BUILDING CONTROL (AMENDMENT) BILL

Order for Second Reading read. 6.00 pm

The Minister for National Development (Mr Mah Bow Tan): Mdm Deputy Speaker, I beg to move, "That the Bill be now read a Second time."

This Bill before the House seeks to revise the law in respect of building control for the following objectives:

(a) Introduce a performance-based regulatory system to allow for design flexibility and encourage innovation in the construction industry;

(b) Facilitate Design and Build (D&B) methods of procurement in the construction industry; and

(c) Streamline and improve the regulation of buildings and the architectural and professional engineering services.

Performance-based regulatory system

Madam, let me explain the proposed amendments in detail. Currently, our building regulations are prescriptive in nature. They are time-tested and well-proven design practices and solutions. However, the weakness of such a system is that it does not allow the Qualified Persons (QPs) to propose alternative building design solutions. QPs have also told us that this system does not promote innovation and may create technical barriers to designers who are creative.

Performance-based building codes, on the other hand, require the QPs to comply with objectives and performance requirements for the design and construction of buildings. It is not mandatory that the QP must follow a specific design solution. Design QPs are free to exercise greater flexibility and creativity in their design solutions so long as the objectives and performance requirements are met. In this way, QPs can be more responsive to market requirements and propose more cost-effective solutions which best meet their clients' needs.

Performance-based building codes are not new. They have been adopted in developed countries, like the United Kingdom in 1987, New Zealand in 1992 and Australia in 1994. However, it is a significant change in the concept of building control in Singapore.

The Building and Construction Authority (BCA) has consulted extensively with the industry in working out the performance-based regulatory system. A Building Control Regulations (BCR) Committee comprising industry representatives was formed in the year 2000 to study the implications of this new regime to industry practice, and to review the scope and contents of the proposed performance-based building regulations. Proposed changes were posted on BCA's website for public feedback and comments. BCA also organised a forum last year with representatives from the Singapore Institute of Architects, Institution of Engineers Singapore and other relevant professional bodies to clarify queries in the new system.

Madam, let me elaborate on the specific amendments to the Building Control Act. The Bill amends section 49 to provide for the objectives and performance requirements to be specified in the building regulations. It also amends section 9 to provide two options for the design QP to comply with the performance-based regulations. First, the QP can continue to adopt acceptable solutions set out by the Commissioner of Building Control and be deemed to have complied with the performance objectives. The QP can also adopt an alternative design solution so long as he certifies that his solution satisfies the specified objectives and performance requirements. He can also engage a second QP to jointly certify his design. This allows a design QP to collaborate with a specialist QP on the alternative design solution.

Our current regulatory framework places responsibility on the QPs for their work. This continues to be the underlying regulatory philosophy under the new system. The amended section 9 requires the design QP to take all reasonable steps in ensuring that building works are designed in accordance with the provisions of the Act and the building regulations. Greater flexibility in design solutions comes with the responsibility of ensuring that the alternative design is safe and meets the specified performance objective. If the design QP proposes an alternative design, he should be in a position to take responsibility for his design. If he engages a second QP, that second QP must take all reasonable steps to exercise that the design complies with the requirements of the Act before certifying it.

Design and Build (D&B) methods of procurement

Mdm Deputy Speaker, I shall now move on to the amendments to facilitate Design and Build (D&B).

Under the traditional "design-bid-build" (DBB) system, the design QP will complete the design with little input from the builder. Once the design is finalised, it is difficult for the builder to make changes or to suggest alternative construction methods without major redesign works upstream.

In the 1999 Construction 21 (C21) Report on Re-inventing Construction, one of its key strategic thrusts is to adopt an integrated approach to construction. It identified the Design and Build process as one of the procurement methods for construction which can achieve closer integration. In a D&B arrangement, the client enters into a single contract with one entity. And this entity is responsible for both the architectural and engineering designs as well as the subsequent construction works. The inputs of the various players can be integrated upfront at the design stage. Incidents of re-works will be minimised. And the result is savings in cost and time for the client.

D&B is being practised in some projects today. Builders can approach architects and professional engineers to work on projects as a team on an ad-hoc basis. In these projects, the client pays and treats the builder and professionals as different entities. The drawback of such arrangements is that the D&B teams are not permanent. Any synergy and experience will not be accumulated and built upon.

There are also legal impediments to other types of D&B arrangements. The Architects Act and Professional Engineers Act do not allow any person to offer architectural and professional engineering services, unless he is a registered architect, professional engineer or licensed corporation. An architect and professional engineer also cannot supply professional services in respect of any project in which he is acting as a builder.

