In the world of waterproofing contracts, substrate acceptance clauses are often an overlooked detail, but their relevance to liability cannot be overstated. A drain point underneath a planter box wall, as depicted in the photo accompanying this discussion, is an example of an unacceptable condition for applying a waterproofing system. Competent waterproofing professionals recognise this and understand the significant implications of applying a waterproofing membrane to an unsuitable substrate.

Why Substrate Acceptance Matters

Substrate acceptance is not just about technical compliance; it’s about ensuring the integrity and longevity of the entire waterproofing system. Accepting a substrate without proper inspection can lead to severe liability issues for the waterproofing contractor.

1. Foundation of Success 🛠️

A properly prepared substrate ensures that the waterproofing membrane adheres correctly and functions as intended. Any deficiencies or imperfections in the substrate can compromise this performance, leading to premature failure of the waterproofing system.

The Technical Perspective: From a technical standpoint, a substrate in poor condition can lead to inadequate adhesion of the waterproofing membrane. This inadequacy can cause blisters, delamination, and subsequent water ingress, which are detrimental to the integrity of the structure.

The Liability Perspective: If the waterproofing contractor proceeds without addressing substrate issues, they implicitly accept the state of the substrate. This acceptance can lead to significant liability if the system fails due to substrate problems. Contractors become responsible for the additional costs associated with repairs and potential legal consequences.

2. Extended Durability ⏳

High-quality substrate preparation is crucial for the long-term durability of the waterproofing system. A well-prepared substrate minimizes the risk of leaks and water damage over time.

Durable Outcomes: A properly prepared substrate supports the membrane’s durability, ensuring it can withstand environmental and operational stresses. This preparation helps prevent common issues such as cracking, bubbling, and water penetration.

Prolonged Liability: When a waterproofing system fails prematurely due to substrate issues, the contractor can face prolonged liability. This includes covering repair costs, potential penalties, and reputational damage. Ensuring substrate quality upfront can mitigate these risks and protect the contractor’s professional reputation.

3. Accountability 📜

Accepting the substrate means the contractor vouches for its suitability. Any subsequent issues due to substrate problems typically fall squarely on the contractor’s shoulders.

Written Documentation: Proper documentation and communication about substrate issues are essential. Contractors must note any deficiencies and seek written approval to proceed from stakeholders. This documentation can act as a shield against liability if substrate issues arise later.

Legal Ramifications: Failing to document substrate issues can lead to legal complications. Contracts often include clauses holding the contractor accountable for substrate complications. Without proper documentation, proving that the substrate was unfit at the time of application can be challenging, leading to unfavourable legal outcomes.

Mitigating Risks in Substrate Acceptance

Minimising liability and ensuring successful waterproofing applications involve detailed inspections, thorough documentation, clear communication, and ongoing education.

1. Thorough Inspection 🔍

Conducting meticulous inspections of the substrate before application is vital. Contractors should diligently look for issues like cracks, uneven surfaces, or moisture content that could compromise the membrane.

Inspection Protocols: Establishing a robust inspection protocol can help identify potential substrate issues. Using tools such as moisture meters, laser levels, and visual inspections can ensure comprehensive assessment.

Liability Safeguards: Accurate and thorough inspections safeguard against liability. Identifying and addressing substrate issues before membrane application can prevent future claims and disputes related to substrate acceptance.

2. Documentation 📸

Documenting inspections and findings is crucial. If issues are identified, communicating them to stakeholders and recommending necessary rectifications is essential before proceeding.

Visual Records: Taking photographs and creating detailed reports of substrate conditions serve as valuable records. These documents can be referenced if disputes arise regarding substrate suitability.

Stakeholder Agreements: Ensuring that all necessary rectifications are agreed upon and documented before proceeding binds stakeholders to a mutual understanding, reducing the contractor’s liability.

3. Clear Communication 🗣️

Explicitly stating the importance of proper substrate preparation in contracts and outlining steps to be taken if the substrate is found unsuitable is fundamental.

Contract Clauses: Including well-defined substrate acceptance clauses in contracts can protect contractors. These clauses should outline the protocols for substrate inspection, documentation, and necessary rectifications.

Effective Communication: Engaging in clear and continuous communication with all parties involved ensures everyone acknowledges the criticality of substrate conditions. This transparency can prevent misunderstandings and liability issues down the road.

4. Training & Education 📚

Ongoing education of the team on best practices for substrate preparation and the risks associated with inadequate preparations is crucial.

Continuous Learning: Establishing continuous learning programs that focus on the latest techniques and standards in substrate preparation ensures that the team is equipped with the necessary knowledge.

