Centralized hub for verification of complex fire engineered solutions in Scotland: feasibility study

3 Fire Verification Approaches  

3.1 Introduction

3.1.1 The focus of this research is on exploring the potential for a centralized hub for verification of complex fire engineered designs in Scotland. As a starting point, a brief discussion of various approaches used in different countries for verifying complex fire engineered designs is presented.  

3.1.2 Some of the discussion below is drawn from the report, Competency Criteria for Local Authority Verifiers (LAVs) when Checking Fire Engineered Solutions for Compliance with Building Standards (Meacham, 2017), and more details can be found there. 

3.1.3 As noted in the 2017 report, the challenges currently being faced in Scotland with respect to undertaking and verifying fire engineering designs are not indifferent to those being faced in other countries. Issues of minimum competency / qualifications of fire engineers and verifiers, level of consistency in analysis and design being undertaken and delivered, and process(es) for review and approval, have been implemented and/or are being explored. 

3.2 Internal Review / Self-Certification

3.2.1 In many countries, fire engineering firms follow ISO 9001 type quality management programmes, which include internal peer reviews of and approval of engineering work by qualified persons. The scope and depth varies by firm and country. 

3.2.2 In some countries, however, the fire engineer can essentially ‘self-certify’ that their design complies with regulatory requirements. This is relatively common for structural engineering, including within Scotland, but also in some US states, for example. However, such self-certification is not common for fire engineering.

3.2.3 One notable difference is in many Nordic countries, in which the engineer (including fire) is largely responsible for certifying compliance with the regulation, and there is often little in terms of detailed regulatory review.

3.2.3.1 In Sweden, for example, responsibility for compliance with the regulations is targeted at the person (entity) which is paying for the construction of a building, and it is this person (entity) who has the obligation for compliance. There are typically contractual arrangements between this entity and others, including fire engineers, as appropriate. Works which requires a building permit may not begin until the local authority (Building Committee) has given starting clearance. In order to obtain starting clearance, the developer must be able to show that the works fulfil the requirements stipulated in the Planning and Building Act and associated regulations. For the Building Committee to make such a decision, the developer must submit a proposal for an inspection and a test plan (ITP), along with the required technical documentation. The Building Committee affirms the ITP in the starting clearance. In cases where the builder lacks the competence within their organization to demonstrate compliance with the building code, or does not engage an organization with this competence before the construction works starts, the Building Committee can demand that the builder engage a professional with a special certification related to competency in building regulation requirements – a SAK3 certificate – to conduct one or several specified controls, as specified in the ITP. These controls are often to check if the building is being built in compliance with the building code, such as if the escape routes are wide enough.

3.2.3.2 The situation is similar in Norway. However, in this case, contractors (firms) must be pre-approved through a quality management system to be able to undertake designs, with three levels of qualification possible (Stenstad, 2014; Meijer and Visscher, 2017).  This system has not been without problems, especially in the case of fire design, as a clear arbiter of opposing views is not clear, particularly when the fire service disagrees with the designer. 

3.2.4 It should be noted that verification of fire engineered designs in the Nordic countries has received attention in recent years. In response to the desires to have a clearer, more uniform, and more transparent system, the Nordic Standards Association has drafted guidelines for review and control of fire engineered designs: prINSTA/TS 952, Fire Safety Engineering — Review and Control in the Building Process, which was out for public comment at the time of this work. 

Observations 

3.2.5 It is the opinion of the author that use of an internal, ISO 9001 quality management approach, for internal review and approval of fire engineered designs is a positive and beneficial review mechanism. However, such systems cannot be expected to be independent, nor can they necessarily be expected to detect and address potential shortcomings. The major concern is that within a firm, there is often a common culture or approach to design, which all employees adopt. As such, designs do not necessarily receive the benefit of ‘a different perspective’ and associated challenges to the design that this might bring for example, if the firm uses a 3 MW fire as the design fire as a matter of course, who internally would challenge that?.  An external, independent perspective, can be very beneficial and often can be critical. 

3.2.6 It is the opinion of the author that the profession of fire engineering (fire safety engineering / fire protection engineering) is not sufficiently mature, or even sufficiently well defined, to warrant the ability for an individual to ‘self-certify’ fire engineered designs at this time. 

3.2.6.1 While many fire engineering guides, codes of practice and standards exist, none are as robust as those which exist within structural engineering, for example. Furthermore, the range of expertise that may be needed within a comprehensive fire engineering design (e.g., expertise in combustion / fire dynamics, structural response to fire, human behaviour and response to fire, fire safety systems performance, etc., and the expertise in the associated analytical and computational tools) is beyond most, if not all, fire engineers, especially for complex buildings. 

3.2.6.2 In addition, there is not an internationally agreed set of core competencies and knowledge areas that define the profession (or components that make up the profession), nor is there a broadly accepted qualification (or set of qualifications / certifications), that adequately define the area.  

3.2.6.3 In the nearer term, it may be conceivable to establish a qualification system where firms can be approved to ‘self-certify’ if they can demonstrate appropriate qualifications, expertise and competencies in all related areas, there are clear and widely agreed measures for such qualifications, expertise and competencies, a suitably robust internal ISO 9001 quality management approach is in place, and a suitable external audit system and confidential reporting system is in place. 

3.3 Private Certification

England

3.3.1 In England, checking that building regulations are being complied with is undertaken by building control bodies (BCBs), which are either a local authority building control service (LABC) or a private sector approved inspector building control service. 

