Industry responses to the Shergold-Weir report
In August 2017 the Building Ministers’ Forum (BMF) asked Professor Peter Shergold and Bronwyn Weir to assess the effectiveness of compliance and enforcement systems in the Australian building and construction sector.
The Report they prepared examined issues arising from state and federal government responses to the use of combustible cladding, which is believed to have been a major cause of both the Grenfell fire in London in 2017 and the Lacrosse fire in Melbourne in 2014.
The recent evacuation of 3,000 people from Sydney’s Opal Tower and surrounding areas due to a cracked panel vindicated the report, showing there are significant cracks in the Australian construction industry.
The report found that there were ‘serious compliance failures in recently constructed buildings’ in Australia, including Opal Tower.
One of their key findings was that there has been almost no effective oversight of the commercial building industry by regulators.
“Those involved in high-rise construction have been left largely to their own devices,’’ the Report states. “Where there has been supervision, this has generally been by private building surveyors whom critics argue are not independent of builders and/or designers.’’
The Report contains 24 recommendations, including better training and registration of building practitioners; clarification and strengthening of the roles of regulators; improving information and documentation relating to construction projects, and improvements in the safety of building products.
Improve compliance with the National Construction Code
The Australian Institute of Architects (AIA) generally welcomed the Report, while questioning the suggestion that legislation regulating architects should provide the introduction of subcategories that limit the scope of work that can be performed by architects.
The AIA called for Australia’s building ministers to implement consistent nationwide changes to improve safety and better protect people from poor compliance with building regulations.
Specifically, they urged the BMF to adopt a range of recommendations aimed at improving compliance with the National Construction Code (NCC).
Richard Kirk, the AIA’s acting national president, said with the emergence of non-traditional procurement methods, industry has lost the necessary clarity of responsibility of decision making around materials and building systems.
“The NCC sets minimum requirements for the design, construction and performance of our buildings and should ensure all those involved in construction and its regulation understand and comply with the minimum requirements for health, safety and amenity in buildings,’’ he said.
He noted that a number of authorities and governments have moved to reform building regulations, but said the problem was on a “national scale, requiring a consistent, cohesive national response’’.
‘Underwhelming’ response by Ministers
Engineers Australia endorsed the Report, but said the response by the BMF had been “decidedly underwhelming’’. It said all of the Report’s recommendations should be acted on immediately – not just recommendations 9-11, which the BMF has said are its priority.
“The BMF response to the report lacks teeth,’’ said EA.
“A comprehensive timetable for implementation is vital to building confidence in ministerial commitment to public safety.’’
Engineers Australia had previously warned that an event like Opal Tower could occur in a 2015 report that found that 85% of new strata units were defective on completion and the certification system in NSW had “broken down”.
Why Australia needs a federal Minister of Building
The Australian Institute of Building (AIB) contributed to the Report and its recommendations, which it endorses.
CEO Greg Hughes said the Report shows why Australia needs a dedicated federal Minister of Building and Construction.
“This is … an industry that employs approximately 10 per cent of Australia’s workforce and generates approximately 12 per cent of Australia’s GDP,’’ he said.
Such a Minister would be able to drive through legislation and address issues raised by the Report, such as the roles and responsibilities of regulators, and continuing professional development.
The AIB did note that as part of implementing the Report’s recommendations, the Australian Building Codes Board is currently working on simplifying and digitising the NCC, which it said should help.
A strong case for a Building Information Modelling Advisory Board
The Australian Construction Industry Forum (ACIF) welcomed the Report and said it was “significant” that it called for a nationally consistent approach to the issues raised.
It said the Report strengthen the case for the ACIF’s long-standing efforts regarding building information modelling (BIM) and the creation of an Australasian BIM Advisory Board.
It also urged the BMF to commit to a three-year timetable for implementation of the recommendations.
Call for an NCC Implementation Taskforce
Fire Protection Association Australia (FPAA) was broadly supportive of the Report’s recommendations. Critically, however, the FPAA said it was necessary that they are implemented in a nationally consistent manner, rather than independently by each jurisdiction along separate time frames with differing execution.
The current fragmented nature of administrative legislation in the building and construction sector, particularly around the implementation of the NCC, is a significant cause of confusion and complexity, and ultimately leads to less compliant outcomes, it said.
The FPAA, therefore, called for the establishment of an NCC Implementation Taskforce, drawing together government and industry to develop a model NCC Administrative Code to harmonise requirements and compliance with the NCC across all states and territories.
The state of affairs on flammable cladding in Australia
The fragmented nature of administration and legislation in the building and construction sector is complicated by the fact that each state and territory has provided a different response to the issue of combustible cladding.
At least two law firms are putting together class actions related to combustible cladding. Insurance litigation expert Maxine Till said there was the potential for significant litigation arising from the issue but legally the area was a very complex one, in part because of the numerous different applicable laws, codes and regulations across Australia.
“Each case will have to be considered on its own facts, which means there is no one answer that fits all to the question of who pays,’’ she says.
Likewise, despite numerous calls from industry bodies for a national coordinated response, it seems there is as yet no one answer to the question of how Australia is addressing the issues raised by Professor Shergold and Ms Weir.
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