Greater regulation of buildings using external combustible cladding

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Recent disasters befalling high-rise buildings locally and overseas have intensified calls for owners and developers to take greater steps to prevent such tragedies. The Grenfell Tower tragedy in June 2017 was one of the worst modern disasters in the United Kingdom, as 72 Londoners died as a direct result of a 60-hour fire that caught the side of the residence and enveloped the entire outer building.

The cladding was an exacerbating factor in the disaster. The University of Leeds found that the burning of the combustible material would have released the same energy as if 51 tonnes of pinewood were wrapped around the building. The UK has since banned combustible cladding on external walls of high-rise residential buildings.

NSW government getting tougher on unsafe cladding

Australian states and territories are also attempting to limit the use of dangerous cladding on such buildings. This year the NSW government put into effect a ban on unsafe use of building products, which now includes some types of external combustible cladding, in the Building Products (Safety) Act 2017 (NSW). This Act also authorises councils or other government authorities to order unsafe products to be removed.

The NSW government is now also imposing greater obligations on owners to register their buildings if they use unsafe cladding, and is making development consent harder to obtain where combustible cladding is proposed, in two pieces of legislation:

  • Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018  (the Identification Amendment)
  • State Environmental Planning Policy Amendment (Exempt Development – Cladding and Decorative Work) 2018  (the SEPP Amendment)

These amendments will take effect from 22 October 2018.

Identification Amendment: who is affected?

These changes affect owners of both new and already existing buildings, so it doesn’t matter if a building was constructed before the amendments take effect.

The Identification Amendment applies to any building that (1) is in a prescribed class, (2) has two or more stories, and (3) has external combustible cladding.

For point (1), a building is in a prescribed class if it is at least one of the following:

  • A building containing two or more sole-occupancy units each being a separate dwelling (class 2);
  • A building that is residential, and a common place for long term or transient living for a number of people unrelated to each other (e.g. a boarding house, guest house, hotel, residential part of a health-care building or detention centre, or accommodation for the aged, children or people with disabilities) (class 3)
  • A building of a public nature (including a health-care building, an aged care building, or an assembly building such as a trade workshop or a laboratory) (class 9)
  • A dwelling in a building of a public nature, if it is the only dwelling in the building (class 4)

For point (3), a building is considered to have ‘external combustible cladding’ if it has either of the following:

  • Any cladding or cladding system comprising metal composite panels, including aluminium, zinc and copper, that is applied to any of the building’s external walls or to any other external area of the building; or
  • Any insulated cladding system, including a system comprising polystyrene, polyurethane or polyisocyanurate, that is applied to any of the building’s external walls or to any other external area of the building.

Identification Amendment: what do building owners have to do?

The Identification Amendment amends the Environmental Planning and Assessment Regulation 2000 (NSW).

It makes the following changes:

  • Any owner of a building above with external combustible cladding must now provide the Secretary of the Department of Planning and Environment (the Planning Secretary) with a number of details about:
    • The building itself (including the name and address of the owners corporation representative, and number of storeys); and
    • The building’s cladding (including a description of the external combustible cladding, any materials comprising the cladding, and a description of the extent of the application of external combustible cladding to the building).
  • The details of the buildings will have to be provided to the government through an online portal. Emails will not be accepted. This portal will soon be up and running, and building owners are encouraged to register to receive an alert for when this happens at: https://www.planning.nsw.gov.au/Policy-and-Legislation/Buildings/Combustible-cladding.
  • Once the portal is running, the deadlines for owners to register are as follows:
    • For buildings that were occupied before 22 October 2018, the deadline for registration is 22 February 2019.
    • For buildings first occupied on or after 22 October 2018, owners must register their building within four months of the building first being occupied.
  • Failing to register a building to which the Act applies attracts a penalty of $1500 for individuals and $3000 for corporations.
  • Owners are also now obligated to provide details about a building and any external combustible cladding if the Planning Secretary, an authorised fire officer or the council of the area directs them to do so in writing. Failure to provide these details within 14 days of the written request attracts a penalty of $3000 for individuals and $6000 for corporations.

The NSW government hopes to use this information to enable Fire and Rescue NSW to educate occupants about fire prevention and to improve its response to fires. It will also assist councils with determining whether further action is necessary.

The SEPP Amendment: greater oversight for combustible cladding

The SEPP Amendment amends eight NSW government planning policies:

  • State Environmental Planning Policy (Affordable Rental Housing) 2009
  • State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
  • State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
  • State Environmental Planning Policy (Infrastructure) 2007
  • State Environmental Planning Policy (Kosciuszko National Park – Alpine Resorts) 2007
  • State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
  • State Environmental Planning Policy (Three Ports) 2013
  • State Environmental Planning Policy (Western Sydney Parklands) 2009

Each amendment is aimed at increasing developmental consent requirements for works that involve external combustible cladding. Certain developers proposing to use combustible cladding will no longer be exempt from requirements to obtain developmental consent.

For example, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 has been changed. This Policy provides streamlined assessment processes by listing certain developments that do not need to secure development consent. It is now a requirement for some developments, such as the maintenance of buildings in draft heritage conservation areas, that if the development involves cladding and developers do not want to be burdened by consent processes, the work must not be carried out on any building more than two storeys high, and the work must not involve the use of external combustible cladding.

Conclusion

In 2017, the NSW Shadow Minister for Innovation and Better Regulation Yasmin Catley said that as many as 2500 buildings in NSW could be clad in material that did not comply with regulations. The changes aim to clarify the numbers.

Whether these changes in NSW will work to protect residents remains to be seen. A number of parties had expressed concerns about the Grenfell Tower fire safety and emergency infrastructure, but tragically this was not enough to avert the disaster.

Nevertheless, many of those working with combustible cladding are now subject to greater oversight and must carefully review these new regulations and seek advice about them if necessary. The obligations to report could kick in for some owners as early as February 2019. Failure to do so may mean financial penalty.

Please contact us should you require any further information, on +612 9248 3450 or email info@bradburylegal.com.au.