3.3.2 Approved inspectors are companies or individuals authorised under the Building Act 1984 to carry out building control work in England and Wales. The Secretary of State has designated CICAIR Limited (a wholly owned subsidiary of the Construction Industry Council (CIC)) as the body responsible for deciding all applications for approved inspector status in England (https://www.planningportal.co.uk/info/200137/how_to_get_approval/77/where_to_get_approval/3, accessed 10 April 2018).  

3.3.3 In addition, competent person self-certification schemes (aka competent person schemes) were introduced by the government in 2002 to allow individuals and enterprises to self-certify that their work complies with the building regulations as an alternative to submitting a building notice or using an approved inspector (https://www.planningportal.co.uk/info/200137/how_to_get_approval/77/where_to_get_approval/4). 

3.3.4 While the schemes have been in place for several years, not all view the privatisation of building control as being particularly beneficial to the aims of safe buildings. As an example of the concerns being voiced, the following is an excerpt from the Royal Academy of Engineering response to the independent review on building regulations and fire safety in England chaired by Dame Judith Hackitt (RAE, 2017). 

3.3.4.1 “The move in recent years to greater privatisation of building control and extensive use of private approved inspectors, appointed by clients rather than by local authority building control, generates significant conflicts of interest in the system. Private approved inspectors are contracted by building owners or contractors from whom they will often seek repeat business in competition with others, including local authority building control. This arrangement is not conducive to independent rigorous building control or assessment of regulatory compliance.”

3.3.4.2 “The increase in privatisation of building control has also led to a decrease in capacity and technical expertise within local authorities, who are also not subject to formal qualification and training requirements unlike approved inspectors. This decrease in capacity has knock-on effects on the system. Firstly, approved inspectors have limited authority for regulatory enforcement, relying on referral to local authorities when needed. The decrease in capacity in local authorities means there can be a lack of capacity within building control to interpret and act on these referrals, which is problematic. Local authorities cannot recover costs for such enforcement actions which may be a further barrier to effective control. Secondly, as outlined above, the capacity for local authorities to identify and to feedback trends and changes in practice in the sector is also diminished, meaning regulations do not keep pace with changes in industry.”

3.3.4.3 “There has also been decline in the presence of resident engineers and clerks of works on site. This is often due to clients being persuaded that the services of such inspectors are costly and unnecessary, without sufficient understanding of the role of these services in reducing risk.”  

3.3.5 While it is understood that having options in the market can be very beneficial, and that many projects have been completed with adequate regulatory control from the combination of LABC, approved inspectors, and competent person schemes, concerns associated with potential conflicts, capacity in the market, and ongoing quality control are all issues that should be taken into consideration in Scotland as well.  

Australia

3.3.6 Australia has had the option of private certifiers or government building control since the late 1990s. Regulation of certification is addressed on a State and Territory level, so there is variability across the country. The relative effectiveness of private certification is in part a function of the clarity in legislation in each State and Territory, from qualifications of individuals to roles and responsibilities of private certifiers and local councils. 

3.3.7 There have been concerns about private certification for several years, with concern in some States and Territories greater than others. The situation in New South Wales (NSW), for example, has been the focus of studies and reviews going back at least ten years. 

3.3.8 A 2013 report by Mr. George Maltabarow, Building Certification and Regulation – Serving a New Planning System for NSW, looked at the planning system with a particular aim of proposing improvements to building regulation and certification (see http://bpb.nsw.gov.au/sites/default/files/public/Archive/Maltabarow-building-certification-report-May2013.pdf, last accessed 8 April 2018).  

3.3.9 Of interest to the Scottish situation in particular, Maltabarow (2013) looking at the situation with respect to fire safety. Excerpts from the report are presented below:

3.3.9.1 “Extending formal compliance arrangements and accreditation in specialist areas raises a number of issues relating to scope, purpose and administration. A critical building system appropriately identified as involving complex and high risk technical issues is fire safety, where expert opinion is required in the assessment of alternative fire safety solutions before a construction certificate may be issued. This is an area where the industry is itself concerned about a number of current weaknesses, including:

• Around half of all complex building approvals involve at least some elements of engineered solutions (as opposed to “deemed to satisfy” designs which accord with BCA standards). 
• The current NSW arrangements are for self certification by installers. In effect, the building owner (or developer) decides who is competent to certify design and installation. 
• There is no occupational accreditation for “Fire Engineering” and licencing requirements administered by Fair Trading relating to “specialist work” under the Home Building Act are said to be ambiguous and at best contain gaps.
• There are a number of specialist areas involved including sprinklers; hydrants; mechanical air handling; structural design; and detection. It is unlikely that any professional would be competent in more than one to two of these areas. 
• While there is some stability with larger installation and design providers, at the smaller end of the scale there is significant turnover (as with other parts of the construction industry).

3.3.9.2 Accordingly, a number of issues arise. Who should be accredited for compliance certification purposes? The installation and design company, or individual practitioners, or both? Which specific areas of competence should be targeted? Should accreditation be undertaken by the Government (via the Building Professionals Board?) or by the industry?

3.3.9.3 These issues no doubt apply to other specialist areas, but fire protection is perhaps the most critical and serves to illustrate the complexity of specialist certification and accreditation.” 

3.3.10 These are many of the same issues that Scotland is grappling with, and which should be considered as part of any decision on structure of the ‘hub’ for review of fire engineered designs. 

3.3.11 Following the Maltabarow (2013) review, a more comprehensive review of the Building Professionals Act 2005 was undertaken in 2015 by Michael Lambert (available for download from http://bpb.nsw.gov.au/sites/default/files/public/Attachment%20A%20-%20Final%20Report.pdf, last accessed 12 April 2018).

