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Experience with the new NCC Performance Solution Process?
2

Experience with the new NCC Performance Solution Process?

Experience with the new NCC Performance Solution Process?

(OP)
Hi all, I'm just wondering what people’s experience is with the new NCC 2022 Performance Solution Process? It seems to be having a big affect on my projects personally. I’ve listed a few points below but I’m also wondering what the general experience has been from other people's perspective.

1. The NCC 2022 now states that all performance solutions must follow 4 steps. (Performance-based design brief, analysis, evaluation, final report). Has anyone gone through this process and what are people’s experience?

2. For example, we have a simple project in a corrosive environment where, after careful consideration and research, a specific composite material has been chosen. The design is simple and based on straight-forward solid mechanics and engineering principles. The building certifier is saying they will only certify the design if it is using steel, unless the client spends tens of thousands of dollars and 6 months on a Performance Solution Process.

The question is, who takes responsibility/liability? In this case the building certifier is forcing the engineer to specify a material which the engineer disagrees with, saying that it must comply with the prescriptive deemed-to-satisfy codes and that the use of special materials or construction is prohibited.

I can also think of many other past projects, such as many where we specified fibre-reinforced concrete in order to improve performance, that would now be knocked back unless the performance improving additives were removed.

3. As far as I can tell, the Performance Solution Process is the opposite of my engineering training. During engineering design, we would consider a range of options and do rough calculations/research on each option, refining decisions and calculations until we narrowed down to the final design. We may research twenty options with different material and construction methods, only to understand that an option is not preferred after hours of reading. We would not need the pre-approval of a dozen stakeholders in order to research an option.

In contrast, the Performance Solution Process requires that the solution be known in advance, prior to engineering design. You must propose a performance solution and the exact process that will be used to evaluate it, and have all the stakeholder agree. Only subsequently do you verify if the design is possible. Each possible option must go through the same process, and if there are any changes to the design process then you must re-write the brief and get re-approval from all the stakeholder.

The Performance Solution Process also places the opinions of uninterested laymen above or on par with those of the responsible professional engineer, forcing the engineer to take routes that they would not otherwise take in the normal engineering process.

4. How are people quoting jobs now? In my experience it now seems to be a gamble whether a building certifier will accept an engineering design or require a hundred page document justifying every decision and approval from a dozen stakeholders (noting that the final design remains the same regardless). I have simple projects which took an hour to design, only to spend dozens of hours trying to navigate the new NCC process. It is taking all my mental energy and attention, which would otherwise be spent focusing on the actual performance and safety of the design.

Hoping to get some other opinions and experience. Thanks.
Replies continue below

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RE: Experience with the new NCC Performance Solution Process?

I have never been through a Performance Solution Process, but my 2c.

Quote:

unless the client spends tens of thousands of dollars and 6 months on a Performance Solution Process.

Would it really take this long? It seems to me the "brief" could be a simple one-page memo, you have already done the analysis and evaluation, the only "stakeholder" you need to be on board is the client and then prepare a brief report documenting the results of your analysis.

Quote:

I can also think of many other past projects, such as many where we specified fibre-reinforced concrete in order to improve performance, that would now be knocked back unless the performance improving additives were removed.

Fibre-reinforced concrete is covered under AS3600 so not sure a performance solution is required.

RE: Experience with the new NCC Performance Solution Process?

I would politely but firmly tell the "building certifier" that you are the engineer and you are certifying that X-Y-Z construction is structurally adequate. The builder certifier is out of their lane.

The polite way to do this is to submit to the relevant parties a structural adequacy certificate referencing the relevant design and all the relevant codes and the NCC.

I'd put forward that you as a qualified structural engineer can suitably achieve part d of A0.5. If you use 1170 and appropriate LRFD analysis then you are performing your job. If you certify that the structure is structurally adequate then who are they to question your judgment as the structural engineer.

A0.5 Assessment Methods
(d)
Comparison with the Deemed-to-Satisfy Provisions.
b

RE: Experience with the new NCC Performance Solution Process?

(OP)
Thanks for the feedback Retrograde & human909.

Quote (Retrograde)

Would it really take this long?
It seems that this is the case. I've watched presentations by the ABCB and even they recommend hiring a BCA consultant in order to guide you through the process. My clients have asked for quotes from BCA consultants and the price starts at around $10k, excluding other consultant fees.