Risk Awareness: Instilling a culture of risk awareness can lead to better decision-making at all levels. This awareness can help the team understand the stakes involved and the importance of meticulous substrate preparation.

5. Independent Third-Party Inspection 🔍

Engaging a competent waterproofing quality technician from outside your organization to conduct an independent review can provide an objective assessment of the substrate’s condition.

Objective Assessment: An independent third-party inspection offers an unbiased evaluation of the substrate, ensuring that any issues are identified without internal pressures or conflicts of interest. This objective perspective can be invaluable in confirming that the substrate meets the required standards.

Expert Recommendations: These inspectors can provide expert recommendations for rectification if any issues are found, ensuring the best possible outcome for the waterproofing application. This expert advice can lead to better decision-making and adherence to best practices.

Reduced Liability: Having an independent third-party inspection documented can further protect against liability, as it demonstrates a commitment to quality and due diligence. This additional layer of scrutiny reinforces the thoroughness of your approach, minimizing potential risks and enhancing the project’s success and your credibility.

Conclusion

By taking proactive steps such as thorough inspections, detailed documentation, clear communication, ongoing education, and independent third-party inspections, waterproofing contractors can safeguard not just the integrity of their projects but also their professional reputation. Substrate acceptance clauses, while often seen as minor details, carry significant weight in determining liability and ensuring the success and durability of waterproofing systems.

In July 2021, many legal requirements for construction professionals come into effect. These changes have been on the cards for some time but with the regulations for the NSW Design and Building Practitioners Act 2020 recently made available, more is now known on the Act’s application. However, there has been some ambiguity around waterproofing in the regulation and where it fits in the legislation despite being listed as a priority building element in the Act.

As the Building Commissioner has stated, the NSW Government is pushing for ‘design, then construct’, noting that details for wet areas have too commonly been missing from issued for construction drawings. So for any project, the onus is on the principal design practitioner (architect or engineer) to design a building that is compliant with the National Construction Code (NCC) and a multitude of adopted Australian Standards. Then a principal building practitioner (builder) to execute those plans in construction and document compliance.

These plans are to be submitted to the NSW Planning Portal and will involve a compliance declaration stating that each building element is compliant and integrates with other aspects of the building. For the principal design practitioner, this is at the stage of obtaining the construction certificate and for the principal building practitioner this is part of the occupation certificate application. During construction, between each of these submissions, variations are to be documented and submitted explaining the area of the building and why such changes are occurring.

When it comes to waterproofing, the only reference in the Design and Building Practitioners Regulation 2021 is that an exemption applies under the legislation for waterproofing applications to alterations in a single dwelling in a wet area. So apart from a renovation to a building presumably many years after construction, every other waterproofing application is to be considered under the Act. That is every bathroom, laundry, balcony, rooftop, podium, planter box, tank, swimming pool, retaining wall, tank or other area where waterproofing is applied. Unbeknownst to many in the remedial space, this legislation also applies to their work.

The aim is to have all buildings constructed in a way that achieves the requisite performance targets defined in the NCC. The regulation’s first clause outlines that where a design does not adhere to the deemed-to-satisfy provisions, a report detailing a performance solution needs to be prepared to verify compliance with performance requirements. The many construction practices that have become widely popular but are not listed in the deemed-to-satisfy provisions of the NCC will require performance solution documentation as per NCC 2019 Part A2.2. Pavers on pedestals and flush transitions on balconies for aesthetic or NDIS requirements are two that are most prevalent where waterproofing is applied.

The regulation provides 18 design practitioner registration classes including various types of fire, facade, drainage, mechanical and structural specialties though there is no classification for waterproofing practitioners. With waterproofing defects commonly acknowledged as the single largest source of defects this is surprising and begs the question of where this responsibility falls?

Based on our interpretation and discussions with industry professionals, this responsibility falls with the architectural design practitioner. We are currently seeing waterproofing designs being developed through collaboration between architectural design practitioners, builders and specialist waterproofing consultants to ensure the design is both buildable and achieves compliance with NCC requirements. In this process it is important to remember that generic section details developed by material suppliers can be a starting point but are not project specific.

Compliance inspections and onsite testing reports during construction provide the support for the principal building practitioner to make declarations in submitting for the occupation certificate. Both quantitative measurements and testing and qualitative inspections are means to quantify installation methods and

The commencement of this Act is one of a number of changes in reference documents that will impact waterproofing over the next couple of years with changes and updates afoot for AS3740 and the NCC.

If you or someone you know requires assistance in navigating the requirements of the legislation in waterproofing, whether they are an architect, builder or other industry professional, please call Waterproofing Integrity on 1300 025 944, email advice@waterproofingintegrity.com.au or complete the below form.