Written by Adam Buzasi, Director
Performance Solutions are a means of allowing alternative approaches to compliance other than the Deemed-to-Satisfy (DTS) provisions, they are intended to allow flexibility in building designs, use of materials and forms of construction, without reducing the level of safety, health and amenity (ABCB (2017)).
While compliance is the objective of a Performance Solution, caution needs to be taken to ensure that the information evaluated and relied upon to reach compliance is satisfactory. Just because a Performance Solution has been received does not automatically indemnify recipients of a duty of care in ensuing that that report has been prepared in a proper manner. If the information is insufficient or lacking in detail, then it is doubtful that the report will provide any safe guard if it is ever tried or tested. Examples include ‘ (Toomey v Scolaro Concrete Constructions and Others (No.2), 1997) & ( VCAT 1363, 2006)’.
In both these cases Certificates of Compliance (Building Act S238) were relied upon in good faith to demonstrate compliance, however both times the court and Tribunal found that due to inadequate information omitting the basic object and purpose, the certificates were invalid and provided no immunity to the recipients.
Caution needs to be taken when accepting documents that rely on compliance determined by others, with the information to support the results being as critical as the results themselves. When compliance is determined by others, this amounts to ‘Acting in Good faith’. While in Victoria there is no comprehensive test for statutory good faith under the Building Act, a key consideration would be the correctness of the report (Lovegrove and Cotton, 2013), which places an onus on the recipient to ensure that the information within the report is suitable.
The cases cited above relied on reports in ‘Good Faith’ and in both cases the documents stated compliance, however as the information contained therein was not in accordance with regulatory requirements they were deemed invalid, resulting in substantial recourse to those who accepted the report.
The same process and principles apply to Performance Solutions;
Unless the information contained within the report is sufficient to demonstrate how compliance has been reached then the solution may be a risk to anyone who relies on it.
Access Performance Solutions have an important part in projects. Parallels can be drawn with fire engineering following the introduction of BCA 1996. Unlike fire engineering though there is no guideline for developing access performance solutions. There is no authority recognised framework, no government accreditation and as a result, very little in the way of quality control.
So, what information is critical within a Performance Solution, specifically one assessed for compliance with Disability access provisions.
The BCA is explicit in the methods that can be used when evaluating a Performance Solution (Outlined under Clause A05), the Premises Standards (Clause 3.2) on the other hand involve a somewhat subjective interpretation but none the less require an outcome compliant to meet the needs of occupants.
Both the BCA and Premises Standards outline the minimum benchmark for evaluating Performance Solutions, which are outlined under, BCA, Clause A0.5 and Premises Standards, Clause 3.2.
While there are various types of acceptable assessment methods for the purposes of this review we will explore the most common types used when determining compliance against the Disability Access Performance Requirements. These include;
Expert Judgement – While the Premises Standards do not directly state expert Judgement is an acceptable method for determining compliance Clause 3.2 (3), does advise ‘a relevant building is taken to comply with the Access Code if the building provides a level of access that is not less that the level that the building would have provided if it had complied with the Deemed-to-Satisfy provision’. While the interpretation of this statement is broad in the assessment methods available for demonstrating compliance, it could include Expert Judgement, however if this approach is taken it is crucial the analysis of the non-compliance and conclusion reached do not result in a design that provides a level of access that is less than if the building had complied with the DTS Provisions i.e. the results must produce a design that is equal to or superior than the DTS design to ensure compliance is achieved meeting Premises Standards Clause 3.2 requirements.
Expert Judgement should always be treated with caution as it is incredibly subjective, unless the solution contains a detailed technical analysis or/and research demonstrating why and how the Performance Solution is satisfactory, then there is a good chance that the solution will be insufficient.
Comparison to the Deemed to Satisfy Provisions – This method includes drawing a direct comparison between the ‘Deemed-to-Satisfy’ Provisions and the proposed solution. The outcome of this evaluation must also produce a conclusion where the proposed Solution is equal to or superior than the DTS design, if not then the solution is insufficient.
Critical information to sufficiently assess either of the above methods include;
If the information within a report is insufficient then it would not be defendable when challenged and therefore cannot be accepted in ‘Good Faith’. It is not up to the Relevant Building Surveyor to make assumptions on how compliance has been reached (VBA 2018) or whether the end design seems ‘reasonable enough’. They need to be certain that the Performance Requirements have been satisfied with robust technical justification. The framework that is used in the technical justification is as critical as the conclusion itself.
 VCAT 1363, D144/2004 and D145/2004 (Victorian Civil and Administrative Tribunal (VCAT) July 11, 2006).
ABCB. (2016). National Construction Code Series Volume 1 Amendment One - Building Code of Australia 2016. Canberra: Australian Building Codes Board.
Australian Building Codes Board. (n.d.). Development of Performance Solutions.
(1993). Building Act 1993 (VIC).
Building Regulation 2018 (VIC). (2018).
(2010). Disability (Access to Premises-Buildings) Standards.
Disability Discrimination Act. (1992). Office of Legislative Drafting and Publishing.
Lovegrove and Cotton. (2013). The Personal Liability of Building Surveyors. Retrieved from Lovegrove and Cotton Construction and Planning Lawyers: http://lclawyers.com.au/elibrary/liability-build-survey/
Toomey v Scolaro Concrete Constructions and Others (No.2),  VSC 279 (Supreme Court of Victoria 1997).
Victorian Building Authority. (2018). Practice Note 63-2018 - Performance Solution Procedures and Documentation. Victorian Building Authority.