A Combustible Cladding Round-Up
Where are we on combustible cladding for Australian strata buildings ...
With more than 1,000 Australian buildings assessed to be at medium to high risk from combustible cladding and estimated repair costs exceeding $2.0 billion, you’d think we’d be a fair way down the road to resolving the problem after 5-6 years. But, as this Australian round-up reveals, progress has been slow and there’s still a long way to go …
Introduction
I think everyone’s had plenty of time to get their heads around the problem of combustible cladding on the facades of strata and other high-rise buildings.
After all, it is:
6 years since the Lacrosse building fire in Melbourne on 24 November 2014,
almost 4 years since the Grenfell Tower fire in London on 14 June 2017,
2 years since the Neo building fire in Melbourne on 4 February 2019, and
almost 2 years since the Glebe Park Apartments fire in Canberra on 7 August 2019.
So, let’s see where things are at in dealing with the problems those disasters exposed around Australia.
I warn you that despite this article being an overview only of the current situation, it is long, as there are significant differences between each state and a lot of material covered.
What’s the problem with combustible cladding?
Firstly, let’s identify the problem.
Many strata and high-rise buildings have facades that comprise [entirely or partially] of an aluminium sandwich plate with polyethylene core [APCs] and/or insulation made of polyisocyanurate [PIR].
Those façade cladding materials are generally inert but become combustible in some circumstances.
So, when exposed to sufficient heat and flame the aluminium sandwich panels and the polyisocyanurate insulation change their physical structure as the insulation and cores become liquid polyethylene and ignite. The burning liquid polyethylene creates more heat and flame accelerating the fire upwards and sideways across the building façade as it moves from one panel to the next.
In each of the Lacrosse, Grenfell, Neo and Glebe Park fires this happened quickly once the façade cladding ignited.
So, work needs to be done to make those facades safe or safer which could extend to completely removing and replacing the facades.
Bans and other controls on some cladding types
For newly constructed buildings bans have been introduced on the use of some kinds of façade cladding panels around Australia as follows.
New South Wales
In August 2018 the New South Wales government banned the use of aluminium composite panels that comprise more than 30% polyethylene for facades by directive.
Victoria
In February 2021 the Victorian government banned the use of combustible aluminium composite panels for facades.
Queensland
In October 2019 the Queensland government banned the use of aluminium composite panels that comprise more than 30% polyethylene for facades.
Australian Capital Territory
The Australian Capital Territory government has not banned the use of aluminium composite panels for facades but has issued guidance notes about compliance with the National Construction Code for builders.
South Australia
In February 2018 the South Australian government introduced a new definition for a ‘designated building product’ covering aluminium composite panels and similar façade elements and they now require the lodgement of notices about the product with council before use on facades.
Western Australia
In October 2018 the Western Australian government prescribed a new standard for non-combustible external walls [including facades and aluminium composite panels] which increases compliance requirements.
Northern Territory
The Northern Territory government has not banned the use of aluminium composite panels for facades but issued guidance notes about compliance with the National Construction Code for builders.
Tasmania
In December 2017 the Tasmanian government introduced a new definition for a ‘high risk product’ covering aluminium composite panels and they now require specific approval for use on facades.
Legal actions for existing buildings
There’s been a few published decisions in cases by strata buildings run as conventional defects claims under the relevant home building laws about combustible cladding and aluminium composite panels.
In Victoria, the Lacrosse case has been running since 2016 and was recently been finalised with a favourable ruling for the strata building by the Victorian Court of Appeal where it was awarded compensation for the repair costs and associated losses [see The Strata Gavel: The Lacrosse Cladding Fire Appeal Decided [mostly] on 29 March 2021].
In NSW there’s also a 2019 NCAT decision that’s been confirmed on appeal by the NCAT Appeal Panel in 2020 about a different kind of façade cladding called Biowood which is neither an aluminium sandwich plate with polyethylene core [aluminium composite panels] and/or insulation made of polyisocyanurate that has determined it is combustible, that its use breaches the home building laws and that the strata building is entitled compensation for repair costs.
SP92888 v Taylor Construction Group and Frasers Putney [2019] NSWCAT, and
Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163
Undoubtedly, many other strata buildings also have claims and litigation underway about aluminium composite panels so we’re likely to see more Court or Tribunal decisions.
There’s also a class action underway in the Federal Court covering a number of states against the suppliers of the most commonly used combustible cladding products [Alucobond and Vitrabond] making claims under a variety of consumer protection laws. That is being financed by a litigation funder Omni Bridgeway, and run by William Roberts Lawyers, but it still has a long way to go.
