Giorgio Marfella
Welcome everybody and good afternoon. My name is Giorgio Marfella and I am the chairperson of the Architects Registration Board of Victoria.
So first of all, today we have another webinar series and as always, before commencing I'd like to acknowledge the traditional owners of the lands in which we are meeting.
I am in the land of the Wurundjeri people of the Kulin Nation and I pay my respects to their elders, past, present and emerging.
So we have a CPD today that follows up from a series of previous webinars where we have been dealing with the findings of a research project we carried out last year in conjunction with the NSW Architects Registration Board.
The Deep Dive on Systemic Risks in Architecture, who we co-authored with Dariel De Sousa, who's one of the speakers today.
And so today we'll be dealing with National Construction Code issues and what architects can do to mitigate risks in that part of the professional services.
As always, this is a reminder that this CPD counts for your mandatory requirements for ongoing professional development.
You can scan this QR code which will give you access to a questionnaire that you can answer along the way.
Based on the questions that will be on screen today, but you may also have time for 24 hours to answer the quiz.
And following that, the ARBV will submit to you a certificate of attendance within the next week. We will also make available this webinar as a permanent recording for anybody who wants to come back and you know refresh, I suppose in some of the topics that will be discussed.
Now we have two speakers today. We have Dariel De Sousa, who have already introduced and has been with us before, and we also have Anthony Apolloni.
Anthony is a Senior Associate at Architectus and he brings along 30 years of experience understanding exactly this year, right Anthony. And so, it's a significant amount of professionalism that we have available from an architect. And so, we're very thankful to have Anthony and Dariel to take us through some thinking points about national compliance, so compliance with the National Construction Code. I'll just hand over to you Dariel now, and of course I'll be back for Q&A towards the end.
So for anyone would like to ask some question, feel free to use the QA function that we have on top of the screen and we'll come back for some, time permitting of course to, for some further discussion. So over to you Dariel.
Dariel De Sousa
Thanks so much Giorgio.
Just before I get into the substance, I can see there's a comment in the Q&A function saying that the chat function is off.
That's correct.
So the questions can be posted using the Q&A function rather than the chat function, and if you've got any issues, please post your questions in the Q&A function and one of our assistants will respond to you.
So, I know a number of you will have already attended the previous two webinars in this series of four that we're running to share the insights and the findings and implications of some research that the ARBV and NSW ARB have been undertaking since 2022.
So, I'm going to briefly deal with the background. I know some of you have already heard of it, but I really want to use the time to focus on the issue at hand, which is NCC compliance, as or Giorgio has mentioned.
Now the research is focused on addressing systemic risks facing the architecture profession in Australia and in particular in Victoria, so the question is, what are systemic risks and why is the ARBV concerned about them?
Well, let's start first with the concept of risk. It has many definitions, but at its core it's a concept that expresses uncertainty about adverse outcomes that could materialize in the future. And regulation, particularly the Architects Act, the regulations and the Code are used to mitigate risk that might otherwise materialise.
Now, moving from the concept of risk to the concept of systemic risk. Systemic risks are risks that extend across the sector. They can compromise architects’ ability to comply with their professional standards obligations, and if they materialise, they can cause widespread harm to clients, to users, to the public and to architects themselves.
Systemic risks may be difficult to address because they may be latent; the harm has not yet materialised or is not yet obvious.
They can be difficult to identify in advance in the absence of good quality information and intelligence that enables trends to be detected. And at times they can be so widespread that they're difficult for the regulator to tackle all at once.
Now the primary purpose of the research that's been undertaken by the ARBs is to identify key current emerging and future systemic risks facing the architectural profession in Australia.
The ARBs are using this research to help them adapt and modify their regulatory activity to better support architects so that they can in turn better navigate the systemic risks and avoid non-compliance with the regulatory framework.
Now the ARBs are doing this through their proactive regulatory activity, which is activity that is directed at encouraging voluntary compliance, and also detecting and preventing non-compliance from occurring.
And the ARBs have undertaken 2 mainstreams of work. The first is a report that was published at the end of 2022. The Systemic Risks in Australian Architecture Sector Report, which was largely based on a test desktop review of reports on case law and on literature regarding systemic risks facing architects in Australia, as well as abroad.
Now this stream of work was complemented with the second stream of work, which involved a deep dive into some of the key systemic risks identified through the desktop analysis. The ARBs congregated focus groups comprising representatives from across the sector, including architects from NSW and Victoria, builders contractors, clients, users, building surveyors, insurers and a range of government bodies to really deeply, dive deeply into some of these core systemic risks.
Now I am going to focus on one of those systemic risks, which is NCC compliance.
But first, I just want to share with you the thinking behind the ARB's research. Rather than focusing on individual cases of non-compliance, the ARBs have taken a step back and tried to assume like a helicopter view of what's actually going on in the sector. So, taking a macro or systemic perspective and what they found, and what they interrogated through the deep dive focus groups were four main sources of systemic risk.
Client architecture agreements and relationships, which was dealt with in the first webinar back in September last year.
The second D&C procurement, which we touched on in November last year.
The third, which is NCC compliance, the topic of discussion today and finally disruptive change which we will address before the end of the financial year.
Now, because of shortness of time, we can only highlight some of the key issues raised in the deep dive research but I urge you to go away and refer to the detailed reports both of first systemic risk report and the second.
So moving now along to the substantive content.
This seminar concerns one of the key sources of systemic risk identified in the research; NCC compliance.
