Institute calls for ‘substantial fines’ for non-compliant products substitution

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The Lacrosse Building in Melbourne's Docklands.

The Lacrosse Building in Melbourne’s Docklands. Image: Courtesy Metropolitan Fire Brigade

The Australian Institute of Architects has recommended the introduction of “substantial fines” for the substitution of a specified building material with a non-compliant product.

The call for fines is one of a number of recommendations made by the Institute in its submission to a Senate inquiry into non-conforming building products, which also included calls for third party certification regimes and establishing a national register of approved products for each class of building.

In the submission, Institute CEO Jennifer Cunich said, “product substitution is common practice for a range of reasons, including cost and availability of the specified product, among others.”

Following a fire at the Lacrosse Building in Melbourne in 2014, the Victorian Building Authority (VBA) conducted an audit of high-rise residential and public buildings across the state. The VBA requested documentation relating to external wall cladding and found a number of instances of product substitution. In its audit report, the VBA said, “The documentation received by the VBA to illustrate materials and methods of construction used by the builder was sometimes inconsistent with the approved building permit or inadequate to demonstrate the ‘as built’ building complied with the building permit.”

The Institute said the risks of product substitution could be mitigated through a more-involved role for the architect. “Where an architect is involved during the construction process, clauses within building contracts can stipulate that the builder must demonstrate a substitution is equal or superior in quality to the original before be considered as an appropriate substitute,” said Cunich.

“If the contractor is able to substitute without a third party to validate the material or product, there is a risk of non-conforming products being used, which can have serious consequences.

“Where product substitution has occurred and the materials are non-compliant, fines for non-compliance must be substantial, to provide a strong disincentive.”

The Institute’s submission also reflects findings made by the Australian Building Codes Board in its Regulation Impact Statement (RIS) on Non-compliant Use of External Cladding Products on Buildings. The RIS stated, “The practice of product substitution occurs in an environment where enforcement by the states and territories is infrequent and may be too infrequent to influence building practitioners in their decision-making about the use of external cladding products.” 

The Institute’s submission also covered a number of other issues, including the importation and sale of materials and products, regulating design, documentation and specification and the regulation of building practitioners.

It also highlighted its concerns regarding the “the lack of in-depth knowledge of some builders and trades of the National Construction Code and Australian Standards.”

The Institute said, “when no architect or other specialist is involved to provide the correct information, there are builders putting up buildings [who] do not understand the Australian Standards.”

“In this situation, how can the general public be assured that builders are complying with the various codes and regulations and using materials appropriately?” Cunich asked.

“The Institute believes that either architects, or an equivalent knowledgeable person, needs to be involved during construction, or the level of knowledge of builders needs to be substantially increased. Modern construction is increasing in its complexity and sophistication, and the attitude of ‘what do I know, I am just the dumb builder’ has no place in today’s construction industry.”

In the Australian Institute of Building’s (AIB) submission to the inquiry, lodged in August 2015, the peak body said, “Responsibility for adherence to the various applicable Australian standards and regulations should rest with the manufacturers and retailers, not with builders.”

However, the AIB concluded that “greater professionalism is critical in reducing the use of non-conforming building products in the building and construction industry.

“Higher educational standards and quality control skills are also important for tradespersons working in the building and construction industry.”

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