NSW Government keeps dangerous cladding list a secret
The NSW Government has confirmed that a list of 444 buildings assessed as having dangerous flammable cladding will not be shown to the public and is deemed privileged. The Government is concerned that that these buildings may be prone to arson or terrorism attacks.
The 'high risk' list has been prepared by Fire and Rescue NSW, a member of the inter-agency Fire Safety and External Wall Cladding Taskforce (Taskforce), and is reportedly subject to a second assessment. The organisation undertaking that second assessment is unknown.
It is anticipated that after the second assessment, the list will be revealed to the public by virtue of section 19(5) of the Building Products (Safety) Act 2017 (NSW) (BPSA) or section 186U(3) of the Environmental Planning and Assessment Regulation 2000 (EP&AR). These sections provide for the NSW Government to:
- publish an affected building notice, under the BPSA, for a building that uses a banned building produce such as aluminium composite panels with a core comprised of more than 30 per cent polyethylene by mass
- publish a register (under the EP&AR) of buildings that have external combustible cladding.
It does not appear that any notice under the BPSA or register under the EP&AR has to date been published.
The NSW Government has otherwise provided little insight as to how they propose to deal with this list. It is indicated in the NSW Government's "10-point plan"1 at point 4 that Fire and Rescue NSW is to visit all buildings on the list, as part of a fire safety education program, to gather information to prepare for a potential fire at that building and provide additional information to building owners.
Although the Government may be criticised in withholding the information for endangering the occupants of the buildings in the 'high risk' list, the justification given is to avoid arson, terror attacks and further destabilisation of the construction industry. It is a decision which follows the position taken in Victoria in relation to data collected in that state.
Building owners should already be aware of their position where buildings fall under the reporting regime under the EP&AR (or even sooner, through dealing with their insurance renewals). Although information is not publically available, lot owners in particular will have a right to obtain relevant information from owners corporations. Purchasers may make enquiries during the requisitions process.
Footnote
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.