Quote (Retrograde)

Fibre-reinforced concrete is covered under AS3600 so not sure a performance solution is required.
AS3600 seems to exclude non-steel fibre and fibre used for ground slabs, which is essentially all of our projects. But I'm hoping my questions are more broad and not focused on specific projects :)

Quote (human909)

I would politely but firmly tell the "building certifier" that you are the engineer and you are certifying that X-Y-Z construction is structurally adequate. The builder certifier is out of their lane.
We would have done this in the past when the NCC simply said that an engineer's certificate is enough to show compliance. But the latest NCC (Part A2G2) now explicitly mandates the 4 step Performance Solution Process and building certifiers are hiding behind this. It seems that the ABCB has also told building certifiers that it is a conflict of interest to help in the Performance Solution Process, therefore when asked questions or for clarification, building certifiers may refuse to answer.

Btw, here is the process if anyone is wondering.
https://www.abcb.gov.au/sites/default/files/resour...
https://www.abcb.gov.au/sites/default/files/resour...

RE: Experience with the new NCC Performance Solution Process?

All good points Euler07

Side topic: what method(s) would you normally use to design a fibre reinforced ground slab? Particularly something like an industrial building slab.

RE: Experience with the new NCC Performance Solution Process?

Thanks for the link Euler. Seems like a massive power grab by building certifiers. If Engineers can't be relied upon to perform engineering then who can?

I haven't read the full 4 step process document you posted as I am posting on my mobile phone at the moment. Hopefully you can navigated those 4 steps in a quick and efficient manner once you sort out a template.

It seems that the BCA sounds increasingly out of touch with the need for engineering flexibility especially in industrial construction.

Even in residential. There still is plenty of non cookie cutter homes being built. Try finding guidance for log homes in the NCC. Or straw bale homes, or a whole bunch of things.

RE: Experience with the new NCC Performance Solution Process?

My experience is typically in RC mid-rise and some associated steelwork portions, but generally speaking we never even try to carry out a performance solution on the structural side of things (how the hell are you going to do it let alone get it through is in my mind an unresolved question no matter how minor). Fire engineering and various services will routinely do performance solutions (obviously at some cost to the builder of course but fairly minor in impact) but I'm yet to come across one done by a structural engineer.

----------------------------------------------------------------------

Why yes, I do in fact have no idea what I'm talking about

RE: Experience with the new NCC Performance Solution Process?

Quote (Just Some Nerd)

but generally speaking we never even try to carry out a performance solution on the structural side of things (how the hell are you going to do it let alone get it through is in my mind an unresolved question no matter how minor).
Your experience reinforces the thought process that has guided this outcome. If a comprehensive report is required for simple engineering simply because the suitable material code isn't listed in the NCC then that is a problem.

We have been building structures out of logs/straw/mud for millennium. But apparently we can't do that anymore without a comprehensive report. Surely you see the issue here.

RE: Experience with the new NCC Performance Solution Process?

(OP)
Thanks all.

As far as I can tell, this will soon influence most structural engineers, whether you've already encountered it or not. The reality is that most engineering designs can be interpreted as performance solutions by someone and the onus will be on the engineer to prove that the design complies with deemed-to-satisfy provisions, and to follow the 'performance solution process' for each individual project regardless of how many tens of thousands of projects you've already used the exact same design on.

This separation of engineering into two categories is antithetical to my training. I was trained that stress = My/I for any material, M = wL^2/8 for any simply supported beam, and I didn't have to memorise thousands of pages of standards in order to justify to a layman that the design is 'deemed-to-satisfy'.

I would also add that, according to the ABCB themselves, many deemed-to-satisfy provisions are arbitrary and not based on engineering principles. They state that it is unknown to what extent the deemed-to-satisfy designs are conservative or perhaps grossly unconservative. I know of buildings that complied with the Australian Standards and ended up in lawsuits because the building was uninhabitable, and in those cases compliance with deemed-to-satisfy was not considered to be an adequate defense since the building was not 'fit for purpose'.

RE: Experience with the new NCC Performance Solution Process?

Quote (human909)

Your experience reinforces the thought process that has guided this outcome. If a comprehensive report is required for simple engineering simply because the suitable material code isn't listed in the NCC then that is a problem.

We have been building structures out of logs/straw/mud for millennium. But apparently we can't do that anymore without a comprehensive report. Surely you see the issue here.

