Australia: NSW con­struc­tion indus­try — per­spec­tive of an expert (part 1 of 6)

Last Updated: 16 May 2019
Article by Helen Kowal

Inter­view with Peter Kar­sai – Cladding specialist

Over the com­ing weeks, I will be releas­ing a six part arti­cle series. The arti­cles will doc­u­ment my dis­cus­sions with build­ing con­sul­tants who are in the know when it comes to the cur­rent state of the NSW con­struc­tion indus­try and the high per­cent­age of prop­er­ties which are found to con­tain build­ing defects aris­ing from orig­i­nal con­struc­tion works.

These experts will give their per­spec­tive on the cur­rent sit­u­a­tion, the fail­ings, the pos­i­tives and their views as to what can be done to imple­ment change and help builders, devel­op­ers and con­sumers alike.

Present­ly, in place is the Nation­al Con­struc­tion Code (NCC), imple­ment­ed with a goal of achiev­ing a 'nation­al­ly con­sis­tent, min­i­mum nec­es­sary stan­dard of rel­e­vant safe­ty (includ­ing struc­tur­al safe­ty and safe­ty from fire), health, ameni­ty and sus­tain­abil­i­ty objec­tives efficiently'.

There is appar­ent work to be done to achieve the goals of the NCC.

Peter Kar­sai

What is your area of expertise?

Cladding spe­cial­ist (devel­oped from a struc­tur­al con­sul­tan­cy background).

How long have you been involved in the con­struc­tion industry?

Since the ear­ly 1980's.

For what length of time have you been pro­vid­ing expert wit­ness reports in build­ing defect claims?

For over 20 years.

With the NCC in place, why do you think there is still a high rate of defec­tive work aris­ing out of res­i­den­tial con­struc­tion in NSW?

The NCC appears to be out of sync with mod­ern build­ing prac­tices and com­pe­ten­cies, and as a result the NCC often omits the checks required to guard against well-known weak­ness­es in the con­struc­tion industry.

Put sim­ply, the struc­ture of the NCC does not appear to be focussed on achiev­ing the deliv­ery of suc­cess­ful build­ing projects. These short­com­ings lead to con­fu­sion amongst indus­try play­ers, which in turn often results in peo­ple not know­ing what to do or how to do it.

To under­stand these appar­ent weak­ness­es in the NCC's struc­ture, one needs to con­sid­er the basic pro­cure­ment strate­gies that are used in construction.

Tra­di­tion­al­ly, a pre­scrip­tive approach formed the basis of all con­struc­tion projects, in which the client's con­sul­tants defined what mate­ri­als were to be used, how they were to be assem­bled, and how the con­sul­tant would ver­i­fy that both the mate­ri­als and assem­bly were cor­rect. This pre­scrip­tive approach was mir­rored in the pre­vi­ous build­ing code (which was known as ?'Ordi­nance 70').

As new mate­ri­als and con­struc­tion tech­niques became avail­able, the pre­scrip­tive approach was found to be too restric­tive and unable to adapt to the grow­ing com­plex­i­ty of mod­ern con­struc­tion. This led to evo­lu­tion of Ordi­nance 70 into a per­for­mance based build­ing code (the BCA, now known as the NCC).

How­ev­er, the per­for­mance based struc­ture of the NCC does not mir­ror the approach tak­en by the build­ing indus­try to per­for­mance based pro­cure­ment (com­mon­ly known as the 'Design and Con­struct' process). Under a Design & Con­struct process the client's con­sul­tants defined the per­for­mance require­ments and the min­i­mum require­ments that the con­trac­tor need­ed to achieve, togeth­er with the ver­i­fi­ca­tion checks that both of these require­ments had been met.

The under­ly­ing premise of this approach is that the con­trac­tor under­takes the detailed design, and the fun­da­men­tal pre­req­ui­site of this approach is that the con­trac­tor is capa­ble of under­tak­ing the design.

In essence, per­for­mance based pro­cure­ment will strug­gle to deliv­er suc­cess­ful out­comes if the con­trac­tor does not know what he is doing (no sur­pris­es here).

The NCC adopts a dif­fer­ent approach which, whilst stat­ing that it is per­for­mance based, does not stip­u­late much in the way of min­i­mum require­ments, and con­tains ambigu­ous and some­times con­fus­ing require­ments for verification.

In addi­tion, the NCC con­tains an alter­na­tive demon­stra­tion of com­pli­ance known as the 'Deemed to Sat­is­fy' approach. Ear­li­er ver­sions of the NCC inferred that adop­tion of the Deemed to Sat­is­fy require­ments would be accept­ed as a dis­charge of the per­for­mance oblig­a­tions. How­ev­er, the cur­rent NCC now appears to infer that regard­less of the adop­tion of a Deemed to Sat­is­fy approach, the per­for­mance require­ments still need to be met (which rais­es the ques­tion of what is the point in hav­ing Deemed to Sat­is­fy requirements?).