3.3.12 In his report, Independent Review of the Building Professionals Act 2005, the stated purpose of the review was “to assess the effectiveness of the Building Professionals Act 2005 (BP Act) and the broader issue of the effectiveness of the building regulation and certification system that applies in NSW and to make recommendations to improve the operation of the Act and of the overall regulatory system”. The review was broad-ranging, including consideration of the building certification system. The following reflect some findings in this regard: 

3.3.12.1 “There is a significant level of concern by industry and the community about the current state of play with building regulation and certification...”

3.3.12.2 “There is a lack of clarity about the role and responsibility of certifiers and of the appropriate relation between councils, as consent authorities, and certifiers. This needs to be addressed by the clear documentation of the role, functions and activities required of certifiers in the form of a practice guide to which certifiers are held to account as well as an agreed protocol governing the relation between certifiers and councils.”

3.3.12.3 “An important issue with respect to the certification system is the conflict between the accountability of certifiers for acting in the public interest and their commercial drivers for commercial success, including maintaining good relations with builders and owners/developers. While consideration was given to alternatives to private certification, it was concluded that the majority of certifiers are seeking to do the right thing in the right way and it is better to improve the accountability and transparency of the certification process and develop a culture of professionalism.”

3.3.12.4 “A major deficiency in the current building regulation and certification system is the approach to the regulation of the design, installation, commissioning and maintenance of fire safety systems and the handling of waterproofing which both need urgent reform.”

3.3.13 Additional discussion on the situation in Australia can be found in the report Competency Criteria for Local Authority Verifiers (LAVs) when Checking Fire Engineered Solutions for Compliance with Building Standards (Meacham, 2017).

Observations

3.3.14 While private certification is a viable option to assist in providing a range of options for building control, the effectiveness of such a system is, like any, related to the requirements of the system and its actors under pertinent legislation, the relationship to the balance of the construction sector, and the level of resources available. 

3.3.15 Much like the situation of self-certification, a successful private certification system needs to be robust, well-considered, with the linkages to governing legislation clearly defined, the responsibilities, accountability and ethical expectations of participants clearly defined, vetted and audited, and supported by appropriate educational and training resources, guidelines governing work to be performed and how it is to be carried out, and appropriate checks and balances built into the system.

3.3.16 It is the opinion of the author that private certification of fire engineered designs may not be the best option for Scotland at this time, given shortcomings around qualifications of persons, qualifications systems, and the like, as outlined for ‘self-certification above. 

3.4 Use of Peer Review 

3.4.1 Many countries around the world make use of peer-review for specific parts or types of design, as deemed appropriate. This can occur within regulatory systems that are largely government focused (e.g., the USA and Scotland), where a choice of private certification or government certification is available (e.g., New Zealand), and even in some countries which permit self-certification (e.g., Sweden). 

3.4.2 The situation in New Zealand was discussed in the 2017 report Competency Criteria for Local Authority Verifiers (LAVs) when Checking Fire Engineered Solutions for Compliance with Building Standards (Meacham, 2017) and is not reprinted in detail here. However, some of the concerns with peer-review for fire in New Zealand are pertinent to this research and are excerpted, with modification, and presented below.

New Zealand

3.4.3 There is widespread use of peer review in New Zealand. Various concerns have been raised due in part to engineering being unregulated, that the size of the market is limited market, and there is an overall lack of control of the peer review process. 

3.4.4 With respect to regulation of the practice of engineering, there is none in New Zealand. In addition, there is no restriction on the use of the title engineer. Feedback from the sector,^[1] including engineers, BCAs and the fire service, suggests that the practice of allowing anyone to call themselves an ‘engineer’ and practice engineering is having a detrimental impact. Feedback suggests that bad actors are negatively influencing the peer-review process, that they are consuming significant time of the BCAs, and that they can be working for BCAs and other enforcers, as well as in practice.

3.4.5 The current approach is largely voluntary registration via the Institution of Professional Engineers New Zealand (IPENZ), where the fire engineering qualifications are managed by the New Zealand Chapter of the Society of Fire Protection Engineers. This system generally works well for those professionals who hold the relevant qualifications and abide by the requirements. However, since this is not required, this leaves space for un- or under-qualified persons from practicing as fire engineers. 

3.4.6 There is also a requirement within some BCAs of having lists of fire engineers as reported via Producer Statements. However, this is also largely a self-reporting system, and feedback suggests that this too does not seem to be working. 

3.4.7 Much like the situation in Scotland, it is suggested that minimum competency criteria to define the practice of fire engineering needs to be established. Qualifications should be based on demonstration of competency, along with practical experience, obtained under the mentorship of a qualified engineer. 

3.4.8 The concerns regarding the peer-review system are highly related to the competency and qualification issue, since unqualified persons are able to practice by law (or as a result of the lack of regulations which say otherwise). For a peer review system to work as intended, the system must be based on persons with appropriate qualifications. In addition, there must be an adequate number of qualified engineers in the market so as to maintain appropriate separation between design and review, so as to minimise the potential for ‘overly friendly’ relationship form, in which the designer and reviewer are in the position of changing roles from project to project.  

3.4.9 In addition to peer review, there is also review by the fire service, but the nature of the review has changed with time. The previous Design Review Unit (DRU) reviewed designs in great detail. Many issues were found (Wade, 2009). The current requirements are for the fire service to be consulted. This is causing some concern.