The C21 Report recommended reviewing the relevant legislation to remove any legal impediments against D&B projects. BCA therefore set up a committee in 2000 involving representatives from the Singapore Institute of Architects, Institution of Engineers Singapore, Singapore Contractors Association Limited and other relevant professional bodies to review the legislation. It recommended several amendments to be made to the Architects Act, the Professional Engineers Act and the Building Control Act. The Board of Architects and the Professional Engineers Board were also consulted. The proposed amendments have been incorporated in this Bill.

Madam, without the amendments in this Bill, D&B can still carry on the way it has always been done with the builders and professionals working together, but, as I said, on an ad-hoc basis and as separate entities. With the amendments, there are more avenues for D&B to take place. Architects or professional engineers can offer D&B without tying up with a builder firm. Builders can offer D&B packages jointly with architects and professional engineers. Licensed corporations can offer D&B services. The amendments will provide a single point of contact for the client. The industry will have more choices of D&B arrangements to meet its needs. Let me now elaborate on the specific amendments.

Facilitate builders and professionals to undertake D&B projects

A new subsection is added to section 10 of both Acts to allow a builder to offer to the developer all-in services jointly with architects and engineers as a D&B team. The Regulations of the two professional Acts will also be amended to allow an architect or professional engineer to supply the professional services in the same project in which he is acting as a builder.

Facilitate licensed corporation to undertake D&B projects

Corporations licensed by the Board of Architects and Professional Engineers Board are currently not allowed to provide design services and be the builder for the same project, unless specifically requested by the client. The Regulations of the two professional Acts will be amended to allow licensed corporations to provide D&B services.

To encourage builders to form licensed corporations to offer a full range of services from design to construction, the Bill proposes to relax the requirements on the chairman and directorship control of licensed limited corporations in the two professional Acts. Directorship control by registered professionals in licensed limited corporations will be lowered from two-thirds to a simply majority. The need for the chairman of the licensed limited corporation to be a registered professional is removed.

Corresponding changes in Building Control Act

Corresponding amendments are made to the Building Control Act to facilitate the D&B arrangement. At the same time, sufficient safeguards are maintained to ensure building safety.

The Bill amends section 6 of the Building Control Act to allow the builder in a D&B project to appoint the design QP and supervising QP for the project. However, the supervising QP for a project that is required to be checked by an accredited checker (AC) has to be independent of the builder. Hence, the supervising QP cannot be a partner, officer or employee of the builder or any of the builder's associates. Projects that require checks by ACs are usually the bigger and more complex projects. The independence of the supervising QP is necessary in such projects to minimise situations of conflict of interest. This will also ensure that the building works can be constructed with proper and impartial supervision.

Other amendments

Madam, my Ministry is also proposing other amendments to streamline and improve the regulation of buildings and the architectural and professional engineering services.

Streamlining building work process

Currently, after obtaining approvals for building plans, owners are also required to obtain permits to commence works from the Commissioner of Building Control before they can start construction. This is to allow the Commissioner to revoke the permit and stop works, should the construction works pose danger to the public or neighbouring properties.

However, as non-structural building works usually do not have safety issues, clause 5 amends section 7 such that only structural works are required to obtain a permit to commence work. This will allow non-structural building works to commence immediately after approval of plans. As a safeguard, a new section 7A is inserted to empower the Commissioner to stop any non-structural building works, if they pose a danger to public or neighbouring properties.

In addition, amendments are made to section 49 to allow the Commissioner to require additional information and documents to be submitted during the application of Temporary Occupation Permit and Certificate of Statutory Completion. This will enable better evaluation of the applications.

Recovery of cost of engaging an expert

Madam, there had been cases in the past where building works were constructed in such a manner that rendered the works unsafe or likely to lead to instability. In such incidents, BCA had to put in additional manpower and resources to monitor the safety of the affected building or building works.

The investigation into the causes of the building's instability is highly technical and complex. It is prudent for the Commissioner to engage an independent specialist consultant to give him an independent second opinion. However, the Commissioner had to bear such costs in the past, which far exceeded the plan fees collected. The problem could be due to either design or construction inadequacies. As such, instead of paying such costs with public funds, the owner or developer of the project should bear the costs of engaging the specialist consultant. To this end, section 23 has been amended to enable the Commissioner of Building Control to recover the costs incurred in engaging the expert from the developer or owner of the building works.

Review of penalties for offence under the Building Control Act

Madam, my Ministry has also reviewed the penalty provisions for the different types of offences under the Building Control Act. I shall now explain these changes.