Don't get me wrong, I don't think it's a good system. OP's original question was about if anyone had experience with structural performance solutions and I was just trying to inform that I'm not aware of a single case of it happening in practice. For concrete buildings and conventional steel structures, I can guess with a degree of confidence that people aren't doing performance solutions for every little deviation from AS3600/AS4100 and aren't getting punished for it (who is going to check that after all). Using a material without a related standard that covers it is not so easy to get past a certifier though, but I would be interested to know what for the sake of curiosity what sorts of materials we expect are most likely to get tripped up in this.

Quote (Euler07)

As far as I can tell, this will soon influence most structural engineers, whether you've already encountered it or not. The reality is that most engineering designs can be interpreted as performance solutions by someone and the onus will be on the engineer to prove that the design complies with deemed-to-satisfy provisions, and to follow the 'performance solution process' for each individual project regardless of how many tens of thousands of projects you've already used the exact same design on.

Somewhat touched on this above but yes, I doubt there are projects over a given size that will 100% comply with deemed-to-satisfy provisions structurally. So far everyone is skating through on the fact that certifiers accept it at face value when we declare that our designs all comply with X/Y/Z standards - not necessarily a bad thing, but technically not following the letter of the law.

Bit of a sidetangent with regards to interpretation by others - the latest Practice Standards in NSW states that their next version is going to have mandatory obligations for third-party review for certain building types, will be interesting to see what result we end up with here. I believe NT already has something like this in place and am not sure if any other states have it, but I wonder if reviewers would ever start nitpicking at this sort of thing.

RE: Experience with the new NCC Performance Solution Process?

Hi Euler07,

The NCC process you refer to which is A2G2(4) came into effect on 1 July 2021 under the NCC 2019 Amendment 1. It was a result of a recommendation from the 'Building Confidence' report produced by Peter Shergold and Bronwyn Weir published in February 2018. As it is in the NCC, it has been produced at federal level by the ABCB. However, each state and territory adopt the NCC under their respective building statutes. You did not say which state you work in, but this clause is what is known in law as 'ultra vires'. Here is a website that explains ultra vires at a basic level:

https://www.armstronglegal.com.au/administrative-l....

A2G2(4) is ultra vires, as the state (or territory) you work in, under that building statute it will not require 'stakeholders to agree' or 'performance briefs'.

If you tell me which state you work in, I can tell you more about how A2G2(4) is ultra vires and what the solution is to your problem - no need to tell me who you work for, where you work, what you work on. All I need to know is which building statute is relevant to your situation.

Cheers,

CVDP75.

RE: Experience with the new NCC Performance Solution Process?

Hi CVDP75. I work in VIC and would be interested in how this applies. Thought over 50% of my projects are currently in NSW and QLD so I'm curious about those states as well.

That NCC process seems a nightmare for industrial engineering. Though like I mentioned, there are numerous edge cases everywhere which could be problematic. I'm glad to see it doesn't apply to loads just materials as I frequently need to venture far away from AS codes for some loading criteria.

That said I deal with stainless steel a fair bit and it seems unclear whether AS4100 applies or not. While AS4100 doesn't explicitly rule it out, there are numerous references suggesting it doesn't apply. The fact that we have a specific code for cold formed stainless but not hot rolled leaves more questions.

RE: Experience with the new NCC Performance Solution Process?

(OP)

Quote (CVDP75)

If you tell me which state you work in, I can tell you more about how A2G2(4) is ultra vires and what the solution is to your problem
Thanks CVDP75, this is useful information. We provide engineering services in every state (since many of our clients have outposts Australia wide and need their pre-fabricated buildings certified for each state). However, at the moment the state in which we have the most difficulty is Victoria so advice regarding that state would be most helpful.



RE: Experience with the new NCC Performance Solution Process?

Each state and territory of Australia administers its own building Act, in the case of Victoria, this is the Building Act 1993. This is because under the Australian Constitution, there is no reference to building law, and therefore the federal government does not pass a federal building Act for every state to comply with. In Queensland this is the Building Act 1975 and in New South Wales this is the Environmental Assessment and Planning Act 1979. Statutory law such as a building Act usually set out basic legal principles, who has legal powers, how disputes are solved, etc, and in the case of buildings, they must be safe and healthy to use, and fit for purpose. It is left to regulations as to how to design buildings. But a regulation cannot be put into effect without being authorised by an Act, since an Act of Parliament is passed into law by democratic vote but a regulation is written by government departments. Therefore there will clauses in an Act that allow the introduction of regulations. The NCC is just a type of regulation and is in this case a building code with two main parts: a 'deemed-to-satisfy' which is a cookbook and assumed to be correct (but can be wrong), and a performance-based building code.

