Importing Unsafe Building Products into Australia 1

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Wednesday, December 9th, 2015
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In late 2013, a fire in a Melbourne apartment tower which the MFB have said was made far worse than it otherwise may have been has raised issues in the town as to what can happen when unsafe building products are used on building projects.

Apparently the cladding which was used was not tested for fire safety; it was combustible, which potentially put hundreds of lives at risk. There is the potential for occupants of other new high-rise building developments to be at the same risk.

There is a real public issue that needs to be addressed. It is not sufficient to say conclusively or indeed at all that professionals such as building surveyors should bear the lion’s share of the 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 the regulatory body the Victorian Building  Authority, which some may have ‘in the gun’ for an alleged lack of exercise of regulatory muscle over relevant players in the building industry is not responsible in many cases.

The real culprit in this situation is in fact the importing of unsafe cladding and other building products into Australia from overseas notwithstanding the fact that in the case of the Lacrosse fire the fire also spread faster also due to the fact that storage facilities in the building were overloaded.

In this fire, the building’s fire sprinkler, smoke detection system and early emergency warning system all worked well, the MFB has found. Diabolic consequences may well have resulted if they hadn’t.

A class action lawsuit may ensue as a result of the circumstances arising from this fire. 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 it be.

The real problem with the combustible may be ‘at its source,’ that is, the manufacturer of these products, and where such products are imported, that ‘source’ may be a manufacturer in an overseas country. The risks can be exemplified by the fact that this overseas country may well have different building standards to Australia and so products which are compliant in the other country may not be here. The importer may or may not claim the particular product is a complying product. The identity of the particular country is not a seminal point, but lets just say the possibility that it is an Asian or third world country that the product is being imported from is high.

The fact that the VBA 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 at hand.

The problem often arises due to the fact that fire safety non-compliant products are usually cheaper than fire safety 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 [2015] 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 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 of the particular imported product being imported and also whether or not it complies with Australian standards and in particular the Building Code of Australia.

Such a register would have to be run strictly, be transparent and updated regularly to work effectively. It would be open to the public to inspect, and would be able to be utilised for example by  builders who are considering which particular products to use on a particular project.

The issue of non-compliant products and their perils are a matter of public controversy and have been discussed at length. Nevertheless it is a good reminder of the fact that the issue has not ‘gone away’ and may still cause problems down the track, if not in the immediate future, when a builder or a developer is considering which materials to use in high rise or even low rise apartment dwellings.

One hopes that some positive developments come out of all of the talk.

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  1. Barry B

    As much as I'm averse to excessive intervention by the state in the workings of the free market, a national register of products doesn't sound like a bad idea to me at all – and easy enough to implement via the Internet.