In the wake of the collapse of the roof of Compassvale School in 2001, which was attributed to a structural design flaw, section 9(5A) was introduced to require the QP responsible for structural design to take reasonable steps and exercise due diligence in complying with the Act and the building regulations. The maximum penalty for a design QP for structural works for failing in this duty is a fine of $100,000 and/or a jail term of not more than 12 months.

However, if a QP fails in his professional duties, it should not matter whether he is dealing with structural design or non-structural design. He should be subjected to the same penalty provision for the same offence of not exercising due diligence in carrying out his professional duties. Lapses in non-structural design could also result in serious consequences. Section 9(5A) is, thus, amended to extend the same duty and penalty to the QP for non-structural designs.

A builder's responsibility to carry out building works in accordance with the approved design and under the supervision of a QP is as important as the design QP's responsibility in ensuring the safety of his design. If the design is robust but building works are not carried out according to this design, then the result could be an unsafe building. The amendments in sections 8(2), 9(5A) and 11(5) set the maximum penalty for a builder who fails to discharge his responsibilities to be on par with that of a design QP, ie, $100,000 fine and/or 12 months' jail.

The supervising QP and Accredited Checker (AC) perform similar check-and-balance roles in supervising the builder's work and checking the QP's structural design, respectively. The Bill, therefore, proposes to set the maximum penalty for the supervising QP for failure in carrying out his role at the same level as that of the Accredited Checker, ie, $50,000 fine and/or 12 months' jail. The relevant amendment is found in section 9(4).

The Bill proposes to amend section 5 to increase the maximum penalty for any person who commences or authorises the commencement of any building works without approval or permit. The increase is from the current $50,000 fine and/or 12 months' jail to $100,000 fine and/or 12 months' jail. The upward revision underlines the severity of the offence.

Madam, the changes which I have mentioned are the maximum penalties for the various parties involved in the construction process. It is for the courts to mete out the appropriate penalty, based on the severity and circumstances of the offence.

Introduction of continuing professional development

The Bill also amends the Architects Act and Professional Engineers Act to require a registered architect or professional engineer to comply with prescribed requirements relating to continuing professional development as part of the criteria to renew his practising certificate. This is to ensure that the architects and professional engineers continue to stay abreast of developments in their respective fields. It emphasises the importance of training and professional development to maintain the high standards of architectural and professional engineering practices in Singapore.

Streamlining of requirement for licensed corporations and partnerships

Finally, the Bill proposes to remove the requirement for the director overseeing the professional services offered by a licensed corporation or partnership under the Architects Act and the Professional Engineers Act, to be resident in Singapore. This is in view that the Building Control Act is already holding the appointed QPs responsible for the certification of plans and supervision of building works.

In conclusion, this Bill proposes changes that will enable the construction industry to be more efficient and integrated. D&B arrangements will be facilitated and building processes streamlined. It will also allow for greater design flexibility and innovation. Continuous learning amongst our architects and professional engineers is encouraged through implementing performance-based regulations and continuing professional development.

Mdm Deputy Speaker, I beg to move.

Question proposed.

Dr Teo Ho Pin (Holland-Bukit Panjang): Mdm Deputy Speaker, I rise in support of the Bill. Let me highlight three key areas of the Bill, which I hope the Minister will clarify.

Performance-based regulatory system

Many countries have implemented performance-based building regulations but found that most designers still follow the prescriptive solutions. In fact, many designers have developed a strong dependence on test methods that do not clearly demonstrate real world performance. This situation occurs because many designers are not familiar with performance-based regulatory system. Some do not have the expertise to implement the system.

Madam, I support the initiative to move towards a performance-based regulatory system in Singapore. But I wish to seek clarifications from the Minister concerning the desired outcomes of such a proposal, and what is the state of readiness of our construction industry to implement the system.

In my opinion, a performance-based regulatory system should achieve three desired outcomes, as follows:

1. It should provide more flexibility in design and construction solutions;

2. It should encourage more innovation in the industry; and

3. It should reduce the total life cycle costs of a building.

Madam, we must clearly define these desired outcomes and quantify them to monitor the success of the performance-based system. With the performance-based approach, designers and builders will now have more flexibility to propose more innovative solutions to their clients. This will encourage the use of more building materials and systems, thus facilitating more trades.

While this may be good to give a boost to the economy, we must make sure that the industry has the necessary expertise to evaluate the performance of these building materials and systems. In Singapore, the building booms in the 80s and 90s had resulted in an influx of a wide range of building materials and systems in our built environment.

Today, town councils, management corporations and building owners are faced with a host of maintenance problems, such as high maintenance, operation and replacement costs of all these materials and systems. While some of these innovative solutions have worked, others have failed, due to various reasons, such as poor design, poor selection of materials, poor workmanship or wrong usage. For example, town councils have to maintain so many different types of lighting systems in our estates due to innovative designs. This has increased maintenance cost drastically.

