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Non-conforming building products 

Including non-complying building products 

Building work in Australia must conform and comply with the National Construction Code (NCC), relevant technical standards, and local laws. This ensures our buildings are safe, healthy and durable which means we all can have confidence in their performance.

The products and materials you choose and how they are used must also be ‘fit for purpose’.

In recent years, concerns have been raised about the risks of using substandard (‘non-conforming’) building products or materials, or using them incorrectly (‘non-complying’). Use of these products can cause significant costs – from repairing and replacing products, to risks to safety, or even building failure.

Five easy steps

You can reduce and manage the risks associated with using non-conforming and/or non-complying building products by following five simple steps:

  1. Be informed about non-conforming and non-complying building products
  2. Be involved in the building product decision making process
  3. Be aware of the building regulatory system
  4. Be smart by using schemes that assure products
  5. Get help when you need it.
What are non-conforming and non-complying building products?
Who is responsible?
How can I ensure my building products conform and comply?

What are non-conforming and non-complying building products? 

In simple terms, non-conforming refers to 'bad products', while non-compliant refers to products that are 'used badly'.

NSW is working with the Commonwealth and other State and Territory jurisdictions on strategies to reduce the risks from non-conforming and non-complying building products and materials. To find out more about this and any other initiative to support better building, go to the Australian Building Code Boards website.

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Non-conforming 

Non-conforming building products and materials are those that:

  • claim to be something they are not
  • do not meet required standards for their intended use, or
  • are marketed or supplied with the intent to deceive those who use them.

So, a building product that is labelled or described as being “non-combustible” but which is in fact “combustible” is a non-conforming building product.

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Non-complying 

Non-complying building products and materials are those that are used in situations where they do not comply with the requirements of the National Construction Code (NCC), other laws and Australian Standards.

That is a building product that is combustible, and described as such, but is used in a situation where a non-combustible product is required under the NCC, is not fit for purpose and is a non-complying product.

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Who is responsible? 

Everyone in the supply chain has a responsibility to be involved and ensure the right products and materials are used in the right way in a building project.

Your place in the supply chain can also mean you have specific obligations or duties to check and assure that the right products and materials are used, and are used correctly.

Depending on your place in the supply chain you can face specific risks and liabilities if products and materials are non-complying or non-conforming.

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Manufacturers 

Manufacturers need to be aware of the requirements of compliance and conformance of products and materials and should be able to demonstrate that their goods comply with the NCC, standards and local laws.

This can involve product and material testing, assurance and certification. Manufacturer statements should also clearly specify how a product should or should not be used. They should also be able to supply the necessary compliance and conformance information, including any limitations, for each product and material.

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Importers, wholesalers, distributors and retailers  

Importers, wholesalers, distributors and retailers must ensure that the products or materials being supplied do not breach trade or consumer laws or industry-specific requirements for safety or performance.

They should also be able to supply the conformance information including any limitations for each product and material.

Some products or materials (such as consumer gas and electrical products) have specific requirements to demonstrate safety and suitability before they can be lawfully sold and may require independent testing and certification before being supplied.

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Architects, designers, engineers and other specialists  

Architects, Designers, Engineers and other specialists involved in the planning, design and construction of buildings must ensure that any products, materials or systems specified or approved for use in their designs are appropriately approved, ‘fit for purpose’, and meet the performance requirements of the building elements in which they are used.

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Approvers and certifiers  

Approvers and certifiers of development and construction have responsibilities for ensuring that plans and specifications and critical aspects of construction comply with Codes, standards and laws.

They can also have a role in inspecting building and construction and need to be aware of the signs and symptoms of the bad products being used, or products and materials being used badly. Evidence of the suitability of a product or material should be sought where necessary.

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Developers, builders and other specialist tradespersons 

Developers, Builders and other specialist tradespersons do the work of installing and building with products and materials. They are not the only people responsible for ensuring that conforming and complying products and materials are used, but much of the risk and responsibility falls to them because they are the ones that ultimately do the building work.

They are also the ones most likely to have to do the work of rectifying or remedying problems that arise from using products badly, or using bad products. Therefore before a product or material is used, they should be satisfied as to that components suitability.

NOTE: If you are a tradesperson, talk to your supplier about the suitability of a product for the intended use. Your certifying authority may also be of some assistance in helping to determine the suitability of a product.

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Home owners and consumers  

Home owners and consumers can also have an important role to play. As the people that ultimately pay for building and construction, and the people that will live, work and play in the finished building they need to ensure that they engage professionals that have the expertise to perform their role skilfully.

Consumers and customers also have a responsibility for ensuring that achieving a cost-effective result does not lead to using sub-standard products or unsuitable products.