Last­ly, the NCC appears to pro­mote alter­na­tives to the ver­i­fi­ca­tion of its require­ments by design pro­fes­sion­als (via the accep­tance of test reports, cer­tifi­cates of con­for­mi­ty, cer­tifi­cates from 'appro­pri­ate­ly qual­i­fied per­sons', and 'any oth­er form of doc­u­men­tary evi­dence'). In effect, it appears that all of the NCC's require­ments can be ful­filled in the absence of any design professionals.

What are some exam­ples of the con­fu­sion aris­ing out of the cur­rent system?

An exam­ple of the con­fu­sion pre­sent­ed by the NCC is its require­ments for weath­er­proof­ing. The per­for­mance require­ment is straight­for­ward (hab­it­able struc­tures need to be weath­er­proof), the min­i­mum require­ments are unstat­ed (how long should the weath­er­proof­ing design per­form, 6 min­utes, 6 hours, 6 months, 6 years or 60 years?), and the ver­i­fi­ca­tion require­ments can be as low as a cer­ti­fi­ca­tion by an 'appro­pri­ate­ly qual­i­fied per­son' (with­out any clear def­i­n­i­tion of what this means).

But, should the con­struc­tion team seek to adopt a Deemed to Sat­is­fy approach, then the NCC leaves them adrift (there are no Deemed to Sat­is­fy solu­tions offered by the NCC for com­mer­cial buildings).

Per­haps the most unset­tling aspect about the NCC's approach is that it assumes that the indus­try knows how to weath­er­proof mod­ern build­ings (i.e. that the indus­try knows what it is doing), and so there is no neces­si­ty to require that a design­er be engaged (to work out a project spe­cif­ic holis­tic weath­er­proof­ing design that will meet the per­for­mance requirements).

This approach is repeat­ed for con­den­sa­tion issues and com­bustible cladding issues.

In your view, what are the shortcomings?

To say that parts of the indus­try are in a mess at the moment, would be an under­state­ment (par­tic­u­lar­ly with respect to weath­er­proof­ing, con­den­sa­tion, and com­bustible cladding issues).

How­ev­er, the major­i­ty of our prob­lem projects were designed, con­struct­ed and cer­ti­fied in accor­dance with the reg­u­la­to­ry regime defined by the NCC.

I sus­pect that the short­com­ings of this reg­u­la­to­ry regime were, for many years, over­looked by the indus­try play­ers on the basis that "as long as our build­ings are safe, we can live with it". How­ev­er, we are now expe­ri­enc­ing the types of struc­tur­al fail­ures that pre­vi­ous­ly were only seen in news reports from third world countries.

In my expe­ri­ence we are not only see­ing poor­er per­for­mance in cur­rent build­ing projects (com­pared to 30 years ago), but the rate of defec­tive work appears to be increasing.

What, in your opin­ion, can be done to improve the increas­ing num­bers of defects aris­ing out of con­struc­tion work in the res­i­den­tial sector?

There appears to be con­cern with­in the reg­u­la­to­ry author­i­ties about putting an addi­tion­al cost bur­den on the indus­try to get things right first time, which is ben­e­fi­cial for the devel­op­er (who pays for the project once), but often quite a bur­den on the indi­vid­ual own­ers (who pay once to pur­chase, and then again to repair).

One good thing is that the recent spate of cladding fires have thrown the indus­try into such a state that there is already evi­dence of a big shake­up of the indus­try, with a num­ber of Aus­tralian State build­ing author­i­ties seem­ing to have aban­doned wait­ing for a revi­sion of NCC, as demon­strat­ed by the intro­duc­tion of min­i­mum require­ments for cladding mate­ri­als, and the min­i­mum require­ments for engi­neer­ing com­pe­tence (reg­is­tra­tion of build­ing pro­fes­sion­als). In effect, this shift has been already in play for a num­ber of years (with the min­i­mum require­ments set by the Home Build­ing Acts in var­i­ous Aus­tralian States, and the reg­is­tra­tion of engi­neers in Vic­to­ria and Queens­land), and today being extend­ed to plug what appear to be new gaps in the NCC.

The very fact that the State author­i­ties are rush­ing to increase their own build­ing require­ments sug­gests that the NCC is get­ting to the stage where it is at risk of being con­sid­ered as 'fun­da­men­tal­ly bro­ken' and irrelevant.

What is the cur­rent state of play with cladding?

An exam­ple of the cur­rent state of play (or dis­ar­ray) is the con­tro­ver­sy over com­bustible cladding.

Con­cerns regard­ing 'cladding' require­ments in Aus­tralia have been around for a long time and have not just arisen. 20 years ago the Aus­tralian Build­ing Codes Board was the prin­ci­pal finan­cial con­trib­u­tor to a report pre­pared for work com­mis­sioned by the Fire Code Reform Cen­tre Limited.

