The NSW Government is inviting public consultation on a draft regulation that will require owners of buildings with combustible cladding to register with the state government. The draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 (Regulation) is open for public comment until 16 February 2018.

Obligations on owners under the proposed Regulation

The proposed Regulation would amend the Environmental Planning and Assessment Regulation 2000 to require owners of certain buildings to provide information to the state government in a two-stage process. That information may be publically available or published on the Department of Planning and Environment (DPE) website.

The proposed Regulation is driven by the term combustible cladding defined as “any cladding comprised of materials that are capable of readily burning (such as timber polystyrene, vinyl or polyethylene) and includes any cladding system that incorporates elements that are capable of readily burning (such as combustible framing or insulation behind the surface cladding)”. There is no measure or test for the phrase “capable of readily burning”. A building with combustible cladding is a “building that has combustible cladding applied to any of its external walls or to any other area of the building, other than a roof”.

Registration stage – Under proposed clause 186T, owners of a building with combustible cladding would be required to register with the DPE and provide the Secretary with details about the building and its cladding, including:

  • the name and address of the building owner
  • the address of the building
  • the classification of the building under the Building Code of Australia
  • the number of storeys in the building (both above and below ground)
  • a description of any combustible cladding on the building, including the materials that make up the cladding
  • a description of the extent of application of combustible cladding to the building and of the parts of the building to which it is applied.

According to guidance notes published by DPE, owners who suspect their building has combustible cladding but are not certain would still be required to register.  Owners who have already had the cladding on their building assessed and have an expert report as to its safety would still be required to register provided the cladding is still on the building.

Statement stage – Under proposed clause 186V, owners of a building with combustible cladding would be required to have the building inspected by a properly qualified person (inspector) and then provide the Secretary with a cladding statement to include the following information:

  • the inspector’s details
  • a determination as to whether or not, in the opinion of the inspector, the cladding presents a risk to the safety of persons or to the spread of fire in the event of a fire, and an explanation for such determination
  • if the inspector is of the opinion that the cladding could present a risk to the safety of persons or to the spread of fire in the event of a fire – details of actions necessary to address that risk and an explanation for choosing such actions
  • a description of any documentation prepared or relied on by the inspector to support any opinion referred to in the statement.

What buildings would the Regulation apply to?

The Regulation would not apply to freestanding houses, outbuildings, residential buildings under two storeys or non-residential buildings under three storeys.

Deadlines

Existing buildings would be required to be registered within three months after the commencement of the Regulation, or three months after first occupation for buildings occupied after commencement of the Regulation.

Authorised fire officers and councils would also have power to direct building owners to register. In this case, registration would be required within two weeks.

Cladding statements would be submitted online, with deadlines varying for the type of building. For residential buildings, health care buildings, aged care buildings and early childcare centres without fire sprinkler systems, cladding statements would be required to be submitted within seven months of the Regulation commencing. For other buildings, cladding statements would be required to be submitted within 11 months of the Regulation commencing, with a progress statement at seven months.

Penalties

The proposed penalties for not registering or providing a cladding statement are $1,500 for an individual and $3,000 for corporations.

Changes to State Environmental Planning Policies

As part of the reforms to combat combustible cladding dangers, the NSW government has also proposed amendments to eight State Environmental Planning Policies (SEPPs). A number of provisions within these SEPPs currently allow minor cladding work to be carried out as exempt developments. It is proposed to amend these provisions to specify that:

  • cladding, re-cladding and decorative work on external walls could not be carried out as exempt development on certain high-risk buildings, including residential apartment buildings, boarding houses, shop top housing, seniors housing, commercial buildings and industrial buildings; and
  • any cladding undertaken on other buildings (e.g. dwelling houses, schools, hospitals and group homes) as exempt development could not use combustible cladding.

More information on the proposed SEPPs amendments can be found here

Editorial: Christine Jones & Eleanor Grounds

 

In the media

Soft landing for house builders according to National Survey
December quarter 2017 National Survey points to soft landing for residential building market (25 January 2018).  More...

Firefighters Union concerned about unresolved flammable cladding issue
The United Firefighters Union has expressed concern about the Federal Government’s inaction on regulating the dangerous use of flammable cladding in the building industry (25 January 2018).  More...

Consumers opting for houses over units
An impressive increase in standalone home building is a sure sign houses are making a comeback over units, with the latest figures from the Australian Bureau of Statistics showing a 14 per cent increase in dwelling commencements over the 3 months to September 2017 (23 January 2018).  More...

Design Futures Council gets Australian chapter
A think tank formed to help navigate global trends, challenges and opportunities for innovation in the architecture, engineering and construction sectors has launched an Australian chapter (23 January 2018).  More...

Premier Berejiklian must maintain momentum to fix housing affordability
One year in to Premier Berejiklian’s time as Premier, the NSW Government must continue to embrace progress and implement reforms to improve housing affordability in NSW, according to the Property Council of Australia (23 January 2018).  More...

New state apprenticeship act to ‘strengthen’ industry ties
Changes to laws governing the New South Wales’ apprenticeship system will make it more responsive to the demands of the contemporary workplace. The Apprenticeship and Traineeship Amendment Bill 2017 came into effect on 1 January (19 January 2018).  More...