3.4.9.1 Section 47 of the Building Act 2004 allows the New Zealand Fire Service Commission to provide advice in a memorandum to the BCA with respect to provision of means of escape for fire and in respect of the needs of persons authorised by law to enter the building to undertake firefighting and rescue operations. To perform this role, the New Zealand Fire Service (NZFS) established a unit called the Design Review Unit (DRU) that began conducting reviews of fire engineering designs in late April 2005.

3.4.9.2 An audit was conducted of 25 fire engineering reports and associated building consent documentation submitted to the DRU by various BCAs in New Zealand along with the associated DRU memorandum prepared in response (Wade 2009). Two findings of interest were that: the International Fire Engineering Guidelines have not gained significant uptake amongst the New Zealand fire engineering fraternity, with only one of the reports reviewed including a Fire Engineering Brief; and, in approximately 40% of cases, the investigation conducted in support of a fire “alternative solution‟ design was not considered to be satisfactory or the analysis was not sufficiently rigorous.

3.4.10 While the DRU was shown to be effective by this audit, subsequent regulatory change meant that the NZFS only needs to be consulted, which typically occurs at the FEB stage (when conducted), so such detailed reviews are no longer routinely conducted by the NZFS. In addition, there is inconsistency related to when the NZFS consultation is requested and how the reviews are undertaken. This is similar to challenges in Scotland, where the role of the fire service in the review process is not well defined or nationally consistent. It is suggested that this should be addressed as part of the overall consideration of the situation with verifier qualifications and competency and possible approaches for review based on complexity of the design and associated analyses.

USA

3.4.11 In the USA, the building regulatory system remains largely prescriptive. However, it is permitted to undertake ‘alternative designs’ (engineered / performance-based design), often assessed in terms of ‘equivalency’ to the intent of the prescriptive provisions. These ‘alternative designs’ can pertain to all areas of the codes including structural and fire engineering. The level in which these designs are reviewed and how they are approved varies significantly. 

3.4.12 In general, within small jurisdictions, there remains some apprehension when approving such designs, in part due to lack of clear guidance, expertise and education. These smaller jurisdictions typically do not have the staffing and either will reject the design, look to a third-party reviewer, or simply depend upon the qualifications of the designers. In larger and more significantly funded and staffed building departments, however, there is often one or more engineers on staff, which may include structural, mechanical, and fire engineers, which enables the department to conduct in-house design reviews. This is the case for most large city building departments (e.g., New York City, Chicago, Los Angeles, San Francisco, Boston, etc.). Even so, these departments often enhance this by requiring a peer review on the design. 

3.4.13 Depending on the legal situation in a state, infrastructure and comfort level with performance designs, the approvals process will vary widely. For instance, Clark County Nevada and the City of Las Vegas are very accustomed to unique designs and have a specific protocol and procedure for review of such designs. By contrast, smaller jurisdictions that have not been exposed to performance design will typically not have procedures in place to address the review of such designs. 

3.4.14 In the Commonwealth (State) of Massachusetts, there is a legislated process for performance designs, including a requirement for engagement of a qualified peer reviewer. Chapter 9 of the Massachusetts State Building Code includes the following requirements for performance-based fire design submittals and reviews:

3.4.14.1 “Any fire protection system or portion thereof not required by this code shall be permitted to be installed for partial or complete protection provided that such system meets the requirements of this code.

Where alternative fire protection designs, which vary from any prescriptive requirements of this Chapter, are to be utilized, the owner shall engage an independent registered design professional, to review said alternative design. The scope of the review shall include, but not be limited to:

Design assumptions, methodologies, and resulting proposed system designs, to determine whether or not:

• the proposed fire protection systems and any other systems which are affected by the alternative design, are consistent with the general objectives and prescriptive provisions of this Chapter;
• they all conform to accepted engineering practice. 

Preparation of a written report to the building official as to the appropriateness of the proposed design specifically listing any variances from the prescriptive provisions of this Chapter and describing, in detail, the design provisions used to achieve compliance.

If the reviewing engineer concurs with the proposed design, the owner shall make application for a variance, to the State Building Code Appeals Board as provided in section 113.0. In addition to all supporting information and materials, the reviewing engineering’s report required per this exception shall be included in the application for variance. A building permit shall not be issued until the variance, if required, has been granted, or unless the building permit is issued in part per section 107.3.3.”

3.4.15 In the Commonwealth of Massachusetts building regulatory approval scheme, the local building code official cannot approve an engineered fire safety design. By law, all ‘alternative fire protection designs’ (engineered fire safety designs) require a peer-review as outlined above, and must then be presented to the State Building Code Appeals Board for final approval. In some ways this is like the ‘Multi-Actor Review and Approval’ processes discussed below; however, it is limited solely to engineered designs and not ‘code-compliant’ designs (i.e., Technical Handbook compliant designs, in the Scottish context).

Observations

3.4.16 Peer review can be an effective mechanism to assist in the review and approval (verification) of fire engineered designs. However, much like with the discussion on self-certification and private certification, there is a significant reliance on the qualifications, experience, and ethics of the reviewer, which can often be functions of the regulatory environment within which the reviews are undertaken. If well-regulated, the process seems to run smoothly (e.g., Massachusetts). If many components are unregulated (e.g., New Zealand), there can be significant concerns.

3.4.17 It is the opinion of the author that an adequately regulated and managed peer-review system can be beneficial to Scotland. Peer-review is used currently, and largely seems to work adequately. Improvements can arguably be made if issues associated with qualifications, competency and conflict of interest (ethics) are addressed, and a more systematic approach to when required and how used, are addressed. 

