reform work.
I'm working hard to also establish the new Office of the State Building Surveyor, which will be pivotal to the success of the new regulator. So, as you see, the new regulator become a thing, you'll probably hear and see a little bit more of the Office of the State Building Surveyor as a separate entity. It's an independent entity and we want to make sure that this is this is true and that this has, this works as it's designed to work.
I'm going to next talk a little bit about design documentation and about getting design documentation right. So, design documentation is the key, is the single key component of the building permit documentation package and it's provided to relevant building surveyors when an application for a building permit is made. So, the documentation package provided must contain sufficient information. This is really pivotal, and this is something that you may have seen a slight change and focus on by building surveyors in the last sort of six or so months. So, the documentation package must show and demonstrate that a building and building work complies and will be compliant. There's a provision in the Act, section 24, 4 and regulation and there's regulations as well, that also detail Regulation 25 to 29, that also details what documentation must be included to demonstrate sufficient compliance with the Building Act and the regulations.
So, poor design has been, has plagued us, and with there's lots of instances of that and there's lots of anecdotal and real evidence that that is the case when you see building defects. So, the adequacy of design documentation has been the subject of, you know, industry scrutiny with findings that suggests, there's a real link between poor design documentation and project variations, increased construction costs and potential construction and non-compliance of building works.
So, for clarification, my reference to poor, means non-compliant and sometimes insufficient. So, it's not just non-compliant documentation, it's insufficient documentation. So, the VBA’s Compliance and Enforcement Inspection Programme, the Building Documentation Audit Programme, the Building Confidence Report, as well as incidental and anecdotal feedback from the construction industry, provides evidence that supports these findings. In particular, within the multi residential building sector. And I think the mid-rise buildings, those between 4 and 8 storeys feature quite largely in defect reports.
Design Standard Working Group. So, the VBA is actively working with industry to elevate the benchmark of design documentation. We established the Design Standards Working group some time ago and it includes stakeholders and members from architectural and draft person design groups. This working group tackles a common concern of building surveyors, the role of designers in construction and the adequacy of documentation prepared and approved as part of the building permit process. It seeks to develop a practice guide to address issues identified as stemming from poor documentation, investigate the current practises of documentation for building permits by design practitioners, and importantly sets out the minimum standards and details required in the design documentation by an RBS when assessing an application for a building permit prior to the issue of that permit.
So, following collaboration with several industry stakeholders including ARBV, the VBA published its first Design Documentation Practice Guide for Class 2 Residential Buildings. We're continuing to work in exploring opportunities to broaden the guidance material to include class threes, class one and class one B. So that work is currently underway if you haven't already been engaged, you will be.
Now, this current guide is available on the VBA website via the QR code that's on your screen. You can also Google it as well and you'll find it quite easily. So, the Practice Guide's been advocated by industry and was highlighted in both the Expert Panel Building System Review and the Building Confidence Report as key areas that required to be addressed. So, the Practice Guide was developed to help improve design documentation by highlighting information required and how compliance details and supporting information can be documented for building and structural designs.
So hopefully it's been used.
We've had some great feedback about this document and which has caused us to expand it to other classes.
I want to talk a little bit about waterproofing and design. So the VBA’s regulatory priorities inform industry, consumers and other regulators of our areas of focus to address the most significant harms in our built environment. One of the six regulatory priorities is water ingress in buildings. This is where design plays a really big role. Waterproofing defects can have significant impact on homeowners, communities, and the economy. You know indirectly. Impacts of water ingress include costs to rectify the defects, increasing maintenance costs, increased insurance premiums which you know ultimately reduce consumer confidence in the building and construction industry.
The VBAs collaborated with leading researchers, universities and industry on research projects that examine water ingress and its impact on buildings. The research projects conducted in this area have identified the root cause of problematic waterproofing works that's likely attributed to one or more the following factors.