In the case of the Victoria Building Act 1993, Section 7(1) allows building regulations to be made for the design and construction of building in Victoria. This section of the Act allows the Victoria Building Regulations 2018 to be put into effect. In Building Regulations 2018, it is regulation 10 which incorporates the BCA(NCC) into law. It works like this in every state as the BCA (NCC) is drafted by the ABCB which is a federal department, and the whole objective of having a national building code is to make trade between states and territories easier. However, it does not end there. Because each state and territory passes its own building Act by its own state Parliament, it is that Act that is supreme law. Nothing in the NCC can legally override the Act. So, because each building Act requires buildings to be safe and healthy, the NCC cannot have provisions in it that are unsafe or unhealthy. Also, the NCC cannot give legal powers to persons who do not have the same legal power under the Act. When regulations have clauses which have this effect, regulations are 'ultra vires' and illegal. Each state supreme court can rule that regulation 'ultra vires' and wipe it out.

In the case of A2G2(4), the problem is that it is an illegal regulation that mandates a procedure of 'stakeholder approval', when the Building Act 1993 says no such thing. There is no such thing as a 'stakeholder' under the Building Act 1993. The Building Act 1993 allows designers to design any way they want so long as what they do is safe and healthy and fit for purpose. The ABCB have put in an illegal 'approvals clause' in the NCC which requires a 'brief' and 'stakeholder approval', when the Building Act 1993 does not. The ABCB have made a mistake with their administration of the NCC and they won't admit it. Only a bad regulation could have the effect of negatively impacting industrial engineering and pre-fabricated building markets, two completely different markets but both have to get 'stakeholder approvals', which is impossible and plain wrong. The crux of the matter is that if you comply with the performance requirements of the NCC, then you have legally complied with the NCC (in the eyes of the Courts) and have done no wrong. I have self-represented myself in courts a few times now and won against big law firms and I know the game even though I am an engineer by profession, I have been reading law for about 7 years now, and go to court occasionally without a lawyer and win when I know I have a winning case.

I have not gone into how A2G2(4) got there in the first place, that is another story. But the way to solve this problem is to go to the State Supreme Court and plead that A2G2(4) is 'ultra vires' the Building Act 1993. It is one day in court and quite easy to do (if you know how), as it does not involve a civil claim of litigation against another person. There is no new legal precedents to set in winning this. This kind of legal problem is routine for the courts to solve and they have been doing it for about 100 years in Australia.

I hope this helps. Happy to answer any other questions.

RE: Experience with the new NCC Performance Solution Process?

(OP)

Quote (Just Some Nerd)

I'm not aware of a single case of it happening in practice.
Yes, this was my experience also until the last year. In the past, all we would do is write a single page letter explaining that the design was a performance solution and that it met the performance requirements with some brief rationale; and I have also seen this a lot from other engineers. However, I have not seen an example of the new process and even after extensive searching the only examples are from the regulatory bodies who provide vague extraneous examples without a final report to use as a guide.

Quote (Just Some Nerd)

Bit of a sidetangent with regards to interpretation by others - the latest Practice Standards in NSW states that their next version is going to have mandatory obligations for third-party review for certain building types, will be interesting to see what result we end up with here. I believe NT already has something like this in place and am not sure if any other states have it, but I wonder if reviewers would ever start nitpicking at this sort of thing.
It's been like this in South Australia for many years (called a Regulation 61 certificate). But thankfully it's another engineer who checks the design and the process / amount of time it takes is relatively known.

Quote (human909)

That said I deal with stainless steel a fair bit and it seems unclear whether AS4100 applies or not. While AS4100 doesn't explicitly rule it out, there are numerous references suggesting it doesn't apply. The fact that we have a specific code for cold formed stainless but not hot rolled leaves more questions.
I know what you mean :). I seems like every week I'm looking to see if something complies with some code or other and the feedback is "we don't know". The building certifier then finds some internet link saying it doesn't comply and knocks the job back.

There is currently an over-reliance on Australian Standards. The country is so small and there are only a handful of people doing pro bono work to write the standards. In the age of globalisation and the internet, I don't see a reason why international standards/manuals can't be used. Well, they can be used but only if an extensive approval process is carried out.

We currently have a project where we used an American code with a well documented American design guide. Unfortunately, we were informed that this is not considered deemed-to-satisfy and a Performance Solution Process needs to be followed for this also.

