Giorgio Marfella
Good afternoon, everyone.
My name is Giorgio Marfella and I'm the chairperson of the Architects Registration Board of Victoria.
I'll begin by acknowledging the Traditional Owners of the lands in which we are today in particular acknowledge the Wurundjeri People of the Kulin Nation, and I pay my respects to the elders, past and present.
So welcome back everybody to another ARBV webinar.
And today we are dealing with performance solutions or alternative solutions as they used to be known, which of course you are aware of, are a particular pathway to compliance of the national construction code.
And this webinar, as the previous one, this is the number of a series that we're offering at the ARBV and it's valid for formal Continuing Professional Development. Now in order to participate, you can scan this QR code that will take you to a form where you can answer some questions that will be put to you along the webinar. You'll have 24 hours of time to download a certificate (sic) and retain it for your records and also the webinar itself will be available pre-recorded for 24 hours for those who are not able to attend now, live.
Also take the opportunity to remind you all that CPD is a mandatory requirement for architects in Victoria, as well as in other states across Australia, and we do audit CPD compliance in Victoria, so be aware of that and this will certainly contribute to proof of that CPD activities that you're undertaking.
Today this presenter is Frances Hall.
Fran has been with us before in a previous webinar and she has collaborated with the ARBV on several occasions.
Fran is a special counsel at we are legal and consulting and she will take us through an overview of the implications that performance solutions can have, in particular for architects and what architects ought to consider when this particular form of compliance is followed in a project, relevant whether the architects are directly involved, or they are involving experts or other pathways through the use of consultants.
Now, as always, if you do have questions, we have a Q&A function that is available on the screen. If the questions are pertinent to the topic, you're most welcome to put them in there at the end of the presentation from Fran, I will be coming back and we can sort of go through the questions together and have a bit of a conversation.
So with this I can just hand over to Fran right now. Thank you.
Frances Hall
OK.
Thank you very much for that, Giorgio.
And like I said, I will try to leave some time at the end to answer any questions that you might have.
But to start with, on your screen you'll see the topics that we're going to cover today.
So what's required under the Building Act and the National Construction Code for a performance solution to be lawful and valid?
Who's involved in the preparation of a performance solution and who assesses it.
When, during design and construction of a building, can a performance solution be prepared?
What is the architects role in the performance solution process, and what steps should an architect follow to comply with their obligations, taking into account the Architects Act, contractual obligations and any common law duty of care.
So to start with, what is a performance solution?
So you would all be very aware with the requirement under the Building Act that building work has to comply with the act and with the regulations, the building regulations and the building regulations incorporate by reference the National Construction Code.
So when a relevant building surveyor is assessing an application for a building permit and they are looking at a design, whether that's prepared by an architect or by a building designer, they will be assessing that design against the requirements of the National Construction Code in order to decide, will this building work you've carried out in accordance with the design, will it meet the national construction code?
So what the NCC does is impose performance requirements for different aspects of a building.
So it's a performance based code. It doesn't prescribe every material to be used in every construction method to be used.
What it does is set standards that a building has to meet.
Those standards might include, for example structure, fire resistance, energy efficiency, ventilation.
There are many different categories.
So there are two different ways to meet the performance requirements.
You can follow the deemed to satisfy provisions that are set out in the code, and those are more detailed prescribed provisions. And when those are followed then the outcome is deemed to have met the performance, the performance requirements.
The other way of doing it is to prepare a performance solution or as Giorgio mentioned, they used to be called alternative solutions.
And that is a design that has been specifically created and formally assessed in order to demonstrate that the design meets the performance requirement.
So, the NCC sets out how you are supposed to develop a performance solution.
Clause A2G2 of the NCC sets out the steps.
Prepare a performance based design brief.
Carry out the analysis that is proposed by the design brief.
Evaluate the results and then prepare a final report.
So just to go through those steps in a little bit of detail, well actually before that we have our first quiz question. And if you haven't already got the QR code on your phone, you'll see it's in the top left hand corner.
So now is an opportunity to do that if you haven't already.
And the question is, what is a performance solution?
Is it:
A. Documents or data that show compliance with the NCC?
Is it B. A report that assesses a design to verify compliance with performance requirements of the NCC?
Is it C. A report that exempts part of the design from compliance with the NCC?
