Fair Trading invites public submissions on cladding ban
The Commissioner of Fair Trading (the Commissioner) is inviting submissions on whether a product ban on certain types of external cladding is warranted under the Building Products (Safety) Act 2017 (NSW) (the Act). The use of cladding materials such as polyethylene aluminium composite panels led to the tragic, rapid spread of fire at Melbourne's Lacrosse Tower and London's Grenfell Tower and was a driver for the Act. This is the first time a call for submissions about a building product use ban has been made since the Act was passed last year.
Product bans under the Act
The Act, which came into effect on 18 December 2017, gives the Commissioner the power to ban specified uses of building products (including cladding) when satisfied on reasonable grounds that the particular use is unsafe.
The use of a building product in a building will be deemed unsafe if there is a safety risk posed by the use of the building product in that building. A safety risk exists where the occupants of a building are, or are likely to be exposed to, the risk of death or serious injury arising from the use of the building product in the building. This will be the case even if the risk will only arise in certain circumstances or if some other event occurs like a fire.
At the discretion of the Commissioner, the ban of an unsafe building product may:
- prohibit its use for a specified purpose or for all purposes;
- prohibit its use by specified persons or classes of persons; or
- be subject to conditions the Commissioner sees fit.
If a ban is ordered, the Commissioner may issue affected building notices requiring affected buildings to be made safe. A building will be 'made safe' once the safety risk, caused by the banned building product, has been minimised as far as practicable.
An affected building notice can be issued in respect of a building regardless of whether the product the subject of the building product use ban was incorporated into the building before the building product ban took effect.
Purpose of the call for submissions
Section 13 of the Act provides that the Commissioner may call for public submissions on the question of whether a building product use ban is warranted and the terms or proposed terms of the ban. The submissions call for insights on whether the prospective ban should prohibit the use of certain building materials in any external cladding, walls or insulations, or facades or rendered finishes.
The public is invited to comment on whether the product use ban should:
- apply to all uses of aluminium composite panels containing a polyethylene core, and/or polystyrene products, and/or other similar substances in a building, or only to specific uses (and, if so, what uses)
- apply to all buildings or only to specified classes of buildings (and, if so, what classes)
- apply to use by all people or permit use by specified persons or classes of persons (and, if so, what persons or classes)
- apply subject to specified exceptions (and, if so, what exceptions — for example, an exception that permits use of the building product only after a specified test or tests have been conducted and a test report or reports provided to the Commissioner)
- be subject to conditions (and, if so, what conditions).
The Commissioner may decide a ban is unwarranted, in which case the use of the product may instead be affected by conditions set out by the Commissioner.
Deadlines for submission
All members of the public, in particular industry members and stakeholders, are invited to submit feedback on the proposed ban. Submissions must be made in writing to NCBP@finance.nsw.gov.au by 23 April 2018. A more detailed overview of building product use bans and the Act can be found here.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.