The impact of documented performance solutions in the NCC
The Building Code of Australia / National Construction Code (NCC), contains a series of Performance Requirements, which are satisfied by either Performance Solutions, Deemed-to-Satisfy Solutions, or a combination of both. Accordingly, Performance Solutions, are the method of satisfying the Performance Requirements when the DTS Solutions can not.
Performance Solutions have at times proven to be contentious due to a perceived lack of transparency in how they satisfy the Performance Requirements of the NCC and the differing standards of documentation (if they have been documented at all).
The activation of Part A2.2(4) of the NCC on 1 July 2021 has now increased the level of transparency in the issuing of building consents by Building Certifiers in requiring a formal method of documentation of Performance Solutions.
What has changed – NCC Part A2.2(4)
Part A2.2(4) of the NCC was published in July 2020, but the provision has only taken effect as of 1 July 2021. Its activation means that, in approving a Performance Solution, the following steps must be undertaken:
(a) Prepare a performance-based design brief in consultation with relevant stakeholders.
(b) Carry out analysis, using one or more of the Assessment Methods listed in Part A2.2(2), as proposed by the performance-based design brief.
(c) Evaluate results from step (b) against the acceptance criteria in the performance-based design brief.
(d) Prepare a final report that includes –
(i) all Performance Requirements and/or Deemed-to-Satisfy Provisions identified through A2.2(3) or A2.4(3) as applicable; and
(ii) identification of all Assessment Methods used; and
(iii) details of steps (a) to (c); and
(iv) confirmation that the Performance Requirement has been met; and
(v) details of conditions or limitations, if any exist, regarding the Performance Solution.
The relevant Assessment Methods in Part A2.2(2) (as referenced above), include:
The process above means that the steps taken to arrive at a Performance Solution must be clearly articulated and evident in the final report, which is required to be documented in a Building consent. Where such steps are not satisfied, there may be grounds to establish that the building consent has not been validly issued.
What does this mean for the granting of Development Approvals?
Pursuant to Section 118(8) of the PDI Act, councils are required to accept that proposed building work complies with the Building Rules to the extent that such compliance is certified. The scheme of the legislation is that where a certifier has granted building consent, it is not the role of a Council to “go behind” that consent and undertake its own assessment. The exception to this occurs where the decision of a Building Certifier is subject to jurisdictional error (i.e. beyond the authority of the decision-maker) and is therefore no decision at law.
In Cairo v Corporation of the City of Norwood, Payneham & St Peters & Anor  SAERDC 11 the ERD Court accepted that there are certain circumstances where a Council is justified in not issuing development approval where reliance is placed on purported consents that suffer from a jurisdictional error.
Examples of Jurisdictional errors include a mistaken assertion of jurisdiction; that a decision was so unreasonable, irrational or illogical that no reasonable decision-maker could have made it; the taking into account of irrelevant considerations; or a failure to take into account relevant considerations.
With the commencement of Part A2.2(4), councils will now be able to better comprehend the processes taken by a Building Certifier in approving Performance Solutions. If a Council is presented with a building consent and observes that an applicable and important Performance Requirement of the NCC has not been met through the DTS provisions and that there is no documented Performance Solution, it may be possible to contend that the building consent is invalid at law and appropriately withhold granting development approval.
Before taking that step however, we would recommend contacting the certifier advising of the issue and giving them an opportunity to explain the alleged failure to meet the Performance Requirement.
For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or firstname.lastname@example.org, or Nicholas Munday on +61 8 8217 1381 or email@example.com.