Published

Australian Bureau of Statistics
17/01/2018 – Building Activity, Australia, Sep 2017 (cat no. 8752.0
17/01/2018 – Construction Activity: Chain Volume Measures, Australia, Sep 2017 (cat no. 8782.0.65.001)
17/01/2018 -  Housing Finance, Australia, November 2017 (cat no. 5609.0)

Practice and courts

ABCB: Preview of NCC 2016 Volume One Amendment 1
The Amendment preview and Evidence of Suitability handbook are now available. Accompanying the preview is a summary of changes, the Consolidated Performance Requirements preview and a new Evidence of Suitability Handbook (19 January 2018).  More...

ABCB: Adoption of NCC 2016 Volume One Amendment 1 - Key dates
12 March 2018 - NCC 2016 Volume One Amendment 1 is scheduled for adoption by all States and Territories from 12 March 2018.
This amendment is the result of a Building Ministers’ direction to the ABCB to expedite completing and adopting actions involving changes to the NCC from a comprehensive package of measures for fire safety in high rise buildings developed following the Lacrosse Apartments fire in Melbourne.

Registration is now open for the 2018 NCC Information Seminars
In February and March 2018, a representative from the ABCB will be coming to a capital city near you. Don't miss out on your opportunity to hear about the following BCA initiatives: NCC 2016 Volume One amendment addressing fire safety; NCC 2019 public comment draft; The improved CodeMark scheme; and The practical development and assessment of Performance Solutions.  More...

Proposed Reforms for Buildings with Combustible Cladding
The NSW Department of Planning and Environment (DP&E) has released a package of proposed reforms requiring owners to: register their building/s with the NSW Government and engage an expert to do a fire risk assessment of the cladding. Councils and Fire and Rescue NSW will have powers to direct owners to register their buildings within a set timeframe if they have not already done so. The package is on exhibition until 16 February 2018.  More...

Cases

Maiolo v Chiarelli [2018] NSWCATAP 28
(1) The decision of the Appeal Panel given on 11 April 2016 and amended on 19 April 2016 is varied to include the following order: Frank Chiarelli and Vicki Woodward must pay John Peter Maiolo the sum of $20,900.66 immediately’.
Remit of proceedings from the Supreme Court pursuant to section 83 of the Civil and Administrative Tribunal Act 2013 – costs – finding of special circumstances.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.    

Staniland v Integrity New Homes Pty Ltd (No. 2) [2018] NSWCATAP 24
(1) The appellants are to pay 50% of the respondent’s cost of the appeal, as agreed or assessed on an ordinary basis.
Costs - Costs of appeal involving claim originally brought in the Consumer Trader and Tenancy Tribunal, the applicability of rule 38A of the Civil and Administrative Tribunal Act 2013.
Discretion - Calderbank offer, special order for costs, relevance in determining what costs order should be made, both parties addressing irrelevant issues, assessment based on issues.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Consumer Trader and Tenancy Act 2001; Consumer Trader and Tenancy Regulation 2009; Home Building Act 1989.

Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan [2018] NSWCATAP 21
(1) Leave to appeal is refused and the appeal is dismissed.
PRACTICE & PROCEDURE. Meaning of a “decision” - whether Tribunal functus officio - whether leave to appeal out of time should be granted.
Civil and Administrative Tribunal Act, 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Home Building Act – s 48MA, preferred outcome principle, relevant considerations. Fair Trading Act - s 79U - applicability in determination of claims under the Home Building Act - modifications required by Home Building Act - relevance of s 48MA of Home Building Act in application. Discretion - Order making power under s 48O of Home Building Act - application of preferred outcome principle.

Heritage Master Builders Pty Ltd v Lu [2018] NSWCATAP 16
Expert evidence - reliance on quotation from unlicensed builder, expert not expressing view on issue for determination, ability of Tribunal to reach relevant decision. Procedural fairness - late delivery of report, party deciding not to seek adjournment - Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Singh v Verdi Group Pty Ltd [2017] NSWCATCD 94
Home Building – Breach of Contract – misleading and deceptive conduct.

Bailey v Champion Homes Sales Pty Ltd [2017] NSWCATCD 91
Home building; variations; contract period; works period; restitution; mistake; failure of consideration; breach of warranty; damages.

Grace v Pepe [2018] NSWCATAP 19
COSTS-Error of law - building dispute - costs decision - leave to appeal.

Younan v Commissioner for Fair Trading [2018] NSWCATOD 9
HOME BUILDING – disciplinary action – whether company of which the applicant was a director failed, without reasonable cause, to comply with a rectification order - whether applicant guilty of improper conduct – what penalty should apply.  COSTS – whether special circumstances – respondent acted without jurisdiction in relation to the issuing of a rectification order.

Champion Homes Sales Pty Ltd v Commissioner for Fair Trading [2018] NSWCATAP 18
Disciplinary proceedings - “parity principle”, meaning and applicability, different penalties for licensed contractor company, directors and supervisor.  Discretion - error of law, circumstances in which Appeal Panel can intervene.


Contacts:

Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Stefanie Dunnicliff, Senior Associate 
T: +61 2 8083 0464 
E: Stefanie.Dunnicliff@holdingredlich.com

Divya Chaddha, Associate 
T: +61 2 8083 0457
E: Divya.Chaddha@holdingredlich.com


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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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