Australia: E-alert: Building and Other Legislation (Cladding) Amendment Regulation 2018

The Grenfell tower disaster in Britain last year has (quite rightly) focused attention on fire risk in buildings.

Whilst the fire risk issue may be common throughout the building and construction industry in Australia, each state individually takes responsibility for identifying solutions and implementing appropriate legislation.

As reported by the ABC's Josh Bavis in a post on 17 May 2018, apart from the Queensland government spending millions of dollars to make government buildings safer, privately owned buildings (including about 1,200 residential buildings) will now also need to be assessed.

The primary aim of the new laws, passed as an amendment to the Building Regulations 2006 and set to come into effect on 1 October 2018, will be to introduce a requirement for privately owned buildings to undergo rectification works where a fire risk is identified.

This will have important ramifications for buildings in community titles schemes.

A private building that has combustible cladding forming part of, or attached or applied to, an external wall or another external part of the building other than the roof will be an 'affected private building', for the purposes of the new laws.

There are several issues to consider, including when the building development approval was issued and what type of construction applies. Approvals issued after 1 January 1994 but before 1 October 2018 and buildings of type A or type B construction (buildings higher than 3 or more storeys) will be caught.

The new legislation is to be rolled out in three stages of compliance, as follows:

  • Stage 1 – the buildings must be registered and the Combustible Cladding Checklist (Part 1) must be completed;
  • Stage 2 – the building professional assessment of compliance is to be completed along with the Combustible Cladding Checklist (Part 2);
  • Stage 3 – a fire risk assessment is to be conducted by a fire engineer, with the Combustible Cladding Checklist (Part 3) to be completed pending the results of the assessment.

The risk assessment involved in Stage 3 will only be necessary where a building is an 'affected private building', as defined earlier. That assessment will ultimately determine whether rectification works will need to be carried out. Stage 1 must be completed by 29 March 2019, Stage 2 by 29 May 2019 and Stage 3 by 27 August 2019, with the final report to QBCC by 3 May 2021.

There is still a lot to learn about how this legislation will work and the effects it will have on bodies corporate.

Meeting requirements on time is obvious and should not be ignored.

The biggest issue of course will be, if rectification is required, who will bear the rectification costs. Clearly that will be a body corporate responsibility (bearing in mind the statutory obligations applying to maintenance and repair of the building in a community title scheme) but then the question will arise about whether there is a right to recover any of those costs from those involved in the construction of the building.

Hoary questions like limitation periods and standards of work and specifications applicable at the time will come to the fore.

The consequential effects of this legislation are far reaching and beyond the obligations of bodies corporate and allocation of risk and responsibility.

Under regulation 116ZB, if there is a body corporate roll kept for the building that is subject to the legislation, the owner must give a copy of the building fire safety risk assessment to each lot owner and each lease-hold interest holder for a lot in the building. If a building fire safety risk assessment for an owner's private building states the building is an affected private building then an affected private building notice must be displayed.

This, in turn, will have the potential to seriously impact the value and saleability of lots in affected private buildings.

Quite apart from that, lot owners should not ignore the obligation imposed currently under section 223 of the BCCMA. Disclosure obligations include disclosing to buyers latent or patent defects in common property that the seller is aware of, or ought to be aware of.

The door will be open to the risk of significant disputes between sellers and buyers in circumstances where a building has non-conforming cladding and where that is not disclosed in a sale contract by the seller.

In circumstances where bodies corporate ignore obligations to comply with the new cladding legislation, litigation is more likely inevitable rather than hypothetical.

For body corporate managers, there is little comfort in knowing that under regulation 16ZO (in proceedings for an offence against part of the new laws) an act done or omitted to be done for an owner by an agent of the owner within the scope of the agent's actual or apparent authority, is taken to have been done or omitted to be done also by the owner, unless the owner proves the owner could not have, by the exercise of reasonable diligence, prevented the act or omission.

Body corporate managers are no doubt working hard to understand how the new legislation impacts upon body corporate management responsibilities and there will be the practical issue of who will actually need to complete the relevant checklist for Stage 1 (and under what authority).


Vigilance and diligence, as always, is the key. If you do not understand what this new legislation means, seek advice. Many law firms and body corporate managers have already published material to help you. Importantly, if you think there is a likelihood that rectification works may be required for your building, start budgeting to pay for rectification and talk to your insurer. Make sure you hold a committee meeting to address the body corporate's new legal obligations under this legislation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions