The basic components of a performance-based regulatory system

Recent trends in building control systems have reflected a general move toward national uniformity, the introduction of more flexibility into design and construction processes and enhanced roles for the private sector. However, in order to maximize the potential acceptance and operation of performance-based design and construction standards, there is a need for interrelated administrative reforms.

In essence the effective operation of performance-based building regulations requires that there are also reforms to regulatory provisions that address the following:

䊉 appropriate tertiary qualifications for practitioners

䊉 accreditation/registration of building practitioners

䊉 mandatory insurance cover

䊉 time-related limitations to practitioner liability

䊉 proportionate distribution of liability

䊉 determination of the propriety of alternative solutions.

9.4.1 Appropriate tertiary qualifications for practitioners

Historically there has not been the need for industry practitioners to hold tertiary qualifications, generally taken to be a minimum of a Bachelors degree, within many facets of the building control industry. However, as countries move toward, or adopt, performance-based building regulations, there is an accompanying need for practitioners to be appropriately qualified. This arises from the need for industry practitioners to possess an in-depth understanding of performance-based building regulations, rather than simply possessing knowledge of what is prescriptively required by legislation. Under a prescriptive regulatory regime, practitioners generally only need to know what is prescribed, then in the event that something special is designed or needs to be approved, the approval authority has a specialist procedure for approval matters that are out of the ordinary.

Under a performance-based regime, however, both designers and approval authorities need to understand both what is required and why it is required in order to develop or approve appropriate alternative solutions. Consequently they need to have appropriate qualifications. For example, most prescriptive regulatory systems specify a maximum distance for a path of travel to an exit of, say, 40 m. It is relatively easy to measure a proposed design and determine if it complies. However, under a performance-based regime there would be no maximum, and therefore a designer, and subsequently an approval authority, would need to know the origins and reasons for the previous prescriptive maximum distance of 40 m in order to approve a greater distance.

Consequently, the science behind the previous prescriptive needs to be understood in order to produce appropriate alternative solutions.

9.4.2 Accreditation/registration of building practitioners

As the application of performance-based building regulations generally requires specialist knowledge to be applied to the design or approval of alternative solutions there is a need for practitioners to demonstrate that they have the qualifications and experience to operate effectively within a performance-based regime. Many regulatory authorities have established systems of accreditation or registration of practitioners, through either government agencies or professional practitioner institutions, to monitor and control the performance of practitioners. It would appear from local experiences that the accreditation/registration of all industry practitioners, not just private practi-tioners, is the most appropriate system.

9.4.3 Mandatory insurance cover

Most systems of accreditation or registration require practitioners to maintain a prescribed minimum level of insurance cover to protect consumers. Under a performance-based regime, a practitioner cannot be expected to be a ‘jack of all trades’ and have sufficient knowledge to undertake the design or approval of all technical matters addressed within building regulations. Consequently there is a need for most practitioners to rely on other specialists at some time. If a specialist practitioner is accredited in a particular field, then others should be able to rely upon documentation produced by that practitioner without fear of inheriting liability in the event of a consequential occurrence. Most accreditation bodies will, therefore, generally require that a mandatory minimum insurance cover be held by all accredited practitioners in order to protect clients who use their services.

9.4.4 Proportionate distribution of liability

Proportionate liability is a form of liability that is proportionally distributed based on the assessment of a determining authority, such as a court of law. A major benefit of this form of liability is that defendants are generally only held accountable for the portion of the total liability for which they are judged to be responsible. Due to the perceived need for practitioners, including approval authorities, to be reliant upon documentation provided by other accredited practitioners in order to fulfil their regulatory roles, proportionate liability is considered to be an integral component of an effective performance-based building control system.

In some systems there are liability waiver provisions that provide that accredited practitioners are not to be held liable if they rely, in good faith, on documentation produced by other accredited practitioners.

9.4.5 Time-related limitations to practitioner liability

Associated with the application of proportionate liability provisions is the limitation of liability with respect to time. As part of their performance-based building control regime, many regulatory authorities have introduced administrative provisions that set a maximum period, say, of 10 years, within which any claims for latent damages must be lodged. This eliminates the potential for ‘life of the building’ responsibility to be applied and the subsequent liability problems for designers, constructors and approval authorities that such a system can impose.

9.4.6 Determination of the propriety of alternative solutions

Obviously the introduction of performance-based building regulations can impose significant pressures on certain practitioners in the design and construction process, particularly the approval authorities. Many approval authorities may ask, ‘What is in this for me – why should I take a potential risk and approve something new and innovative?’

This is often a legitimate question for approval authorities that do not have appropriately

trained staff to assess alternative solutions and who may not fully understand the basis upon which the traditional recipes for design and construction have been developed. In this context it would be difficult for a practitioner who does not have the necessary skills to assess the propriety of an innovative alternative solution and unfair that they should be placed in a position where they are required to do so. In such circumstances in is inevitable that the practitioner will refuse to approve an alternative solution and so the re-education of some practitioners is fundamental to the long-term success of the implementation of