There has been a series of fires not only in Australia but also overseas which raise issues, and which have engendered conversation as to the multifaceted risks for people living in multi-unit developments and the related issue of what can happen when unsafe building products are used on building projects.
These unsafe or allegedly unsafe products may be ones manufactured in Australia or imported into the country.
Some of the cladding which existed on the particular buildings was apparently not tested for fire safety, it was easily combustible and this potentially put hundreds of lives at risk.
This a live real public issue and it needs to be addressed quite urgently. It is not sufficient to say that professionals such as building surveyors in particular (despite the findings in the Lacrosse decision) should bear the legal and factual responsibility for the situation here. Asserting that the relevant building surveyor just should not have issued an occupancy permit in such cases is not satisfactory, at least without a thorough examination of the facts. Even regulatory bodies which cop some blame for lack of exercise of regulatory muscle over relevant players in the building industry should also not be legally and or factually responsible in so many cases. It is submitted that the real culprits are end users in many cases.
The real ‘culprit’ in this situation is often when unsafe cladding and other building products are imported into Australia from overseas. It is important tom remember that in the Lacrosse fire the fire also spread faster also due to the fact that storage facilities in the building were overloaded.
There, the building’s fire sprinkler, smoke detection system and early emergency warning system all worked well apparently. Diabolic consequences may well have resulted if they hadn’t.
The possibility of class actions being launched is ever present in many of these circumstances. However the issue with this is that the wrong players may be being pursued, such as building surveyors. The issue here was alleged combustibility of the cladding products, an issue that often is not or will not be picked up by a building surveyor and nor should or could it be.
The real problem with the combustibility may be ‘at its source,’ that is, the manufacturer of these products, and where such products are imported, that ‘source’ may a manufacturer in an overseas country. The risks can arise by virtue of the fact that the relevant overseas country may well have different building standards to Australia and so products which ‘reach’ standard in the other country may not comply here.
Importers of building products into Australia may or may not claim the particular product is a complying product here. The identity of the particular country is not a seminal point but lets just say the possibility that it is an Asian or other third world country that the product is being imported from is high.
The fact that regulatory authorities have in one case (in Victoria) has or had put in place a dedicated phone line to answer questions in regards to possible non compliant building cladding products indicates the extent of the potential problems as they are perceived.
A compounding factor to the crisis is that non compliant products are often cheaper than compliant products. The problem gives rise to grave concerns as there is a real possibility that such non compliant products are being used in many buildings, not only in Victoria but also all states of Australia.
It should be noted that the consumer protections provisions of the Domestic Building Building Contracts Act apply to high rise apartments (per Burbank Australia Pty Ltd v Owners Corporation  VSC 160 (29 April 2015)) so that the warranties in that Act such as lack of faulty workmanship and materials still apply to multi unit or level buildings.
A Possible Solution?
A possible solution to the issue, if set up correctly, may be to have established a national ‘register’ of imported building products. The idea behind such a proposal would be to record the fact that the particular imported product has been or is being imported and would also record whether or not the particular product complies with Australian standards and in particular the Building Code of Australia.
Such a register would preferably be open and transparent and freely available to the public and updated regularly. It would be able to be utilised for example by builders who are considering which particular products to use on a particular project.
The issues canvassed in this article are a matter of public controversy and have been discussed at length elsewhere both in Australia and overseas.
One hopes that some positive developments come out of all of the action taken to date as well as the many conversations occurring surrounding the issues.