So, poor design documentation is number one. Including lack of details in the documentation design choices which may complicate water proofing and affect water tightness. These are external cladding products I'm talking about. An unclear chain of responsibility and accountability for design and installation of waterproofing. There's still clarity that's required about who can install, you know, can a plumber install a facade system currently under our current regulations, the answer is no, but they're probably some of the best people to do that work in some instances, depending on the cladding.
Lack of understanding and misinterpretation of waterproofing requirements amongst practitioners. This is also a very big issue. And poor coordination and collaboration between building practitioners during the design stages.
So, improvement opportunities for waterproofing. So, the research identified improved, improvement opportunities for building design, certification, construction inspection and improved guidance for waterproofing. Including improved practitioner education and awareness around high-risk areas such as balcony design, construction and water, tightness of external building envelopes, and the consequences of poor waterproofing and waterproofing practises.
Prescribed critical details for inclusion in drawings and building plans, increased supervision of the design and construction of balconies and other high risk building elements such as roofing, waterproofing through mandatory inspections, which has also been proposed, and you may have heard something about that. There's a regulatory impact statement about to come out that's going to detail that a little bit further. And again, that's an opportunity for you to talk a little bit about your views on these additional inspections, one of which is waterproofing.
Developing guidance and education on protection of construction materials from exposure to weather, that's another thing that we need to sort of have some regard to.
So NCC 2025. Now we don't really have a date for the introduction of the NCC 25 at this stage. I understand it has been delayed, but we just don't know for how long. So, the ABCB are proposing changes when it does come in, in volume one, to help reduce the incidence of building defects resulting from water ingress.
So, these changes went out for consultation through public comment last year. You may have seen that and hopefully you've contributed to that. So, these changes include new DTS provisions for drainage and grading of external areas, which will establish grades to structural substates in buildings and building elements such as concrete roofs, balconies, podiums and similar parts of buildings.
This will require concrete roofs, balconies, podiums to have stepped downs from internal areas to external areas. Additionally, these areas will require integral hobs at their perimeters. It also includes a new DTS provision for substrate materials to require a structural substrate in the building or part of the building of a roof, balcony, podium or similar level. So, these changes aim to resolve the issues stemming from the lack of sub surface water management that appear in NCC 22. There's very little in NCC 22 that addresses that. And clarify the interpretation and application of multiple performance requirements. So, it's a more holistic approach to water management by including these provisions to address subsurface water in addition to the current requirements for surface water.
These changes will require more design documentation. This is where you come in and collaboration between designers, building surveyors and builders.
So, design preparation. Design preparation where building permits are being staged. This is another real area of concern that we're having. Staged building permits provide a significant challenge to achieving compliance, in particular for large building projects with a design and construct method is predominantly used. I think we're seeing that more and more in larger buildings.
Our legislation's clear. The RBS must be satisfied that design submitted prior to the issuing of a building permit, and each stage of a building permit must demonstrate compliance in its own right in order for the RBS to be satisfied and ensure a building permit for that stage. However, in this stage works there are challenges for the design team and the RBS in ensuring the proposed design as submitted clearly demonstrates compliance with the overall, and then broken down into stages of the works. So additionally, once the building work has commenced on site and as part of the initial building permit stage, it becomes further challenging for the RBS to ensure that only the stage approved has actually been constructed and I think that's, a that's a real challenge for the building surveyor. It's very difficult to slow a job down or stop a job once it's constructed. And it's incumbent on the building surveyor and everyone else involved to keep up. But the builder is definitely doing something wrong if they're building beyond the stage. So, notwithstanding it remains a responsibility of the builder to ensure that works complies and complies with the approved documentation. Otherwise, it constitutes illegal building work. So, we're seeing a lot of this at the moment, a significant increase in industry. In these instances it leads to it to enforcement action by the RBS initially and has resulted in the stock work orders. We're seeing a lot more stop work orders being lodged with the VBA, of course after they're not complied with, they are lodged with the authority for further discipline. This is leading to prosecution as well in some instances and infringements.