As you'll all know, the Victorian Code of Professional Conduct requires architects to comply with all applicable laws, which includes the National Construction Code. In practice, this means that architects are legally obliged to ensure that their designs and their design documentation comply with the requirements of the National Construction Code.
There are two compliance pathways, the first is the Deem to Satisfy Compliance pathway, which involves following a prescriptive requirements in the NCC, which specify minimum standards, apply, applicable to design construction and performance and the second pathway involves the use of Performance Solution pathways. Sorry, use of Performance Solutions where NCC compliance is achieved by meeting performance objectives and functional requirements.
So let's move through some of the key issues that was discussed, were discussed during the focus group deep dives.
So, the first topic that the focus group participants were asked to discuss was the link between NCC compliance and the quality of built outcomes, if any.
Now an important finding was that there is considerable disagreement based on the focus group discussions as to what this linkage actually is.
Some said that the NCC only establishes minimum standards and that good design and quality built outcomes depend upon matters that go well beyond what is prescribed in the NCC. Whereas others stated that the Performance Solution pathway, can be used to surpass the minimum DTS standards and in order to achieve quality built outcomes.
Now an important insight from the research is that the spectrum of comments made by focus group participants indicates that there is ambiguity about what the contribution of NCC compliance actually is to quality built outcomes. And an implication is that there's more work to be done to determine how NCC can be used to ensure quality built outcomes, particularly in the context of different procurement processes and types of projects.
So I'm going to pass over to Anthony to provide his practical insights.
Anthony Apolloni
Thanks Dariel and hello to everybody attending. In the Deep Dive Report, it noted discussions on whether NCC compliance can be used as a kind of tool to drive quality design. The architects represented seemed to be in general agreement that code compliance and design quality as a creative endeavour are essentially two different things.
The Code, focusing primarily on aspects like health, safety and amenity, and not creative design.
In other words, they highlighted, it is possible to have a building that is NCC compliant but still poorly designed. I think this is correct when considering the qualitative or subjective aspect of design. On the quantitative side, where objective judgements on a building's performance characteristics can be more clearly made, I think complying with the Code can ensure a quality result around the characteristics of a building that the Code is intended to establish minimum standards for.
In this slide you see here I've included a couple of views of these renowned vila on the island of Capri.
Because the question raised in the report made me wonder what kind of impact our NCC would have on such a work had it been designed today.
I think it's important that architects maintain a posture of pushing the envelope when it comes to the question of compliance and that we need to encourage the consultant team we are working with to do the same.
We can creatively challenge some of the more prescriptive requirements of the Code when they can inadvertently act to constrain the designer’s imagination because they can tend to encourage design uniformity, rather than creativity.
With the second and third subheadings here, I'm assuming attendees have a reasonable amount of knowledge about the two compliance pathways available in the Code to meet its performance requirements, as mentioned by Dariel. Deem-To-Satisfy or DTS, and Performance Solution, there is a third hybrid pathway which is a combination of these two.
In terms of choosing which to pursue, my experience is that by and large performance solutions are kept to a minimum and almost always limited to when they are either essentially unavoidable or they are required to achieve a desired design outcome.
This is typically the case with say, fire safety, when a fire engineering brief and later report is required from a fire safety engineer and collaboration with the architect and other consultants. The briefing report essentially lists a number of performance solutions along with assessments and computations on how each meets performance requirements of the Code.
If the Performance Solution pathway was not available in the Code, it isn't difficult to imagine how incredibly constraining it would be to design a large multi-level atrium in a building, for example, where fire and smoke isolation provisions in the Code would make it impossible without this pathway being available.
And even in a moderately complex building these days, it's not unusual for there to be dozens of performance solutions relating to fire safety.
Nevertheless, adopting the DTS pathway has its advantages, mainly from a practical perspective because it can minimise or eliminate the inherent risks around performance solutions.
Those risks relate to the fact that all stakeholders involved, consultants and clients, and the builder under a designer construct contract can have some liability with a performance solution. Whereas when satisfying DTS requirements, there are basically no liability issues because nobody can sue the Australian Building Codes Board which is responsible for producing the NCC.
I'll speak a little more about Design and Construction compliance pathways later in the webinar, but for now I'll just mention that the framework around D&Cs, the D&C strategy can post challenges to tendering a project with all code compliance issues fully resolved. This is not necessarily a problem if, and it's an important if, our documentation clearly identifies that the compliance shortfalls exist ,and we propose a pathway to achieving compliance so that the project tenderers can make the appropriate allowances.
Thanks Dariel.
Dariel De Sousa
Thanks so much, Anthony.
So that takes us to our first question, which you can access using the QR code and I believe Fiona's put the link in the in the Q&A function.
So the question is, which of the following statements is true in relation to architects’ compliance with the NCC?
A, architects are not required to comply with the NCC because it only applies to built outcomes, not designs.
B, architects must ensure compliance with the NCC regardless of the type of project and the level of detail of the design; and
C, architects only need to worry about NCC compliance for certain types of projects that involve detailed designs.
So we'll just give you 10 seconds to lodge your response and as Giorgio has mentioned, the questionnaire does remain open for 24 hours.
Okay, and the correct answer as you probably all guessed is the middle one, architects must ensure compliance with the NCC regardless of the type of project and the level of detail of design.
Having said that, compliance with the NCC may be relatively straightforward for some types of projects, maybe smaller residential projects, but that's not to say that the NCC does not apply, and compliance is not required.
