NSW Fair Trading Enacts Ban On Unsafe Combustible Cladding

NSW Fair Trading Enacts Ban On Unsafe Combustible Cladding

NSW Fair Trading Enacts Ban On Unsafe Cladding


New South Wales Government bans combustible aluminium cladding

The Fair-Trading division of the New South Wales Government’s Department of Finance has established an immediate ban on the use of Combustible Aluminium Cladding in residential and commercial buildings as part of an ongoing effort to prevent the identified risks of rapid vertical spread of fires associated with these products.

The ban follows NSW Fair Trading’s inquiry and public submissions commenced on 23 March, which sought to discuss ‘whether a building product use ban was warranted for certain types of external cladding on buildings and if so, what the terms of a ban might be.’

Submissions were considered from several public and private sources, including NSW Fire and Rescue, the CSIRO and also about approaches ‘adopted by other Australian Regulators, namely Victoria, Tasmania and South Australia.’

Details of the ban

As of Wednesday, 15 August, Aluminium Composite Panels (ACP), which contain more than 30 per cent polyethylene by mass – a component identified as posing an inherent risk to the spread of fires – will be banned from use in residential buildings (Units, Apartments, Townhouses etc.) over two storeys, and in use across commercial buildings (Hospitals, Shopping Centres and Offices) which are higher than three storeys.

The ban also classes the use of the banned building products as an offence, introducing accompanying fines. ‘Corporation(s) who don’t comply with the requirements of the ban can be fined up to $1.1 Million and individuals can be fined up to $220,000.’ The ban would also apply retrospectively to any buildings which had these products installed before the ban was introduced.

This would naturally come as a concern to builders and owners, as ‘most don’t know if they are liable, or if they have used non-compliant cladding’, according to Hendry Senior Building Surveyor Tony Griffin. ‘Parties affected will have to contact either their landlord or insurer to ensure that they are aware of this issue and are taking the necessary steps to resolve it.’ National Operations Manager for Safety Measures, Geoff Vick, added that those with any concerns or who may wish to seek assistance in this matter should ‘seek professional advice’ from a provider such as Hendry.

Aluminium cladding is deemed a major defect

Aluminium Cladding was identified as a ‘major defect’ by NSW Fair Trading in April this year. For new and prospective owners, this ruling means that ‘anyone who buys a unit or townhouse which is found to contain banned materials has the right to get repairs done by the builder responsible for up to six years after the building is completed.’

Commissioner for Fair Trading, Ms Rosemary Ann Webb, noted in her report that although these products are ‘in contravention of the National Construction Code (NCC)… the code cannot be relied on in isolation to address the safety risks associated with [this cladding]. At present, the NCC is not sufficient to regulate building products.

This observation agrees with Hendry’s own, as Tony Griffin notes, ‘you can under the current NCC provisions have a composite panel, which may contain combustible components, still pass the test for combustibility under Australian Standards. The metal cladding itself may not be combustible, but the materials holding the cladding together or fixing it to a structure may be. This is most likely to be fillers, binders or glues.’

He said, ‘The ban by NSW Fair Trade will be necessary, as will be the case in other states, to provide direction to the industry as a whole on what is seen as an acceptable building material and to recommend how practitioners, owners and occupants can manage non-compliant materials by covering any potential ambiguities in current NCC guidelines.’

Implementing consistent, nationwide changes

These state-independent policies and bans are being introduced as the Australian Institute of Architects (AIA) calls for the country’s building ministers to ‘implement consistent, nationwide changes’ to the NCC to maintain a consistent and compliant solution nationwide through a national best practice model.

In a discussion regarding this decision by the NSW Fair Trading Department, Hendry’s National Operations Manager for Safety Measures, Geoff Vick, identified the following information on national Government action courtesy of the Fire Protection Authority (FPA) and Australian Building Codes Board (ABCB):

  • The Australian Government has rejected a recommendation made by the Senate inquiry into non-conforming building products to ban the importation, sale and use of combustible cladding; determining such a ban would be neither effective nor practical. The recommendation was one of eight made by a report on aluminium composite cladding released in September 2017 by the Senate Economics References Committee inquiry. The report recommendations aimed to address the fire risk posed by the non-compliant use of polyethylene core aluminium composite panels (PE-ACPs).
  • Difficulty in identifying PE-ACPs, legitimate uses of the material, domestic manufacturing, international trade obligations and costs to industry would make a total ban on PE-ACPs ineffective and impractical, the Government response determined. The Australian Government is of the view that the national measures currently being pursued by the Building Ministers Forum, through the work of the Senior Officers Group, will effectively increase accountability of all participants across the building supply chain and improve building product conformity and compliance with the National Construction Code (NCC).
  • The NCC already prohibits the use of combustible cladding on high-rise buildings in most cases. It is not necessary to ban it twice but take greater enforcement measures of the legislation we already have that requires a high level of fire safety in Australian buildings. As the Government highlights, several important reforms have been introduced in Queensland and New South Wales since the senate inquiry made its recommendations, some of which are addressed by new legislation.
  • Refinements are also underway in NCC 2016 Amendment One, which introduces further clarification and guidance on the use of combustible cladding on buildings. The Commonwealth government will work with state and territory governments to establish a national licensing scheme, with requirements for continued professional development for all building practitioners. The Commonwealth government is considering imposing a penalties regime for non-compliance with the NCC, such as revocation of accreditation.

How Hendry can help

With regards to Hendry, Mr Griffin also stated that ‘Hendry has been providing services and advice in response to the recommendations made in this announcement for the prevention of the use of non-compliant and combustible building materials in addition to existing regulations. Hendry has not been the subject of any fault claims and can provide reassurance to clients regarding our services.

If you are an owner, operator or occupant of a building or commercial structure and you wish to clarify any questions regarding your assets relative to these new laws, you can contact Hendry at any time on 1800 875 371 or at building.surveying@Hendry.com.au.

Our team of expert building surveyors and consultants can advise how to manage your asset portfolio in keeping to the highest standards of compliance and current regulations. Furthermore, we can undertake cladding data collection and provide a risk profile assessment of any building.

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