Madam, I am indeed concerned about the repercussions of a performance-based system in our "immature" construction industry. I would like to seek some clarifications from the Minister on the following:

1. How will the performance-based system change the industry?

2. What are the key benefits of the system?

3. How will it affect the laws?

4. How will it impact upon our building standards, ie, Singapore Standards, and Codes of Practice?

5. What are the liabilities and risk transfers between the authorities and building practitioners?

6. Are the authorities and practitioners equipped with the expertise to implement the system?

Madam, we need to adopt a holistic approach to ensure that the performance-based regulatory system is complemented by expertise, accountability and responsible allocation of risks. We must clearly set quantitative performance measures to facilitate the fulfilment of contractual obligations. Experience in New Zealand has shown that one of the key reasons that led to the slow embracement of performance culture is that the benchmark of skills is too low. Thus, we need to conduct a thorough evaluation to ensure that we have the expertise to support a performance-based system in Singapore.

Design and Build procurement arrangements

Madam, I support the amendments to facilitate the Design and Build procurement arrangements in the construction industry. This arrangement will facilitate teamwork among the designers and builders in the project.

One of the perennial problems faced by the construction industry is the separation of the design and construction processes, which are undertaken by different parties, namely, the designers and builders. This has led to the development of an "adversarial culture" among the design and building teams, which often results in much unproductive and abortive work. To aggravate the situation, standard contract forms for building projects are usually not drafted with fair contract terms to allocate the risks and responsibilities among contractual parties. Under such an operating environment, building projects usually encounter lots of problems, thus affecting productivity and quality.

Madam, we need to address this undesirable state of the construction industry and make changes to facilitate a "teamwork" approach in carrying out building projects. The adoption of Design and Build procurement arrangements is one way in which we can "house" the design and construction teams under one roof. It provides a single point responsibility, and facilitates teamwork among designers and builders.

The successful completion of a building project depends on many parties, namely, the architect, engineer, quantity surveyor and the builder. Therefore, we must adopt an integrated approach to encourage joint responsibility among the parties involved in the project. Instead of appointing a qualified person who is either the architect or engineer, we should appoint qualified or licensed corporations which have a team of architects, engineers, quantity surveyors and builders to provide design and construction services. Thus, I would urge the Government to take the lead in promoting Design and Build construction in Singapore.

Powers of Commissioner of Building Control

Clause 13 of the Bill provides that the Commissioner of Building Control can recover the cost of engaging an expert to investigate and advise on rectification works from the developer or owner if the Commissioner is of the opinion that the on-going construction works are, or are likely to lead to instability or collapse of the building.

Madam, section 23 of the Building Control Act clearly states that the Commissioner of Building Control may make an order to require building owners to take the necessary measures for dangerous buildings, and penalise the owner accordingly for non-compliance. As such, I do not see why the Commissioner needs additional power to engage an expert for investigations and tests.

What are the liabilities of the Commissioner, if the expert whom he commissions makes omissions or acts of negligence in the investigations or tests? Can the owner challenge the findings of the expert engaged by the Commissioner? Are the findings final?

Madam, I do not think it is the responsibility of the Commissioner to investigate and conduct tests for dangerous buildings. This should be the responsibility of the developers or owners. I hope the Minister could clarify on the need for the Commissioner to have such powers.

Madam, I support the Bill.

Mr Chiam See Tong: Madam, I would like a clarification from the Minister. Not that long ago, somebody complained in the local newspapers that he had to pay about $2,600 for his building plans to be approved. My question is: why should such an application be so costly? I also understand that if the applicant's plans are rejected, all his application fees shall be forfeited. Why should this be so?

Mr Mah Bow Tan: Mdm Deputy Speaker, first of all, let me address the points which Dr Teo Ho Pin made. I would like to thank him, first of all, for supporting the Bill.

He made three very pertinent points. I would address them in turn. First of all, on the performance-based regulatory system. As Dr Teo said, and I agree with him, even though many countries have implemented these performance-based regulations, it does mean that they will automatically follow these regulations. In fact, I understand most designers and design qualified persons still follow the prescriptive system. It is quite understandable because it is a safer route as it is well-established. Why should they try something different? But this is precisely the point. Even though it is a safer route, the prescriptive system does impose certain restrictions. This is why we want to try to implement the performance-based system in Singapore to encourage innovation and flexibility.

