Australia: New Queensland regulation on combustible cladding commences

In brief - Building owners affected by new regulation must complete online registration and checklist by 29 March 2019

The new Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) (Cladding Regulation) officially commenced last month on 1 October 2018. The Cladding Regulation primarily relates to owners of private buildings and requires these owners to identify whether their buildings are affected by combustible cladding.

The Cladding Regulation sets out a number of steps building owners must take to ensure their building is compliant. Building owners have until the 29 March 2019 to complete the first of these steps - which involves completing an online registration and checklist with the Queensland Building and Construction Commission (QBCC).

Queensland responds to Lacrosse Tower and Grenfell Tower flammable cladding incidents

Combustible cladding has in recent years been identified as a potentially dangerous and non-conforming building product. This realisation came after the 2014 Lacrosse Tower fire in Melbourne. The Lacrosse Tower fire started in the early hours of the morning on 25 November 2014. Within a short period of time, the fire had spread to 13 floors of the 21-storey apartment block due to the flammable nature of the cladding product.

Just last year, a similar event took place in London at the Grenfell Tower concerning flammable cladding. A small fire started by an electrical fault rapidly assented up the side of the building and resulted in the death of 72 people.

In response to these events, the Cladding Regulation has been introduced with the hope that future incidents can be avoided. It is expected that similar regulations will be rolled out across Australia, specifically dealing with this non-conforming building product.

Private building owners impacted by Cladding Regulation

Any owner of a private building may be required under the Cladding Regulation to ensure that the building is compliant and free from combustible cladding materials.

Types of buildings included

Regardless of whether the building received building development approval or there is a current recognised certificate for the cladding material, the building owner could be subject to the various obligations imposed by the Cladding Regulation.

The Cladding Regulation applies to the owner of a private building that:

1. is a class 2 to 9 building
2. is of a type A or type B construction
3. received building approval between 1 January 1994 and 1 October 2018 to build the building or to alter the cladding on the building, and
4. is not owned by a state in Australia or the Commonwealth

Combustible cladding obligations on building owners

Owners of a building covered by the Cladding Regulation are required to undertake a number of steps in assessing whether their building is affected by the combustible cladding. An overview of these steps and their timeframes are set out below:

Step 1: Checklist and online registration with QBCC

The first step set out in the Cladding Regulation requires owners to register the name and address of the private building, and submit a copy of a completed combustible cladding checklist via the Queensland government's Safer Buildings website.

If an owner fails to meet the deadline, they may be liable for a fine of up to $2,611.

Step 2: Assessment from a building industry professional

The next step is engaging a building industry professional to produce a statement about whether or not they believe the building is affected by combustible cladding. Owners are required to engage a building industry professional if:

• they failed to comply with Step 1, or
• when they completed Step 1, the online system indicated that the owner's building may be affected by combustible cladding

A "building industry professional" includes a:

• level 1 building certifier
• person who holds an open builder, open building design or fire safety professional licence under the Queensland Building and Construction Commission Act 1991
• practising architect under the Architects Act 2002 (Qld), or
• practising professional engineer under the Professional Engineers Act 2002 (Qld)

Once the building industry professional has prepared a statement, the owner is required to supply this statement along with the relevant checklist to the online system by 29 May 2019.

Owners who know or suspect that their building is affected by combustible cladding are not required to engage a building industry professional. Instead, they are required to notify QBCC of their knowledge or suspicion using the online system.

Step 3: Engaging a fire engineer

Following Step 2, owners are required to engage a fire engineer to conduct a review on the building and produce a:

• building fire safety risk assessment, and
• fire engineer statement identifying the fire safety risk of the building

Owners have until the 27 August 2019 to provide the QBCC with the name and registration number of the selected fire engineer, using the online system.

Once the fire engineer has completed his or her assessment and subsequent reports, the owner needs to supply these to the QBCC along with another completed checklist. The last date to supply these documents is 3 May 2021.

Owners who fail to provide these documents in time may face a fine of up to $21,540.

Retaining a copy of your completed checklist

Owners are also expected to retain a copy of their completed checklist for at least seven years after a copy is supplied to the QBCC.

Applying for an extension of time

If you don't think you'll be able to meet one of the compliance dates, you can apply to the QBCC commissioner for an extension. Applications for an extension:

• must be in the approved form
• must be submitted to the QBCC commissioner at least 28 days prior to the final date for compliance, and
• will only be accepted where the QBCC commissioner believes an extension is reasonable in the circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.