3.5 Multi-Actor Review and approval

3.5.1 Some jurisdictions include numerous regulatory checks and balances with respect to verification (review and approval) of fire engineered (and other) designs. Two highlighted here are Germany and Singapore. 

Germany

3.5.2 The professions "Engineer" and "Consulting Civil Engineer" are regulated in Germany. This means that the pursuit of these professions is linked under government regulations to the possession of certain qualifications. In Germany, the occupational title of “consulting engineer” is a requirement for working as a ‘test engineer’ or as a recognised expert. In order to earn the right to hold such an occupational title, engineers need to demonstrate an additional three years of occupational experience following completion of a degree in engineering and also need to have completed certain advanced training courses (from https://www.anerkennung-in-deutschland.de/html/en/engineer.php, accessed on 9 April 2018).

3.5.3 The combination of regulation, design by experts, review by experts, and review and approval by local jurisdiction is complex. A rather comprehensive overview is provided in the White Paper, German Fire Safety - Rules and Regulations, by Kaiser (2015). A free download is available at https://www.feuertrutz.com/white-paper-german-fire-safety/150/50448/ (last accessed 9 April 2018). The following is excerpted from this White Paper with modifications. 

3.5.4 Legislative powers for the building regulations law lies within the sovereignty of the sixteen federal states within Germany. Access to the sixteen different building regulations law stipulations can be found on the website of the Construction Ministers’ Conference – a conference of the ministers responsible for city planning, building and housing and the senators of the states, commonly referred to as “ARGEBAU” for short (see www.is-argebau.de). 

3.5.5 The ARGEBAU publishes a model building code (MBC), which can be adopted by state and local municipality. The respective building codes – also called state building codes (SBC) [Landesbauordnung (LBO)] – can be also accessed electronically at the ARGEBAU website.

3.5.6 The MBC and special construction regulations provide largely qualitative requirements and protection objectives (i.e., functional standards). The responsible ‘supreme’ building supervisory authorities of the states (i.e., state officials) establish additional regulations that provide guidance for meeting the building regulations law. These technical building regulations (TBR) [Technische Baubestimmungen (TBB)] include a great number of technical rules for the planning, design and construction, and therefore including fire prevention. 

3.5.7 Those involved in the construction can be divided into two categories: parties mandated by and operating under public law, and parties operating under private sector laws governing actors in the building construction process. 

3.5.7.1 Those acting under public law include checking authorities’ which undertake responsibilities of public administration as publicly approved persons. This includes expert inspectors/engineers for fire prevention and expert inspector for engineered safety systems and facilities. 

3.5.7.1.1 Expert inspectors/engineers for fire prevention must be appointed by publicly appointed bodies, which varies by federal state and can be, for example, the chamber of architects or engineers, or the chamber of trade and commerce, of the respective federal state. Generally, the expert inspectors/engineers for fire prevention must have a university degree as well as other specific professional experience (mostly at least five years) and prove their knowledge. The names of expert inspectors/engineers for fire prevention are included on special lists indicating them as such. 

3.5.7.1.2 Expert inspectors for engineered safety systems and facilities also act under official orders – mostly under private law governing commissioning by the building owner or operator – and must also have a verifiable public license. Generally, the expert inspectors/engineers for safety systems must have a university degree as well as other specific professional experience (mostly at least five years) and must prove their knowledge via the responsible engineer chambers. Their certification must be recognized by the respective state building authorities and is published.

3.5.7.2 Those acting under private law include building clients, architects, specialised planners (including fire protection), contractors and building operators. This includes the private fire prevention experts (Brandschutz Sachverständiger). The private fire prevention experts must generally also have a university degree (e.g., architecture, civil engineering or fire prevention), specific sufficient professional experience (usually at least five years) and special qualification evidence. This must be verified by the respective publicly approved bodies, such as  chambers of architects, engineers, building or trade and commerce in special oral and written exams. Just like the expert inspectors/engineers for fire prevention, the state approved private fire prevention experts are then included into the special lists.

3.5.8 At the start of a project, the private fire prevention experts (Brandschutz Sachverständiger) develops a fire safety concept. This is required for most buildings over 7 m in height, as well as special buildings. 

3.5.9 Applications for construction projects will be examined for fire protection on behalf of the local community (or the building client) – depending on the respective federal state – by officially acting expert inspectors/engineers for fire prevention. During the execution of construction work, the expert inspectors/engineers for fire prevention will check at their own discretion the examined building applications and will attest to their implementation to the local authorities. 

3.5.10 As part of project works, there is a need to engage an expert inspector for engineered safety systems and facilities. For the commissioning of specified buildings (mostly special constructions), expert inspectors for safety systems and facilities check the operational safety and efficacy of safety systems stipulated by building regulations law in their respective speciality. These include fire alarm, alerting, automatic fire extinguishing, safety power supply, smoke extraction and forced ventilation systems for firefighter lifts and/or safety stairwells. They test the function of the respective systems for the owners (or operators) who are required to pass these reports onto the local building supervisory authorities. Beyond that, they carry out the repeat tests for these systems required by law, generally every three years.

3.5.11 The overall structure of the German system is shown in Figure 3.1 below. 

Figure 3.1: Regulatory Hierarchy and Relationships in Germany

Singapore

3.5.12 Singapore is a highly regulated country, and building and fire safety design is no exception. The situation is similar in some respects to Japan, in particular, the split of responsibilities between the Building Code, which is administered by the Building and Construction Authority (BCA), and the Fire Code, which is administered by the Singapore Civil Defence Force (SCDF). Much like in Japan, the Building Code addresses issues of fire resistance, smoke control and egress, and the Fire Code addresses issue of detection, notification, suppression and fire department access.

