Non-conforming building products dashboard

Introduction

The use of non-conforming building products is becoming one of the most significant health and safety issues in Australia. This dashboard provides an overview of the regulatory change, special reports and key actions taken by governments relating to this topic from 2017 and 2018.

What's new

• On 29 October, the Victorian Government issued a notice specifying the types of work that can be funded by a “cladding rectification agreement”, under a scheme relating to the State’s ban of combustible cladding on multi-storey buildings earlier this year. For example, the removal or replacement of combustible cladding, installation of fire breaks in cladding and removal of combustible materials in paths of travel and lobbies are listed examples under the notice issued. View notice here.
• Also in October, The Western Australian Government introduced building regulations to restrict the use of combustible material on building façades of high risk buildings. Any use of combustible cladding used will need to demonstrate it has passed an Australian Standard AS 5113 mandated large-scale fire test, or approval from the Building Commissioner. The regulations introduced are not retrospective, but reflect the March 2018 update to the BCA which aim to substantially prevent the use of dangerous PE or expanded polystyrene cladding in building façades. View announcement here.
• The South Australian Government’s ongoing state-wide audit of non- compliant aluminium composite cladding found four prominent buildings in Adelaide to be low risk. On 16 August 2018, Minister for Planning Stephan Knoll announced that the New Adelaide Royal Hospital, the Women’s and Children’s Hospital, Adelaide Convention Centre and Adelaide Oval “does not pose significant risk” assuring the public that there are “sufficient in-build life safety provisions” in the event of a façade fire. Whilst the removal of ACP is unlikely to be the appropriate response, the Minister qualifies other actions such as improved fire evacuation measures should be implemented. View announcement here.
• On 15 August, the ban discussed by NSW Commissioner for Fair Trading Rose Webb came into effect. Now, ACPs with a core comprised of more than 30% polyethylene in any cladding has been banned. Operating retrospectively, the ban will apply to buildings constructed prior to the ban coming into effect. There are two exceptions to the ban:
  • the ACP is deemed not combustible by passing an Australian Standards building materials and combustibility test AS 1530.1 undertaken by an accredited laboratory producing results on or after 1 July 2017, or
  • the  ACP and a proposed external wall assembly has successfully passed Australian Standards test (AS 1530.1) and a statutory declaration is provided declaring the ACP and external wall will be installed in a manner identically tested undertaken by an accredited laboratory producing results on or after 1 July 2017.
• On 10 August 2018, the NSW Commissioner for Fair Trading, Rose Webb announced that she would be giving notice of her intention to impose a prohibition on the use of aluminium composite panels with a core comprised greater than 30% polyethylene (PE) by mass in any external cladding, external wall, external insulation, façade or rendered finish in certain multi storey buildings subject to some exceptions. The ban is intended to come into force on Wednesday 15 August 2018 and will remain in force until it is revoked. Failure to comply with the requirements of the ban may result in a fine of up to $1.1 million for corporations, or up to $220,000 for individuals. The notice can be viewed here.
• On 2 August 2018, a public hearing was held in Canberra for the Senate Inquiry into Non-Conforming Building Products. The submissions can be accessed here.
• The WA Building Commission has commenced gathering and assessing building information and site inspections to decide whether action is required on the cladding.
• On 16 June 2018, the UK Government released a consultation paper titled ‘Banning the Use of Combustible Materials in the External Walls of High-rise residential Buildings’ seeking views on the proposed ban of combustible materials. A detailed impact assessment will be made from the information received in the consultation.
• The Queensland government has announced a budget allocation of $13.2m to start the $45.5m replacement of non-conforming cladding on the Princess Alexandria hospital which was identified as being a priority building for investigation.
• On 17 May 2018, Queensland Audit Taskforce released its first status report which explained the risk-management approach it has taken to audit and test identified buildings across Queensland, and outlines the problems Queensland and other states and territories face in the review process. In releasing this first status report, the Audit Taskforce made 6 recommendations aimed at the amendment of building legislation to ensure an articulate a robust fire safety standard for combustible facades. The report also provided an update on investigations which have been completed/are to be completed:
  • Government Buildings: The report confirmed that 879 government buildings were referred for further investigation which resulted in 624 being cleared during the first-pass audit, and a further 121 building audits were finalised. The remaining 71 buildings were identified as potentially having combustible cladding, and were referred back to their owners for further investigation. The report confirmed that the rectification of government buildings is progressing well and no buildings pose an imminent risk to safety.
  • Non-Government (Private) buildings: 12,000 private building have been identified as potentially requiring a review. The taskforce has anticipated (based on the government owned buildings review) that approximately 10% of private buildings will need a detailed assessment. The task force  has identified that the initial list will be cross-checked with LGAs for the first pass audit.
  • On 17 May 2018, the UK Government released the Independent Review of Building Regulations and Fire Safety: Final Report. The report sets out a new regulatory framework to address the weaknesses identified in the interim report. The report sets out that the new framework is designed to create a more simple and effective mechanism for driving building safety, provide stronger oversight of dutyholders with incentives for the right behaviours, and effective sanctions for poor performance, and to reassert the role of residents. The framework aims to strengthen the regulatory oversight, clarify roles and responsibilities, and to raise and assure competence levels to allow residents to feel safe, be safe and be listened to when they raise concerns about building safety. The key principles of the new framework are to have an integrated systemic change which requires legislative change over time, identifying a way to apply the principles to the existing complex high-rise residential buildings, and to maintain the collaboration and partnership within the sector.
  • On 26 March 2018, the Senate granted the Senate Economics References Committee an extension to deliver its final report on non-conforming building products by 16 August 2018.
  • In Victoria Ministers' Guideline MG-14 was issued on 13 March 2018 and takes effect on 22 March 2018. Its purpose is to reduce the fire risk resulting from the use of certain cladding products in some multi-story buildings. The Victorian Government has also issued a Building Product Safety Alert warning of the potential fire risk and providing a detailed overview of the Guideline.
  • The Australian Building Codes Board (ABCB) is seeking feedback from practitioners and consumers on proposed changes  the National Construction Code 2019. Changes include removing the ability to use bonded laminated material where a non-combustible material is required.
  • The ABCB is seeking feedback on four Consultation Regulation Impact Statements (RIS), as part of the NCC 2019 Public Comment Draft, including an RIS relating to fire safety in Class 2 and Class 3 residential buildings. Opportunity to comment closes 13 April 2018.
  •  In February 2018 Professor Peter Shergold AC and Bronwyn Weir released their expert assessment report ‘Building Confidence: improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia’. The report addresses shortcomings in the implementation of the NCC, where 24 recommendations are made. Compliance and enforcement systems that incorporate the 24 recommendations represent a national best practice model that will strengthen the effective implementation of the NCC. The additionally recommend the BMF finalises it position on a compulsory product certification system for high risk products such as cladding. Professor Shergold and Weir admit that their recommendations provide an ambitious package, but believe that the shift can be achieved with a cooperative approach to change. The BMF is due to discuss an upcoming paper setting out an implementation for reforms in December. The full report can be accessed here.
  • Draft regulation released by Planning NSW inviting submissions on new requirements for suppliers, manufacturers and importers regarding combustible cladding. Media release here.
  • Composite cladding audit by Tasmanian Director of Building Control published 19 January 2018.
  • Building Amendment Regulations 2017 (TAS) commenced 27 December 2017 restricting the use of aluminium composite panel cladding with a polyethylene core in Tasmania via the Product Accreditation processes in the Building Act 2016.
  • Message from the CEO of the Victorian Building Authority 15 January 2018 announcing the commencement of a state-wide audit of apartment complexes, sporting arenas, schools, hospitals, etc. identifying ,assessing and rectifying risks arising from combustible cladding.
  • Building Products (Safety) Act (NSW) commences by proclamation 18 December 2017
  • Senate inquiry produces its interim report on Asbestos (see Senate inquiry)
  • The Queensland Department of Housing and Public Works has prepared a Code of Practice on non-conforming building products (see other government announcements)
  • Queensland's Building and Construction Legislation (Non-conforming Building Products - Chain of Responsibility and Other Matters) Amendment Act 2017 commenced on 1 November 2017 (see regulatory change)