Right now, let's move on to the next issue that was the subject of discussion during the focus groups. Some time was spent getting a sense from the focus group participants about the roles and responsibilities of the various parties to a project in ensuring compliance.
Now a key finding from the focus group discussion, based on the focus group feedback, is that there is general agreement that responsibility for NCC compliance is a shared role amongst all building sector participants involved in a particular project. But there is less clarity about the specific roles and responsibilities of each participant. Various participants observed that responsibility for NCC compliance may vary depending upon the procurement method that’s being used, the project type and the specific parties involved and this implies responsibility for NCC compliance may differ from project to project, which may cause ambiguity and confusion unless clearly documented for each project.
Importantly, insurance representatives noted that responsibility for NCC compliance may be allocated based on their experience to parties for aspects of a building project that are beyond their expertise and or control, including allocation of responsibility to architects, particularly in the context of certain procurement models.
An important insight from the discussion is that the interface between the provision of architectural services on the one hand and the construction of a building on the other, may give rise to ambiguity or grey areas about who is responsible for NCC compliance. Even if the issue of compliance is documented in the contract.
Such ambiguity could arise, for example, when design documentation is prepared by an architect and then is used by the builder to construct the building with the builder improvising if the design documentation is not sufficiently detailed or in some cases, unilaterally substituting aspects of the design for the builder’s own.
The point was also made that responsibility for NCC compliance between the architect and the builder could also be affected by the degree to which the architect exercises oversight in the interpretation of the design into the built outcomes in practice. How involved they are in the construction process.
An important implication from these observations is that there is greater need for clarity about roles and responsibilities for NCC compliance, and this, the actual specific roles and responsibilities should be clearly documented in the contracts between the project parties.
Over to you, Anthony.
Anthony Apolloni
Thanks, Dariel.
So who is responsible?
The short answer is we are or we should assume that we are, as architects. We are normally the principal consultant in a project, so normally we're not liberated from being fully or at least partly responsible for non-compliance in some way. Under a traditional contract, a client should expect that with the documentation having reached a stage of completion where it’s essentially ready for contract signing, the proposed design is a fully compliant one, probably through a combination of both DTS and performance solutions that are bedded down.
There are other project procurement approaches such as construction management, but traditional and D&C contracts remain the most common I think, for most sectors of our profession.
And in the context of D&C, the common factor that can potentially compromise an architect’s ability to fully deliver a compliant design solution is the limitations that the D&C programme imposes on being able to simply complete the design. Because the job gets tendered at a stage when it is earlier than ideal.
In some job sectors, and I know that the residential apartment market can be especially notorious for this for various reasons that don't necessarily apply to other sectors, I know of projects going to D&C tender with little more than schematic design and a town planning permit. In such cases, we should strive to ensure that there is no doubt left with a client around the pressures and risks that adopting such a strategy will almost certainly impose on a builder, who as D&C contractor, accepts a transfer of any project design responsibilities and risks once they sign the contract.
In cases where there are non-compliant aspects in a design that are not clearly identified in the tender documents, and a DTS solution cannot be found, there is likely to be pressure to find compliant solutions using the Performance Solution pathway placed on the design team under novation. And because the builder hasn't had the opportunity to make the necessary allowances before signing the contract, they may push for a less than optimal solution.
In such cases, our ability to argue for a better solution can be severely weakened because the issue was not addressed by us at the proper time.
In other words, we can shackle ourselves to a subpar solution.
On the question of who prepares a performance solution and delegating, my answer is to find which party has the appropriate level of expertise to undertake the task. I think we should always require that a specialist consultant prepares a Performance Solution Brief and report whenever possible, and there are few exceptions to this. There are other factors that come into play around this question too, such as is a performance solution required to begin with? And have options for making an acceptable DTS solution work without compromising the design intent been exhausted? In what stage of a project design or construction process does the need for a performance solution arise?
Site conditions can change from what was previously understood and a performance solution may not be the only compliance option.
Who pays for it?
Performance solutions can take time to prepare and they need acceptance by the client and approval by the relevant building surveyor.
And finally, does adoption of a performance solution impose any risk on the architect other consultants and or does it impose any risks on the client, post building occupancy?
In terms of minimising grey areas, in the third subheading here, my view is that in most instances an acceptable stage in the design process when a project could go to D&C tender, is when the full scope of works and the design and quality intent of a project are fully defined, measurable and appropriately costed, including any code compliance shortfalls plus crucially, all of that has been signed off by the client.
A project should have reached that state of completion at or close to 100% of the design development phase.
Any earlier and you run the risk of not fully capturing the parameters I mentioned and any later, and you begin to diminish the benefits that early involvement of the contractor can bring to a project, especially around construction know how in the program.
With a fourth subheading, I read in the Deep Dive Report that representatives from the insurance sector were wary of architects assuming project roles that are beyond their expertise, particularly in the context of D&C procurement.
Under this model, they have found that architects can take on obligations that extend beyond their common law duty of care and expose them to undue risk. To this, and in the context of D&C consultant agreements and the NCC's Performance Solution compliance pathway, I say, watch out for consultant service agreements prepared by project managers prior to a project starting, often as part of an initial request for proposal invitation where they insert obligations on the architect to be responsible for the preparation of performance solutions, using terminology such as, as required or as necessary. These can appear for any case when DTS provisions cannot be met and in accepting such an agreement you are signing up for the time and cost obligations that go with preparing the Performance Solution Brief and report.
