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Publisher’s version / Version de l'éditeur:

Fire Journal, 70, 1, pp. 74-75, 1976-01

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The separation of legal and technical functions in building regulations

Ferguson, R. S.

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N21

no.

c,

:

National Research

Conseil national

uncil

Canada

de

reckrches Canada

ANALYZED

THE SEPARATION OF LEGAL AND TECHNICAL

FUNCTIONS IN BUILDING REGULATIONS

Reprinted from Fire Journal

Vol.

70, No. 1, January 1976 p. 74 75

DBR Paper

No.

690

Division of Building Research

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This paper is a r e p o r t of a panel d i s c u s s i o n a t the

Life Safety Syeterns Conference, NFPA/NRc, held

i n Ottawa, Canada, 23-24 July 1974, It w a s pre- p a r e d by the S e s s i o n Chairman, R. S. F e r g u s o n ,

DBR/NRC, and authenticated by the panel speakere.

Cette communication e s t un r a p p o r t de l a d i s c u s s i o n e n groupe l o r s de l a Conference s u r lesSyst'emes de s b c u r i t b d e s p e r s o n n e s , NFPA/CNR, tenue 'B Ottawa, Canada, l e s 23-24 juillet 1974. Ce r a p p o r t a6tC p r 6

-

p a r 6 p a r l e pr6sident de l a discussion, R. S. F e r g u s o n DRB/cNR, e t vbrit6 p a r l e s conf6rences de la d i s

-

cussion.

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I

Reprinted from F l R E J 0 U R N A 1 Vol. 7 0 No. 1

I

THE SEPARATION OF

LEGAL AND TECHNICAL FUNCTIONS

IN BUILDING REGULATIONS

~ N A L Y ~ F ~

The idea that legal and technical aspects of building Technology and Law Are Characteristically Different

regulations can and should be regarded as separate functions was the subject of a panel discussion at a Life Safety Systems Conference jointly sponsored by the National Research Council of Canada ( NRC ) and the NFPA, held in Ottawa, Canada, July 23-24,1974.

The Conference was attended by members of the NFPA Committee on Safety to Life and members of the NFPA Systems Concepts Committee, and by inter- ested persons involved with the work of the NRC Asso- ciate Committee on the National Building Code of Canada. The form, rather than the content, of regula- tions was the theme. The program included discussion of systems of building safety control, e.g., the system being developed by the NFPA Committee on Systems Concepts for Fire Protection in Structures and the sys- tem that is being developed in Canada.

As those concerned with building codes turn more to systems in an attempt to correlate the growing collec- tion of technical data and knowledge that is relevant to safety, the role of law as it relates to these technical sys- tems becomes a matter of increasing importance. The differences between law and technology as instruments of control become more apparent. It was timely, there- fore, that the views of persons concerned with this problem should be expressed on this occasion.

The panel speakers were David Bernstein, Q.C., Di- rector, Legal Branch, Ministry of Health for the Pro- vince of Ontario (who recently has been involved with

the development of the National Fire Code of Can-

a d a ) ; Frank X. Perreault, Senior Adviser, Department of Labour and Manpower, Province of Quebec (recent Provincial Fire Commissioner, and at present involved with the development of the Quebec Provincial Build-

ing and Fire Codes) ; and John Steer, M.I.C.E., Build-

ings Control Officer, Ministry of Works and Utilities, Commonwealth of the Bahamas, and writer and com- piler of the Bahamas Building Code.

* Report of a panel discussion at the ~ i f e Safety Systems Conference. NFPA/NRC. held in Ottawa. Canada. Tulv 23-24. ,.. ,

1974. Prepared by the Session Chairman, R. S. Ferguson ( ~ i v i : sion of Building Research, National Research Council of Can- ada) and authenticated by the panel speakers.

Mr. Bernstein stated that the function of the law- maker is to create whatever restrictions may be neces- sary on the citizen's freedom of choice to ensure the existence of conditions that conform to minimum standards of safety. The function of the technologist is to state what those minimum standards are.

The problems involved in each function are not the same. The technologist's problem is to determine an appropriate limit for each of the many possibilities in the problem area under consideration. The lawmaker's problem, which arises only after the technologist has solved his own problem, is to decide whether he wants to require conformance to those limits and, if so, by what means.

Mr. Bernstein preferred to think of the matter in this way: The technologist says, "The minimum safe condi- tion is

. .

.," while the lawmaker says, "The minimum condition that you may create or allow shall be.

.

.

."

The appropriate combination of technology and law embraces the statements of both the technologist and the lawmaker.