Senate inquiry

• Interim report 18 October 2016:
  Non-conforming building products
• Government Response 26 February 2017:
  Aluminium composite cladding
• Government Response 22 August 2018:
  Protecting Australians from the threat of asbestos
• Interim report 4 May 2016:
  Safety – ‘not a matter of good luck’
• Interim report 6 September 2017:
  External cladding materials
• Interim report 22 November 2017:
  Protecting Australians from the threat of asbestos
• Final inquiry report 16 August 2018

Regulatory change

• Building Amendment Regulations 2017 (TAS) commenced 27 December 2017 restricting the use of aluminium composite panel cladding with a polyethylene core in Tasmania via the Product Accreditation processes in the Building Act 2016.
• Queensland: Building and Construction Legislation (Non-conforming Building Products—Chain of Responsibility and Other Matters) Amendment Act 2017
• The Amendment Act commenced on 1 November 2017
• Building Products (Safety) Act (NSW) commences by proclamation 18 December 2017

Other government announcements

• Building Ministers’ Forum indicates consideration of Queensland’s legislative changes
• Tasmanian Government proposes legislative ban on polyethylene cladding
• The Queensland Department of Housing and Public Works has prepared a Code of Practice on non-conforming building products

State task force and audits

• New South Wales
• Queensland
• South Australia
• Western Australia
• Tasmania
• Northern Territory
• Australian Capital Territory
• Victoria

Points of view

• Non-conforming building products: what are the risks for your business?
• Legal Update: Senate Interim report on aluminium composite cladding
• A new era in safety laws and enforcement for Queensland and NSW
• Queensland introduces chain of responsibility legislation for non-conforming building products