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Residential Focus

06 November 2019

#Property & Real Estate

Christine Jones

Published by Christine Jones, Divya Chaddha

Residential Focus

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.

Author: Divya Chaddha

[1] 10-point-plan

In the media

MBA: New apartment approvals see September surge
Building approvals for new apartments and units leapt by 16.1 per cent during the month of September according to new figures. Momentum in Australia’s housing market appears to be growing with the volume of new home building approvals expanding by some 7.6 per cent during September (31 October 2019).  More...

Cranes popping up across the country as construction picks up
Sustained demand for high-quality commercial projects in Sydney and Melbourne has seen construction activity pick up across major city markets (30 October 2019).  More...

ICMS 2nd edition: Positive feedback and a challenge to the profession
The International Construction Measurement Standards second edition (ICMS 2) were officially launched on October 11 at the European Council of Construction Economists meeting in Brussels (29 October 2019).  More...

Every building counts in the march towards net zero emissions
The Australian Sustainable Built Environment Council celebrates the release of Every Building Counts: A practical plan for emissions reduction. Authored by the Green Building Council of Australia and the Property Council of Australia, Every Building Counts sets out a clear pathway to achieve net zero carbon buildings by 2030 (29 October 2019).  More...

Builders call on Senate to pass ensuring integrity laws
The Senate should pass the Ensuring Integrity Bill following its endorsement by the Senate Committee Inquiry, CEO of Master Builders Australia said. The Ensuring Integrity Laws will see a comprehensive set of laws that will ensure all Registered Organisations, both employer organisations and unions, play by the rules (25 October 2019).  More...

The registration debate heats up: NSW Government Design and Building Practitioners Bill
Engineers Australia has provided in-depth advice to all parties of Parliament and it’s heartening to see that both the Government and Opposition have taken elements of our advice on board (25 October 2019).  More...

Fire-retardant coatings for flame resistant buildings
A new technique to develop fire-retardant coatings for rigid polymer foam-based building materials has received $888,000 in funding through the Australian Research Council Future Fellowships program (21 October 2019).  More...

BDAV: Proactive regulatory enforcement will rebuild the construction industry
Good regulatory enforcement is essential to building quality, and a good construction specification is essential for protecting the owners and users of buildings, as well as building designers (21 October 2019).  More...

BDAV: Maintaining education and training standards for future building designers
Artibus Innovation is commissioned by the Australian Government to support the Industry Reference Committees for Construction, Plumbing and Services and Property Services in their work reviewing, renewing and developing vocational education and training within their sectors (19 October 2019).  More...

New NSW building legislation: Here’s the start of a new deal
There’s a great deal of anguish still to play out with people forced out of their homes because of faulty and dangerous building practices, but according to the NSW Building Commissioner David Chandler, a new bill just presented to the NSW government is a good step forward (30 October 2019).  More...

Meriton's gleaming Parramatta tower given approval
Developer Meriton has won development approval for Parramatta’s tallest apartment tower, a gleaming 67-level riverfront building, and an adjoining hotel (28 October 2019).  More...

Sydney's high-rise site sales tumble
Sales of residential development sites in Sydney plummeted in the 2019 financial year, dampened by funding difficulties, weakened demand, and construction issues, according to Knight Frank's latest Australian Residential Development Review (25 October 2019).  More...

NSW building reforms 'step one of 100' to restore confidence in sector
The government's long-anticipated building industry reforms will provide "zero" help to owners of existing faulty buildings in NSW, lawyers say (24 October 2019).  More...

Solar savings for NSW households
Eligible NSW residents will be offered a free rooftop solar system and installation, saving them around $300 each year on their energy bills (23 October 2019).  More...

Sydney Metro West stations announcement to unlock tens of billions of dollars in housing potential
The announcement by the NSW Government of the 2020 commencement of construction of the Sydney Metro West and seven proposed stations between Westmead and the CBD has the potential to unlock tens of billions of dollars in complementary housing development along the metro corridor (23 October 2019).  More...

Practice and courts

GBCA: New Green Star for Communities rating tool: Have your say
We are seeking your views on the consultation paper which will help to inform further tool development and the final release of Green Star for Communities in late 2020. We will continue to consult across the sector throughout 2020. Feedback closes on 30 November 2019 (29 October 2019).  More...

NABERS Auditors, Supervisors, and Trainers panel announced
Congratulations to the new Panel Selection for NABERS Auditors, Supervisors, and Trainers, for October 2019-October 2022. Find the full list here (29 October 2019).  More...

2019 AIBS Annual Report 18 October
The 2019 AIBS Annual report and 2019 Audited Financial Statement have been published and can be found here (21 October 2019).  More...

Building Information Modelling for WHS management
What is the best practice and implications of using BIM in WHS management?
Timeline of project: Project commenced: August 2019; Project completion: Mid 2021.  More...

Cladding guideline
In early 2018, the Building Ministers Forum asked Standards Australia to develop the system. Standards Australia has developed a permanent labelling system of aluminium composite panel products to support the identification of these products throughout their life-cycle. The new guideline can be purchased from the Standards Australia website (October 2019).

Draft regulations for building certifiers
The NSW Government is seeking feedback on a draft regulation for building and development certifiers. The proposed Building and Development Certifiers Regulation 2019 is open for comment until 28 October 2019. A new Building and Development Certifiers Regulation 2019 must be introduced in order to bring the Building and Development Certifiers Act 2018 into force. For more information and to view the documents go to the Department of Customer Services website.

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018.  More...

Planning Circular – Commencement of Part 6 (building and subdivision certification provisions)
FAQ - Occupation certificate
FAQ - New mandatory compliance powers for private principal certifiers
FAQ - New subdivision works certificate
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
If you have any queries, please contact the Department of Planning, Industry and Environment.  More...

Cases

Stepanoski v Aslan (No 3) [2019] NSWSC 1445
CONTRACTS – extent to which defendant has been overpaid for work that had been completed before the Lump Sum Contract was terminated – whether the Lump Sum Contract was wrongly terminated by the plaintiffs or whether it was repudiated by the defendant
DAMAGES – quantification of damages to which the plaintiffs or defendant would be entitled – differences in opinion evidence of expert witnesses – resolving differences without detailed cross-examination
construction certificate for the Works under the Lump Sum Contract - by cl 9 of the Lump Sum Contract, Mr Aslan warranted that the work would be performed in a proper and workmanlike manner, and in accordance with the plans and specifications set out, and that all materials supplied by him would be good and suitable for the purpose for which they were used

Simon Peto v Ausgrid Management Pty Ltd t/a Ausgrid
Alleged dispute about a matter arising under an enterprise agreement – electricity supply industry
(Consumer Safety) Act 2004 (NSW) and the Home Building Act 1989 (NSW). Performing work beyond Mr Peto’s scope 

Legislation

NSW

Environmental Planning Instruments
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Medium Density Housing Code) (No 2) 2019 (2019-519) — published LW 25 October 2019

Bills introduced Government – 25 October 2019
Better Regulation Legislation Amendment Bill 2019
Design and Building Practitioners Bill 2019

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Christine Jones

Published by Christine Jones, Divya Chaddha

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