Be wary to of the successful D&C builder trying a similar thing with any new updated or adjusted services agreement.
Be especially watchful of the scope of services section in those agreements.
We are under no obligation to accept such blanket provisions to begin with, and certainly not when it applies to a fresh services agreement from a D&C builder at the time of novation. We should not accept any scope of services changes that increase our workload or take on additional risks without being properly compensated.
And we, of course should not, we should always subject any written agreement to legal scrutiny for review.
Thanks, Dariel.
Dariel De Sousa
Thanks Anthony.
That takes us to the second question, which again you can access using the QR code.
The question is, in which of the following scenarios is the architect responsible for NCC compliance of the design prepared by the architect?
The contractor took over responsibility for an architect’s design following novation of a D&C contract.
B, the architect was only engaged to prepare a schematic design for a project before the building was constructed.
C, a building designer was engaged to develop the architect’s design before the building was constructed.
D, none of the above or E, all of the above.
The correct answer is all, all of the above. A, B and C.
It may be, it may appear that the architect’s role is too limited to bear NCC responsibility in each of these scenarios, and others have taken over responsibility for the design. But in fact, any design prepared by an architect must comply with the NCC regardless of whether the scope of their involvement in the project and whether a third party has taken over responsibility for the design ultimately.
Now the next topic that was discussed by focus groups’ participants was architect’s responsibility for NCC compliance.
A key finding in relation to this issue is that there's no dispute between focus group participants that architects must ensure that their design and design documentation are compliant with the NCC. However, an important distinction was drawn between NCC compliance of the design itself, versus demonstration that a design complies with the NCC. So evidence from the focus groups indicates that it is more likely that design documentation does not clearly demonstrate NCC compliance, than that the design itself is not compliant with the NCC.
So I'll just repeat that, what focus group participant said, it's more likely that the documentation, the design documentation does not clearly demonstrate NCC compliance, then that the design itself is NCC non-compliant.
An important insight from the discussion is that it can be difficult to demonstrate compliance if the level of design documentation required by the compliant is limited. So, for some projects, and Anthony's already referred to this, the architect may only be required to provide schematic design and further design, and documentation may be prepared by a third party. Building surveyors who participated in the focus group discussions pointed to audit information indicating that insufficient design documentation can lead to non-compliant built outcomes. And the question arises in this scenario is who should be held responsible for NCC compliance, particularly if the absence of detailed design documentation leads to building defects?
An implication of the discussion is that greater clarity is needed about the possible impact of different levels of detail of design documentation on NCC compliance.
Over to you, Anthony.
Anthony Apolloni
Thanks Dariel.
The Deep Dive Report says a lot about code compliance under Design and Construct procurement.
In my view, D&C is basically a fact of life in the profession across many project sectors, particularly when you're involved in a project of any scale. In some institutional works there may be some projects that live in under alternative strategies, such as construction management, but by and large, and working in a practice involving practically all sectors imaginable, I'm comfortable in saying D&C is largely the norm and will be for the foreseeable future whether architects like it or not.
A challenge with working within the D&C environment is a stage at which a project is issued for D&C tender.
Unfortunately, this decision has often already been made by the time the architect joins a program, project, perhaps between client and PM, and we are not in a position to substantially change a strategy.
An architect’s obligation to produce designs compliant with the NCC is fundamental to our core services. However, as is typical under a D&C strategy, this can be fraught with risks, which I describe generally as a compliance known unknowns or unknown unknowns, to borrow from a former US Secretary of Defence.
The other category of compliance, known knowns, should shouldn't really be an issue, because we should never be in a position of issuing tender packages where known non-compliances as have not been fully addressed.
Where we have been able to resolve a non-compliance due to say, a late design change by the client, unknown unknown, it is crucial that we properly provide information to D&C tenderers so that they can make the allowances for it.
As for non-compliances, that could not possibly be identified until post the post novation phase, the unknown unknowns, due to discovered site conditions for example, it's paradoxically somewhat less concerning for us, I think from a liability standpoint, for obvious reasons.
The third subheading is primarily about scope capture, and I touched on this previously. In my experience, when finalising design documentation for tempering the D&C project, and by that I mean drawings, schedules, and specifications, it is critically important to a project’s success to fully capture the scope of work and its design and quality intent. And that includes ensuring that design is code compliant or if it's not possible to establish full compliance in all aspects at tender time, then at the very least, identifying those parts of the project where compliance shortfalls exist, the known unknowns. It is possible to do this without a fully complete set of drawings, in my view. Removing ambiguity in our documentation packages is central to this.
It should be adequate for drawings to detail the project scope in terms of measurable parameters, with appropriate coding to identify materials and finishes, and for the schedules to pick up all relevant information applicable to those parameters, that will have an effect on cost and time.
Thanks Dariel.
Dariel De Sousa
Thanks Anthony.
This takes us to the next question.
In which scenario would the architect most likely be protected from regulatory responsibility for NCC non-compliance if material defects are found in the built outcome?
And just to clarify this question, we're talking about regulatory responsibility as opposed to contractual responsibility or contractual liability.
And when we're talking about material defects we're talking about significant defects rather than defects in the materials themselves.
So, the five options are A, the contractor closely followed the architect’s design.
B, the contractor substituted aspects of the architect’s design that relate to the material defects.