So, the reasons for stage permits are many. But as an example, with you know where part structural service designs aren't finalised, but the builder wants to get going. So, we facilitate that with a stage permit. I don't think that's the true intent of stage permits, but that is the way that it's playing out in industry. Often when a report and consent has been sought, but not yet approved for me, there are public authority or a reporting authority. We find that permits are staged to facilitate that, and we often we're also seeing lots of conditions on permits and we're seeing that used in lieu of completed documentation. That's also a bit of a warning sign because there are no designs that the builder is following, so the builder is just doing whatever the builder wants to do, and that is technically a breach of, you know, 24 and 16 of the Building Act.
So, I'm going to talk a little bit about D&C contracts now. So, as part of the 2021 Work Plan, the BRAC, which is the Building Regulations Advisory Committee undertook to examine and make recommendations to the Minister for Planning on D&C contracts and novation contracts.
They developed a report on the effect of the, on the building sector of design and construction novation contracts that identified the adverse impacts of these contracts on the construction sector. The identified proposals for improvement and it articulated the plan to deliver these improvements. There was understanding that D&C contracts and novated contracts increased risk for the consultant team. That, and it is also contributing to professional indemnity insurance crisis that we're facing right now in the sector. I know Frances will speak more about this topic next, but I wanted to reinforce that D&C contracts do not supersede the requirements of the Building Act. Whilst the builder can change the design of a building during construction, they cannot build that and those changes until the building permit documentation has been updated and that's really where you come into it and until the building surveyor has actually amended the drawings.
So, this is an area of focus for me right now in my role in talking to the whole sector about making sure that they're getting this right. It's crucial to ensure that the design of the building is complete.
Another area of concern in recent times has been roof plumbing, and we're finding that when we have failures, and it's normally water ingress failures, when we do a post mortem on that building, that building and the documentation, we find little documentation that demonstrates compliance. Even things as simple as Class 1A buildings. Box cutters have become complex. The overflow provisions are critical, given that we're having more intense storms and weather events. And we're finding that documentation does not include the design of these gutters. So, the plumber is left once a building has been constructed to get up on a roof and try and make a box out of a box cutter fit where a box cutter won't fit. And quite often we see really adverse real adverse effects for occupants, those buildings down the track. So that's it for me. I know Frances is going to talk a little bit more about D&C contracts. So over to you Fran.
Frances Hall
OK. Thanks very much for that, Steve.
I will see if you can stop sharing. Yep. And I'll start sharing my screen. If you just bear with me.
OK, so I've just got that QR code back up on the screen. For those of you who haven't yet had a chance to take a shot of that.
Use that code and that will provide a link to the questionnaire that you can complete after the seminar to get your CPD points.
So as Steve mentioned, I'm going to talk about the, so the increasing prevalence of D&C contracts and the novation of architects to builders as part of that process and what the kind of outcomes of that have been and what the risks are for architects.
So, to start out. Just to sort of make our terminology clear.
A novation of a contract is the substitution of one party in a contract for a new party and in this context, it occurs when the architect’s Client Architect Agreement with the owner or the developer is transferred over to the builder.
It's increasingly common, as Steve said, that the design and construct model of procurement is being used, particularly for larger projects in Victoria.
Steve mentioned they the BRAC report into this model. There's also been some reports done from the architect's perspective on this. So, in 2019, the AIA produced a report and that showed that certainly within the architecture profession, there's a perception of a negative impact on design quality as a result of this model. And then last year, the ARBV and the NSW ARB did a joint report called the Deep Dive into Systemic Risks in the Architecture Sector, and that report also identified novation as a systemic risk for design quality. So, it's an issue that has its moment.
I'm just going to increase slides. Hopefully people can see that.
So how does novation work?
So, the way it works is that a developer and architect enter into a contract. That contract will expressly permit the later novation of the architect. The architect prepares a preliminary design, the design goes out to tender, a builder is appointed and the in the agreement between the builder and the principal, the builder agrees to novation. So, a Deed of Novation is then entered into, and that means that all of the obligations that the architect previously owed to the owner or developer are now owed to the builder.