I also know of another engineering company that had their glass design knocked back because the exact configuration of the build wasn't shown in the example diagrams in the glass standard. In that case also, the building certifier said it needs to now follow the Performance Solution Process and that a list of laymen stakeholders need to approve the design. I could go on...

Quote (human909)

That NCC process seems a nightmare for industrial engineering. Though like I mentioned, there are numerous edge cases everywhere which could be problematic.
human909, refer to the link below. Even standard tilt-up panel warehouses use performance solutions :). I would be surprised if there's a single building that is completely deemed-to-satisfy. Especially with all the innovative products now available.
https://nationalprecast.com.au/wp-content/uploads/...

*Edit:

Quote (CVDP75)

I hope this helps. Happy to answer any other questions.
Thanks CVDP75, this is great info. I'll go through this and let you know if I have questions.

RE: Experience with the new NCC Performance Solution Process?

Quote (CVDP75)

Each state and territory of Australia administers its own building Act....
..
Thanks for the extremely comprehensive reply. It sounds like you have a handle on the law, I should do the same. I have done some deep dives into various laws in other fields but I must say I start drowning when I read the NCC and I've only read snippets of the various state's acts. Given my obligations I should know the law.

This conversation just shows that many engineers in Australia (likely elsewhere) don't have a great grasp on the law and their own legal requirements. Which in some ways is a little worrying, in other ways it is also understandable. We are engineers not lawyers.

Quote (CVDP75)

The Building Act 1993 allows designers to design any way they want so long as what they do is safe and healthy and fit for purpose.
Am I leaping too much? Are you saying that most of the NCC can be completely ignored if one chooses to? (As long as I ensure it is 'safe and healthy and fit for purpose'.)

That is extremely useful to know. Not that I'm planning to do so, but almost every building surveyor I've dealt with insists that NCC is included in the list of relevant codes used in design. Also I'm pretty sure that the professional registrations process VIC/QLD require engineers to have a working knowledge of the NCC. Though it would hardly be the first time organisations/government implement things contrary to the own laws.

Unlike Euler07, I haven't had too many big headaches from building surveyors on structural issues. Though normally they require that I list the NCC as the code I have followed. (Where in fact all the NCC does is bounce me to AS1170, AS4100, AS3600 etc.) I have found increasing requirements from building surveyors that AS1657 is listed in my documentation. Which I consider is generally outside of my role as a structural engineer. I have generally dodged doing this.

Building surveyors just like to see a thousand boxes ticked and certified even if they are not relevant or outside of the scope of the person they are asking to certify things. I have been aware of this, but your comments above suggest it is MUCH worse than I imagined.

RE: Experience with the new NCC Performance Solution Process?

Euler07. It certainly seems like you've had it tougher than me. I've generally managed to get my things past building surveyors without too much headache and without certifying things I don't want to certify.

Quote (Euler07)

In the age of globalisation and the internet, I don't see a reason why international standards/manuals can't be used.
It is my understanding that they can be used. I certainly used them commonly.

Where is the Australian code of dust explosions? And I don't mean the AS/NZS 4745:2004 that is a pretty useless document.
Where is the Australian code for silos? AS3774 has been withdrawn. Yet we still still have booming agricultural industry in need of grain storage.
And as I mentioned above a associate of mine designs and certifies log homes. I believe he relies on a Canadian code.

Quote (Euler07)

Well, they can be used but only if an extensive approval process is carried out.
I'm not sure that is the case. Again this might be an overreach by building surveyors that you have experienced.

RE: Experience with the new NCC Performance Solution Process?

To answer your question if you are "leaping too much if you want to ignore the NCC?", the answer is yes, but it is a good question. Regulations are nothing more than 'fleshed out detail' of the objective of a statute such as a Building Act, and it is law (generally) to comply with regulations as much as it is any other law. But, regulations can be wrong, and when they are wrong, as an engineer you can be liable for these errors. For example, if there is an error in the NCC and an engineer 'blindly' works to it creating an unsafe structure, you can have a claim against you. Conversely, regulations can specify provisions which are 'over the top' and if you don't comply with it but the structure is still safe, you can argue in court - and win - that the regulation on that matter was wrong (i.e., ultra vires) and therefore you are not liable.

What matters when it comes to avoiding liability is to understand what the substantive legal thresholds are that the courts work to. Most of the time it is the negligence standard. If a design is safe, you cannot be held negligent. If a design is unsafe you are going to have a problem with the law.

