Building Design Certificate Non-Compliance

catb9 · Aug 15, 2023 2:27 pm

Our builder issued us a variation to upgrade our gas supply. Our single-storey dwelling comprises of a main house and ancillary dwelling all under one roof... so 2 x Gas HWUs, 2 x Gas cooktops, 2 x Gas fireplaces - all documented on the plans.

When we asked for another HWU to service our kitchen, we were told we would need a gas upgrade, however, turns out we needed the upgrade BEFORE we even asked for the extra unit.

So, they screwed up, were non-compliant on the certificate of design (which includes gas installation compliance) and tried to use the introduction of the 3rd HWU to make us responsible.

At the time, we felt we had no choice but to accept the $3500 variance and signed off on it. Now I have done more research on it, I don't believe we should be liable for the extra expense.

My question therefore is, once you sign a variation, is there any way to reverse it?

SJT76 · Aug 15, 2023 3:26 pm

No, once signed, it's binding.

In any case, if they're doing the work, why not pay them for it? Our builder also "stuffed up" and didn't realise we needed a second switchboard. Once they realised, we signed a variation to pay for it - they're spending the money on the item, and we benefit from it. It sucks from a budgeting perspective, but it is fair, and to be honest, if $3,500 is going to break you on the build, you're stretched too thin.

catb9 · Aug 15, 2023 3:53 pm

SJT76

No, once signed, it's binding.

In any case, if they're doing the work, why not pay them for it? Our builder also "stuffed up" and didn't realise we needed a second switchboard. Once they realised, we signed a variation to pay for it - they're spending the money on the item, and we benefit from it. It sucks from a budgeting perspective, but it is fair, and to be honest, if $3,500 is going to break you on the build, you're stretched too thin.

Is this an answer from a legal perspective or just your personal opinion? The reason I am auditing our build is because there is now a very long list of questionable practices. We have so far agreed to over $100k of variations on top of our $550k build. Builders have a margin of 20% on their lump sum quote (which we pay for) to include contingencies, so why should we cover every stuff up they make? They also misled us about the situation, claiming it was only the request of the extra HWU that caused the issue. Had we not done this, they would have gone ahead with their intended connection and ATCO would have found their work to be non-compliant and order them to rectify it.

SJT76 · Aug 15, 2023 4:08 pm

From a pure legal perspective, if you've signed the variation, it is a very high bar to have it set aside. No-one can give you legal advice on a forum, but you would need to show something quite extreme in the builder's conduct - more than just a misleading statement as to the reason for the change. I can't see the pain of doing that being worth $3,500. I wouldn't even bother contacting a lawyer.

On the other hand, if you're challenging $100k of variations, then you really should go see a lawyer.