Update: NSW – Cladding Performance Solutions

From October 22nd, new regulations concerning performance solutions for buildings which contain or make use of combustible cladding will take effect in New South Wales. The intended purpose is to “make provision for the identification of, and collection of information about, buildings to which external combustible cladding has been applied.”

The document “Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018” was provided by NSW Minister for Planning, Anthony Roberts.

It identifies key changes concerning EPA Clause 144 for class 2-9 buildings where the use of an Alternative Solution to CP2 does not apply BCA verification method CV3 in its entirety.

The main concern relates to the installation of existing Aluminium composite panels, when if tested under AS5113 would fail to meet all necessary parts of the standard, thus meaning that compliance with BCA Verification method CV3 cannot be achieved.

This decision has been further justified as British Housing Secretary James Brokenshire announced a UK state-wide ban on combustible cladding products for all new buildings above 18 meters.

CV3 conditions require:

  • Compliance with standard AS5113,
  • Fire sprinkler systems fitted throughout the structure for Type A
  • Fire sprinkler systems fitted throughout the structure for Type B or Compliant spandrel construction between floors, and
  • Cavity barriers as per current regulation

Where compliance with CV3 cannot be met, builders and asset owners will often rely on the development of a performance solution to provide rectification which allows them to satisfy compliance requirements using an alternative method or approach and must be certified by relevant building authorities and/or experts.

This view is being expanded for building approvals for Affected Composite Panels (ACP) to require supporting verification of solutions from:

  • An accredited C10 Fire Safety Engineer
  • A1 Certified Building Surveyor who has no restrictions with respect to performance
  • Referral to the New South Wales Fire and Rescue service (NSWFR)

The new regulations also identify that CodeMark Certificates, a product certification scheme which was designed for authorisation of “the use of new and innovative products in specified circumstances on order to facilitate compliance with Volumes One and Two of the [BCA]” can be “relied upon as evidence to support a performance solution”

However, as stated in Part A 2.2 of the BCA, the voluntary third-party building product certification scheme “is not a performance solution in its own right”

A more comprehensive overview of CodeMark Certificates can be found on the Hendry website.

The new regulations seek to provide an alternative pathway for the certification or approvals of existing structures which is deemed to satisfy not only existing and newly introduced regulation, but which has the greater approval of relevant Fire Safety authorities.

These regulation changes will apply to:

  • Class 2, Class 3 or Class 9 buildings of 2 or more storeys *
  • Any class 4 part of a Class 9 building of 2 or more storeys
  • Any class 5 to 8 buildings of 3 or more storeys

* 2 storey class 2, 3 and 9c buildings that are considered as Type C due to the BCA clause C1.5 concession may need further consideration, as the buildings are not subject to BCA clause C1.9 and thus may not be subject to the above requirements.

Building owners are also advised that changes to Part 9 of the “Environmental Planning and Assessment Regulation 2000” will add Division 7C, providing new sections S, T and U under Clause 186, which concerns the identification and registration of buildings with unsafe cladding, requires that they may need to “provide registration details of the building and its cladding” to assist in the collection of information regarding buildings in which unsafe cladding has been used.

Where self-reporting of building and cladding information is required, owners must provide the necessary information through the NSW Planning Portal.

Hendry are experts in providing advisory across issues throughout the built-form. We are currently assisting with cladding audits and inspections in partnership with bodies such as the VBA and are a leading firm for compliance and regulatory needs.


Contact our team of experts in our Sydney office for advice on ensuring you maintain a legally defensible position,  on 02 8245 2300 or email: sydney@hendry.com.au


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