On 18 December 2017, the NSW Government introduced the BPS Act as part of its 10-point plan for fire safety in residential, commercial and industrial buildings. The BPS Act enables enhanced powers to monitor and restrict the use of unsafe building products as well as giving councils increased powers to require the rectifications of buildings that are a risk to public safety.

So, what happens when a building is affected?

This means that a product used in the building is subject to a product use ban. It does not matter if the building product was used in the building before the ban was in force. The Secretary, if satisfied on reasonable grounds that the building is affected, will issue a notice, and may give it to a number of people including:

  • The owner(s) of the building;
  • The occupier(s) of the building;
  • The council in the area;
  • A relevant enforcement authority for the building; and
  • The Commissioner of Fire and Rescue NSW.

What are the implications?

The building owners (including owners’ corporations) may be required to rectify their building and a rectification order may be issued. If the building owner does not comply with the rectification order there are a number of serious implications, including;

  • If the owner wanted to sell their building or land, there would be an implied warranty of options or purchase of residential property,
  • A strata information certificate by the owner’s corporation would need to include the product rectification order.