We are not saying that with this implementation of the performance-based system in Singapore, we want design qualified persons to move away from the prescriptive solution. What we are saying is that you can do both. You can either stick to the prescriptive solution if you wish to, or now you are given this flexibility to look for more innovative solutions, something which hopefully can cut costs and give more flexibility. That is why I agree with Dr Teo that the three desired outcomes of more flexibility, more innovation and cost reduction must be borne in mind when we implement this system.

I also concur with Dr Teo's point that the system must be complemented by expertise accountability and responsible allocation of risks. I think the amendments that we are going to make in this Bill have adequately taken these into consideration. The duties and responsibilities of the design QPs are adequately defined. The engagement of a second QP to certify alternative solutions is meant to address this issue of expertise.

As to the question of transfer of risks and liabilities between the authorities and the building professionals, I wish to assure him that there is no transfer of risk. Currently, the design QP has the statutory duty to comply with the prescriptive solutions under our current building regulations. Under the performance-based system, his statutory duties are unchanged. They remain the same.

But as Dr Teo has rightly pointed out, this is something new for the local industry. I expect that the local industry and the local professionals will take time to get used to the idea, and also to build up the expertise, experience and the confidence to try out this new system. What BCA can do will be to promote the system by organising seminars, answering queries through workshops, explaining the implementation details to the professionals. Hopefully, if we can allow some of the professionals to take this performance-based approach, and in the process, come up with more innovative solutions which will give them more flexibility and, at the same time, reduce costs for them and for their clients, then it will have been worth it.

On design and build, Dr Teo has reiterated the point that this is a good approach, ie, the teamwork approach, that all professionals involved must work together in order to achieve the desired outcome and for Government to take the lead. Certainly, he would know that many public sector agencies have actually taken this design and build approach - the HDB, the old PWD, MINDEF. The design and build approach has produced results. It has shown itself to be a good way of doing things. What we are doing now is to facilitate this and to make sure that we remove any impediments in the Acts which currently do not allow design and build arrangements to be carried out in the private sector. I would like to thank Dr Teo for his support for this amendment to facilitate this arrangement.

The third point he made was about the powers of the Commissioner of Building Control. He asked why there is a need to engage an expert for investigation and for testing major buildings. As I mentioned in my speech, this is mainly for investigation and testing on major and complex structures and buildings which show serious design or structural faults or distress, which may lead to catastrophic consequences. It is in such circumstances that we reckon that the investigations can be highly complex and technical in nature. This is why we are providing for the Commissioner to have the ability to engage another expert to seek a second opinion. Not only that, it is to make sure that the costs so incurred do not land with the public sector, but with those who are responsible for such an investigation to be conducted in the first place. What the expert would do is to be an adviser to the Commissioner. He will assess the situation. He will investigate. He will check on the adequacy of the works, both the current works and also the proposed rectification works and will give an expert advice to the Commissioner. Of course, the owner or the developer can also similarly engage an expert but, ultimately, what the Commissioner would have to approve are the qualified person's recommendations. It is an important provision because, as I have said, the consequences of such distress or shortcomings may be catastrophic. It is erring on the side of caution to seek this second opinion. I hope I have answered the questions raised by Dr Teo.

Mr Chiam asked two questions which are unrelated to the Act in question but, nevertheless, I would try and explain. There is a fee that is levied on the submission of building plans. Mr Chiam mentioned $2,600. I am not exactly sure whether this is a flat fee. I think it varies, depending on the complexity of the plans. This fee is to compensate the authority, ie, the public sector agency, for the costs incurred in processing the plans. As he may know, a building plan is a highly complex document. In fact, it can be quite voluminous. It involves many different agencies, from roads to drainage, to fire safety, to structural safety, conformance with environmental requirements and so on, and so forth. It involves many different agencies, although we have tried to streamline the process by having a one-stop submission facility. Nevertheless, even though it is a one-stop submission, many different experts and professionals are involved in processing the plan. So, the costs that are incurred are not insubstantial. In fact, if you add up all the manpower costs involved, you will find that the fee barely covers the costs.

Why is the fee still levied, even if the plans are rejected? It is because the work has already been done. When the plan is processed and it does not meet the requirements, ie, it is rejected, it does not mean that you return the plan. If that were the case, everybody just submits any plan and just hopes for the plan to be rejected, or, worse still, for the agency to point out where the shortcomings are in the plan, tell them, return the plan with the notes as to how to rectify them and then after that, get its feedback as well. I think that is really asking a bit too much.

Mdm Deputy Speaker: Mr Chiam, are you seeking a new clarification on the last point because that is not the substance of the Bill? You may want to file a Question.

Mr Chiam See Tong: No. Just a clarification.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Mr Mah Bow Tan].

Bill considered in Committee; reported without amendment; read a Third time and passed.