C, the contractor significantly deviated from the architect’s design in all respects, including aspects that relate to the material defects.
D, none of the above and E, all of the above.
The correct answer is C and the question asks in which scenario would the architect most likely be protected?
So C says the contractor significantly deviated from the architect’s design in all respects, including aspects that relate to the material defects. It's also possible that B would protect the architect where the contractor substituted aspects of the architect’s design but it may be the case that the aspects that the contractor substituted did not concern, that did not relate to what actually caused the material defects.
So C is the most appropriate response in this context.
The next topic for discussion during the focus groups related to factors affecting NCC compliance. And the focus groups identified a range of different factors, and I'll leave you to go away and read the detailed report to inform yourselves about the scope of those various factors. But a key finding that arose from the discussion is that there are various factors that can compromise architects’ ability to ensure NCC compliance.
And some of those factors are actually outside architects’ control, such as the procurement approach.
So it may be difficult for the architect to help ensure NCC compliance if responsibility for, and control of the design, is shifted away from the architect. For example, in the context of a novated D&C contract.
An important insight also was that the NCC itself has gaps and limitations that could affect architects’ ability to ensure compliance.
The point was made that the NCC can be difficult to interpret and apply in practice.
The NCC does not comprehensively cover design issues such as building materials, and it can be costly and time consuming to certify materials for use. And the application of the NCC can be hampered by obstacles to accessing Australian Standards that are referenced in the NCC, which are not freely available.
An implication of the discussion is that more work could be undertaken to determine whether these gaps and limitations associated with the NCC are actually resulting in NCC non-compliance and if so, how these limitations could be overcome in practice.
Over to you, Anthony.
Anthony Apolloni
Thanks, Dariel.
As mentioned, the Deep Dive Report has a heavy emphasis on Design and Construct.
It shows that there was much discussion between the participants around the question of complying with the NCC when we sign up for a procurement strategy that requires us to fully capture project scope of work and design and quality intent at the time of tender with what could be described as a semi complete set of documents.
It is fair to say, I think, that this diminishes to some extent our ability to control outcomes under this scenario, especially once contractually novated to the builder. This can be especially, an especially acute problem for aspects of the project which remain open to interpretation in terms of NCC compliance.
And so it is critical to ensure that we eliminate compliance ambiguities as much as possible.
With our certify and design compliance, the NCC has been on now and many clients are pretty savvy as to benefits and shortcomings that is built into the final result. One of the primary methods of keeping abreast of construction progress is the design intent in all key aspects, is a monthly Compliance Statement.
The statement is normally completed by the key design consultants post novation once a construction begins and is typically submitted to the builder when a consultant's monthly progress claim for payment is made.
There are different versions of monthly design certificates, the one shown here is a part zero, part O, sorry annexure to the AS 4902 D&C contract.
There's other certificates that we are required to complete as well sometimes, such as one for practical completion plus a final completion statement. But they all in essence do the same thing.
Certifying design compliance in the monthly statements covers regulatory compliance obligations, but it also extends to aspects of the design, including methods, materials and finishes selections, and has a requirement that we list any variations to the design instigated in a particular month. For these types of certificates, it's obviously important to limit our obligations for the parts of the design that we are responsible for, without taking on the responsibilities of other parties involved in the overall project.
The design certificate is usually part of an initial RFP or request for proposal and appended as an annexures to the consultant agreement.
When we are successful winning such projects, we obligate ourselves to accept the requirement to sign these statements that come into effect, sometimes years after we win.
It is critically important that we seek legal advice around the wording of these contractual provisions before we agree to be bound by them.
With a final subheading, I added a line about the Australian Standards which Dariel mentioned, and how compliance with many of them is essentially mandatory through the NCC.
There are numerous references to Australian standards in the Code. I did a rough count for them, then got to just under 200, but I'm sure there's more.
Standards Australia, who are responsible for the Australian Standards, is recognised by the Commonwealth Government as a peak non-government and not for profit standards development body in Australia.
Unfortunately, it has to generate its own revenue and consequently the individual standards come with a hefty price tag when you consider just how many of them typically apply to even a moderately complex building.
I'm not sure if there is an easy solution to the obligations that can place on small practices especially, just to keep abreast of the standards referenced in the Code, but perhaps managing it through a delegation to other consultants on a project team is part of a solution.
Thanks Dariel.
Dariel De Sousa
Thanks Anthony. So that takes us to the next question.
The question is, which of the following would be a valid defence to an allegation that an architect has failed to comply with the NCC?
A, the NCC does not contain sufficient detail.
B, the Australian Standards to which the NCC refers are too outdated.
C, the Australian Standards to which the NCC refers are not freely available.
D, none of the above or E, all of the above.
The answer that we've suggested here, is none of the above.
Obviously there's a nuance to the response to this question that isn't captured through the multiple choices. There may be aspects of a design which is not spoken to at all by the NCC, and therefore A might apply, but generally speaking you can't use, as Anthony was suggesting, you can't use the flaws in the NCC as a defence for non-compliance with that regulatory instrument.
So let's move to the next and final topic discussed by the focus group participants, which relates to mechanisms that can be used by architects to mitigate the risk of NCC non-compliance.
An important finding from the research is that the Performance Solution pathway can be used to enhance the quality of built outcomes, as we observed in the first part of the presentation.