Interestingly, Maurice Blackburn Lawyers have chosen not to run a class action over combustible cladding for strata or other buildings.
And, in some [rare] cases developers and/or builders have volunteered to fix the façade cladding problems where there are aluminium composite panels themselves such as Mirvac at the 1 Darling Island Building in Pyrmont.
The various state government programs
At the national and state-levels, governments have taken a range of more, or less, proactive steps to address the combustible cladding issues arising from aluminium composite panels and/or insulation made of polyisocyanurate and as the following state-by-state summary explains.
Nationally
In 2015 the Federal Government commissioned an Inquiry and the report ‘Non-conforming building products: the need for a coherent and robust regulatory regime’ was produced in December 2018. There were 8 recommendations which have bene partially implemented.
In 2017 the Customs Amendment (Safer Cladding) Bill 2017 was introduced to ban importing but it lapsed in July 2019 without ever coming into force.
Since then, several amendments, updates, and revisions have been made to the National Construction Code to clarify the acceptable use of aluminium composite panels and/or insulation made of polyisocyanurate for cladding and deemed to satisfy and performance solutions.
New South Wales
In 2017, the New South Wales government started a cladding identification and audit project to identify and assess building facades for combustible cladding risks and commissioned the Shergold Weir report ‘Building Confidence’ which has led to the following key actions:
appointment of a Building Commissioner to monitor and act on faulty new construction,
upgrading building compliance reporting including registering building practitioners,
enacting new laws to deal with the adverse findings on builders’ tortious duty of care in the High Court decision of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2013] HCA 36 [I’ll be writing an article about this important case in the future],
banning the use of some aluminium composite panels, and
requiring the registration of buildings that are potentially affected by combustible cladding.
In 2017 the Fire Safety and External Wall Cladding Taskforce was also created to further investigate, clear, or arrange the remediation of 373 identified at-risk buildings.
So far that has resulted in:
2 buildings awaiting update or assessment by consent authority
171 buildings where an expert assessment is in process
45 buildings where a detailed remediation action plan requested from the building owner or received by the consent authority, and
154 buildings where remediation is underway or has been ordered or approved by the consent authority.
A cladding Product Safety Panel was also created in 2020 comprising a number of ‘experts’ to provide advice to the NSW Cladding Taskforce and the Cladding Support Unit and to approve cladding rectification work carried out under Project Remediate.
Project Remediate was also created in 2021 and it will:
provide a government-funded Project Assurance Service to provide buildings with a suite of measures to support high-quality remediation outcomes including the appointment of a managing contractor to oversee each project, and
pay for the interest on 10-year loans on behalf of apartment owners to fund and fast-track the removal of high-risk cladding on residential apartment buildings and establish the Office of Project Remediate within the Office of the NSW Building Commissioner to manage the program.
But Project Remediate has not yet begun its work and that work is scheduled to take at least 3 years to complete.
Victoria
In 2017, the Victorian Building Authority started a cladding identification and audit project to identify and assess building facades for combustible cladding risks inspecting over 2,500 buildings identified as possibly having aluminium composite panels.
72 buildings have been assessed as at extreme risk and 400 buildings assessed as at high risk.
A cladding Product Safety Panel was also created in 2019 comprising a number of ‘experts’ to review the Victorian building system and address the recommendations of the Victorian Cladding Taskforce’s July 2019 Report and the Building Confidence report by Professor Peter Shergold and Ms Bronwyn Weir.
Cladding Safety Victoria was also created in 2019 to assist strata and other buildings rectify non-compliant cladding by providing support, guidance, and connections to appropriately registered and qualified practitioners.
Uniquely in Australia, Cladding Safety Victoria will also provide funding to strata and other buildings to cover the costs of combustible cladding remediation work and the Victorian Government has committed $600M to façade remediation.
But, according to recent news reports in The Conversation only a fraction of the identified buildings have been fixed so far.
Queensland
In 2017, the Queensland government started a cladding identification and audit project to identify and assess building facades for combustible cladding risks which reported in 2019.
That was associated with the creation of an Audit Taskforce to administer the project and actions that emerged from it.
In 2019 the Building Fire Safety (Combustible Cladding Rectification Work) Amendment Regulation 2019 was passed as an amendment to the Building Fire Safety Regulation 2008 that:
required private building owners to complete an online checklist to identify which buildings are affected by combustible cladding,
implementing a private audit and registration system for building fire safety measures,
creating a fee-based advice service from Queensland Fire and Emergency Services on combustible cladding rectification work, and
mandating façade remediation work where non-compliant combustible cladding exists.
