When I first started researching the condensation problem in 2014 with Dr Mark Dewsbury, we were looking at newly completed code-compliant houses. Copious amounts of interstitial condensation had riddled the structure with mould. It was designed-in, built-in water damage that no amount of ‘restoration’ would ever fix. It was codified damage because the code introduced more stringent energy efficiency and bushfire provisions without concurrently mandating corresponding condensation provisions.
The research spanned over a year. During the time I witnessed the mental health of owners decline as they saw their life savings erode away to water damage. Emotions ran raw, families fell apart. Then I came across CIRS (Chronic Inflammatory Response Syndrome) and understood that mould illness not only had a medical name, it had a system for diagnosis, and a treatment protocol. The protocol was stepwise, and the first step was to remove the patient from the water-damaged building. CIRS certified GPs will tell you their patients have nowhere to go, making the healing process long and frustrating. I observe the lengths some people have to go to in order to avoid buildings, and I come to this conclusion: the built environment is failing us.
I have since been troubled with this dilemma that code-compliance need not mean that the building is fit for purpose. There is, in my mind, no point getting upset with the code. After all it makes no representation about fitness for purpose. If you don’t believe me, read the NCC disclaimer.
This places the relevant building surveyor (RBS) in the unenviable position of enforcing reg.120 to prohibit the use of any material, as a result of product testing, that is unfit for purpose. This they have to do when the legislation has not, at the same time, defined what the criteria of fitness for purpose is. The legislative system is unsatisfactory, and I certainly hope the VIC building reform expert panel have worked out a solution. In the meantime, I am appealing to building surveyors to step beyond the DTS and require a higher standard of fitness for purpose. I believe this is the only way to prevent the inevitability of more buildings failing more people.
Construction to a higher standard would certainly cost more, but we would then have buildings that are fit for purpose.
Endnote
One may argue that building surveyors are proscribed from exceeding the minimum standards that have been deemed to satisfy the performance requirements, citing the Building Act 1993 (s.24(2)):
“the relevant building surveyor [RBS] must not issue a building permit that imposes on the applicant lesser or greater standards or requirements than those prescribed by this Act or the building regulations, unless permitted to do so by this Act or the building regulations.” Since the BCA is incorporated into the legislation by reference (Building Act 1993, s.9), it appears the RBS cannot require more than the BCA in their statutory role.
However, on closer inspection, we find that the legislation is not stating that compliance with the BCA automatically and completely satisfies the Act and Regulations.
The building regulations may apply, adopt or incorporate, either wholly or in part and with or without any modification, any matter contained in the Building Code of Australia or any other document as in force or as issued or published at a particular time or as in force or as issued or published from time to time. (Building Act 1993, s.9(1))
The BCA is not the whole embodiment, but a part, of all that has to be complied with. This flexibility to incorporate in whole or in part also mean the legislation can require a standard higher than the BCA, and it indeed does. There is a requirement for fitness for purpose, seen in r.120 of Building Regulations 2018, where it is stated:
Testing of materials
(1) The relevant building surveyor may require that the owner or builder carrying out building work for which a building permit has been issued arrange for the testing of any material used in the building work.
(2) The relevant building surveyor may, as a result of tests carried out under subregulation (1), prohibit the use of any material that—
(a) does not meet the requirements of these Regulations; or
(b) is found to be unsuitable or unfit for the purposes for which it is intended.
When it comes to fitness for purpose, the BCA not only makes no claim to that, it makes an explicit disclaimer under its Copyright and licence notice:
“The Australian Building Codes Board, the Commonwealth of Australia and States and Territories of Australia do not accept any liability, including liability for negligence, … as a result of accessing, using or relying upon this publication, to the maximum extent permitted by law. No representation or warranty is made or given as to the … fitness for any purpose… of this publication… Persons rely upon this publication entirely at their own risk”
The BCA sets the minimum required level for the safety, disclaims fitness for purposes and accepts no liability for negligence. The building legislation, on the other hand, requires fitness for purpose as a minimum, and entrusts the building surveyor with that duty of care to the building owners and to the public.