Building control in Australia: builders employing certifiers

Unforeseen consequences

16 November 2016

Continuing his series from Australia, Mark Anderson discusses the possible impact of banning builders from employing certifiers directly

Under a radical shake-up of construction law in the state of Victoria, builders are to be banned from hiring their own surveyors– a move designed to target unscrupulous builders who have incurred unnecessary consumer costs.

The new regulations, introduced by the state’s Planning Minister Richard Wynne, are designed to tackle an industry rife with disputes. Building surveyors in Victoria have been found guilty of more than 700 misconduct claims since 2009, and now the state government is to implement strict guidelines to try to boost confidence in the profession.

The measures include:

  • tougher scrutiny of registration;
  • certainty that the skills required are available now and will be in the future.

A conflict of interest between the certifier and the builder is seen as being the main reason for the large number of disputes. The close relationships between some builders and their surveyors has – in the opinion of the Victorian Building Authority (VBA) – led to the high level of disputes and allegations of misconduct.

A more even split

In England and Wales, there is a more even split between private and public surveyors, which may account for better perception of the practice of self-regulation as the public sector is subject to considerable legislation: the Department for Communities and Local Government introduced governing standards after reviews of the service in 1998, 2006 and 2014. In the English and Welsh reviews of legislation – Scotland has not adopted private certification – the following performance measures were implemented to ensure the public remains confident that there will be no conflicts of interest and work will be of a good quality.

The standards include reviews of all the following:

  • private certification performance
  • the business ethics complaints procedure
  • resourcing management systems such as ISO 9001 for the monitoring of performance
  • continuing professional development.

Private certifiers have their own set of guiding principles in the form of a code of conduct.

Victoria measures

The fact that the VBA is tackling the certification problem is laudable. However, in my opinion there are a number of other measures that should also be adopted to ensure that registration is more robust. The business of certification should be run as such, which would ensure that both the regulatory authority and the client are satisfied with the outcomes and of course still make a profit.

The outcome for the client is that the building complies with the standards in place, both on plan and on site as far as is reasonably practicable, and that the overarching principle of public safety is maintained for them and those in and around the building. The outcome for the registering authority should be the same as for the client, but should also include ensuring the following:

  • the surveyor has the appropriate qualifications to perform the services
  • the surveyor has the relevant experience to assess the type of building at all times
  • all statutory obligations are correctly carried out and outcomes are recorded and are auditable.

The VBA only partially addresses these requirements and leaves the other performance measures to self-regulation, which has in my opinion resulted in the systemic failure. Only by ensuring that there are adequate business measures in place as well as increasing scrutiny of the certifiers’ experience and continuing professional development will the system start to improve its public perception. At present, the registration process may only be seen as a sticking plaster for a wider problem.

The fact that all states and territories recognise one another’s registrations means that any increased level of scrutiny applied in one state should be applied to all others. But in practice this is unlikely to occur as a result of privacy laws and the cost of implementing systems that record the correct information, so it is therefore possible to game the system. If registration is easier in other states, then those wishing to be practitioners may go there to register.

All the registration bodies should set up a commission to ensure that building certifiers maintain the same performance standards, are adequately resourced and oŸer the appropriate level of experience.
Once there are agreed performance standards and these are adopted by all states, a committee comprising representatives from professional bodies, research organisations and specialist business associations should oversee the code of conduct for building certifiers. All certifiers should be registered with this body to ensure standards are maintained throughout Australia.

The absence of full performance standards for building certification will only go a little way to stopping the systemic failure in Victoria. There is a strong possibility that those wishing to game the system to circumvent the new measures will do so.

Mark Anderson is a senior building certifier at KPMG SGA

Further information

This feature is taken from the RICS Building control journal (September/October 2016)