Building standards are designed to protect the public interest and have traditionally been administered by a public
agency. In this case the construction of a building is prohibited without an approval that states compliance with these
standards. These standards may be set by a public agency in the exercise of a discretion in which case they are unpredictable.
Or they may be set by law in which case they are predictable. But these standards are increasingly performance
based. This necessarily introduces an element of discretion and hence unpredictability in application. Since the
application of building standards is in theory a technical function, there is no opportunity for decisions based on policy
or value judgements. But in the case of performance standards with an implied element of discretion, this distinction
has become blurred in practice. This leads to difficulties in attributing legal responsibility among developers, professional
advisers and public agencies performing regulatory functions. These difficulties have been exacerbated by the
move towards private certification which, although undertaken by the private sector, remains a public function. The legal
relationships between participants in these processes are complex and responsibility difficult to predict.
Keywords : Building Standards, Performance Standards, Regulation, Private Certification, Discretion, Law, Legal
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