So, it's the same contract. It doesn't necessarily mean that the obligations have changed, but from the architect's perspective, your obligations are now owed to a different party being the builder.
So why does novation of architect contracts occur?
It occurs because it provides some benefit to the principal, in that the builder accepts obligation for meeting the design requirements in the preliminary design as well as for constructing the building.
It also means that there is a benefit to the builder because the builder is able to tender for a fixed price, but then engage in a value management process to save on the build cost.
So, it provides significant benefits to the principal and the builder, but it doesn't necessarily provide benefits to the architect. And that is a problem that's been identified in the BRAC report and also in the other reports.
Bear with me. I'm just going to change into presentation mode.
Hopefully that's better. Apologies for that.
So, do the architect’s contractual obligations change on novation?
As I mentioned just now, no they don't. The obligations remain the same, but they're owed to the builder and the only exception to that is where the Deed of Novation creates changes to the agreement, where the and that would involve both the architect and the builder agreeing to that.
So why is that important? It's important because it means that you as architect still need to comply with the terms as specified in the contract. So, for example, if the contract specifies that you are responsible for design compliance. That doesn't change. When you are novated to the builder, that contractual obligation will still exist.
So, in terms of changes to design during the design phase.
As Steve has mentioned, there are frequently times where the builder will seek to impose changes during the value management process. What the value management process means is that the builder will have the opportunity to select materials or to propose changes in order to basically save money.
What that means for the architect is that it essentially creates a problem for the architect because the contractual obligations on the architect to comply with, for example, a contractual provision requiring design compliance, might not be consistent with this value management process.
It also creates a problem because as Steve has pointed out, the building work is still required to comply with the designs that have been approved in the building permit and I'll talk a bit more about that in a minute.
So, what might happen? The builder might push to substitute a specified material for an inferior product, or they may seek to change the design in a way that makes it easier and therefore cheaper for them to build. But that might not be compliant either with the building code, or it might not be compliant with the permit which has been approved on the basis of a specific design. So, this could be problematic in a number of ways.
It could be a contractual breach if the terms of the architect agreement may make them responsible for design compliance, it may constitute a duty of care breach to developers or purchasers, and it could be a breach of the architect's professional conduct obligations. So, there's a lot of risk sitting for architects in this process.
I've put, I've created this slide because I think that builders don't understand particularly well the distinction between contractual obligations and legislative obligations, and I think it's sort of, it's a good idea for everyone involved in building work to really apply their minds to that. So, builders may have entered into a design and construct contract which allows them to make changes contractually. It allows them to make changes to the design, but under section 16 of the Building Act, the building work must comply with the building permit. So, they can't just go off on a frolic and change whatever they like. The design still has to comply with what's been approved by the building surveyor, and if it doesn't then it needs to go back to the building surveyor for consideration. So that's important, I think for everyone to understand.
I've just also put in a comment about performance solutions, because this is something that does crop up in the context of either insufficient details being in drawings or in the context of sort of last-minute changes to drawings so.
Performance solutions, as I'm sure you would all be aware, can be used to demonstrate the compliance of a design with the relevant operative provisions of the National Construction Code. Performance solutions have to be prepared and assessed in a particular way as part of issuing the building permit. But what you can't do is, where there is either insufficient detail in the drawings and take, for example, the scenario that Steve posited to you where there is no details regarding the guttering and a plumber has gone up and tried to kind of retrospectively create a box gutter, you can't retrospectively create a performance solution and then say look, we've complied with the BCA because here is, here is a performance solution. That's not the way the process works and I think, the tendency in D&C kind of mode of procurement, the tendency is to change first and then try to justify later. So, I just wanted to make it clear that that's not how performance solutions should be proceeding.
In terms of what you as architects can do to protect yourselves. In terms of the architect client contract I would say, take great care when presented with a contract.To consider the provisions that are within it, particularly in relation to design risk and to ask yourselves, do you know whether you will be in a position further down the track to control design compliance and if you're not, then should you be agreeing to that clause?