The 'Branz Report FCR 1 Fire Per­for­mance of Exte­ri­or Claddings' was released in April 2000 and the pref­ace for this report was not­ed as 'This is a report on an inves­ti­ga­tion of fire per­for­mance and test meth­ods for reg­u­lat­ing the fire safe­ty per­for­mance of exte­ri­or claddings in Aus­tralia'. The upshot of this report was that 'the exist­ing con­trols are in some cas­es not suf­fi­cient­ly spe­cif­ic' and that 'require­ments in the Deemed to Sat­is­fy parts of the BCA relat­ing to the use of com­bustible claddings and their eval­u­a­tion for con­tri­bu­tion to sur­face spread of flame would ben­e­fit from revision'.

Per­haps with fore­sight as to the prop­er­ty dam­age suf­fered as a result of cladding fires in recent times, the Aus­tralian Build­ing Codes Board may have been more pro-active in imple­ment­ing sug­gest­ed revi­sions of the NCC regard­ing cladding. This imple­men­ta­tion is now occur­ring, but the delay means that we now have over 15 years of recent build­ing con­struc­tion to audit and rec­ti­fy (often at con­sid­er­able cost to indi­vid­ual apart­ment owners).

Any pos­i­tives?

On the pos­i­tive side, in my expe­ri­ence, most builders gen­uine­ly would pre­fer to just get it right the first time. Builders real­ly just need the reg­u­la­to­ry frame­work to facil­i­tate that, and if this was put in place then the rate of defects would sig­nif­i­cant­ly reduce.

When defects are appar­ent, how cre­ative can you be in com­ing up with a rea­son­able alter­na­tive solu­tion to rec­ti­fy­ing a defect with­out rip­ping every­thing apart and start­ing again?

My expe­ri­ence has been that the secret to the suc­cess­ful deliv­ery of a new project rests in the qual­i­ty of the design and the qual­i­ty of the pro­cure­ment strat­e­gy. The qual­i­ty of the con­struc­tion is obvi­ous­ly also impor­tant. How­ev­er, the checks/verification of the con­struc­tion qual­i­ty are set by the design and pro­cure­ment strategy.

In effect, suc­cess­ful con­struc­tion projects do not hap­pen by acci­dent, they hap­pen because they are "designed" to be successful.

In a sim­i­lar man­ner, the secret to a suc­cess­ful rec­ti­fi­ca­tion project is also dri­ven by good design and good pro­cure­ment. Only a design process can iden­ti­fy 'out­side the square' and viable 'alter­na­tive solutions'.

The dif­fi­cul­ty that the indus­try faces is the ongo­ing wor­ship of the mantra that suc­cess­ful projects will be deliv­ered by the secur­ing of "war­ranties" and "Code­mark" com­pli­ance cer­tifi­cates, and that these doc­u­ments elim­i­nate the need for a design.

War­ranties are very use­ful things to have – once a dis­pute is in play! How­ev­er, a war­ran­ty will not avoid a dis­pute (only good design and pro­cure­ment will do that).

By exam­ple, the most pow­er­ful war­ranties avail­able are those pro­vid­ed in the NSW Home Build­ing Act, and yet res­i­den­tial con­struc­tion fea­tures high­ly in con­struc­tion defect dis­putes and litigation.

Out of inter­est, what is the worst or most unusu­al defect you have seen in your time report­ing as an expert on build­ing defects?

The worst would be a large mul­ti-sto­ry com­mer­cial office build­ing recent­ly con­struct­ed in Canberra.

The mod­ern cur­tain wall façade leaked in places, but, fol­low­ing an inves­ti­ga­tion it was iden­ti­fied that the water ingress was the least of the owner's concerns.

It was found that the entire façade had been con­struct­ed and installed with­out any struc­tur­al engi­neer­ing input, what­so­ev­er. The cladding sub­con­trac­tor had appar­ent­ly adopt­ed the schemat­ic design shown on the architect's draw­ings – literally!

Short­ly after our assess­ment (and peer review by anoth­er expert cladding con­sul­tant, as sure­ly this sit­u­a­tion could not be true, not in the Cap­i­tal City of a first world coun­try like Aus­tralia) the build­ing was wrapped in struc­tur­al net­ting to pre­vent the façade from falling off before the façade could be dis­man­tled and struc­tural­ly strengthened.

Inter­est­ing­ly, the build­ing was ful­ly com­pli­ant with the require­ments of the NCC, and was duly issued its occu­pa­tion cer­tifi­cate (in spite of the struc­tur­al ade­qua­cy of the façade, or lack there­of—it appeared that an 'appro­pri­ate­ly qual­i­fied per­son' with­out any engi­neer­ing qual­i­fi­ca­tions cer­ti­fied that it was all good).

For further information please contact:

Helen Kowal, Partner
Phone: +61 2 9777 8321
Email: hek@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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