Or is it D. Information provided by the manufacturer?
So I'll just give you a minute to think about that and pop your answer in.
Well in the interest of keeping moving, I'll move on to the next slide, but the answer to that question was B.
These answers are all pretty similar, but the performance solution has to be in a report, it has to assess the design and it has to verify compliance with performance requirements of the NCC.
OK so who prepares the performance based design brief?
Which is the first step in developing a performance solution.
So it is usually a sort of a joint operation.
It can have involvement from all types of stakeholders, so the owner, the builder or project manager, the architect, usually engineers are going to be involved, it may involve the relevant trade practitioner, and it may involve a building surveyor. And I just wanted to comment briefly on building surveyor involvement in performance solutions because I think this is a topic that is perhaps not well understood.
Section 79 of the Building Act imposes a restriction on what the relevant building surveyor can do.
So, the relevant building surveyor is the building surveyor who has been appointed to issue the building permit for the work, and they are the person that will assess the design and when the building work is being carried out, they are the person who will carry out the inspections and issue the occupancy permit at the end.
So the relevant building surveyor cannot be involved in the design of the building and that is what Section 79 of the Building Act requires. So, in terms of development of a performance solution, the relevant building surveyor will need to know that there's a performance solution and will be involved in reviewing that performance solution as part of the building permit documentation, but they can't really be involved too much in the sort of input to the design. And so that's just something worth knowing. And if you need to engage a consultant building surveyor, so a building surveyor who is not the relevant building surveyor for the work, but someone who can give you guidance as to the operations of the relevant NCC provisions or other matters, that's a way of resolving that issue.
So what has to be included in a performance based design brief?
That is also something that is set out in the NCC, which is helpful.
So what has to be included is:
A summary of the building work that's being carried out.
A description and explanation of the proposed solution.
The applicable performance requirements.
The assessment process to be used. And we'll come to that shortly, because there's a variety of different assessment processes that are available.
The acceptance criteria.
What supporting evidence will be required.
The format and content of the final report.
And then stakeholder sign off.
So how should the performance solution be assessed?
So as I mentioned just previously, there are a variety of assessment methods set out in the NCC and any particular performance solution might require one or more of these assessment methods.
And so the first assessment method is evidence of suitability of the materials or products.
The second is a verification method from the NCC, or proof that there has been proof, that the appropriate authority has accepted that this design shows compliance, expert judgement or comparison with DTS provisions.
So I'll go through each of these methods, but just to say, the way this clause has been designed is to, I suppose, acknowledge that there is an enormous kind of variety of products that might be incorporated or used in any particular building project. There are always innovative new methods of construction or new products coming onto the market. And having a range of assessment methods, it sort of acknowledges that there's no one right way of assessing whether or not particular products or particular methodologies might meet the performance requirement.
So this is intended to sort of give quite a lot of flexibility to designers and to practitioners who are involved in building work, and that's in general a very good thing. But it does mean that kind of following through these provisions can be quite complicated.
So the first assessment method is evidence of suitability.
So evidence of suitability is documentary evidence that shows that a material product form of construction or design meets the relevant performance standard.
And there are six different ways that you can prove the suitability of the material or product or form of construction:
The first is Certificate of Conformity and many of you will be familiar with CodeMark certificates.
The second way is Certificate of Accreditation. You may also be familiar with the with BRAC and its accreditation process.
The third is a certificate from a Conformity Assessment Body, so a conformity assessment body is a sort of I guess it's a private body that has been approved by the relevant government authority to be able to issue conformity certificates on building products.
The next pathway is a certificate from a professional engineer or an appropriately qualified person.
Apologies, I'm just going to go back.
The next is a Test Report from an accredited testing laboratory.
And the last method is other sorts of documentary evidence, for example, a product technical statement.
Now which method that you use out of these six will really depend a lot on the product itself.
So the sort of the sort of products or things that you might need to provide evidence of suitability for might be, for example:
An external cladding product. If that's going to go on a, for example, an apartment building that needs to be of type A construction, then many of you will be familiar with the combustibility requirement.
There needs to be proof that the cladding product is non-combustible in accordance with Australian Standard 1530.1, that's going to require a test report from an accredited testing laboratory.
So it might be that the product itself kind of determines the evidence of suitability method that you need to use or need to be aware of.
