As a result of major fires that occurred in buildings overseas and in Australia due to cladding issues, new laws and regulations have been implemented to ensure safety in this respect. This article will outline the relevant new requirements that purchasers and owners of properties should consider in order to make sure a building’s cladding is compliant and safe.
Cladding in buildings is an additional layer for the purposes of enhancing insulation, protecting against the weather, and for a nicer appearance of the building.
Most commonly, cladding is made of stone, timber, metal or concrete.
The major issue that arises from cladding is if it is made of combustible material. If a building has combustible cladding, it can cause devastating destruction if ignited, as seen in the fires of the Grenfell Tower in London in 2017 and the Neo 200 Apartment in Melbourne in 2019.
External combustible cladding is defined as any cladding comprising of metal composite panels (such as aluminium, copper and zinc) that is applied to the building’s external walls; or any insulated cladding system comprising of foam or foam panels (made of polystyrene, polyurethane or polyisocyanurate).1
In order to address this issue, the national and state governments have implemented regulations and measures so that any new buildings are constructed in safe ways that minimise fire risks.
In order to address and reduce cladding risks in NSW, the NSW Cladding Taskforce was established in 2017. The main purpose of this Taskforce is to identify and inspect buildings that have combustible cladding.
In line with this, the NSW Government established the Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2018 and the State Environmental Planning Policy Amendment (Exempt Development – Cladding and Decorative Work) 2018.
These laws require owners of buildings that have external combustible cladding to register their building on the NSW Cladding Registration Portal (accessible here). New buildings are required to be registered within four months of occupation. This allows the government to monitor and assess which buildings have combustible cladding, so that relevant agencies are ready to respond in the event of a fire.
Moreover, the Building Products (Safety) Act 2017 (NSW) bans particular building products that may be a safety risk so that new developments are made with safe materials.
When commencing a new building or development work, there may also be the need to obtain a compliance certificate from the local council to ensure that the works are done in accordance with council, development and regulatory requirements.
There is no immediate rectification available for buildings that have already been built with external combustible cladding. Such buildings will be noted on the Register, and councils and relevant authorities would undertake compliance and enforcement actions as necessary.
Assessments of particular buildings are taken when combustible cladding has been identified. An owner of a building may elect to undertake an assessment at any time to determine whether their building possesses combustible cladding (eg if there are any fire safety concerns or when an owner wishes to sell their building). This can be arranged by contacting the strata managing agent, building manager, property manager or maintenance manager. Once an assessment has been undertaken by an appropriate expert (eg fire safety engineer, council officer or consultant expert), the owner is to provide a copy of the assessment report to the relevant Council or other authorities so that records can be updated accordingly.
When undertaking an assessment of whether a building has combustible cladding, experts generally consider the whole building, the type of cladding, the location of the cladding, the building structure and what fire safety measures are enforced. The existence of combustible cladding does not automatically pose a fire risk, as it depends further on the fire safety mechanisms involved.
Additionally, a building’s fire safety statement should always be kept up to date, and all fire safety maintenance measures should be enforced. It is a requirement for essential fire safety measures to be checked every year in the form of an annual fire safety statement (arranged by the owner of a building), which should be displayed clearly within the building. Supplementary fire safety statements may also be arranged at regular intervals in relation to any critical safety measures applicable to the building.
The Australian and NSW governments quickly implemented new regulations and laws to minimise fire risks from combustible cladding after learning of its disastrous effects.
With the implementation of the NSW Cladding Taskforce, more widespread knowledge about the impacts of cladding and the encouragement of cladding assessments, the risks have been greatly reduced.
For more information on related matters, you may wish to read the following articles:
Comasters can advise you on cladding issues and whether a building you wish to purchase or sell is affected by such issues.
1 Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2018.
© Comasters November 2020.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.
Comasters Law Firm and Notary Public is a commercial legal practice in Sydney. We conduct matters in a range of legal areas. Whilst based in Sydney, Comasters maintains close links with business people across the Asia Pacific region.