Non-Conforming and Non-Complying Building Products
Risks and problems associated with the use of non-conforming and non-complying building products can affect the entire building and construction industry. This includes issues relating to health, safety, cost remediation and legal action. Most importantly, this issue can have significant impacts on the safety of the people who occupy buildings.
All those involved in the building and construction industry have a responsibility to be vigilant and to comply with legal requirements.
Whether you are a consumer or a builder you can help mitigate and reduce the risk and issues associated with non-conforming and non-complying building products.
There are five key steps:
- Be informed about non-conforming and non-complying building products.
- Be involved in the building product decision making process.
- Be aware of the building regulatory systems.
- Be smart by using schemes that assure products.
- Get help when you need it.
A non-conforming building product is a product or material that:
- claims to be something it is not
- does not meet required standards for its intended use
- is marked and supplied with the intent to deceive those who use it.
A non-complying building product is a product that is used in a situation where it does not comply with the requirements of the National Construction Code.
There are legislative measures that are already in place to help ensure that the building materials used meet the relevant state legislation, codes and standards. Everyone involved in the building and construction industry has a responsibility to ensure that achieving a cost-effective result does not lead to sub-standard or unsuitable products.
Anyone directly involved in purchasing products and materials needs to understand the various requirements that apply to those products and materials, and the evidence required to demonstrate compliance and conformance.
Consumers, assessment and approval authorities, builders and inspectors should follow these measures:
- use or buy from reputable suppliers
- do not use or approve specific products where the required compliance and conformance is not demonstrated
- check that the product or material supplied and installed is what is nominated in the approved plans and specifications, and that appropriate evidence of conformity and compliance is provided
- use materials, products and systems that have widely recognised industry certification or accreditation
- obtain suitable evidence from the supplier and consider either undertaking an inspection or testing if evidence is not available or appears suspect.
The National Construction Code (NCC) contains technical provisions for the design, construction and performance of buildings, including building products (excluding electrical and telecommunication products) throughout Australia. It comprises of:
- Building Code of Australia (Volume One and Two)
- Plumbing Code of Australia (Volume Three).
The general provisions regarding the acceptance of design and construction are found in Part A2 of Volumes One and Three and in Part 1.2 of Volume Two.
There are six different types of evidence that can be used to verify that a product conforms and/or complies with the NCC:
- CodeMark or WaterMark Certificate of Conformity
- certificate of accreditation from a state or territory accreditation authority
- certificate from an appropriately qualified person such as an engineer
- certificate from a product certification body accredited by Joint Accreditation Scheme of Australia and New Zealand (JAS-ANZ)
- report issued by a registered testing authority
- other documentary evidence.
The NCC defines several terms relevant to building products and their appropriate use:
- Fire-resisting when applied to a building element means having an FRL appropriate for that element.
- Non-combustible means:
- applied to a material - not deemed combustible as determined by Australian Standard AS 1530.1; and
- applied to construction or part of a building - constructed wholly of materials that are not deemed combustible.
- Flammability Index means the index number as determined by Australian Standard AS 1530.2.
The Australian Building Codes Board operates two product certification schemes:
- WaterMark for plumbing products
- CodeMark for building products.
A CodeMark certificate can be accepted as showing compliance with the National Construction Code but check that the certificate confirms that the product is being used in circumstances that are covered by the certificate.
A range of methods and schemes can be used to test whether a building product or material is genuine and will do what it is made to do.
'Procurement of Construction Products - A guide to achieving compliance' published by the Australasian Procurement and Construction Council describes these.
Be cautious when a replacement product is offered on a construction site and it appears to be an identical but considerably cheaper product. Don't accept the substitute product without thoroughly examining the supporting technical data and test results to ensure that it is an equivalent product and is in accordance with the development approval.
Where there is any doubt about the acceptability of a substitute product, refer it back to the building surveyor who assessed the application. In particular, if the specified product is CodeMark compliant and the substitute product is not, then the substitute must be regarded as highly suspect.
It is a breach of the Development Act 1993 if any item or materials incorporated into any building do not comply with the Building Rules and the failure to comply can be attributed to an act or omission of a person who designed, manufactured, supplied or installed the item or materials and it was reasonable to rely on the advice, skills or expertise of that person.
A compliance check occurs at two points:
- during the assessment of an application
- during any inspections undertaken during construction.
An inspection of building work should ensure that the building is being constructed in accordance with the approval. This includes any components or materials that were specified in the approval and that are necessary for compliance.
Any concerns about a building product can be raised with the relevant approving authority - ie a local council or private certifier. Councils must undertake inspection and enforcement duties in relation to building work and building surveyors employed by councils have the power to enforce requirements under the Development Act 1993.
The complainant may need to contact one of these state agencies for further advice:
- Consumer and Business Services for:
- matters of misleading or incorrect advertising of building products
- matters of product substitution
- Office of the Technical Regulator for matters relating to plumbing, gas and electrical type services
- Safework SA for matters involving asbestos
- Department of Planning, Transport and Infrastructure for matters involving the assessment and/or approval of possible non-compliant building products. For a complaint to be formally considered, all documentation must be accompanied by a statutory declaration and be in accordance with Regulation 103 of the Development Regulations.
At a national level a complaint can be reported to the Australian Consumer and Competition Commission.
The following advice has been issued in relation to certain products.