There are other types of products, for example wall systems and the like. They might have a certificate of accreditation or a certificate of conformity.
So it's really going to depend on the product or the system itself, and what material the manufacturer or the installer can provide in relation to that product.
So the second assessment method is the Verification Method.
So verification methods are tests or calculations that are specified in the NCC as being ways to verify compliance with particular clauses.
So you may, if you've sort of had cause to try and work your way through the very complicated provisions of the NCC, you might have come across a particular clause that provides a way of verifying whether a particular performance requirement is met. And I've put an example in the slide, the access provisions in the NCC include verification method D1V2, which provides a way of modelling whether the performance requirement is met for access, based on the occupant profile and characteristics of the building.
So they're sort of very specific tests or calculations that are dotted through the NCC. Not every performance requirement is going to have a verification method specified for it, but some of them do.
And it's also the case, there may be other sorts of verification methods, other sort of tests or calculations that might be acceptable where compliance with the performance requirement has been demonstrated.
So the third sort of assessment method is Expert Judgement.
So this might be appropriate in a circumstance where computer modelling or product testing is not something that can be useful for this particular performance solution.
So I guess the really important question is who is, who can be an expert, for the purpose of expert judgment?
An expert is someone with the qualifications, skills and experience to form a judgement about whether the performance solution would meet the performance requirements. And we will get to this later. But it is certainly possible for an architect to be an expert for the purpose of providing an expert judgement assessment of a performance solution.
But it is a question of whether that person does have the requisite skills and experience.
So for example, it's not going to be appropriate for a fire engineering issue, but it may be appropriate for example, for an access issue for compliance with the access provisions, that might be something that, for example, an architect might have a great deal of experience in.
So the expert would need to clearly document their assessment process.
And that includes the matters taken into account informing their conclusion.
That is a really important point. I think the point needs to be made that expert judgement isn't just a case of somebody offering their opinion.
It is sort of sitting outside the kind of formal testing or modelling, but it needs to have more rigor to it, than a sort of, what I reckon kind of approach to assessment, there needs to the expert would need to set out how they approach assessment, what's being taken into account and putting in as much detail as possible about how they've concluded that the design meets the performance requirements.
So the fourth assessment method is comparison with deemed to satisfy provisions.
So this would involve having an accepted methodology for assessment of the design and then applying that methodology both to the deemed to satisfy provisions in the code as they would apply to this specific piece of building work and to the proposed performance solution and then comparing the outcome, and there would be a defined benchmark which would be sort of compliance with the performance requirement.
So this might involve, for example computer modelling or the like, in order to have a very clear comparison between the two processes.
So the final report, what has to be included?
The final report is really the structure and form of it is going to be, as has been specified in the performance based design brief, but it will include that the performance requirements that have to be met, the assessment methods that we used, the process that was followed, confirmation as to whether the performance requirements are met, and any conditions or limitations and it is really important when you are reviewing a report about a performance solution, to pay attention to that final issue of any conditions or limitations, because I think sometimes where the use of performance solutions has gone wrong, is where they have been applied perhaps too broadly, so that a condition or limitation that has been specified in the report hasn't been complied with. And so perhaps the end result of the building is that it's non-compliant because for example, the specific building product and again, external cladding is a sort of a good easy example of this. There might be a performance solution to use external cladding in certain places on the exterior walls of the building. That doesn't mean that the product can be used on the entirety of the exterior walls of the building.
So it is really important to pay attention to the conditions and limitations that are specified in the final report.
So who assesses the performance solution final report?
So as I said, it's the relevant building surveyor who has to assess the report or the evidence provided to support the compliance of the performance solution, and so generally that would be done as part of their role in assessing the application for the building permit. One of the documents that would be provided to them, as part of that application permit material is the performance solution. So the relevant building surveyor can rely on a certificate issued under Section 238 of the Building Act and that is a certificate that certifies compliance and has been issued by an endorsed engineer.
Now, where an RBS relies on that type of certificate, they have immunity from liability should it later be the case that it's found that, for example, that performance solution didn't in fact meet the performance requirements of the Act, so an RBS is going to lean towards accepting a certificate from an endorsed engineer as opposed to from another practitioner because it gives them that protection from liability. So that takes me to the third point, which is that an RBS can rely on a certificate from other qualified people. That would include an architect where they have suitable qualifications and experience, but it may be the case that an RBS might prefer a certificate from an engineer, because that in their view, would put them in a safer position.