Consumers and customers should ask questions of the builders and trades they engage about the suitability of the products and materials that have been used and seek evidence of the suitability of the products that have been used.

Where they are directly involved in the purchasing of products and materials, consumers need to have a clear understanding of the various requirements that apply to those products and materials and the evidence required to demonstrate compliance and conformance of those components.

NOTE: If you are unsure about a building product, talk to your builder or certifying authority.

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How can I ensure my building products conform and comply? 

You can reduce and manage the risks associated with using non-conforming or non-complying building products by learning about the different ways you can ensure your building materials meet the, relevant codes, technical standards, and local laws.

There are some simple checks you can do to protect against non-conforming and non-complying building products in your project.

Be aware of which products are most important from a compliance perspective. For example, a door handle on a kitchen cupboard is not as critical as a fire safety system or an electrical product.

  • 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.
  • You should attempt to obtain suitable evidence from the supplier and consider either undertaking inspection or testing if such evidence is not available.
  • Where the required compliance and conformance cannot be demonstrated the product should not be used.

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Requirements of the National Construction Code  

The National Construction Code (NCC) is a uniform set of technical provisions for the design, construction and performance of building including building products (excluding plumbing and electrical products) throughout Australia. It is comprised of:

  • The Building Code of Australia (‘BCA’ administered in NSW by the Department of Planning & Environment) and
  • The Plumbing Code of Australia (‘PCA’ administered in NSW by Fair Trading).

The general provisions regarding the Acceptance of Design and Construction are found in Part A2 of Volumes One and Three and Part 1.2 of Volume Two of the NCC. You can download these sections of the NCC from the Australian Building Codes Board website.

There are six different types of evidence that can be used to verify that a product conforms and or complies with the NCC:

  1. CodeMark or WaterMark Certificate of Conformity
  2. Certificate of Accreditation from a State or Territory Accreditation authority
  3. Certificate from an appropriately qualified person such as an engineer
  4. Certificate from a product certification body accredited by Joint Accreditation Scheme of Australia and New Zealand (JAS-ANZ)
  5. Report issued by a registered testing authority
  6. Other documentary evidence

The CodeMark Certification Scheme is a voluntary third-party building product certification scheme.  The Australian Building Codes Board (ABCB) has oversight of the scheme on behalf of the Commonwealth, all States and Territories and the Joint Accreditation System of Australia and New Zealand.

The ABCB website includes a register of CodeMark Certified Products which gives details of all CodeMark Certificates of Conformity issued by CodeMark certification bodies.

The WaterMark Certification Scheme is a mandatory certification scheme for plumbing and drainage products to ensure they are fit for purpose and appropriately authorised for use in plumbing and drainage installations. The ABCB manages and administers the scheme as a national scheme.

Products that have been certified and marked in accordance with the requirements of the WaterMark Certification Scheme can be found on the WaterMark Product Database, also on the ABCB website.

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NSW planning and building laws 

NSW planning and building laws regulate building activity and the conduct of key practitioners and trades in the construction sector.

It is the combined planning and building laws in NSW that require compliance and conformance with the National Construction Code as a condition of planning and building approvals.

As a consent authority your local council issues approvals, consents or permits for planning, development and building applications in in your area. Councils also enforce compliance with approvals and permits during construction.

In NSW, it is the Department of Planning and Environment that administers the planning system and Fair Trading that regulates the building industry.

 

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Specialist regulatory regimes 

In addition to planning, building and consumer product safety regulation some products and materials are regulated by specialist regulatory regimes.

Gas and electrical articles and appliances in NSW are subject to specific requirements to be safe and compliant with laws and relevant Australian or New Zealand Standards before they may be lawfully sold.

Find out about the requirements for:

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Product assurance  

There are a range of methods and schemes that can be used to test and prove that a building product or material is genuine and will do what it is made to do.

A detailed list and description of each of the schemes can be found in the APCC Procurement Guide on the Australian Procurement and Construction Council website.

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Consumer product safety 

The safety of everyday consumer products and product-related services is governed by the Australian Consumer Law (ACL). The ACL is adopted nationally through state and territory fair trading legislation.

The Australian Competition and Consumer Commission (ACCC) Product Safety website has information about the national consumer product safety system and a register for Product Safety recalls in Australia, including a classification for industrial, business and building products.

The consumer product safety laws apply to consumer goods and product-related services. In simple terms:

  • Consumer goods are things intended for personal, domestic or household use or consumption; or likely to be used for personal, domestic or household use or consumption.
  • Product-related services are services for or relating to: installation of consumer goods; maintenance, repair or cleaning of consumer goods; assembly of consumer goods; or delivery of consumer goods.

Some building products and materials may not be covered by the ACL product safety system if they are not ordinary consumer goods.

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