What’s the difference between certification, regulation, and law, and what do these differences mean for your company?
With commercial projects springing up like the proverbial mushrooms after a summer shower, a number of international design heavyweights including Kengo Kuma, Zaha Hadid Architects, and BIG have been attracted to what seems to be a never-ending supply of construction projects where the appetite for innovative design borders on the insatiable.
While this boom period is driving unprecedented creativity and competition and is good news for the commercial sector, it must be accompanied by a word of warning. Australia’s design industry is positioned in the midst of a complex legal and regulatory landscape, the requirements of which must be carefully complied with.
This is particularly critical in commercial and hospitality projects, where failure to meet the requisite standards can have disastrous repercussions including damage to property, injury or loss of life, and legal action.
Failure to comply with regulations and certification schemes does not in itself attract legal penalties. The opposite is true of the third tier of responsibilities with which designers must comply: legal rules found in case law and legislation. The latter type of law is more immediately relevant to designers and architects, since legislation clearly prescribes the acceptable standard or scope of practice.
The Disability Discrimination Act 1992 (Cth), for example, clearly states that it is illegal to discriminate against a person on the basis of physical or mental disability in many areas of public life including the use and access of public space. Specifically, section 23(c) of the Act makes it illegal to prevent a person with a disability from accessing premises by failing to provide a suitable means of access to said premises.
This extends to commercial space, and enforces upon designers and architects a legal duty to incorporate accessibility features into their design: failure to do so may be found in breach of the Act, and may result in legal action and the relevant penalty(ies) in Division 4 of the Act.
The first tier of requirements that Australian designers must be aware of comprises opt-in certification programs such as Green Star, NABERS, and Global GreenTag. While compliance with these certification schemes is certainly beneficial – both in having a positive environmental impact and in meeting growing consumer demand for sustainability and wellbeing – it is not mandatory.
Although there are no penalties for failure to meet the requirements of a voluntary certification scheme, designers should be mindful that compliance is fast becoming the norm: according to the International Green Building Adoption Index, 46.5 percent and 28.8 percent of all office space in Sydney and Melbourne is “green” certified, placing both cities well within the global top 10 for green office space. Against this backdrop, it is apparent that choosing not to opt into voluntary certification is a missed opportunity.
The second tier of requirements includes the National Construction Code (NCC) - which includes the Building Code of Australia (BCA) and the Plumbing Code of Australia (PCA) - and the Australian Standards. Together, the NCC and Australian Standards set out the minimum requirements for both exterior and interior building elements.
As the NCC is called up by all States and Territories in their respective building regulations, the mandatory Performance Requirements set out therein must be satisfied either by way of a Performance Solution, Deemed to Satisfy Solution, or both. In short, the NCC establishes the minimum standard of construction necessary to provide for health, safety, amenity, and accessibility.
Designers and architects who are found to be at fault for incidents caused by faulty design may be liable for defects and may have to pay for damages – including the cost of rectification – to the injured party.
Designers must also be mindful of the critical difference between "non-conforming" and "non-complying" products when it comes to meeting the requirements of the NCC.
Non-conforming products and materials are counterfeit, of an unacceptable quality, are unfit for purpose, or fall short of the Australian regulatory standards for their intended use. For example, an aluminium cladding panel that advertises itself as non-combustible but is, in fact, combustible, is non-conforming.
Non-compliant products and materials are those that are installed in contexts in which they do not comply with the requirements of the NCC, Australian Standards, or other laws. An aluminium cladding panel that clearly advertises itself as combustible but is installed in a situation in which the NCC requires a non-combustible product is non-complying.
Products and materials can be both non-conforming and non-compliant.
For more in-depth analysis of the regulations and standards and what they mean for you, join your peers at FRONT, a new inter-disciplinary event to be held at Sydney’s Carriageworks this 9-10 August. Bringing together the best and brightest across design, architecture, and property, FRONT asks the biggest questions facing today’s design industry – and equips you with the answers.