Australia: Residential Focus - 31 January 2018: Part1 - Combustible cladding

Last Updated: 1 February 2018
Article by Christine Jones and Eleanor Grounds
Most Read Contributor in Australia, August 2018

The NSW Government is inviting public consultation on a draft regulation that will require owners of buildings with combustible cladding to register with the state government. The draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 (Regulation) is open for public comment until 16 February 2018.

Obligations on owners under the proposed Regulation

The proposed Regulation would amend the Environmental Planning and Assessment Regulation 2000 to require owners of certain buildings to provide information to the state government in a two-stage process. That information may be publically available or published on the Department of Planning and Environment (DPE) website.

The proposed Regulation is driven by the term combustible cladding defined as "any cladding comprised of materials that are capable of readily burning (such as timber polystyrene, vinyl or polyethylene) and includes any cladding system that incorporates elements that are capable of readily burning (such as combustible framing or insulation behind the surface cladding)". There is no measure or test for the phrase "capable of readily burning". A building with combustible cladding is a "building that has combustible cladding applied to any of its external walls or to any other area of the building, other than a roof".

Registration stage – Under proposed clause 186T, owners of a building with combustible cladding would be required to register with the DPE and provide the Secretary with details about the building and its cladding, including:

  • the name and address of the building owner
  • the address of the building
  • the classification of the building under the Building Code of Australia
  • the number of storeys in the building (both above and below ground)
  • a description of any combustible cladding on the building, including the materials that make up the cladding
  • a description of the extent of application of combustible cladding to the building and of the parts of the building to which it is applied.

According to guidance notes published by DPE, owners who suspect their building has combustible cladding but are not certain would still be required to register. Owners who have already had the cladding on their building assessed and have an expert report as to its safety would still be required to register provided the cladding is still on the building.

Statement stage – Under proposed clause 186V, owners of a building with combustible cladding would be required to have the building inspected by a properly qualified person (inspector) and then provide the Secretary with a cladding statement to include the following information:

  • the inspector's details
  • a determination as to whether or not, in the opinion of the inspector, the cladding presents a risk to the safety of persons or to the spread of fire in the event of a fire, and an explanation for such determination
  • if the inspector is of the opinion that the cladding could present a risk to the safety of persons or to the spread of fire in the event of a fire – details of actions necessary to address that risk and an explanation for choosing such actions
  • a description of any documentation prepared or relied on by the inspector to support any opinion referred to in the statement.

What buildings would the Regulation apply to?

The Regulation would not apply to freestanding houses, outbuildings, residential buildings under two storeys or non-residential buildings under three storeys.

Deadlines

Existing buildings would be required to be registered within three months after the commencement of the Regulation, or three months after first occupation for buildings occupied after commencement of the Regulation.

Authorised fire officers and councils would also have power to direct building owners to register. In this case, registration would be required within two weeks.

Cladding statements would be submitted online, with deadlines varying for the type of building. For residential buildings, health care buildings, aged care buildings and early childcare centres without fire sprinkler systems, cladding statements would be required to be submitted within seven months of the Regulation commencing. For other buildings, cladding statements would be required to be submitted within 11 months of the Regulation commencing, with a progress statement at seven months.

Penalties

The proposed penalties for not registering or providing a cladding statement are $1,500 for an individual and $3,000 for corporations.

Changes to State Environmental Planning Policies

As part of the reforms to combat combustible cladding dangers, the NSW government has also proposed amendments to eight State Environmental Planning Policies (SEPPs). A number of provisions within these SEPPs currently allow minor cladding work to be carried out as exempt developments. It is proposed to amend these provisions to specify that:

  • cladding, re-cladding and decorative work on external walls could not be carried out as exempt development on certain high-risk buildings, including residential apartment buildings, boarding houses, shop top housing, seniors housing, commercial buildings and industrial buildings; and
  • any cladding undertaken on other buildings (e.g. dwelling houses, schools, hospitals and group homes) as exempt development could not use combustible cladding.

More information on the proposed SEPPs amendments 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.

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Authors
Christine Jones
Eleanor Grounds
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