3.5.13 With respect to performance-based design for fire, the SCDF has implemented a very specific approval process. The key stakeholders involved in the performance-based plan submission process include:

• Building Owner/Developer
• Qualified Persons (Architectural/ M&E/ Civil & Structural)
• Fire Safety Engineer (FSE)
• Peer Reviewer (PR)
• Registered Inspector (RI)
• Singapore Civil Defence Force (SCDF)

3.5.13.1 The plan submission process involving performance-based solutions is as follows:

3.5.13.1.1 Engaging Fire Safety Engineer (FSE)

3.5.13.1.1.1 The building owner is required to engage an FSE for the preparation of performance-based solutions as part of the plan submission to SCDF. It is also to be noted that for fire safety engineering design involving structural solution, the owner needs to engage a FSE who is also a Professional Engineer (PE) in the civil/structural engineering discipline. If the FSE is not a PE (civil/structural), the owner will need to engage a PE (civil/structural) to work together with the FSE.

3.5.13.1.2 Preparing Fire Safety Engineering Design Brief (FEDB)

3.5.13.1.2.1 The FSE is required to produce a preliminary report - Fire Safety Engineering Design Brief (FEDB) to be submitted to SCDF for in-principle agreement. The FEDB details the proposed fire safety engineering approach, methodology, and software tools etc. The FSE may consult SCDF on his FEDB proposal prior to its submission.

3.5.13.1.3 Assessment of FEDB by SCDF

3.5.13.1.3.1 The FEDB will be assessed by SCDF. Upon the in-principle agreement of the FEDB, the FSE can proceed to prepare the following documents: (a) Revised FEDB, if conditional agreement is given (b) Fire Safety Engineering Report (FER) (c) Building Operations and Maintenance Manual (O&M). In the event that the FEDB is rejected, the FSE will have to go through the process of consultation and re-submission of the FEDB for SCDF's consideration and agreement.

3.5.13.1.4 Engaging Peer Reviewer

3.5.13.1.4.1 After the preparation of the above documents by the FSE, the owner is required to engage a Peer Reviewer to assess the above documents and ensure that the performance-based solution is incorporated in the Building and M&E plans. The Peer Reviewer shall produce a report of his assessment in a Peer Reviewer's report.

3.5.13.1.5 Plans Submission by Qualified Person (QP)

3.5.13.1.5.1 The Project QP is responsible for collating all the above documents for plans submission to SCDF. Plans containing the performance-based solution shall be endorsed by both the QP and the FSE. QPs who are also qualified FSEs may endorse in the capacity of both the QP and the FSE. 

3.5.13.1.6 Audit Checks by SCDF

3.5.13.1.6.1 The submitted plans and documents may be selected by SCDF for subsequent audit checks.

3.5.13.1.7 Engaging Registered Inspector (RI)

3.5.13.1.7.1 Upon completion of the fire safety works, the owner is required to engage a Registered Inspector who is an FSE to inspect the performance-based aspects of the fire safety works.

3.5.13.1.8 Declaration and Endorsement

3.5.13.2 The flowchart in figure 3.2 below illustrates the process for performance-based plan submission and review. Note: Under the Fire Safety Act, performance-based solutions are also known as 'alternative solutions'.

Figure 3.2: SCDF Flowchart for performance-based plan submission

Observations

3.5.14 Multi-actor review and approval (verification) can lead to a high-degree of confidence, given the numbers of checks and balances in the system. However, such systems can be extremely resource-intensive, costly and time consuming, and there needs to be significant capacity within the government and private sector.

3.5.15 Given the resource limitations around fire engineers in Scotland, and limited resources for LAVs and the Scottish Fire and Rescue Service, it does not seem practicable to move towards such a system at this time, at least in the breadth of actors involved in Germany or the layers of requirements of Singapore. However, aspects of the multi-actor approach are helpful and should be considered.

3.6 Multiple Verification Routes - Japan

3.6.1 The building regulatory system in Japan is complex, particularly for fire safety, since building fire safety designs must comply with two laws: the Building Standard Law (BSL), which addresses fire resistance, smoke control and egress, and the Fire Service Law (FSL), which address suppression, detection, notification systems, and fire service access.  

3.6.2 Both the BSL and the FSL are performance-based. However, there are different routes to compliance. In addition, there are three routes for compliance, depending on whether strict compliance with specific provisions (Route A), compliance with ordinary verification methods (prescribed performance, Route B), or designed using advanced verification (calculation) methods (engineered / performance-based design, Route C). Furthermore, there are both governmental and private sector building confirmation and inspection bodies (verifiers), which can be used for Route A or B; however, for Route C designs, the design must be submitted for approval by a minister-appointed designated performance evaluation body.

3.6.3 The basic building verification process is illustrated below. 

Figure 3.3: Basic Building Verification Process in Japan

3.6.4 Building confirmation (verification) and on-site inspection can be undertaken by one of two types of authorities, as in the figure above: qualified Building Officials working for local government (Designated Administrative Body), or private sector Designated Confirmation and Inspection Bodies. In the case of the latter, the work is undertaken by Conformity Inspectors who have passed a qualifying examination of Qualified Building Regulation Conformity Inspectors. A certificate of compliance issued by a Designated Confirmation and Inspection Body is the same as that issued by a qualified Building Official under the local government. In recent years, most building confirmations are undertaken by Designated Confirmation and Inspection Bodies.

