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Ban this bad batch – high-risk cladding products now prohibited in Victoria

27 January 2021

#Construction, Infrastructure & Projects

Published by:

Stefania Silvestro

Ban this bad batch – high-risk cladding products now prohibited in Victoria

The dangers of aluminium composite panels (ACP) and expanded polystyrene products (EPS) are well known to the building and construction industry. With the risk to occupants and the community in the event of a fire being so high, the Victorian Minister for Planning, in the Prohibition of High-Risk Cladding Products Declaration, has banned the use of ACP and EPS in certain building works from 1 February 2021 (Declaration).

Previously, the 2018 Ministerial Guideline ‘MG-14’ required municipal and private building surveyors to seek approval from the Building Appeals Board to use EPS or certain types of ACP for building works to certain classes of building, before issuing a building permit. The Declaration revokes MG-14 effective from 1 February 2021.

The Department of Environment, Land, Water and Planning (DELWP) has released an ‘FAQ’ (available here) stating that the prohibition will apply to any application for a building permit made from 1 February 2021. Accordingly, owners who already hold or have already applied for a building permit which permits the use of the newly prohibited ACP and EPS (such as by way of performance solution approved by the BAB) should not be affected. 

Scope of the Declaration

The Declaration prohibits the use in Victoria of:

  • ACP with a core with less than 93 per cent ‘inert’ (i.e. non-combustible) filler, when used as external cladding as part of a wall system
  • EPS used as external insulation with a rendered finish.

The ban applies to building works in connection with buildings of Type A or Type B construction.  Practically, this means it will apply to:

  • Class 2 (apartment buildings), Class 3 (long-stay accommodation) and Class 9 (public) buildings, of two or more storeys
  • Class 5 (office or commercial), Class 6 (retail), Class 7 (warehouse or wholesale) and Class 8 (laboratory or processing/factory) buildings, of three or more storeys. 

It does not apply to Class 1 (detached or semi-detached house, small boarding house) or Class 10 (carpark, shed, garage) buildings.

Reasons for the Declaration

There were a number of reasons for the Minister’s decision. Primarily, the prohibition of ACP and EPS would reduce the risk of fire spread in multi-storey buildings, damage to neighbouring buildings and property, and importantly – reduce the risk of serious injury and death to occupants and the public. 

The Minister also noted that the use of ACP and EPS was permitted under MG-14 as part of a performance-based solution. However, various building audits demonstrated that performance-based solutions were difficult to validate and had been misused. 

A strict ban on ACP and EPS is therefore said to address these concerns.  

Impact of the Declaration

The prohibition applies to new building works of Type A and Type B construction. However, it is unclear whether the Declaration prevents owners of existing buildings affected by combustible cladding to partially retain any existing ACP or EPS material as part of rectification works if they have not obtained or applied for a building permit before 1 February 2021. The Declaration predominantly refers to the ‘future use’ of the products in building works which would indicate that such retention would be acceptable, however, its terms do leave room for argument.    

It is also unclear what effect the ban will have in litigation to rebut arguments that have previously been raised by defendants that:

  • it is disproportionate to require removal of all combustible cladding from a building, such costs often being used by owners as the measure of damages
  • it was possible to justify the use of combustible materials via a performance solution and, therefore, the installation of such materials was not as legally or morally culpable as alleged. 

What is clear, is that the full impact of the Declaration remains to be seen.

Authors: Lachlan Ingram & Stefania Silvestro  

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 article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Stefania Silvestro

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