Bad acting

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The latest attempt to provide a more robust regulatory framework for the construction industry is the Building Amendment Act 2013.

The amendment is proposed as a comprehensive review of the Building Act 2004 to improve the construction sector, ensuring that it delivers good quality, affordable homes and buildings, and contributes to a prosperous economy.

Some changes take immediate effect — in particular, certain terms and definitions and higher penalties for non-complying work — while others will be introduced progressively during 2014.

Later changes include mandatory written contracts for work over a certain value, new remedies for breaches of implied warrantees, and a 12-month defect repair period.
All these changes are necessary, but still fail to address the central weaknesses in our current construction legislation. At the core is the lack of effective management and control by the MBIE over some 70 individual Building Consent Authorities (BCAs).

There has been consideration given to a single national building consent bureau as part of the planned, but not yet implemented, online consenting project. What is proposed in these draft proposals should improve the current slow, unevenly implemented and very expensive process.

However, both the online consenting system and its associated central bureau, intended to act as a first filter for building consent applications, is some way off. In the meantime, the industry is being ill-served by the current system.

At the heart of dissatisfaction by designers and contractors/developers is Building Act clause 45 (c). This relates to an application for a building consent and states: “(the application must) contain or be accompanied by any other information that the building consent authority reasonably requires”.

The word “reasonably” is scattered liberally throughout the Building Act, and in this particular instance is the cause of much heartache and frustration. Leaving it to individual BCAs and individual inspectors, many with only in-service training, to decide what is reasonable, is just plain dumb.

Let’s consider the downstream effects of this one little word. A document much in demand by BCAs is what is known as a producer statement. This, when properly and appropriately used, is an effective way to ensure that designers and installers have clearly grasped and accepted their responsibility to ensure that their design or their installation meets the performance requirements of the Building Code.

However, search the current Building Act and you fail to find even a single mention of a producer statement. So, essentially, this document has no statutory authority and is effectively left to the whim of individual BCAs to decide what it should contain. Again, dumb.

And getting even dumber, if that were possible, is that another useful and commonly used supporting document, a BRANZ Appraisal, also has no statutory standing. Why not?
While I am sure there are other reasons, the core one is that a BRANZ Appraisal supports a branded product. And to the bureaucratic mind, mentioning a branded product versus using an often inaccurate generic description of a product type, is an anathema.

My personal view on acceptable solutions is essentially a negative one. The key reason is that acceptable solutions are generic and not branded. A more important reason is that acceptable solutions are simplistic “cook book” attempts to meet the performance requirements of the Building Code clauses and sub-clauses.

I remember sharing the occasional Scotch with Professor Helen Tippet, who chaired the original committee on creating a performance-based Building Act and Code, and discussing the rationale behind providing such fixed solutions.

Her view was that acceptable solutions and, to a lesser extent, verification methods, were there to help the bottom feeders; those without the ability and knowledge to use and take advantage of a performance-based approach to compliance. Unfortunately, they have now become the benchmark.

While I sympathise with, and understand why BCA inspectors should take this view, I fail to understand why any self-respecting professional should feel that a standard generic “cook book” is the best approach for their projects.

Bluntly, E2/AS1 is no panacea to preventing leaky buildings and I’m not convinced it hasn’t caused a few.

In 2001 a proposal was put to the then Building Industry Authority to introduce branded acceptable solutions, based on a series of “acceptable principles” prepared and promulgated by the Government. In the rush to find who to blame for leaky building problems the suggestion was quietly shelved.

However, the concept of encouraging product suppliers and manufacturers to face up to their responsibility and show how their products meet the performance requirements of the building code is back on the agenda.

As set out in the Building Amendment Act 2013:
14G (2) A product manufacturer or supplier is responsible for ensuring that the product will, if installed in accordance with the technical data, plans, specifications and advice prescribed by the manufacturer, comply with the relevant provisions of the building code.

There have been a number of proposals to provide manufacturers and suppliers with a straightforward and affordable way to meet this responsibility, below the level of obtaining a Codemark or BRANZ Appraisal. That is, a way for manufacturers and suppliers to show how their products meet the performance requirements of the building code, within a stated scope of use.

The key to the success of such an initiative is to find a way for manufacturers to do this — preferably using a structured, online tool. But more importantly, such a performance statement must meet the needs of those approving building consents — essentially, to be satisfied that the product complies “on reasonable grounds”.

The recently reported case in Auckland where inappropriate or non-complying fire safety and fire stopping products were being discovered in completed buildings highlights the need for a system of clear, unequivocal performance statements by product manufacturers and suppliers.

Coupled with a national database of construction products, those faced with signing off on compliance will finally have the tools they need to do their job.

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