3.6.5 With respect verification of performance-based fire designs (and fire engineered designs, as would be the terminology used in Scotland), the process is illustrated in Figure 5.2 below. As noted above, compliance with the specific (prescriptive) provisions and with the ordinary verification methods (as might be considered C/VM2 in New Zealand) can be approved by a Building Official working for government or by a Designated Confirmation and Inspection Body. However, for an advanced verification method approach (fire engineered design in Scotland, i.e., BS7974 type), evaluation is required by a Designated Performance Evaluation Body.

3.6.6 Details of the Ordinary Verification Methods are stipulated in the Enforcement Order and in the MLIT Notifications. On the other hand, details of the Advanced Verification Methods are not issued by the Government. Designated Performance Evaluation Bodies evaluate the design/solution of a building, using a manual approved by the Minister, then the applicant sends the evaluation body decision, along with drawings, to the Minister to request approval.

3.6.7 At present there are 27 Designated Performance Evaluation Bodies. For review of fire engineered designs, these bodies engage the most senior researchers and academics in fire in Japan. These specialists tend to be quite conservative, and the benchmark is typically the methods of the ordinary verification methods (i.e., algebraic equations, two-zone fire effects models, etc.). In fact, it has been reported that it is very difficult to get a design approved which uses CFD analysis, given the difficulty in demonstrating verification and validation of CFD codes.

Figure 3.4: Review Process for Performance-Based Designs in Japan

Observations

3.6.8 A multiple verification approach, based on level / complexity of design, can provide for a system that can effectively allocate resources where needed, and utilise a range of actors with a diversity of expertise, competencies and qualifications. By having three distinct approaches to compliance, i.e., prescriptive, ‘prescribed performance’, and full performance (fire engineered) designs, resource can be allocated where needed based on the number of designs undertaken within each level.

3.6.9 It is the opinion of the author that such an approach could be beneficial for Scotland, in that a majority of designs are ‘prescriptive’ (Technical Handbook compliant), with the next greatest number ‘minor’ deviations, and the smallest number the ‘full’ fire engineered designs. Such a system would be helped by introduction of a ‘fire verification method’ as well, although that is not required. 

3.7 Government Opinion / Determination / View / Appeal

3.7.1 Most countries / jurisdictions have mechanisms for challenging building regulatory decisions, both outside of and within the judicial system. The first step is typically within the building regulatory system, either at a local, regional or national level, depending on the country and issue. This section focuses on this level and not challenges or appeals brought before the judiciary.

Scotland

3.7.2 The building regulatory system in Scotland is national. As such, challenges to decisions are primarily at the Ministerial level. In Scotland there are two Ministerial level processes when compliance is in doubt or the applicability of a portion of a regulation is in doubt: Ministerial Views and Relaxations. The following is excerpted from the Scottish Building Standards Procedural Handbook, 3^rd Edition (2015). 

3.7.3 Ministerial Views

3.7.3.1 To assist verifiers and applicants for warrant in cases where there is doubt on whether proposals satisfy the regulations or whether continuing requirements need to be imposed as conditions of the warrant, Scottish Ministers may give a view on the matter. Verifiers must have regard to any view given when determining the application. It should be noted that a formal view will not be given on matters certified by an approved certifier of design.

3.7.3.2 Either the applicant for warrant or the verifier may choose to request a view. However, a view is only given if, in the words of the Act, the BSD (on behalf of Scottish Ministers) ‘think fit’. It will be regarded as unusual to give a view if only one party seeks to approach the BSD. The intention is not to act as an unofficial appeal mechanism but to assist where there is genuine doubt as to the extent to which a proposal meets the regulations.

3.7.3.3 The BSD does not normally consult on their view as it is intended to be a fast response service.

3.7.4 Relaxations

3.7.4.1 For any particular building, a person may apply to Scottish Ministers for a direction to either relax or dispense with a provision of the building regulations. The building regulations designate certain provisions that may not be relaxed, although there is currently no designation in relation to the building standards themselves.

3.7.4.2 Where Scottish Ministers consider it unreasonable that the provision should apply to that building they may issue a direction. The direction may set conditions and a date for expiry. Any direction may also be revoked or varied by a further direction. There is no requirement to consult before issuing a direction in relation to a particular building but the fire service will normally be consulted for any question related to fire matters. If the application for relaxation relates to an existing warrant application and particularly where a warrant has been granted, the verifier will also normally be consulted.

3.7.4.3 There are differences between relaxations under the 2003 Act and those previously given under the 1959 Act. The new form of expanded functional regulation gives more opportunity for flexibility and most cases can be decided by verifiers by interpretation of the requirements in schedule 5 of the building regulations. A relaxation or dispensation is for cases where a requirement is clearly, in whole or in part, unreasonable for a particular building. There is an appeal mechanism, as applicants may challenge a decision of the BSD, in relation to relaxations, in the sheriff court.

3.7.5 There is also the opportunity to appeal to the Sheriff’s Court on the following matters:

• where Scottish Ministers refuse an application to relax or dispense with a provision of the building regulations
• where a verifier refuses to grant or amend the terms of a warrant, including deemed refusals resulting when the verifier has not made a decision within the specified time limits
• where a verifier refuses to extend the life of a limited-life building, including deemed refusals resulting when the verifier has not made a decision within the specified time limits
• where a verifier rejects a completion certificate, including deemed rejections resulting when the verifier has not made a decision within the specified time limits
• where a verifier imposes continuing requirements
• where a verifier refuses to discharge or vary a continuing requirement
• where a local authority serves a notice (regarding building regulations compliance, continuing requirement enforcement, building warrant enforcement, defective or dangerous buildings).