So that's just something to bear in mind.
So that takes us to our second quiz question.
What must be included in a performance solution report?
Is it:
A. Evidence of suitability of products
B. Expert analysis
C. Comparison between performance under DTS provisions and performance under the design in question or
D. Any of the above depending on the context.
So I will just give you a minute to complete that question.
OK, assuming that you have all had the chance to answer that question, the answer of course is D. Any of the above depending on the context.
You may not always need to have evidence of suitability of products or any of the first three options.
It will really depend on the context of the performance solution that's being prepared.
OK.
So who can prepare a performance solution?
The NCC doesn't prescribe who can do this.
It will really depend on the type of work to which the performance solution relates.
It will depend on the assessment method that's being used and it will depend on the level of complexity.
So this is sort of something that I've already touched on. As I said, there are some types of parts of the code that are that require very specific knowledge.
So the fire resistance provisions are one example.
The sort of mechanical engineering aspects of the NCC are another example and so they will require, you know the involvement of a specialist fire engineer or a specialist mechanical engineer, and it will also depend on the level of complexity.
I'll get to some examples in a moment, but not all performance solutions are going to be extremely complex, so it might be for example an adjustment to the design of your guttering because, for one reason or another, the deemed to satisfy provision in relation to guttering just won't work on giving your site conditions.
So it's not always going to be extremely complicated and it will really just depend a lot on context.
As I said, where a certificate is being relied on, a certificate can be from an engineer or a registered building practitioner. In which case that section 238 immunity applies, but a certificate can come from another sort of appropriate expert, and that would include an architect.
So this is about the timing of a performance solution and in my experience, carrying out work in the building regulation space, this is a really vexed issue, and again, it's one that I don't think is necessarily well understood, particularly by builders.
Performance solutions have to be prepared at the design stage, and prior to the issue of the building permit and prior to the building work being carried out. That's because they have to be assessed by the relevant building surveyor and they form part of the overall design of the building.
My experience has been that builders, architects or other consultants may try to fix non-compliant building work that has already been carried out, by having a performance solution prepared for it, and I can't stress enough that that is not a permissible use of a performance solution. So, a performance solution can only be prepared for work that has not yet been carried out. And just as a sort of a further explanation of that, a building permit can be amended, but it can only be amended in respect of work that hasn't yet been carried out, so an amended building permit can be issued to allow a change in design and then building work can then be carried out on the basis of that change to design, but what you can't do, what building surveyors can't do is issue an amended building permit after that specific part of the building work has already been carried out.
So the question is then, what effect does a retrospective performance solution have?
Like I said, it doesn't cure any non-compliance in the building work.
What it can do, put at its highest, what it can do is provide evidence that might persuade the relevant building surveyor or any other regulatory body, for example the local council or the VBA. It might assist in persuading them that they don't need to take enforcement action in relation to that non-compliant building work.
So if you have council writing to the owner and saying you need to show cause why we shouldn't ask you to demolish this piece of building work, a sort of a performance solution report might be useful in persuading a Council not to take that step, but because it's occurring sort of after the fact, it doesn't resolve the problem that exists, which is that the building work wasn't carried out in accordance with the NCC.
So it is, you know, not an uncommon thing that there are last minute performance solutions that are prepared, and that might be for example, the building work is on foot, everyone's on site, you come to a certain point in the work and everyone becomes aware of this design is not going to work for you know some specific site related reason and it's understood that a performance solution will have to sort of quickly be prepared.
Now that's OK.
That can happen.
But it still has to happen in a way that meets the requirements in the NCC for Performance Solutions and the building surveyor needs to assess that and be satisfied that the performance solution has been properly prepared and then it will demonstrate compliance with the NCC.
So, some common examples of where this occurs is:
Building drawings that don't include all of the details, so for example, guttering details might not have been included, the plumber comes on site and becomes aware that a deemed to satisfy, a method of construction, can't be utilised on this building for site specific reasons and a performance solution has to be prepared.
Another example is where the drawings or specification nominates a particular product, but that product doesn't meet the deemed to satisfy requirements and no performance solution is prepared until the installer comes on site and says oh by the way, this is not deemed to satisfy, you will need a performance solution.
