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Everyone is allowed to sell used building materials

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The pilot project Kristian August Gate 13 (KA13) is an ambitious reuse project where Entra is rehabilitating the building using as much reused materials as possible. They have been assisted by Kluge Law Firm to answer legal questions during the process, to ensure that the material use is in compliance with legal law. We have interviewed Matias Apelseth, a lawyer in Kluge's Department of Real Estate and Enterprise on legal questions related to reuse.

Which legislation applies if public companies want to sell used materials to private companies, or vice versa? Is it legal?

Yes, everyone is allowed to sell used building products. When it comes to purchases, the procurement regulations are different. These regulations apply to the public procurement of goods and services. However, the assumption is that the acquisition is of a certain value. If the acquisitions value is less than NOK 100,000, the procurement regulations will not apply. For some purchases of reused building materials, it will therefore be possible to make the purchase without following the procurement regulations. In reality, there is -often- no legal distinction between the public and private sector as buyers of used building products. Regardless of who is the buyer, it is important to have an overview of contract rules on function and requirements under public law. Regarding the rules of public law, both the building regulations and the pollution regulations are central rules.

If you are going to buy or sell used materials, how can you make sure that the material is in proper condition?


The answer lies the technical documentation. When reusing building materials of recent date, this may lie in the initiative / project. If the documentation does not exist from the original application (or it exists, but over time the material might be worn and have changed its initial properties) then special tests must be performed. The architect/designer should also be involved before purchasing - at least if the characteristics of the material has an impact on the design. When reusing materials, we see that the design has to be adapt to the materials, and not the other way around, as we are used to from traditional construction projects.

If, for various reasons, it's not relevant to carry out technical tests, it may be that different regulations - for example a guarantee - in the sellers contract might be sufficient. Should the material prove to be unfit, then the seller will be liable for expenses to repair, or replace, the recycled building product. But since TEK (The Norwegian Regulations on technical requirements for construction work) demands fulfilment of functional requirements, we see in practice that the use of technical tests is important. In addition, the Pollution Control Regulations requires that harmful substances must be removed from the cycle. Therefore, one must have knowledge of the properties of the building product.

Have there been any changes in legislation in recent years that have had an impact on the industry, and gives us any opportunities or obstacles today that we didn't have ten years ago?


I believe the 2014 Building Products Regulation constitutes the most important "innovation". This regulation comes from the EU and requires documentation, including the CE mark and the declaration of conformity, for the construction product to be traded. But, contrary to many innovations, this is unfortunately a regulation that, through a rigorous focus on the manufacturing process prior to the original trade of the construction product, constitutes a real hindrance for use in the construction industry. It is therefore important to "get around" the documentation requirements in the Building Products Regulation. The easiest way around the Building Products Ordinance is to reuse building products of an earlier date, but this can be problematic against the current functional- and pollution- requirements in the Building Technical Regulations and the Pollution Control Act. During the last ten years, TEK10 has also been replaced with TEK17, but in terms of re-use, TEK17 does not represent anything of significant importance. In recent years, however, there has been change in the industry's view of, and the desire for, greener projects that I want to highlight as the most positive change.

In collaboration with Entra, you wrote an article before Christmas for Bygg.no explaining requirements for materials that were reused for the project Kristian August gate 13 (KA13) to be used in accordance with legal legislation. The article concludes that you are calling for initiatives and regulatory changes from the authorities which can make the process more efficient. Which are the necessary changes?

In order for reuse to become the new norm in larger and small construction projects, there are several changes that need to happen. The most important thing, of course, is that industry actors, and the market want greener projects and increased reuse. Here, Loopfront makes a huge effort! When it comes to legislation, it is absolutely necessary to get through changes in the Building Products Regulation. In Norway, we are largely pragmatic - our focus is whether buildings are safe and functional - but our approach obviously clashes with the formalistic regulations of the EU Building Products Regulation. This is time-consuming work that needs to be done in the EU, and I know that DiBK (The Directorate for Building Quality) is involved in a dialogue. But it will take time, and in the meantime it is crucial for the industry that we get a greater degree of clarity in how DiBK will understand and practice the Building Products Regulation, because now it largely depends on the industry actors to manoeuvre in the regulations. Of course, it is up to DiBK as the supervisory authority to clarify the range of the regulations - not only to help the industry, but also because this can prevent (unintended) violations of the regulations.

 

Matias Holmsbu2018

Matias Apelseth : matias.apelseth@kluge.no Tlf: +47 23 11 00 00 | Mob: +47 958 62 095