You are probably aware of the number of building related tragedies over the last couple of years. As a reaction to those tragedies the Queensland Government took action by passing the Non-Conforming Building Products legislation[1] (the ‘amendments’) last year. The Act itself, contained amendments to other legislation and most importantly the Queensland Building and Construction Commission Act 1991 (the ‘Act’).
Please note that the amendments apply to installers, suppliers, designers, manufacturers, importers and any person who knows or is reasonably expected to know the product will or is likely to be associated with a building.
But how does this affect the landscaping industry?
The purpose of this article is to discuss when the new amendments to the Act[2] may apply to landscaping and when they do not.
As you would be aware the new amendments relate to “non-conforming” building products, so key to this discussion is the question: when is a landscaping product a building product?
To do this we first need to consider what is meant by a building product under the Act[3].
What is a building product?
According to section 74AB[4]:
“A building product is any material or other thing associated with, or that could be associated with, a building.”
“Associated with” is also defined in relation to a building as:
“incorporated into, or connected to, a building by the carrying out of the relevant work”
So if the product you are using could be incorporated or connected to a building it is a building product and the amendments apply.
But what does a “building” mean?
Under the amendments the word building takes on two meanings that of ‘building’ and other ‘structure’, which means that the Act goes much further than the common sense understanding of a building and includes:
A fixed structure that is wholly or partially enclosed by walls or is roofed;[5]
A floating building or any part of a building;[6]
A wall;[7]
A fence;[8]
Anything fixed to or projecting from a building;[9]
Anything fixed to or projecting from a wall or fence or other structure.[10]
When is a landscaping product a building product?
So for landscapers, the non-conforming building product amendments apply to:
Pergolas and gazebos;
Retaining walls;
Aesthetic walls;
Fences;
Arbors;
Carports;
Decking; and
Other things that fall into the above definition.
But for landscapers, the non-conforming building products amendments do not apply to:
Non-structural garden edging;
Irrigation that is not fixed to or projecting from a wall, fence, building or other structure;
Non-structural water features that are not fixed to or projecting from a wall, fence, building or other structure;
Selection of plants and planting; and
Care of plants including mulch and plant food.
The grey area is when you supply or install paving or concrete and this depends on how the paving or concrete is associated or could be associated with the building. For the sake of being careful we would recommend acting as if the legislation always applies in these circumstances.
At the end of the day, the amendments were drafted to protect people using the buildings or other structures which your products are associated with. With this noble intention behind the legislation it would be hard to justify ever not complying with it. As a result, we recommend always acting as if the legislation applies unless you are completely certain it does not.
Contact Us
We are happy to provide advice tailored to your business's needs about about how non-conforming products impact your building and construction industry business in Queensland.
The law can be complicated, so let our experienced construction law team give you peace of mind. Call us on 07 3128 0120 or email us at subcontractors@arbuildinglaw.com.au.
Endnotes
[1] Building and Construction Legislation (Non-conforming Building Products- Chain of Responsibility and other Matters) Amendment Act 2017
[2] Queensland Building and Construction Commission Act 1991
[3] Queensland Building and Construction Commission Act 1991
[4] Queensland Building and Construction Commission Act 1991
[5] Definition of building, Schedule 2 Building Act 1975
[6] Definition of building, Schedule 2 Building Act 1975
[7] Definition of structure, Schedule 2 Building Act 1975
[8] Definition of structure, Schedule 2 Building Act 1975
[9] Definition of structure, Schedule 2 Building Act 1975
[10] Definition of structure, Schedule 2 Building Act 1975