But the funding of façade remediation work remains the responsibility of strata and other building owners in Queensland.
230 buildings have been assessed as at risk due to combustible cladding and requiring remediation so far, but there may be more as the investigation is continuing.
Australian Capital Territory
In 2017, the ACT government started a cladding identification and audit project to identify and assess building facades for combustible cladding risks which reported in 2019.
In August 2020, the ACT government also announced it would establish a concessional loan scheme to support building owners to test and replace potentially combustible cladding.
70 buildings have been assessed to be at significant risk due to combustible cladding and requiring remediation.
South Australia
In 2017, the South Australian government started a cladding identification and audit project through the Department of Planning, Transport, and Infrastructure (DPTI) to identify and assess building facades for combustible cladding risks.
The project has 3 stages, and the stage 2 report was issued in 2020.
So far that has resulted in:
7 buildings that are at extreme risk,
23 buildings that are at high risk,
99 buildings that are at moderate risk, and
47 that are low risk.
Stage 3 is underway now and involves distributing life safety risk analysis results and recommendations to the adversely affected buildings. But it is not yet completed.
Strata buildings in South Australia that have moderate or high risks from combustible cladding will need to do one or more of the following things depending on the outcomes of the Stage 3 analyses:
replace non-compliant cladding as part of ongoing maintenance,
removal of part or all of aluminium composite panels,
add additional alarms, escape points, or sprinklers, and/or
place barriers that prevent fire spread, should aluminium composite panels catch fire.
Responsibility to ensure adherence to rectification guidelines will sit with councils for strata buildings.
And, the funding of façade remediation work remains the responsibility of strata and other building owners in South Australia.
Western Australia
In 2018 the Western Australian government started a cladding identification and audit project through the Department of Mines, Industry Regulation and Safety (DMIRS) to identify and assess building facades for combustible cladding risks.
The project has 3 Phases [with substages] and the audit report was issued in 2020.
At this stage, there are 37 buildings identified which require remediation.
Strata buildings with moderate or high risk will be referred to local councils to order investigations and work to remediate the combustible cladding.
There’s no government assistance for remediation being provided. So, the funding of façade remediation work remains the responsibility of strata and other building owners in Western Australia.
Northern Territory
The Northern Territory government has not implemented a state-wide audit of buildings for
So, it is not clear how many buildings in the Northern Territory have moderate or high risks due to combustible cladding.
Instead, the Northern Territory government has reiterated support for the National Construction Code, relevant technical standards, and laws to make our buildings safe saying:
‘Building work in the Northern Territory must conform and comply with the National Construction Code, relevant technical standards, and laws to make our buildings safe. Everyone is responsible for making sure the right products are used and applied correctly including designers, engineers, builders, assessors, buyers, sellers, manufacturers, importers, and others.’
The Northern Territory Department of Infrastructure and Planning has also declined to comment on specific buildings.
So, the funding of façade remediation work remains the responsibility of strata and other building owners in the Northern Territory.
Tasmania
In 2017, the Tasmania government undertook a state-wide audit of aluminium composite panels on building facades that reported in January 2018.
That report identified 43 buildings that contained aluminium composite panels in the facades. But, of those 26 were considered to be of no or little risk, and 11 were considered to be of low risk and only one building, the Launceston General Hospital was considered to be high risk and requiring remediation.
Work at the Launceston General Hospital is being undertaken by the Tasmanian government.
So, there are no strata buildings in Tasmania that need façade remediation.
My initial conclusions
Although this quick review demonstrates that a fair bit has happened in relation to combustible cladding issues for strata and other high-rise buildings, most of it affects new construction only.
For existing buildings, there’s still a lot that needs to happen since:
relatively few legal cases have been finalised,
the only class action hasn’t even really begun in earnest,
some states haven’t initiated any remedial actions yet or don’t intend to,
most states [except Victoria] are not funding remediation costs for strata buildings,
where there is government support [NSW and ACT] it is limited to administrative assistance and no interest loans,
the work to remediate fire safety issues relating to combustible cladding will be technically and practically difficult, disruptive, slow and expensive,
insurance and other risk management issues for affected strata buildings remain largely unresolved, and
strata buildings and strata lot owners will bear significant costs to get their buildings safe and compliant.
So, I’ll be tracking progress on combustible cladding for strata buildings in the states where they are most affected and looking at these complicating issues in more detail as things occur.
It’s going to be a big job to get this mess fixed up.
March 31, 2021
Francesco …