In the aftermath of the Grenfell disaster in the UK and the Non-conforming building products government inquiry, the NSW Government has introduced the Building Product Safety Act 2017 (NSW). This legislation bans unsafe building products and provides widespread power to the order rectification of buildings that are affected by unsafe building products.
This legislation will have sweeping implications affecting developers, suppliers, manufacturers, builders, contractors and home owners and occupiers. Morrissey Law & Advisory has prepared a short Q&A around the basics of the legislation:
- What does the legislation cover?
The Act relates to safety risks. These are risks that are posed by the use of a building product that will result or is likely to result in a risk of death or serious injury of any occupant using that building product in the building. This is irrespective of if the risk only occurs in certain circumstances or if other event occurs such as a fire.
A building product will be considered unsafe if there is a safety risk posed. The Act does not apply to asbestos or asbestos products.
- Who has the powers under the Act and what can they do?
The Fair Trading Secretary may, if there is a safety risk posed:
- Prohibit the use of a building product in a building;
- Issue a warning about a class of building that may be affected; and
- Issue an affected building notice.
- When did the Act commence?
The Act came into effect on 18 December 2017.
- What happens if there is a ban on the building product?
If there is a ban on a building product, the ban comes into force on the day specified by the Secretary in the notice imposing the ban ,and that product will remain banned until it is evoked by the Secretary.
The Secretary has the power to amend or revoke the ban. The Secretary may before imposing a ban or after imposing a ban call for public submissions on the question on whether the ban is warranted and the terms or proposed terms of the ban. The ban has a retrospective effect as banned products may be in existing buildings.
- What happens if a building is affected?
This means that that a product used in the building is subject to a produce use ban. It does not matter if the building product was used in the building before the ban was in force. The Secretary, if satisfied on reasonable grounds that the building is affected, will issue a notice, and may give it a number of people including:
- The owner(s) of the building;
- The occupier(s) of the building;
- The council in the area;
- A relevant enforcement authority for the building; and
- The Commissioner of Fire and Rescue NSW.
The notice may be published on the internet if it is in the public interest to do so.
A relevant enforcement authority such as the council, may make a building product rectification order for an affected building. This order will require the owner of the building to take necessary steps:
- To eliminate or minimise the safe risk on the unsafe building product,
- To remediate or restore the building after eliminating the safety risk.
In broad terms, this could mean major rectification works or replacing the product with a different product.
- What does this mean for manufactures, supplies and contractors?
Contractors and builders (particularly those providing design services), manufacturers and suppliers need to be careful that they do not represent a banned product is suitable for use. Builders and contractors should also pay careful attention to the materials being installed on projects to ensure the products are proper and suitable.
It is an offence to contravene a building product use ban by either:
- Causing a building product to be used in a building (this includes doing the relevant building work that incorporates or attaches the banned product to the building); and/or
- Representing, in trade and commerce, that the building product is suitable for use in a building.
If the relevant works are residential building works then a holder of a contractor license or a supervisor or tradesperson certificate will need to ensure that they comply with the requirements under the Home Building Act 1989 (NSW) including the statutory warranties provided by s18B , as any contravention will amount a guilty or improper conduct under the Act.[i]
- What are the implications for building owners and occupiers?
As noted above, the Secretary may issue a notice to building owners and occupiers. The building owners (including owners’ corporations) may be required to rectify their building and a rectification order may be made. If the building owner does not comply with the rectification order there are a number of serious implications, including;
- If the owner wanted to sell their building or land, there would be an implied warranty of options or purchase of residential property ,
- A strata information certificate by the owner’s corporation would need to include the product rectification order.
It is important to ensure you are in compliance with the Act and understand your options if you are affected by a product ban or affected building. If you have any questions, or wish to discuss the impact of the legislation contact Michael Morrissey (firstname.lastname@example.org) or Hamish Geddes (email@example.com)
Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.
 s9; s18;s19 of the Building Products (Safety) Act 2017 (NSW).
 s20 of the Building Products (Safety) Act 2017 (NSW).
[i] S51 of the Home Building Act 1989 (NSW).