Dodgy builders ‘wynne’ again

New legislation in Victoria means builders who have installed flammable Aluminium Composite Cladding (ACP) will be highly unlikely to ever face justice. However, the hardware sector nationally can play a leading role in reinforcing public faith in DIY and trade-based building products. John Power reports.

Taxpayers are the big losers in the latest Victorian attempt to handle the flammable cladding disaster affecting multi-level properties.

In mid-October 2019, Victoria’s Minister for Planning, Richard Wynne, made a seemingly bold announcement that the State Government would “pursue dodgy building practitioners on behalf of owners of apartments covered in combustible cladding”.

These “pursuits” are supposed to complement a State-funded $600 million rectification program (half derived from taxpayers funds, half from levies on certain types of new multi-level buildings), which will be used to pay for repairs to hundreds of the worst affected buildings over the next five years.

In cases where State funds are used to pay for cladding-related rectification works, i.e. the most hazardous and urgent cases, the following consequences are clear:

  1. Instead of hundreds of private bodies corporate taking separate legal actions against the worst-offending builders, the State Government will decide which offending builders, if any, should be “pursued”, based on subjective selection criteria. This discretion makes a mockery of so-called judicial independence, and paves the way for hypothetical corruption, such as turning a blind eye to the offences of specific builders based on personal or corporate allegiances. Of course, a body corporate might opt to refuse free government funding and pursue its own independent legal action… though this option, of course, would be highly unlikely.
  2. If building owners, via their respective bodies corporate, benefit from free taxpayer funds to carry out rectification works, then what incentive would these owners have to expend ongoing time and effort cooperating with any State-led prosecutions against the builder? (I.e. if free funding has already been secured, why bother with the extra anguish?)
  3. If the rectification program is deriving half its funds from levies collected from builders of new structures, then there is a strong possibility that any legal action against such builders for non-compliant past projects would only jeopardise levy contributions from future projects.
  4. Builders in Victoria can only be held accountable for dodgy works up to 10 years from project completion. Given that the State-funded rectification works are expected to take up to five years to complete (and budgets to be finalised), it is likely that the vast majority of offending builders will survive this waiting period – if they have not already done so – and be immune from prosecution by the State or any other party.
  5. The State’s ability to “pursue” dodgy builders for non-compliant cladding does not prevent building owners from taking legal action against builders in relation to other defects. But if building owners are given free State funding for cladding rectification (the major component of rectification works), then additional, less significant repair works arising from other defects might simply be absorbed by owners for the sake of expedience – another win for the dodgy builder.

It is obvious that the extent of flammable cladding in Victoria is profound, and that State funding measures have only one goal: to shift responsibility for the costs of rectification from builders and apartment owners to the general taxpayer. A cynic might say this is a necessary evil, as cost blowouts are likely to require a full-population response, however there is no excuse for dodgy builders to evade virtually all accountability.

Certainly, dodgy builders have ‘dodged a bullet’ in Victoria regarding non-compliant cladding, owing to the above-mentioned governmental involvement, the complexity of supply chains, opaque levels of shared accountability by inspectors and suppliers, the sheer volume of offending, and the need for quick rectification for the sake of public safety, but builders across the rest of country can be equally cheerful. Builders are not obliged to offer any statutory warranties against structural defects on apartment buildings over three storeys in Queensland, Western Australia or Tasmania. And time limits for claims against non-structural defects are capped at just six years in jurisdictions such as ACT and New South Wales (five years in South Australia).

No State or Territory has any penalty schedules against actual developers (as opposed to builders), even though the most naïve observer would acknowledge widespread collusion between developers and builders in the selection and use of non-compliant products.

Hardware can show the way 

As far as hardware retail channels are concerned, flammable cladding is not an imminent direct threat, as most commercial cladding materials are obtained from specialist manufacturers and distributors (or sourced privately from both regulated and unregulated markets) rather than from hardware stores.

However, the cladding fiasco is closer to the hardware sector than many people realise. Already there has been great confusion about the difference between non-compliant cladding and more complex non-compliant walling systems in wider domestic building applications, including single-level homes. It is not hard to imagine a scenario whereby rectification works involving cladding in multi-level apartments are expanded throughout the entire building sector to address non-compliant external fixings, non-compliant fire-retardant walling and insulation products, as well as non-compliant sealants, framing, sarking, and drainage products. And this is where the hardware sector certainly does have a frontline role to play, as these kinds of products are part of the standard inventory of hardware stores. 

Retailers can help ensure that domestic DIY and trade work is undertaken using high-quality and compliant products, all used in the correct way. In many cases, this means working very closely with customers to ascertain the fitness for purpose and compliance of specific purchases. This level of interaction between retailers and clients might seem ‘inappropriate’; after all, it is not up to a retailer to tell tradespeople how to do their job. But there are plenty of trade and DIY customers who are not as adept at regulatory compliance as they should be, and a friendly conversation can only reinforce the professionalism of the retailer.

As we enter bushfire season, it is important for regional retailers, in particular, to take product quality seriously, and to be aware of strict provisions relating to different grades of products depending on their end use. For example, BAL (Bushfire Attack Level) 40 applications require external sealants to have a higher level of non-combustibility than internal sealants. This is where good communication with customers is vital: if a local roofer, for instance, is buying large quantities of unrated sealant in a known BAL 40 building zone, it might pay for the retailer to ask (politely!) if the sealant is intended for use in external applications. Similarly, roofing insulation materials in high-risk fire zones must have a sub-30/30/30 fire resistance level rating, so a quick chat about the nature of the job might help clarify that the right product has been chosen for the task – and preempt the need for costly replacement work later at the request of a building inspector.

Even in non-bushfire zones, there has never been a greater need for hardware retailers to chat openly and clearly with customers. Many ongoing concerns about correct plumbing product selections, for example, might be remedied with tighter one-on-one communications; for instance, how often have customers bought the wrong PVC pipe adhesive (unfit for drinking water applications) when repairing water tanks? A quick chat about the project at hand could prevent a homeowner from making an unhealthy purchase.

 Nils Versemann / Shutterstock.com

The community at large is rightly angry at the commercial-scale building sector and its use of non-compliant products such as flammable cladding. It is time for hardware retailers to demonstrate they operate in a far more professional and caring manner than their corporate cousins, and can be trusted to supply high-quality products that are appropriate for actual projects.