6 minute read
LEGAL
To comply or not to comply
The importance of compliance with the Australian National Construction Code and New Zealand Building Code for facility owners undertaking building works. By Peter Huang, Graduate at Law.
Peter Huang.
Owners of self storage facilities (facility owners) have traditionally operated their storage businesses from converted warehouses or repurposed old commercial premises. To provide a better experience for their customers (storers), facility owners may be considering repairing rundown sections of their facilities, upgrading amenities or expanding their facilities to attract more storers. However, before commencing any construction works, facility owners should consider the requirements set out in the National Construction Code.
The National Construction Code (NCC) is published by the Australian Building Codes Board and provides a uniform set of technical requirements for designing and constructing buildings in Australia. The NCC is given legal effect by building and plumbing laws in each state and territory, which prescribe various circumstances in which a building may be assessed for compliance with the NCC. Circumstances where the NCC applies include changing the usage of a building or proposing works to be undertaken on an existing building.
This means that regardless of whether facility owners choose to construct new facilities or upgrade or repair their existing facilities, they must comply with the requirements of the NCC. Over the years, the technical requirements relating to the design and construction of buildings have developed and been amended. This means existing buildings may have potentially become non-compliant with the current requirements of the NCC.
Compliance is complicated as each state and territory legislation adopts the NCC subject to variations or deletions of some of its provisions. Therefore, the NCC must always be read alongside the relevant state's building legislation and regulations.
What is the New Zealand Building Code?
All building work in New Zealand must comply with the Building Code, even if it doesn’t require a building consent. This ensures buildings are safe, healthy and durable for everyone who may use them. Plans and specifications are assessed by building consent authorities (BCAs), usually the council, to ensure the proposed building work will comply with the Building Code. When the BCA is satisfied, it will issue a building consent for the work to proceed. If the work is built to the consented plans and receives a code compliance certificate, it confirms the requirements of the Building Code have been met.
The Building Code is contained in regulations under the Building Act 2004. The Act governs the building sector and also sets out the rules for the construction, alteration, demolition and maintenance of new and existing buildings in New Zealand. It works alongside other legislation for health, safety, consumer protection and land use. Refer to website: www.building.govt. nz/building-code-compliance
Requirements of the NCC (these details are also applicable for New Zealand)
The NCC addresses almost all aspects of the design and construction of a building, including structural design, fire safety, access and energy efficiency. It incorporates the Building Code of Australia as Volumes One and Two of the NCC and the Plumbing Code of Australia as Volume Three.
To address the risk that some existing buildings may not comply with the current requirements of the NCC, state and territory legislative schemes usually include provisions that can be applied by the relevant authority to initiate a technical evaluation of whether a building is fit for purpose.
A pertinent example of how the NCC might apply to facilities is the requirement for buildings to have suitable firefighting equipment.1 Due to a facility building's generally lightweight construction, the large volume of contents being stored and the ability for a fire to spread rapidly beyond its point of origin, there is a high probability of a dangerous and challenging environment in the event of a fire. Therefore, it may be appropriate for facility owners to install suitable fire management and detection services within the building, such as automatic sprinkler systems, to comply with the requirements of the NCC.
Why compliance is important in Australia and New Zealand
Generally, as occupiers of the premises, facility owners owe a duty of care to all people who visit their facilities. This duty requires facility owners to take reasonable steps to prevent the risk of injury caused by the condition of their facilities.
Suppose facility owners fail to adequately maintain their premises
and, consequently, a person is injured on their premises. In that case, facility owners may be liable for a claim, either against them, against their business or their public liability insurance.
Good design and householding will minimise a facility owner's exposure to potential accidents and claims.
Practical steps
To determine whether a facility is compliant with the NCC and the NZ Building Code (i.e. fit for purpose), and before commencing any construction works to upgrade the facility, facility owners should consider following the steps below. Step 1
Discover relevant documentation relating to the existing building to provide information about its design, construction, and any additional alterations or modifications. This includes searching for architectural and structural design plans, heritage listings and planning controls and records. Step 2
Conduct an onsite inspection and record descriptions of building characteristics addressed by the requirements of the NCC and NZ Building Code. Relevant building characteristics to record may include the structural soundness of a wall or the capacity of the building to respond in the event of a fire. Step 3
Identify potential deficiencies concerning compliance with the requirements of the NCC and NZ Building Code. The expected outcome for this step will be to identify possible deficiencies and have a documented comparison of the expected performance of the existing building against any relevant requirements for new building works. Step 4
Analyse and determine whether potential deficiencies are actual deficiencies. Determining whether a potential deficiency is a genuine deficiency may also depend on the goal of the proposed building works. For example, goals may include complying with the order of the relevant authority, a voluntary upgrade to comply with the NCC and NZ Building Code requirements, or ensuring the building is safe for occupants and visitors. Key stakeholders should be consulted during this step. Step 5
The final step in this process is to develop a scope of proposed building works and to fix the actual deficiencies. These steps outlined should highlight to facility owners that due to the number and complexity of professional judgements needed when applying the NCC and NZ Building Code and to conform with various, country, state and territory laws, it is highly recommended that advice from a suitably qualified and experienced practitioner is obtained. Engaging an expert to audit the building's compliance will also protect facility owners against any potential mishaps. Further, engaging an expert makes it more likely the consequences of a potential mishap will be shared between the facility owner and the expert. l
If you have any further queries or concerns or would like legal advice about compliance with the National Construction Code and New Zealand Building Code, please email the SSAA Legal Help Desk at legalsupport@selfstorage.com.au.
1 see Part E1 of the NCC: Part E1 Fire fighting equipment (DtS) | NCC (abcb.gov.au)
Disclaimer: The information contained in these answers is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances. Please refer to the SSAA’s website for more information on the SSAA’s Legal Help Desk.
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