That's something that I've come across in a few different matters.
And then a third example is where a specified product is substituted by the builder and it is later identified that a performance solution will be needed if that alternative product is to be used.
Now just foreshadowing, I will talk about D&C and about builders, you know, providing products or alternative products for approval by architects.
So that's something that I'll get to in a in a little while.
So just another issue that I will raise is the question of standardised performance solutions.
So this is another thing that a sort of a regulatory issue that I've come across a few times. So for example, where builders have standardised designs, many volume builders will operate on standard designs, but also smaller builders as well.
They may incorporate some sort of standardised performance solutions that they say will apply to each house that is built, that is of that particular design.
Another example of standardised performance solutions is where a product manufacturer or the installer sort of offer wording for a standard performance solution for the use of that product.
Now, that's not necessarily incorrect, but I would say that you should be wary of standardised performance solutions, because any performance solution is required to account for the specific site characteristics, so there needs to be a report that's prepared that uses one of those assessment methods, that I've told you about before. Assessment methods and that assessment method should be taking into account the particular characteristics of the site, so not necessarily wrong to have a standardised performance solution proposed, but that performance solution does need to be considered and shaped in a way that is applicable to this particular site.
So as I mentioned, the impact of D&C procurement is something that is really relevant to this question of the development of performance solutions, and when they when they can occur.
And staged building permits is another thing that it just adds a real layer of complication into the performance solution process.
So you will be aware that it's very common practice in large developments for the building surveyor to issue staged building permits.
That's, it's fine to do that, but the building surveyor has to be satisfied when they are issuing those staged permits that the overall design will be compliant with the NCC. So, a performance solution can be issued at any of those stages, so long as the work hasn't, so long as the building work that is the subject of that performance solution hasn't already been carried out.
I think the risk with that though, is the lack of a clear picture as to what the end result of the building design is going to be.
So the building surveyor must be satisfied that the work will be compliant and so that needs to be ideally a performance solution would be foreshadowed very early in the stage permits and not as sort of a last minute thing. And the reason that I say that is because a performance solution may, it may impact other parts of the building and so part of the process of assessing that performance solution might be to consider, well, will this impact, you know, another performance requirement for another part of the building?
For example, if a performance solution is prepared for external wall materials at stage three of the building permit, the fire engineering report for the design will likely have already been prepared at an earlier stage, and that would require a revision of the fire engineering report to take into account this proposed performance solution.
So as I said, ideally if a performance solution is going to be incorporated, the best practice would be to identify what those performance solutions are going to be at the start of the process and before the stage permits start to be issued, rather than sort of being developed and considered and approved on an ad hoc basis through the staging of the permits.
So this takes us to our next quiz question, Question 3.
When can a performance solution be prepared?
Is it A. Anytime during the project?
Is it B. Only before the first stage building permit is issued?
Is it C. Prior to the relevant building permit being issued?
Or is it D. When an NCC non-compliance in the building work needs to be resolved?
I'll give you a moment to consider that.
OK.
So the answer to that quiz question is C. Prior to the relevant building permit being issued. So that sort of takes account of the fact that there might be many staged permits issued in respect of building work and the performance solution just needs to be issued and approved prior to the particular stage of building work.
So moving on to the obligations of the relevant building surveyor, it is, as I've said, it's their job to assess the building design and determine whether it complies with the NCC.
The RBS needs to identify when the design does not comply with the NCC and where a performance solution is required.
But as I said, they don't involve themselves in the actual production of that performance solution.
And I have noted here and many of you may have attended the previous webinar where the State Building surveyor Steve Baxas presented to you all, and one of the things that he talked about was, a push to make sure that building surveyors aren't issuing permits where the building drawings are complete, because that is that is an issue that has been identified and that sort of contributes to this problem of performance solutions not being prepared in early stage because they haven't, the need for them hasn't been identified.
So what is the architects role in the performance solution process?
So architects may be involved in a range of ways:
It might be to identify the need for a performance solution.
It might be to liaise with the building surveyor, the owner, or the builder regarding its preparation.
It might be as a stakeholder contributing to the development of the performance based design brief.
Or it might be in actually preparing or certifying the performance solution.
That takes us to question four of your quiz questions.