New Zealand

3.7.6 New Zealand has a national building regulatory system.  As such, challenges to building regulatory decisions are at the Ministerial level. The following is excerpted from the website of the Ministry of Business, Employment and Innovation (MBIE), under which the Building Standard sit (https://www.building.govt.nz/resolving-problems/resolution-options/determinations/).  

3.7.6.1 A determination is a legally binding ruling made by the Ministry of Business, Innovation and Employment (MBIE) about matters of doubt or dispute to do with building work. They are not for civil disputes or disputes about workmanship. Most determinations are applied for by building owners, but councils and other people can sometimes apply.

3.7.6.2 Determinations can look at whether a building or building work complies with the Building Code. They can be about building work that is planned, partly done or complete. When you can’t agree with a council's decision about building work, a determination can help you solve the problem. They are sometimes for when a council has failed to act or refused to make a decision.

3.7.6.3 You may have already asked MBIE for an opinion or advice about the same question. A determination is different because MBIE takes a detailed look at the specific matter and makes a legally binding decision. The law that covers determinations is set out in the Building Act 2004 (sections 176-190).

3.7.6.4 MBIE can make a determination about whether a building or building work complies with the Building Code or a council’s decision on a set of specified items (see https://www.building.govt.nz/resolving-problems/resolution-options/determinations/ for the list).

3.7.6.5 Someone might want a determination when: a council refuses to issue a building consent for a proposed building; a building owner has been refused a code compliance certificate for a building that appears to be completed and the owner believes is compliant; building work on a neighbouring property is affecting the stability of adjacent land; or, a building owner disagrees with the contents of a notice to fix.

3.7.6.6 The determination can: make a decision on whether building work complies with the Building Code, and/or confirm, reverse or modify an earlier decision made by the council. For example, a determination may say the council was correct in not issuing a building consent.

3.7.6.7 A determination can also make waivers or modifications to the Building Code. For example, a determination may modify the time period for which the building must be durable make conditions that the council may itself grant or impose. For example, a determination may require the council to issue a building consent with certain conditions.

3.7.6.8 If any party is not satisfied with the determination, they can take the matter to court. The courts can decide whether the decision reached in the determination is correct. This is called an appeal. The courts can also decide whether determination-making process was correct and fair. This is called a judicial review. You need to wait until MBIE have issued the determination before you can ask for an appeal or judicial review.

USA (New York City) 

3.7.7 The power for implementing and administering building regulators in the USA rests with the States, which may in turn give that power to regional (i.e., county) government or local government. As such, challenges to building regulatory decisions may be at the state, county or municipal level, as well as at the local level.

3.7.8 In New York City (NYC), for example, there is a two-stage process for appealing a decision on compliance with the construction codes (which include building code (regulation)): determination process and appeals.

3.7.8.1 Determination requests may be submitted to the Department of Buildings for (a) a possible future objection for an application not yet filed, and (b) appeal of an affirmation of objection after second plan review (https://www1.nyc.gov/site/buildings/business/determinations.page). 

3.7.8.1.1 The determination request will be reviewed by the appropriate borough office.  The request will either be accepted, denied, or require the applicant to meet with the Department for further review.

3.7.8.1.2 When the borough office denies a determination request, the applicant may submit an appeal to the Department’s Technical Affairs Unit (requires payment of $2,500 appeal fees). 

3.7.8.1.3 When the Department denies an appeal, applicants may make any subsequent appeals to the Boards of Standards and Appeals. 

3.7.8.2 The New York City Board of Standards and Appeals is an integral part of the City's system for regulation of land use, development and construction. The Board is empowered by the City Charter to interpret the meaning or applicability of the Zoning Resolution, Building and Fire Codes, Multiple Dwelling Law, and Labor Law. This power includes the ability to vary in certain instances the provisions of these regulations (http://www1.nyc.gov/site/bsa/about/about.page).

3.7.8.2.1 The majority of the Board’s activity involves reviewing and deciding applications for variances and special permits, as empowered by the Zoning Resolution, and applications for appeals from property owners whose proposals have been denied by the City’s Departments of Buildings, Fire or Business Services.  The Board also reviews and decides applications from the Departments of Buildings and Fire to modify or revoke certificates of occupancy.

3.7.8.2.2 The Board can only act upon specific applications brought by landowners or interested parties who have received prior determinations from one of the enforcement agencies noted above. The Board cannot offer opinions or interpretations generally and it cannot grant a variance or a special permit to any property owner who has not first sought a proper permit or approval from an enforcement agency. Further, in reaching its determinations, the Board is limited to specific findings and remedies as set forth in state and local laws, codes, and the Zoning Resolution, including, where required by law, an assessment of the proposals' environmental impacts.

3.7.8.2.3 The Board, pursuant to the 1991 City Charter, contains five full-time, Mayoral-appointed commissioners.  By law, the Board must comprise one planner, one registered architect, and one professional engineer. No more than two commissioners may reside in any one borough.

Observations 

3.7.9 It is the opinion of the author that Scotland should retain the Ministerial Views process, and the Ministerial Relaxation process, as currently exists. The ability to have an appeals mechanism, prior to entering the judiciary system, provides more opportunity for identifying and resolving issues within the sector. Such an option widely exists, and there seems to be no reason to move away from it in Scotland.