Another thing to think about is whether their contract imposes indemnities or warranties, as in, does it ask you to indemnify the owner and then the builder in relation to any design non compliances? Does it ask you to provide a warranty? Those things may well fall outside the terms of your PI insurance, so again, really important to think about those things.
And then a third point is to consider the inclusion of contractual mechanisms for dealing with design changes. So that if the builder does decide to present you with many design changes, do you have a contractual way of properly managing that? Now, I appreciate that it's not always possible for architects to control the terms of the Client Architect Agreement. Quite often they will be presented with a consultant agreement, and it might be a consultant agreement in form that is required by the financier of the project. So, I say these things, understanding that the ability to control these matters might be reasonably limited from the architect's perspective, but I still think it's really important that you turn your minds to these issues and so that you're aware of them. And then if you do decide to proceed with a contract that is, that contains any of these sorts of things, that you proceed taking precautions that will assist you to protect your own position.
Other steps that you can take during the detailed design phase is to, as Steve has mentioned, ensure that the design and specifications are detailed and complete and precise. To consider whether other consultants could be involved, such as the structural engineer or the fire engineer. And once a building permit has been issued, to take steps to bring any proposed changes to the attention of the RBS, if you believe that what is being proposed goes outside what's being approved, then those are steps, that's a step that you can take to protect your position.
Now in the construction phase, there are some additional different steps that you can take to manage this value management process that builders are imposing.
Where the, where you are required to approve materials, you should really turn your mind in a lot of detail to what the specifications require about the compliance of products or materials and so that isn't just the specific clauses of the spec that go to this particular product, but also the general clauses in the specification. Do the general clauses require you to consider compliance? And if they do, then you should be making sure that you're calling for the right documentary evidence that supports that compliance.
And in addition, where you are supplied with documentary evidence about compliance, you should ask yourself, take a good look at the material and ask yourself, does this material, sorry, does this documentary evidence specifically relate to this type of use of this product? Because there is a bit of a practise or there has been in the past of relying on certificates and evidence that relate to a different use of that product to the use to which it's being put in this specific project. And ultimately all of those questions do all need to be referred back to the building surveyor as well, but they are things that you should turn your mind to in terms of managing the sort of design compliance risk.
So, my conclusion in terms of architects being able to manage the risk that is posed to them by the design and construct model and the novation to a builder, know your contract terms and if you can reduce your risk in that contract, then you should try to do so. Ensure that your designs are as specific and detailed as possible.
Where changes are proposed, collaborate with other consulting practitioners.
Make sure that if changes are proposed after the building permit is issued, that material changes are run past the building surveyor and where approving material selections, consider whether the suitability of the product is proven for that specific use.
So, what I might do is I will just end this slideshow here and we do have a few minutes left to take questions.
So, perhaps if we go to the question and answer function at the on the right of your screen, if you've got any questions, please feel free to post them.
And I will just have a look at some of the questions that are there. And Steve, please feel free to jump in if you see any questions that you think you would like to answer.
One of the comments that I can see there is that, one comment is that builders and developers rarely want to pay for the level of documentation required.
That's something that I've heard many times, and I can say Steve nodding there as well. And so, I think that's a really common problem and one of the things that I'm hoping with the, the many changes that Steve has outlined and the kind of increased focus of building surveyors on requiring sufficient and detailed documents, that that will prompt a change in culture. So, it will be accepted that a proper detailed design is required and clients will have no choice but to agree to pay for that, because a building permit won't be issued without it. Steve, did you want to add anything to that?
Steven Baxas
Absolutely. And I think the key here is consistency. So, you’re always going to have players who just don't want to toe the line and you want to undercut each other so it becomes a race to the bottom. So as long as that is occurring, it makes it very difficult for the rest of you who want to do the right thing to actually compete in that market. It's, it's a really horrid situation. I've done about 12 different conferences to date. I've only been here for six months and I'm talking mainly to building surveyors, and I'm asking them to toe the line and make sure that the standards are compliant. I've put them on warning that they will be audited, and if they're not, if the standard documentation that they're accepting is insufficient, then they're going to be in trouble and we are doing lots of audits at the moment. So it is, whilst there's people there that don't toe the line, it makes it hard for everybody else.
