Building Products (Safety) Act 2017 expands Major Defect definition

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By Ziv Ben-Arie, Partner, Stephen Aroney, Partner, Daren Curry, Partner and Peter Meades, Partner.

The Lacrosse fire in Melbourne in November 2014, and the tragic Grenfell fire in London in June 2017, has lead to the NSW government following the lead of Queensland and passing the Building Products (Safety) Act 2017 (BPSA), which allows the government to declare a building product unsafe and ban it, investigate work using them and require repairs, and create various offences and liability on the part of persons involved.

The BPSA was assented to on 30 November 2017, and commenced on 18 December 2017.  The BPSA also made certain changes to other legislation, which while detailed in the Historical Notes for those Acts are difficult to follow as Section 30C of the Interpretation Act 1987 (NSW) provides that an amending Act, or amending provision of an Act, is repealed on the day after the provision takes effect. The copy of the Bill as passed still includes all those changes, at Schedule 2.

Schedule 2.6[1] of the BPSA added to the definition of a “major defect” provided in Section 18E(4) of the Home Building Act 1989 (NSW) to include:

“the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act”

Schedule 1, Part 2 of the BPSA provides:

“The power to make a building product rectification order under this Act in respect of a building product used in a building extends to building products used in a building before the commencement of Part 4 of this Act.”

As such, once the Government issues an order under the BPSA, the use of that product will apparently be a major defect for work already undertaken (although the 6 year warranty period would still apply).

Owners corporations and home owners will need to be aware of this as the NSW government continues to deal with the problems arising from flammable cladding, and other unsafe building products, and starts to make use of the powers now available to it under the BPSA.

For further information, please do not hesitate to contact us.

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