The technologist, whose function is to generate standards, will be interested in the extent to which the lawmaker has made those standards imperative in the community. He will therefore appreciate the problems that confront the lawmaker, and the part that stand- ards will play in the lawmaking process. Because the law will refer to standards, they should be unambigu- ous, understandable, and so expressed that compliance or noncompliance with them can readily be ascer- tained. The fulfillment of these criteria not only con- tributes to effective control through law, but also en- ables the citizen to know the extent to which his freedom is restricted.

One conference delegate suggested that, although separation of the functions of writing the law and writ- ing the standard may be a satisfactory concept for large jurisdictions, it is not satisfactory in smaller com- munities that lack adequate legal expertise. Mr. Bern- stein appreciated this view, but described the problem as one of inferior political organization; the power to

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make law should be conferred only on lawmakers who have access to the necessary expertise. The na- ture of the decisions to be made in the writing of the law indicates that one should not expect the technolo- gist to make up for the lack of legal expertise.

(Earlier, Mr. Ferguson provided two examples illus- trating the practicality of separating the drafting of law and of standards. These examples demonstrated that model codes expressed in the imperative phrases of law do not take into account the variation in enforce- ment powers, or in available facilities, from one juris- diction to the next. )

The Importance of Understanding

Mr. Perreault said that a building code should be so written as to be understandable by those who adminis- ter it. It is essential to separate the law and a code, be- cause a code must be sufficiently detailed to ensure that all technical matters are clearly explained. He said that in Quebec, an explanatory manual with illustra- tions and notes had been prepared as a technical text to supplement the code.

In their turn, too, legal statements must be under- standable to the legal profession. Technical statements should not be expressed in legal form, nor should they be part of the law. Separate legal and technical state- ments are therefore necessary.

Enforcement

Mr. Steer agreed with the previous speakers and added one further point, which was related to what Mr. Perreault had previously said. In the Bahamas, the traditional form of building legislation was used for many years, and cases were lost in court because the law covered technical matters. For example, he had, on one occasion, taken a case to court concerning a dilap- idated building that contained a seriously deteriorated suspended concrete slab. The Building Department's arguments centered around the fact that the slab had spalled and the reinforcement had seriously corroded, and hence it was in a dangerous condition. Under the framework of the Buildings Regulation Act, as it was written at that time, it was very difficult to deal with technical arguments in court. The Building Depart- ment lost the case. This and similar subsequent cases led to a detailed reappraisal of the methods of enforcing the Regulations.

It was decided to revise the Buildings Regulation Act, and in order to simplify matters, Mr. Steer recom-

mended that a separation be achieved between the le- gal and technical requirements. This was done by mak- ing compliance with the Building Code a mandatory condition of a building permit. The Code itself, how- ever, is not part of the Statutory Law; it is virtually a Code of Practice, and sets out the standards of con- struction that are acceptable to the Minister. The Buildings Control Officer issues permits, and may sus- pend or revoke them if the conditions of permit are not adhered to. Any revocation or suspension may be appealed to the Minister; hence, all technical matters are kept within the Ministry of Works and Utilities. The courts are now concerned only with the fact that a person who is constructing a building must be in pos- session of a valid permit; or, in the case of a suspen- sion, that he is doing only such work as is authorized for the suspension to be removed.

The Act has been in use some three years now; it has been tested in both the upper and lower courts and upheld. It should be noted that one result of this sys- tem is that the Building Code does not make extensive use of legal terminology. It is therefore more readily understood by the various people using it, as compared with the legalistic forms of building codes, and this is extremely important.

(Mr. Bernstein commented later that Mr. Steer's re- marks reinforced the point that the compulsion of the law may be effected in different ways - for example, by a permit system or by a criminal law system. The person who determines the standards is not necessarily the appropriate person to determine the desirable legal mode of implementing those standards. )

Chairman Ferguson's Summary

A case can be made on many counts for separating the technical necessities (standards, limiting condi- tions ) from the legal necessities ( the actions required, the commands, etc.). Each can be written by experts in the field - the law by lawyers, the technical code by technologists - and together, the two groups can form a whole that contains no ambiguities, misunderstand- ings, or vagueness. The necessity for revision that is often due as much to the above-mentioned faults as to new developments can be reduced, and more effective control can result. The technical code, free of the con- straints of legal draftsmanship, can embrace the variety of appropriate situations. The legal directives, freed from the technical content, can be written by the au- thority that adopts the technical standard, and thus will take into account differences in purpose and legal au- thority that occur from one jurisdiction to another. L

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