“COMPLIANCE OF BUILDING PRODUCTS AND RISK FACTORS FOR ARCHITECTS: A CASE STUDY”
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
A recent high rise apartment building fire in central Melbourne has shone a light on non-compliant building products used in the Australian market.
It has also called into question the possible liability exposure for a range of building industry participants. This includes not only the original architectural designer but also the actions of the builder, the developer, the relevant building surveyor and the original supplier of the external wall cladding material. There are potential lessons for all key players.
The scenario involves a fire in late November 2014 that caused extensive damage to a high rise apartment building in Docklands, Melbourne. Reports suggest the fire was caused by a discarded cigarette on a balcony but there was then a rapid up-spread of the fire over many floors, the rate of which astonished knowledgeable observers.
The external wall cladding of the apartment building was an imported Alucobest panel that was apparently ‘standard grade’ and not the fire resistant model (Alucobest FR). It was apparently therefore a combustible product and this is what caused the rapid spread of the fire, in a building of many occupants. Fortunately the spread of the fire was partly lessened by the fire sprinkler system at the site.
The purpose of this article is not to apportion blame in any way but rather to focus on the key issues at play and to highlight the very real risk this poses for building control. In greater Melbourne alone it is estimated there could be as many as 100 apartment buildings using the ‘suspect’ external wall cladding material.
One of the key drivers in the construction industry, at least at the outset, is to have the building constructed and completed as quickly and as cheaply as possible. In some cases this may lead to cost cutting variations to an original design.
Where a later variation cuts across the Architect’s original design and it leads to later problems, this obviously gives the Architect ammunition to argue that their design was not followed and their liability is then negated. The problem for an Architect would arise where a faulty or non-compliant building product or method of construction was part of their original design, or where the Architect has approved a variation including such problematic elements.
So what was the industry benchmark that should have been relevant? The Building Code (BCA) required that the building’s external walls should be non-combustible, as determined under AS1530.1:1994 (Combustibility Test for Materials), or meet criteria under C1.12 of the BCA.
As advised above, a key problem was the use of standard grade Alucobest external cladding, rather than Alucobest FR that has fire resistant properties. Alucobest FR has been tested for non-combustibility under international standards but has not been tested under AS1530.1. On the other hand the ‘standard’ Alucobest failed the AS1530.1 benchmarks when it was tested.
The MFB has since advised that neither of the Alucobest products (whether ‘standard’ or FR) appear to have been tested successfully or received a certificate of conformity or certificate of accreditation as compliant products. Therefore it could not be said they were compliant with the performance requirements of the BCA, nor had the product specified and used been tested successfully against the relevant Australian Standard.
There were other things that could have been done and the MFB has recommended that fire sprinklers should be installed on all balconies.
It was suggested in the Council’s report that the approved design documents lodged by the Relevant Building Surveyor did not provide enough detail to show whether there was adequate design to specify non-combustibility of the external cladding.
This may or may not raise questions about the private building surveyor who had approved the design when issuing the building permit, and potentially raise questions about whether the Architect’s design was adequate or even whether the Architect has wrongly specified the use of a non-compliant building product.
In addition to this of course questions should be asked about the overseas supplier given their supply of an apparently combustible product for an external cladding use in a high rise apartment building. This is the actor in this drama which would ordinarily prove hardest to pursue in any negligence claim, given they are based overseas in a foreign jurisdiction.
There may be a number of building products being supplied to the Australian market which do not have sufficient evidence of compliance with Australian Standards or the BCA, even for an ‘alternative solution’.
This means building designers have to be highly vigilant in only specifying and designing construction elements that use compliant products, particularly in a high risk domestic environment.
Similarly, building surveyors who are issuing building permits based on such designs and carrying out mandatory inspections and approvals, need to ensure that what they are approving contains sufficient detail of compliance, particularly in health and safety elements such as this.
For more information and assistance, please contact Lovegrove Smith & Cotton