Building Industry Authority Determination 2003/3 Commentary Paul Clements

New Zealand Fire Service S. 29 of Fire Service Act S. 16 (e) of Building Act - party S. 17 (1) - Apply for a determination

Building Act S. 17 (2) BIA does not need to comply with same rules of law as apply to judicial proceedings - see 4.15 of the determination S. 19 (1) BIA may require applicant to provide additional information

Building Act S. 24 Territorial Authorities S. 56 Building Certifiers S. 20 (a) BIA is the final authority S. 49 (2) BIA documents not the only method of compliance with the Building Code S. 50 (b) A determination shall establish compliance with the Building Code } approving authorities

The Acceptable Solutions do not necessarily meet the intent of the Building Code, eg. C2.2 (a) - C/AS Limited area atriums C C/AS Fire rating of intermediate floors C (d) - C/AS (a) Spandrels

Spandrels S. 50 (b) states that a determination by the Authority establishes compliance with the Building Code of the determination therefore requires the minimum spandrel height to be 2.5m

3.2.1 The Authority has carefully considered all of the evidence and documents submitted to it in their entirety… The Authority takes the view that it cannot take account of modelling submitted after the hearing……. (after 18 months)

5.1.2 The Authorities task is to determine whether the building complies with the performance based Building Code. In doing so, the Authority may use the Acceptable Solutions as a guideline or benchmark when assessing other solutions.

5.3.3 The Authority does not accept …….. that the Authority may not lawfully assess compliance by comparison with the Acceptable Solutions.

5.4.8 (b) In several previous determinations, the Authority has made the following general observations about acceptable solutions and alternative solutions (a)……… (b) Usually however, where there is non- compliance with one provision of an acceptable solution it will be necessary to add some other provision to compensate for that in order to comply with the Building Code

5.4.9 The process by which the Authority makes a determination is quite different. Using the current acceptable solution as a guideline or benchmark, means that an alternative solution must achieve effectively the same level of safety as the acceptable solution. Therefore, no matter how strong the arguments a party to a determination advances to justify a lower level of safety in the particular building concerned, those arguments cannot be accepted for the purposes of the determination.

7.2.3 The Authority rejects any assumption that if a particular building element has a fire resistance rating of certain numbers of minutes then in a real fire the tested element will ensure that people necessarily have that number of minutes available in which to escape. A factor of safety must be included in any specific design to cover for this fact.

7.3.2 (a) The Authority does not dismiss the significance of modelling, but emphasises that the results of modelling must be judged against the performance criteria required by the Building Code and exemplified by the acceptable solution. It is not acceptable to judge the results of modelling against some other criteria, however soundly based. Those other criteria cannot be used unless and until C/AS1 is amended (or a verification method is issued) under Section 49 so as to give those other criteria statutory recognition. Also see 8.3.5,

the Authority points out that paragraph of C3/AS1 provides that car parking spaces within a building “shall be separate firecells”. Thus to comply with the acceptable solution it was necessary for any openings between the atrium and the car park area to be protected with 30/30/30 rated closures. The Authority does not accept that a smoke barrier down to 2m above floor level is an acceptable substitute for the required fire rated closure.

Again, this is an example of the design achieving criteria which, however soundly based, have not been related to the criteria specified by the Building Code and exemplified by, in this instance, C3/AS1. Note: The car parking is under an overhang of the building, and is not a separate firecell.

15.1 It is not for the Authority to decide how the building is to be brought to compliance with the Building Code (subject to any waivers or modifications granted by the territorial authority). This is a matter for the owner to propose and for the building certifier or the territorial authority to accept or reject, with any of the parties entitled to submit doubts or disputes to the Authority for another determination.

Summary The NZ Fire Service have the right to enter any building, excepting private residences, at any time, and to judge whether the building (in their opinion) complies with the Building Code. Note that there is no time limitation on this right. If the NZ Fire Service consider that the subject building does not comply with the Building Code, then they have the right to apply for a determination.

Summary The NZ Fire Service do not have to supply any technical information regarding the application to the BIA, unless the BIA request it The determination process is not required to comply with the rules of law as apply to judicial proceedings A determination establishes compliance with the Building Code

Summary The BIA will accept or reject information from its own or other parties experts without any technical ability to do so. The BIA may use the acceptable solution as a guideline or benchmark In a determination, the Authority will require any variation from the acceptable solutions to be compensated for to comply with the Building Code

Summary The Authority considers that fire tested elements cannot have their tested duration relied upon, and need a factor of safety. The Authority considers that fire modelling must be judged against the acceptable solution The Authority considers that a space with one wall and a roof is a firecell The final approving authority is the BIA, but it is an interactive process

Conclusion Will solely use the acceptable solutions as a benchmark Will insist upon compensatory measures for each item which does not comply with the acceptable solution Requires any fire modelling to relate directly to the acceptable solutions In a determination the Authority

Conclusion Will completely ignore any stochastic design, as the acceptable solutions are totally deterministic In a determination the Authority Will effectively ignore any arguments based upon the Building Code clauses

Where to from here? This determination takes fire safety engineering back 20 years to a 100% prescriptive code, where the fire safety designer may be permitted to apply for a dispensation from strict compliance.

Where to from here? The Authority has chosen to ignore S.17(2) of the Building Act, thereby removing the building code from consideration in the determination process.

Where to from here? One option is for the SFPE to make representations directly to the Minister in regard to ensuring that the Authority is instructed to comply with the Act, rather than enforcing a non- mandatory regime upon affected parties

Thank you for your time and attention