It goes beyond the minimum standards specified in the DTS provisions, and it could concurrently reduce the risk of non-compliance because the design requirements under this pathway are not prescribed in detail in the same way as DTS provisions. But during the focus groups, some of the sectoral participants stated that, as Anthony was suggesting before, may prefer the DTS compliance pathway because compliance is easier to demonstrate.
The requirements are prescribed and it's far easier to demonstrate that compliance with those requirements has been achieved.
So an insight from the discussion is that it may be more challenging to demonstrate compliance using the Performance Solution pathway compared to the DTS compliance pathway. Yet importantly, during the D&C procurement focus groups, the point was made that the performance based approach may be preferred in a D&C context because of the insufficient time and resources that are allocated for the preparation of a detailed design documentation.
So it leads to this sort of conundrum, where it might be necessary to follow the Performance Solution pathway because that's the only viable pathway when a certain procurement method is used.
But on the other hand, it may be more difficult to demonstrate compliance using that same pathway.
So an implication of the discussion is that greater guidance may be needed to illustrate how NCC compliance can be achieved and demonstrated using the Performance Solution pathway.
Over to you, Anthony.
Anthony Apolloni
Thanks Dariel.
This one was a bit of an eye opener for me because I actually did some research at the coalface, so to speak, and as far as I've been able to determine by quizzing recent graduates, they did not graduate from their respective architecture course with any real depth of knowledge in what the NCC is on, how it works.
They are much more likely to have an accelerated learning experience when, with the Code, once they commence work in an office or are exposed to the impact of the Code and how it has an effect on a building design is that design develops.
I know when they pursue registration, they're pointed towards some online tutorials produced by the Architects Accreditation Council of Australia, which was established by the various state and territory registration boards.
And there is a short tutorial dedicated to just NCC compliance. It would be beneficial, I think, if graduates emerge from their uni courses with a firmer grounding in how central Code compliance can be used in the process of bringing designs into fruition.
Who to turn for NCC compliance advice in the second subheading here.
I've mentioned that in some cases it can be acceptable under Design and Construct and not have a fully compliant NCC solution to some aspects of a design that goes out to tender, but there should always be a pathway to compliance plotted through the Performance Solution available at some stage post novation, preferably with a specialist consultant.
I can't think of a case of when I would not delegate the task preparing the Performance Solution to a specialist consultant who has the required expertise to execute it. For example, in the case of a non-compliance with the DDA, a rather common scenario these days, I would request it from the project DDA consultant. Normally DDA consults anticipate from the outset that Performance Solutions will be part and parcel of a design, and they list a cost rate to prepare them in their fee letter.
This can be about $500 to $1,000 per Performance Solution, brief and report. They're required to produce both.
But the main thing I want to mention under this topic is that during the course of designing a building of any sort of complexity, it is crucial to ensure that a consultant building surveyor is engaged during the design process. This is of course separate to the engagement of the relevant building surveyor, who is tasked with certifying the design and its construction and is not permitted by the VBA to provide design advice to the consultant team during the design process or after it.
I would never agree to undertake a project without a consulting, building surveyor being on hand to provide both critical NCC compliance advice and a compliance report.
The last subheading is specifically raised in the Deep Dive Report. That is the act of delegating compliance exclusively to sub consultants, having the benefit of channelling, sorry, channelling it to those who are specialising certain aspects of a project and this approach reducing our exposure to legal liability later.
Against it coming against the potential costs of compromising our ability to defend our designs when they are challenged, when they challenge the NCC's performance requirements. By and large, though, I think in any assessment of the overall cost benefit analysis, I'm not too deterred by this and maintain that delegating the provision of advice to those who are specialising providing it, is one important key to risk mitigation.
Thanks, Dariel.
Dariel De Sousa
Thank you, Anthony. If I may, just before we move into the Q&A session, just comment on the first point you made about the depth of knowledge of graduates.
This point was actually raised during the focus groups and the point was made by academics in the room that it's not really possible to convey the detailed practicalities of NCC compliance to students of architecture in the classroom in the same way as you've suggested as is possible in an office environment, be it getting involved in actual projects.
And so, what they said was that the objective of education, and Giorgio could comment more on this than me, but the objective of education about NCC is to equip graduates to navigate the NCC and then the job of practices is to enable them to apply the NCC in practice.
Having said that, the point was made that there are differences in size and experience of different practices, and therefore graduates may get different levels of exposure and experience with the NCC depending upon where they gain their practical experience.
But I thought that was potentially an important point to add to what you said, just to give some insights on the academics’ perspective on, on this issue.
Anthony Apolloni
Yeah, I'd agree with that.
Dariel De Sousa
And I'm going to pass back to Giorgio, sorry.
Giorgio Marfella
Thank you, Dariel and Anthony. Thank you very much.
Yes, I have some questions or some interesting questions that were raised and I apologise, I don't think we might be able to cover them all. So, I'll be selecting some of the ones that are probably more interesting and just to pick up on the point
of education. There's no doubt that the education of graduates is a shared endeavour that starts with universities, proceeds through the graduates experience in practice under supervision of an architect and it continues after that, so universities can take care up to the first five years of their education.
Yes, admittedly, universities have to probably step in a bit more.
I would point to the fact that the ARBV has been quite active in pointing this out.
For everybody's information, the current Architectural Practice Examination now includes a component of National Construction Code compliance that is partly examination process.
When I became a registered architect in Victoria, it was not part of it.
So we've been quite vocal in operating in, in pushing to some extent, you know all the stakeholders to be more aware of this issue and we all have some work to do together, all right.
