External cladding fire safety regulations.
In November 2017, the NSW Government legislated to ‘ban’ ACP with retrospective effect by the introduction of the Building Products (Safety) Act 2017.
In August 2018 the Commissioner issued a Building Product Use Ban (the Ban) for external cladding with a core comprising more than 30% polyethylene.
The Ban is retrospective and took effect on 15 August 2018.
Implementation of the Ban is now underway in NSW and further legislation has been introduced.
The Fire Safety and External Wall Cladding Taskforce have undertaken an audit of multi-storey residential buildings in NSW.
And last month, State and Federal Building Ministers agreed in principle to a nationwide ban on ACP in new constructions.
Compliance with the Ban will be costly, but so will be non-compliance with the Ban.
It is unclear whether a Council will adopt a performance solution determined by an expert over complete removal of the ACP. There is no specific legislative requirement for a Council to adopt the former.
ACP is now a major defect and owners of buildings less than 6 years old may be able to obtain relief under the HBA against the builder and/or developer.
The cost of compliance for buildings more than 6 years old is likely to fall to the building owners.
As discussed on page 2 OCs currently face difficulties with reliance arguments on building professionals outside the HBA.
It is currently unclear whether the NSW Government will provide financial assistance to homeowners bearing the costs of compliance, unlike Victoria which has recently introduced a cladding replacement loan scheme.
The in-principle mooted nationwide ban is subject to a cost-benefit analysis to assess the impact of the proposed ban on the industry and an appropriate timeframe for implementation. The report is expected by July 2019.
The Environmental Planning and Assessment Amendments (Identification of Buildings with Combustible Cladding) Regulation 2018 (NSW) requires owners of buildings affected and not affected by the Ban to register online. New buildings must be registered within four months of occupation.
The State Environmental Planning Policy Amendment (Exempt Development Cladding and Decorative Work) 2018 (NSW) amends various SEPPs relating to the approval process for new cladding, recladding and decorative work.
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Clare Peacock is an experienced construction lawyer working on Sydney’s Northern Beaches. Clare provides practical, cost-effective building approval advice to property owners, builders and strata managers. Services include residential building disputes, body corporate issues and strata building problems.