Combustible cladding continues to confront building owners, construction professionals and regulators and shall for some time yet, as the legacy stock of affected buildings is gradually identified and addressed.
The NSW Government's regulatory response to combustible cladding has thus far included implementing a 10-point plan of action, establishing the NSW Government's Fire Safety and External Wall Cladding Taskforce (Cladding Taskforce) and facilitating the remediation of combustible cladding on Class 2 residential apartment buildings through Project Remediate.
The Cladding Taskforce is chaired by the Department of Customer Service, and the Department of Planning and Environment is a key member.
In an effort to monitor the concerns surrounding combustible external cladding, on 13 April 2022, the Audit Office of NSW (Audit Office) released the Building regulation: Combustible external cladding audit report (Report). The Report examines the reforms put in place by the Department of Customer Service and Department of Planning and Environment and how effective these reforms have been in addressing combustible external cladding.
The audit involved nine local councils involved in the NSW Government's 10-point plan of action, namely:
- Bayside Council
- City of Canterbury Bankstown Council
- Cumberland City Council
- Liverpool City Council
- City of Newcastle Council
- City of Parramatta Council
- City of Ryde Council
- City of Sydney Council
- Wollongong City Council.
This article summarises the key components of the Report. To obtain the full benefit of the Report's contents, we recommend reading the Report in its entirety.
To align with NSW Government's 10-point plan, the criteria for the audit are set out in the below three questions (extracted from Appendix two - About the audit):
- are the fire safety risks of combustible external cladding on existing buildings identified and remediated?
- is there a comprehensive building product safety scheme that prevents the dangerous use of combustible external cladding products on existing buildings?
- is fire safety certification for combustible external cladding on existing buildings carried out impartially, ethically and in the public interest by qualified experts?
The Report provides a number of interesting insights. We have summarised the key findings of the Report below:
- there is an absence of a reliable source to identify buildings that might have combustible external cladding
- there has been a decrease in the number of buildings being registered as having combustible external cladding
- the Department of Customer Service and Department of Planning and Environment have assisted and monitored compliance with the requirements of the Cladding Taskforce or Fire and Rescue NSW by local councils
- there has been a lack of proactive management by government departments to deal with combustible external cladding on NSW Government-owned buildings
- where the Department of Planning and Environment was the consent authority, it had an effective process for addressing the risks of combustible external cladding
- there has been poor and inconsistent information and data management by the Cladding Taskforce
- low-risk buildings have been neglected and not drawn to the attention of local councils
- there has been confusion among councils and building and strata managers surrounding the criteria of the product use ban of 30 per cent polyethylene imposed by the Commissioner for Fair Trading, due to a lack of guidance from consent authorities
- there is an absence of supporting documentation for enforcing the product use ban, such as enforcement strategies, policies or plans, which is a responsibility of the Department of Customer Service
- when conducting inspections and risk assessments of buildings, the accredited and registered experts engaged are not acting under their registration or accreditation functions, but are acting as consultants to the building owner.
The Report recommends that the Department of Customer Service and the Department of Planning and Environment:
- by October 2022, address the confusion surrounding the product use ban by implementing a holistic approach to allow for a variety of circumstances specific to each building. The risk assessments should be well-rounded, in that consideration should be given to the type, location, arrangement, installation method and amount of combustible external cladding installed
- by October 2022, ensure that the Cladding Taskforce creates an action plan for buildings assessed as low-risk, which should include a cost versus benefit and risk assessment
- by December 2022, improve information and data management systems to properly reflect the history of identifying, assessing and remediating buildings with combustible cladding.
With the deadlines set for the second half of this year, we will be keeping readers updated on progress reported by the Department of Customer Service and the Department of Planning and Environment on compliance with the recommendations in the Report.
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.