So it's important that we don't necessarily finger point at each other, you should do more.
We we're all into this, you know, industry and academic and regulators, we can definitely do more and we will.
Anthony Apolloni
Yeah, look and I'd agree with that, Giorgio.
I was just a little alarmed in speaking to a couple of graduates from one particular institution, when they told me that they left university and the notion of Deemed-To-Satisfy and Performance Solution pathway was completely foreign to them.
I think there needs to be an outline of the structure of the NCC and how it applies, but not necessarily the detailed application which I agree should be left to once they commit to professional practice.
Giorgio Marfella
That's right, yeah, very good.
So let me go back to some of the questions. I think there are three things at least that I picked up and the first one is the issue of certification.
I know some people use guarantees or warranty. The fact, my understanding is that architects provide architectural services and not products, so they're not necessarily professionals who can provide guarantees, but there could be instances in which they're required to certify some of the parts of the services.
And so the question is being put forward here is that it's a scenario. It says, I've been asked by contractor post novation to provide a statement confirming design compliance with the NCC. Is this something that an architect can provide a statement for?
Dariel and Anthony, both of you, if you would like to answer this.
Dariel De Sousa
I might leave it to Anthony because Anthony did address this in in his presentation and he's got the practical insights.
So I'll leave it to you, Anthony.
Anthony Apolloni
If it's only the D&C contractor who have introduced this requirement and it was not part of our earlier agreement when the client was the actual building proprietor, I would not accept having to do that.
Giorgio Marfella
Thank you. Yeah.
Anthony Apolloni
I will check back through the original consultant agreement to see if there's any reference to providing that kind of certification. If there isn't, I would say you are under no obligation to provide it.
Giorgio Marfella
Absolutely, yeah.
Yeah. So, there are boundaries in which you know the responsibility can be drawn, yeah.
Anthony Apolloni
Yeah, and yeah, look, in every D&C project I've been involved with, the contractor, once it's time to be novated for us to be novated, they always issue you a fresh services agreement and they put all manner of things in there which weren't part of our original agreement. And I just get a big red pen and cross them all out and say no, no, no. Or, if you insist on this, this is the time and cost implication for us.
Giorgio Marfella
Exactly, yeah.
Yeah, which takes me back to the other one other question that was raised.
And you, you touched on it too.
Which I believe is self-explanatory.
Sorry, but let's elaborate a bit.
So should architects increase their fees when they're asked to provide, say, performance based solutions?
Anthony Apolloni
And always seek legal advice because as I mentioned previously, sometimes you can extend your responsibilities yourself in areas you don't need to, such as the duty of care provisions. Just limit it to what you're responsible for under the law.
Giorgio Marfella
Very good.
So I think that answers the question.
So, in essence, architects have an opportunity to obviously ask for more and if their services increase, because as you pointed out, doing performance based solution is time consuming. It also raises the profile in terms of risk of the services provided, so absolutely that there is an expectation, yeah.
Anthony Apolloni
Yeah, I might just quickly take the opportunity.
What I'm seeing more and more, especially from builders, is a requirement that we provide as built drawings. That again is a big fat no, we do not do that. We can do it.
It would be enormously expensive, but you know it's typical for in the area of building services, MEC, electrical, etc. for there to be as built drawings, but they're produced by the subcontractors and never by the architect.
I would never agree to do something like that without getting paid for it.
Giorgio Marfella
That's right.
And that's the long, well, not the long standing, in the past there was a tendency to produce them, but I think probably arguably in the last 20 year, there's been reluctance from architects to do so because as built means at certification of some sort that that's actually how it's being built. And if you're not supervising actively on site, how can you possibly take the responsibility?
Anthony Apolloni
Yeah, it it's fine to, it's fine to prepare an issue what I'd call what we call record drawings, which is really the last iteration of each drawing that was issued for construction.
I think that's perfectly okay. They already have that on file. So yes, we can do that, but not as built drawings as such.
Giorgio Marfella
Perfect.
Dariel De Sousa
Giorgio, can I just add something, the comment that all the suggestion that the fee should be increased to if the Performance Solution pathway is being followed, I mean an insight that came out of the research is that in the D&C context where there might be pressure on fees, there's more than a sort of incentive to follow the Performance Solution pathway because there's less need or less ability to detail the design through the documentation, if that makes sense.
So it's, it was almost perceived as a bit of a shortcut because you don't need to go through the level of detail that you might otherwise need to go through. If you were to follow the DTS.
So, even though we've suggested that you could increase your fees for following the Performance Solution pathway, the opposite point was actually made during the D&C focus groups that because of the fee squeeze in the D&C context, there might be a preference to follow the Performance Solution pathway.
Giorgio Marfella
Yeah, and this brings an interesting point, which is something I don't know if its surfaced from the questions, but it's something it was, you know, coming to my mind.
What is the purpose of performance based solutions?
In my understanding it is that they are there to provide innovative design responses that possibly exceed the minimum standards.
So I suppose architects potentially and arguably have a role as gatekeepers in depending on the contractual situation in which they are of course, with some limitations.
But it's important to also understand, and their architects may be bound to provide performance based solution depending on the circumstances and I would be potentially, you know questioning you know the push that might come from other players to use perform a solution as a work around the DTS solutions, for whatever reasons. Because that's not quite the intent of performance based codes.
Anthony, I don't know, I think you've touched on this. I mean we, but maybe you want to elaborate a bit on this point.