Unfortunately, engineering programmes at university do not prepare their students to understand key aspects of the law that they will have to work to when they graduate. Engineering, at the end of the day, is a legal exercise in collecting facts (data) and ensuring that those facts answer the relevant questions in law (such as the performance requirements in the building code). A2G2(4) has nothing to do with answering questions in law. It is a mistake by the ABCB. The ABCB have no right to put in the NCC a procedure which requires engineers to get 'stakeholder approval' from people who are not qualified to give answers nor have even signed a contract to provide design services (and take liability for them).

Regards,

CVDP75

RE: Experience with the new NCC Performance Solution Process?

Thanks again for an excellent explanation.

Quote (CVDP75)

What matters when it comes to avoiding liability is to understand what the substantive legal thresholds are that the courts work to. Most of the time it is the negligence standard. If a design is safe, you cannot be held negligent. If a design is unsafe you are going to have a problem with the law.

Well that has been my logical and ethical approach in my engineering. I work in a fairly niche area so I do find myself with some quite curly structural design questions often in areas where structural design and mechanical design state to cross over.

RE: Experience with the new NCC Performance Solution Process?

NSW

THE ACT

4.64 Regulations—Part 4 (cf previous s 105)
(4) The regulations may provide for the adoption and application of the Building Code of
Australia

6.33 Regulations: Part 6 (cf previous s 109Q)
(1) The regulations may make provision for or with respect to the carrying out of building
work or subdivision work and, in particular, for or with respect to the following—
(a) requirements to comply with provisions of the Building Code of Australia or other
specified standards in relation to building work or subdivision work,


THE REGULATIONS

69 Compliance with Building Code of Australia and insurance requirements under Home
Building Act 1989
(1) It is a condition of a development consent for development that involves building work
that the work must be carried out in accordance with the requirements of the Building
Code of Australia.

122 Complying development involving building work
(5) An application for a complying development certificate must also contain the
following—
(a) if the building work involves a performance solution under the Building Code of
Australia—a report about the performance solution prepared in accordance with
the requirements set out in the Building Code of Australia, A2G2(4),

137 Compliance with Building Code of Australia
(3) A certifier must not issue a complying development certificate for building work that
involves a performance solution under the Building Code of Australia unless the
certifier—
(a) has obtained or been given a performance solution report, and
(b) is satisfied that—
(i) the report was prepared in accordance with the requirements set out in the
Building Code of Australia, A2G2(4), and
(ii) the building work plans and specifications show and describe the physical
elements of the performance solution, if possible.

RE: Experience with the new NCC Performance Solution Process?

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

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

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

OLD: https://www.vba.vic.gov.au/__data/assets/pdf_file/...
NEW: https://www.vba.vic.gov.au/__data/assets/pdf_file/...

Quote (Victorian Building Authority)

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


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

RE: Experience with the new NCC Performance Solution Process?

Hi Human909,

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

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

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

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


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

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

RE: Experience with the new NCC Performance Solution Process?

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

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

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

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

RE: Experience with the new NCC Performance Solution Process?

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

Quote (Smoulder)

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

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

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

Quote (Smoulder)

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

Quote (CVDP75)

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

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

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

Quote (human909)

I'm not sure that is the case. Again this might be an overreach by building surveyors that you have experienced.
Unfortunately, this is indeed the case. Only 'referenced documents' can be used in a deemed-to-satisfy solution. International standards are considered to be a performance solution and this would now need to follow the 4 step Performance Solution Process (including stakeholder consultation). Non-referenced Australian Standards are also considered to be Performance Solutions.

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

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

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

Once again, I appreciate the feedback everyone.

RE: Experience with the new NCC Performance Solution Process?

Hi Human909,

To answer your questions:

Quote (human909)

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

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

Quote (human909)

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

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

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

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

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

RE: Experience with the new NCC Performance Solution Process?

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

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

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

Quote (Building Act 1993)

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

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

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

EDIT:
They are going further too.
This is from last month:
https://www.abcb.gov.au/sites/default/files/resour...

And this is a video from 2 days ago:
https://www.youtube.com/watch?v=bdvVFDnL1Yg&t

RE: Experience with the new NCC Performance Solution Process?

Apologies for the error in names.

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

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

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

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

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

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

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

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

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

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


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

Hope this helps.

CVDP75

RE: Experience with the new NCC Performance Solution Process?

To Summerise

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

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

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


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

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