Can an architect prepare a performance solution?
The options are:
A. No. Architects don't have the required expertise.
B. Yes. The architect can decide whether they are prepared to issue a performance solution.
C. No. Building surveyors won't accept a performance solution prepared by an architect.
Or D. Yes, if the architect has the requisite expertise and follows the process in the NCC.
So I think I've made that question nice and easy for you.
That answer is D. Yes, an architect can prepare a performance solution, but only where they have the requisite expertise and they follow the process in the NCC.
So that takes us to the Architects obligations relating to performance solutions.
So as you'd be aware, architects have obligations on a number of bases.
One of the bases is their statutory obligations that they owe under the Architects Act.
The second is contractual obligations under their client architect agreement.
And the 3rd is a common law duty of care.
So I'm just going to look at each of those and what that might mean for you in terms of your obligation specifically in relation to the performance solution process.
So Architects Act and the Code of Conduct in the Architects Regulations impose requirements of professional and competent conduct.
And the Code of Conduct also sets out some sort of really specific obligations regarding how architects conduct themselves during the course of providing architectural services and more generally.
So what that means in terms of what your obligations are, in terms of a performance solution, is it means that you need to sort of meet the standard of professional and competent conduct.
And that means you need to ensure so far as you can, that the building drawings at the building permit stage are sufficiently complete so that any need for a performance solution is identified.
And to have enough knowledge about the NCC to identify the potential need for performance solutions. Even at an early stage, for example in preliminary design stage and town planning drawings.
So, in terms of what I'm saying about the requirement for knowledge of the NCC, the NCC is a very large document and a very complicated document, and it is designed to be utilised by a whole range of different qualified people and practitioners in the building industry. I'm certainly not suggesting that architects need to be familiar with every clause and every volume of the NCC. That's just not possible, and that's not the way the NCC is designed.
And I don't say that the Architects Act imposes an obligation of expertise in all areas of the NCC, but I think what is required to meet the requirements of professional and competent conduct, is to have a solid working knowledge of the NCC, to understand how it operates, to see how it might apply to the building that you are designing, and to identify where it might be the case that your design is deviating from the deemed to satisfy provisions. So, you don't have to know everything about the code, but you have to:
A. Turn your mind to the question of compliance with the code and
B. Have enough knowledge to understand well this might be an area where a performance solution might be required.
In terms of your contractual obligations, this is always going to depend on what the terms of the agreement are, so you should for every project that you're doing have a good look at the agreement that you're using. If you're using your own standard agreement, then you'll very familiar with it. But you may have been asked to sign a consultancy agreement, or the like, and if that's the case, then you need to look at it and ask yourself whether it requires that you produce a design that complies with all of the legislative requirements.
Does the contract make you the lead consultant and does it make you responsible for coordinating the work of other consultants and ensuring the compliance of their work?
Does it impose specific obligations on you in relation to dealing with the relevant building surveyor?
So those are all really important things to know, if those things are in your contract, and it turns out that your building design is not compliant because a performance solution was required but hasn't been produced, then you may be held to be in breach of your contract.
Now, of course the building surveyor has obligations here and that is relevant, and that's something that I'll speak to in a minute.
So what, what I would say is it's important:
A. To understand that the contract that you're working under and
B. Have processes for making sure that where you identify issues that you are liaising with the building surveyor so that you make sure that the building surveyor has turned their mind to the question of whether a performance solution is needed.
So in terms of common law obligations, this is the third source of obligations for architects.
You have a duty of care at common law. That is, that is decided by the courts, what case law has decided. That you have a duty of care in negligence to your clients to prevent loss and damage to them and what that requires you to do is to conduct yourself with the standard of competence expected of a reasonable skilled architect.
You may also have potentially a duty of care to subsequent purchases of the building that you have designed.
So what does that mean?
How do you protect yourself against all of those obligations?
That's what I've set out in this slide.
So you need to pay really careful attention to the products and the methods that are being specified in your drawings or in your specification.
Consider whether they're likely to meet the deemed to satisfy provisions or whether they might need a performance solution.
Raise this with the relevant building surveyor because they are the ones that ultimately determine the compliance of the design.
So raise it with the RBS and if you need to get advice from a consultant building surveyor or other sort of relevant professional like an engineer.