Frances Hall
Another one of the questions that I can see, will the Australian standards be made freely accessible to boost understanding of requirements? I haven't. I haven't heard about any change, but I couldn't agree with that comment more. I think it's, it's honestly outrageous to have…
Steven Baxas
Yeah.
Frances Hall
the legal requirements for a design hidden behind a paywall. They should be freely accessible.
Steven Baxas
Yeah, I'll add to that. You're absolutely correct. I think we've tackled this several times Fran and it's a real legal issue because of who owns the Standards. One of the things I'm trying to do to work around that is and there's a project that's underway right now to come up with come, I guess, make a deal with the provider of those standards, so that when you register as a practitioner for a small fee, you have access to all the standards that you need as part of your registration. So that's something that I'm doing at the moment. For plumbing it's relatively cheap because there's only a few standards, for building surveyors it's a little bit more complex. So that's something that we're doing to assist, but we don't own those. The Government doesn't own those, and it makes it really problematic. But I think if associations, professional associations see if I can get a deal for their members, they may be able to include it as part of the membership fee, and that's something that we're definitely looking at right now.
Giorgio Marfella
Sorry to interject.
My connection froze here, so I was supposed to jump in right at the time, so I understand you've been answering some questions, so I'm glad to hear there's some, something happening on the standards front.
Now there was quite a lot of input from the audience today, so I don't know if we've started already to address some of those issues, but I think the sentiment there was a probably, the sentiment I was reading in particular is the dilemma of novation, not so much of course, for the risks that are put for architects in the delivery of projects, but primarily with this idea that somehow there's a push to have high documentation, almost complete documentation, and the principle of novation ultimately is the idea of having an incomplete documentation. And then there's this problem of a very clear separation for which the architects somehow, lose of their control. They're technically not in a contract administration capacity, but they still maintain a role very often, but sometimes less. There are instances in which they're really bypassed. And so, does this sort of question which arises is the novation model of procurement still appropriate in the moment we are trying to lift up the bar, particularly having more documentation and it's a question of course for both. I know it's a very broad question.
Steven Baxas
Yeah, I'll start that Fran. I'll let you think because I think you know the legal answer to that's probably more important than what I've got to say. But again, there's been an attempt by Government to influence this behaviour for in the case of building surveyors, by including it in the Code of Conduct for Building Surveys, it very clearly states that a building survey is not to enter into such contracts, so it's in the code of, you know, of conduct now.
We're assuming that everyone's abiding by that, but I guess what it does, it shows, it instils the purpose of the building surveyor as being independent. And in order to be independent you know, a person with statutory functions, you can't be entering into these contracts.
You know, they're dangerous on many different levels. Now that look like my answer really is confined to building surveyors. Fran, I don't know if you've got anything to add with regard to architects, it's a difficult one.
Frances Hall
Yeah. Look, look, it is a really difficult one and ideally, I think if the D&C model is to continue to be permitted, there need to be some, some more guard rails that are put around it, so that design compliance is protected because I think when you have a big project and you have a large number of different consultants who are all involved in that project, this sort of, the allocation of responsibility for design compliance is already really fragmented. And then when you impose this model over the top of it, you just start to lose the sense of who is, who is controlling design and who, who is ultimately responsible for design. And I think that's, I think that that's a bad outcome for consumers and so, you know. Ideally, I would like to see a change to how this is permitted. I'm not quite sure what that would look like, but I do think it's worthy of consideration.
Giorgio Marfella
Yeah, yeah, but what…
Steven Baxas
The driver, sorry, I was going to say the driver for the design shouldn't be cost. It's not just cost. Cost is important. The unavailability of material sometimes plagues us, so we need to come up with alternatives. I mean, they're the real reasons why we should be able to change designs because we can't get the materials that we need or that were specified. But it seems to be the main driver is cost and I think that's where we get the bad outcomes.
