Fair Trading Commissioner imposes building product use ban on unsafe cladding
The Commissioner for Fair Trading (Commissioner) has imposed the first building product use ban under the Building Products (Safety) Act 2017 (NSW) (Act) since the Act came into effect in December last year. The ban, which comes into effect today, prohibits the use of aluminium composite panels (ACP) with a core comprised of more than 30% polyethylene (PE) by mass (Building Product) in certain multi-storey buildings.
What buildings does the ban apply to?
The ban prohibits the Building Product from being used in any external cladding, external wall, external insulation, façade or rendered finish in:
- Type A construction – Class 2, 3 and 9 buildings with a rise in storeys of three or more and Class 5, 6, 7 and 8 buildings with a rise in storeys of four or more
- Type B construction – Class 2, 3 and 9 buildings with a rise in storeys of two or more and Class 5, 6, 7 and 8 buildings with a rise in storeys of three or more.
The Building Code of Australia defines the classes of buildings as follows:
- Class 2 – a building with two or more sole-occupancy units, which are each a separate dwelling
- Class 3 – a residential building, other than a Class 1 or 2 building, which is a common place of long term or transient living for a number of unrelated persons, such as a hostel. Class 1 generally includes domestic buildings such as a single dwelling
- Class 5 – an office building used for professional or commercial purposes, excluding Class 6, 7, 8 or 9 buildings
- Class 6 – a shop or building used for the retail sale of goods or supply of services to the public
- Class 7 – a car park, or a building that is used for storage or wholesale sale of goods
- Class 8 – a laboratory, or a building where processes are carried out for the trade, sale or gain of goods or produce
- Class 9 – a building of a public nature, such as a health care building, assembly building or an aged care building.
The ban will not apply where:
- the Building Product is not deemed combustible by passing a test in accordance with Australian Standard 1530.1-1994 'Methods for fire tests on building materials, components and structures' or
- the Building Product and proposed external wall assembly passes a test for both external wall fire spread and building-to-building fire spread in accordance with Australian Standard 5113 'Fire Propagation testing and classification of external walls of buildings', and a statutory declaration is made stating that the Building Product will be installed in an identical manner to the prototype wall in the test.
In both cases, the test results relied upon must:
- come from an Accredited Testing Laboratory
- describe the methods and conditions of the test and the form of construction of the tested building product or prototype wall assembly or façade
- be dated on or after 1 July 2017.
Further details on the ban are available here.
Penalties for non-compliance
It is an offence under the Act to:
- cause a building product the subject of a building product use ban to be used in a building
- represent, in trade or commerce, that a building product is suitable for use in a building if that use would contravene a building product use ban.
The maximum penalties attached to these offences are fines of $1.1 million for corporations and $220,000 for individuals.
Implications for existing buildings in NSW with ACP
Importantly, the Building Product ban still applies in cases where the Building Product was used in a building before the ban came into effect.
If the Commissioner is satisfied a building has been constructed using the Building Product, the Commissioner may issue an affected building notice (Notice) under s 18 of the Act. The Notice will outline the location of the building, the particulars of the relevant ban and the particulars of the safety risk posed by the use of the Building Product. The Notice is to be distributed to the owners and occupiers of the building, the council for the area in which the building is located or other relevant enforcement authority and, if the use of the Building Product poses a risk of fire, the Commissioner of Fire and Rescue NSW. The Commissioner may also publish a Notice on the internet if it is in the public interest to do so.
The relevant enforcement authority for the particular building is empowered by s 20 of the Act to make an order to do such things as are necessary to:
- eliminate or minimise the safety risk posed by the Building Product in the building
- remediate or restore the building after risk of the Building Product is eliminated or reduced.
The ban will remain in force until revoked.
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.