Where there are design changes you should make sure that you raise this with the RBS and where there are sort of proposed product substitutions or approvals you should keep in mind the need to make sure that whatever is being approved is a compliant product, and if it appears that it's not compliant in a deemed to satisfy way that a performance solution will be required.
So you should turn your mind to that issue and then get confirmation from the RBS as to whether or not a performance solution is required.
And then lastly, when a performance solution is prepared, make sure that it's thorough and that it's clearly documented and that it's been prepared by someone who has the right qualifications.
And one thing that I would add to that, is I would say, for your own sort of internal processes, you should document the steps that you've taken. Any of those five steps have a way of documenting that internally, and ideally you would have a sort of a checklist or an internal process that would make this a standard step for you to go through, and that's the best way that you can discharge each of those statutory, contractual and common law obligations.
So that takes us to question 5.
What steps should architects take to comply with their obligations in relation to performance solutions?
A. Get the RBS to deal with them.
B. Tell the builder to resolve it with the RBS.
C. Prepare the performance solution themselves or
D. Check the design against the (sorry just went off the slide) check the design against the NCC, raise it with the RBS and make sure product substitution approvals include consideration of NCC compliance.
OK.
So the answer to that one is D. Check the design, raise it with the RBS and make sure product substitution approvals include consideration of NCC compliance.
So, just to finish off, dealing with obligations under a design and construct contract.
It's important to say that a D & C procurement process doesn't change at all the obligations for a compliant design.
So what that means is where the RBS has signed off on the design and issued a building permit, the builder can't just substitute materials where that might have an impact on compliance.
If, as an architect, you're asked to approve a substitution, you should take care to check compliance where it's possible that the product or material where it might be relevant to compliance under the NCC, you need to turn your mind to that.
And you should raise it with the RBS to make sure that they identify whether a performance solution is required and if one is required then you should look at it and make sure that it's properly prepared and assessed.
So that takes us to the last question.
Will a performance solution be required where there is a proposed product substitution by a builder under a design and construct contract?
So in the interests of time, I will jump quickly to the answer on that.
Yes, where the substituted product does not meet the deemed to satisfy provisions then yes, a performance solution will be required where there is a proposed product substitution. But of course you're going to need to check that on a case by case basis.
So I have put up on these slides some useful links to the VBA practice note.
The Australian Building Codes Board has very useful resources on its website and so I have a couple of links there as well.
So I'll just ask if there's any questions?
I'm conscious that I have gone a little bit longer than I intended to, so there may not be a lot of time for questions.
But Giorgio, can you see any questions that you think might be useful for a really quick discussion?
Giorgio Marfella
I see a lot of thumbs ups and a lot of love hearts, so I think it's been very well received.
Certainly was a lot of information, but very informative.
I have a question.
I suppose we can wrap up very, very quickly.
And so you mentioned, of course, you know the national construction code structure which applies across Australia, but there was some reference to The Building Act in Victoria, so my question is, are there any particular variations between Victoria and other states that architects should be aware of, for Victorian architects, particularly having to work interstate.
Frances Hall
In terms of the NCC?
Giorgio Marfella
In terms of the statutory requirements of each state, because ultimately you know the NCC is the framework in which then things are approved by the states though.
Frances Hall
Yeah, yeah.
Well, so there's sort of a reasonably uniformed approach to this.
So each of the states and territories sort of incorporates into their own legislation the requirement to comply with the NCC.
So there may be, there are differences between states in terms of that, I suppose the prebuilding work process. So for example, in NSW architects have a obligation to certify their design compliance.
That's something that doesn't exist in Victoria.
So yeah, there will be, there will be differences in the different states that everyone needs to be aware of, but I suppose the essential question of turning your mind to what's in the NCC, that's sort of a universal requirement.
Giorgio Marfella
Yeah, it's definitely a consistent approach, which is one of the benefits of architects having a nationally consistent, also a regulation system with some minor variations.
So the bulk of what’s said here is definitely applicable also interstate.
Thank you very much Fran, it was a very, very informative session.
I look very much forward to the next one. I can anticipate that the RBV will provide another two webinars in just before the end of the financial year.
So please stay tuned as always through our newsletter.
So again, thank you for Fran and thank you everybody for attending today's seminar.
See you next time.
Frances Hall
Thank you.
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