Giorgio Marfella
Yeah. What I wanted to suggest, perhaps the one of the ways to come around this, is to have the idea of an independent administrator, also during the construction process, which is probably some of the issues and defects arise and some of the comments that I read were indicating any other, because many architects do in the full delivery of services also manage the period of defects which lasts after the completion, when the clients are back into their homes or projects, and so the idea of having some form of ongoing commitment during construction is probably one way around it.
And so this takes it to another question. There might be a bit more specific, but we spoke about, Steve, you spoke about waterproofing. And now waterproofing, of course it's a critical part of the building, but also it's one of the most complex because it's often a matter of interfacing or different trades and different technology, different materials. So, is there an idea also to provide more inspections regarding waterproofing? I'm referring particularly towards the building regulations in Victoria that have mandatory inspections for some stages of the project.
Steven Baxas
Yep, so.
Giorgio Marfella
Is there something happening in that direction?
Steven Baxas
Absolutely. And what you said was absolutely correct. It's the, it's the interaction of the different materials. So, I think waterproofing and good waterproofing should be designed. So, the most important part is the substrate. So, if we don't design the waterproofing solution for a bathroom, it doesn't matter what scale we're talking about from a single house to a multi storey building, we're leaving it up to the builder to do it, to do it themselves.
The installation of a waterproofing membrane, a bit of blue stuff, or a bit of green stuff doesn't achieve waterproofing. What it does is hide what's under it? And quite often when we do postmortems on buildings that have failed, we find that the substrate is incorrect material. So, the whole waterproofing system has to be designed. And this is so critical that the Government is now looking at implementing and introducing a separate mandatory inspection. They're calling it a waterproofing inspection. I'm trying to influence that a little bit. I think it should be a pre waterproofing inspection. No point looking at coloured stuff on a wall. We don't know how thick it is. We don't know how many layers have been applied. We don't know what it is.
What we should be doing is, we should be ensuring that the design documentation can includes a waterproofing system and methodology that's approved by the building surveyor. So, it needs to be designed first so it can then be approved, should be detailed, and then what we should do is conduct a pre waterproof inspection or substrate inspection to ensure, in accordance with NCC 25, that it's graded correctly. There's going to be really detailed grading requirements for all wet areas inside and out. So, if it's not built properly to start with, there's no point in putting blue stuff and green stuff all over it. It's not going to do a thing. It might for 12 months, but it will eventually leak. So, there will be an inspection. It will go out for public consultation shortly and I advocate for a pre waterproof inspection. Look at the substrate. Look at the permit. Yep, there is a, there is an approved design. It has been designed and it has been approved. Now I look at the substrate, I can inspect that. Yes, that is appropriate. The right materials graded correctly, there is a waste. Now you can go ahead. I approve it and you can build it in accordance with the approved plan. That should be. That is the solution the Government's come up with. And I think that could work.
Giorgio Marfella
It's very, very good to hear that. Now, there were some other questions related to waterproofing rather technical, but they're also important, I suppose, and there were some comments related to the potential impact of having more stringent waterproofing bases or concrete grades, for example, that they could have on other parts of compliance, for example, slipping and falling. And so, I suppose the question is all these changes that are introduced are they being coordinated to ensure also compliance, for example, where AS 1428 which is you know very common area of.
Steven Baxas
Yes. Yeah, absolutely.
Giorgio Marfella
Of problems and yeah.
Steven Baxas
Yeah, absolutely. And look, we need to eliminate steps, even a 5 mil step won’t comply with 1428. So that's problematic. So, you need to eliminate these things. So, there's a little conflict there because we have a need for hobs, and we have a need for step downs. But we also have a requirement for accessibility and the two do conflict a little bit with each other. So again, there are construction methodologies that can be used to achieve waterproofing in areas where we do need you know the substrates to be traversable by wheelchairs and elderly and disabled. So that again it highlights how critical it is for these things to be designed and not left to the goodwill of the builder because 5 mil, a 5 mil step which is not very much, means that it doesn't comply with 1428.1. And that's a problem because if you, you know it's very difficult to build to that level of tolerance in the first instance. So, if it hasn't been designed properly, A, it may not achieve that, but B it won't be waterproof.