Anthony Apolloni
Yeah. Look, I think it's more typical for going down that Performance Solution pathway when A, a DTS pathway simply can't apply. But I think it's pretty rare to pursue a Performance Solution to exceed the Code requirements. I would limit it to just meeting the Code requirements because again, you're kind of committing yourself to.
Well, I can, I can see where in some cases exceeding the Code is beneficial, and I was trying to think of an example which I was going to mention, but my speeches were getting too long.
But I can see for example with roof drainage. I noticed there's a question referring to that where exceeding the Code requirement for roof drainage falls, for example, may be beneficial in a building where we know, we have full knowledge, that there are challenges around maintaining that roof and keeping it free of debris, for example. In cases like that, I think that it would be advisable to look into exceeding the Code requirements, but otherwise, in a typical scenario, I don't see any reason to do that, unless you could do something like get green star certification around environmental issues where that a lot of those provisions do exceed the Code.
But I mean the Code itself around environmental requirements is pretty solid.
So yeah, no, I don't think it's something that I would voluntarily put my hand up for.
Giorgio Marfella
OK.
Well, the other point I wanted to talk about, which is coming up in two questions, is the idea of what are the boundaries of liability, I suppose of architects providing designs that are compliant?
And so there's one comment here who says this literally, well, the NCC compliance ultimately results in a building permit. Therefore, the NCC compliance cannot be guaranteed beyond involvement. Surely the architect cannot be responsible for NCC schematic design. It's only conceptual.
What do we want to comment on this? Dariel from a from a legal perspective, feel maybe if I'll start with Dariel, Anthony, and then come back.
Dariel De Sousa
Yeah, I mean this highlights the challenge that was raised during the focus groups, that if architects are only engaged to prepare a schematic design, this limits their ability to demonstrate NCC compliance because it is a very high-level conceptual design.
How you avoid this exposure, potential exposure to liability, it's unclear unless more detailed design documentation is required by the client and one of the key sort of implications or recommendations that came out of the research is that we need to really analyse in more detail, what the connection or correlation is between the level of design, level of detail in design documentation and NCC non-compliance. Can we see that there are more instances of non-compliance and building defects when only a high-level schematic design is required by the architect. Now they’re in a difficult situation if the client only requires them to do that, and that schematic design ultimately leads in building defects, they are exposed.
But how you get around this scenario when there are commercial drivers and contractual requirements that sit around the regulatory requirements, it's unclear. But certainly, that point was raised in in the focus group discussion as well.
Giorgio Marfella
Hmm.
Anthony.
Anthony Apolloni
Around the liability risks, like to cite an example, that I’ve had an experience with fairly recently. We did a school building where we had all of the washroom toilets conglomerate into single location on a floor plan, but we weren't able to fit the DDA or the accessible toilet and that was around the corner. And there's a requirement of course in the Code to comply with the DDA and that is mandatory.
So, from a discrimination perspective, we thought it is possible that a parent of a child who's in a wheelchair may find that discriminatory. That you know, if they rock up to the toilets to use them, that the child in the wheelchair needs to go around the corner when all the other able-bodied kids use the toilet. For that we successfully obtained a Performance Solution. However, it doesn't eliminate completely the risk that a parent will still find that as an act of discrimination against their child and they could take action against the school. Now, I don't know.
I've no idea as to whether or not that kind of action would be warranted, or whether it would actually be successful should it ever go to court. But you know, as they say, around these sort of issues, the process can be the punishment and just the mere fact that the school is inconvenienced in having to deal with it is always a risk that they face.
Giorgio Marfella
That's a very good example there. And I suppose what I’m taking, it's very difficult to answer these questions when put in such generic terms. There's a case by case of you know element that needs to be understood. But fundamentally, I would also suggest architects to be conservative in this regard and not to think that they're somehow exempted from compliance.
There are several layers of compliance. Schematic design already has inbuilt aspects of compliance with different regulations and including the National Construction Code. Of course, as the project progresses, these layers become more and more stringent and the project funnels down to a point in which there's more requirement to be specifically compliant. For example, with the Australian Standards and so on.
But there's no question that architects’ ideas can also have non-compliant issues.
We saw that the case of the famous house in Capri. You know Malaparte house.
Well, you know, so even the conceptual design could have aspects of non-compliance that the person should be mindful of, yeah.
Anthony Apolloni
I do wonder sometimes what that house would look like if some architect was required to bring it up to the NCC compliance.
Giorgio Marfella
Yeah, that, that there will be a glass balustrade shopping centre style all along the edge, I'm sure.
Anthony Apolloni
Yes, that's right, yeah.
Giorgio Marfella
So anyway, look, thank you very much, Dariel and Anthony and apologies, we have more questions for reasons of time we don't cover them all.
I noticed some questions were asking if there are recordings of the previous webinars. Yes, there are.
There is a page on the ARBV website that collates all these webinars through the years so we would very much like to keep a record.
There is also some suggestions on the possibility to do more webinars regarding the performance-based solutions and that's something I can say we have actually already been considering it. So, we will look into that and apologies for the other additional questions, I didn't have time to discuss here with our speakers, but I think we do have covered some ground and we do like to keep this also in a digestible format you know at lunch time so to speak.
So, thank you very much Dariel and Anthony.
Very much appreciate it and have a good afternoon everybody. See you next time.
Dariel De Sousa
Thanks everyone.
Anthony Apolloni
Thanks.
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