So, it's really critical that the design process is what needs to be enhanced. That's step number one and then the building surveyor to do their job correctly as well.
Giorgio Marfella
Very good. So, it's good to hear. You know, there's awareness of these, these problems of coordination.
Steven Baxas
Absolutely.
Giorgio Marfella
Now I don't know if you have another two minutes for another question. Just to conclude, I won't hold you much longer than that.
Giorgio Marfella
Suppose if you were to sum it up a bit, you know. So, we have a question for both of you, Steve for you, what, what kind of role do you see architects should be playing in this uplifting and reform? What would you, you know, if you were to tell our audience here today, what do you think their role is going to be? What's going to change for them or drastically in the future? What will that be?
Steven Baxas
What I'd like to see, I'd like to see architecture be what it used to be when I first started in this industry 20 or 30 years ago. Maybe a little bit more than that. I see it, there's, it's diminished. The standards have diminished, and I think they've been, it's not the architect's fault. They've been driven down by industry. We've allowed, I think, builders to do things like appoint building surveyors, which I think is a conflict in its first in the first instance. But also control a job using D&C, which means that they have this ability to change the design while they're building it, and this puts pressure on everyone. Now we also have building space who aren't doing their job properly and they're not monitoring construction work. They are really only there during mandatory notification stages. And so, so the job's just getting out of control without them even knowing. And hopefully by the time they get there for their permit inspection, the drawings have been updated and the permit has been updated.Quite often that doesn't happen. So what this means for architects, is that there's a lot of pressure put on them to design as they go, but also do it for a really cheap price, because there's so much competition in the market and because people aren't held to account, there's always going to be someone who's going to do the job for a lot cheaper than you are. And that puts pressure on you. So, there's pressure for less documentation, and there's pressure for less detail. And that, that is not a good outcome for industry. So, what I'm doing is I'm advocating the complete opposite of that. We're reminding people of their obligations under section 24. Their building surveyor obligations, and we're putting out guides and standard guides so that everyone's clear about what minimum documentation looks like. So, they're the things that we're trying to do. We're trying to just lift the profession a little bit, in you know, in our eagerness to facilitate development and construction, I think we've done some damage to our to our professional industries. So I think we need to sort of reverse that a little bit and what the result of that's been really poor consumer outcomes and now the need for additional regulations and additional inspections to try and catch these things because it's really difficult to turn, to turn a big ship around, very hard to turn the Titanic around, it won't turn on a dime. It's a very, very slow process. So, we're adding layers of complexity, so I think we all have to lift our game, but there's a real acknowledgement that architects have been put in a pretty precarious situation.
Giorgio Marfella
It’s important to hear, so there is also some level of confidence that architects can regain some of the control that perhaps they lost. And Fran to conclude. I know it's going to be a bit difficult question, but if you were to advise artists how to minimise the risks, particularly in innovation environment that we describe, how would, what would you, what would be the first thing you would advise from a lawyer’s perspective?
Steven Baxas
I hope so.
Frances Hall
The first thing I would advise is to know your contract really, really well and if you can control the risks that you accept in that contract and if you have to accept risks including, for example risk for design compliance, then make sure that you've got some steps that you and all of your team follow to manage that process, to collaborate with your other consultants on the project and to refer issues off to the building surveyor so that so that the building surveyor is put on notice as early as possible of any potential issues. That's the best way that you can protect your position.
Giorgio Marfella
Thank you very much Fran, and thank you Steve as well. It was an absolute pleasure to hear from both of you and apologies for holding you a bit longer and also apologies to the audience. We've had a few technical issues today, but somehow we managed. So, thank you everybody. We really look forward to catch-up again soon with the next webinar. Have a good afternoon.
Frances Hall
Thank you.
Steven Baxas
Thank you.
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