Legislation update

Introduction of strict new cladding laws for Queensland

By Blake Frost / 19 September 2018
6 min.
read
Worthwhile read for: Building Owner, Body Corporate

Key issues

  • The Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) will commence 1 October 2018.
  • Building owners to comply with stringent three-stage cladding assessment.
  • Significant penalties to be imposed on private building owners for non-compliance.

Private building owners to comply with new cladding laws from 1 October 2018

The Queensland Government has introduced new building cladding laws in response to several recent incidents of building fires across Australia, particularly, the 2014 Lacrosse tower fire in Melbourne during which combustible cladding on the exterior of the building caused fire to spread to 13 storeys in 10 minutes.

Commencing on 1 October 2018, the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) (Regulation) will introduce a new regime for identifying, assessing and regulating the use of combustible cladding materials on external parts of buildings. The Regulation aims to: 

  • ensure building owners and residents are informed of the extent of potentially combustible cladding used on a building; 
  • to minimise and prevent use of combustible cladding; and
  • to gather building-specific information to ensure the Queensland Fire and Emergency Services can operationalise resources and effectively respond to building fires.  

Who and what will it affect? 

The Regulation will apply to ‘private buildings’, which are buildings: 

  • owned by private entities, or by private entities whom jointly hold more than a 50% interest in the building; 
  • that are Class 2 to 9, that is, residential apartment buildings of at least three storeys, offices, shops and other commercial buildings (see here for building classifications); 
  • of Type A or Type B construction; and 
  • given building development approval to build or to alter the cladding after 1 January 1994 but before 1 October 2018. 

Note that where a building is comprised of more than one lot, the Body Corporate is regarded as the owner. 

(You can read the full Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) here).

Class 1 buildings (i.e. houses and small boarding houses or hostels) and class 10 buildings (i.e. private garages or sheds) are excluded from the scope of the new cladding laws. 

What requirements are imposed on owners of affected buildings? 

The Regulation imposes a series of obligations on private building owners to identify and assess affected buildings. Specifically, owners of private buildings must:  

Stage 1 - Complete the QBCC online checklist 

Owner’s must register using an online system and complete an online Queensland Building and Construction (QBCC) checklist. The checklist must be completed prior to 29 March 2019, except where an extension is granted by the QBCC. The online system will advise that the building may be an ‘affected private building’ (the building has combustible cladding attaching to an external part of the building). 

Stage 2 - Engage a building industry professional to provide a compliance statement to QBCC

Where the online system indicates at Stage 1 that the building may be an affected private building, the building owner must give to the QBCC, before 29 May 2019, a copy of a further checklist and a statement prepared by a building industry professional (i.e. a building certifier, architect or engineer) about whether or not the building may be an affected private building. 

Alternatively, building owners can bypass Stage 2 by notifying the QBCC before 29 May 2019 that they know or suspect the building is an affected private building, in which case, the matter proceeds directly to Stage 3. 

Stage 3 - Engage a fire safety engineer to prepare a fire safety risk assessment

Where the information provided in Stage 2 indicates to the QBCC that the building may be an affected private building, owners must engage a fire engineer to prepare a building fire safety risk assessment and also provide all relevant details of the engineer to the QBCC. 

The assessment will require cladding testing to be undertaken to determine the building’s fire risk, whether rectification works to the building are necessary and to identify any risk mitigation measures which should be implemented (i.e. prohibiting smoking or barbeques on balconies). The building fire safety risk assessment must be given to the QBCC before 3 May 2021. 

The Regulation also imposes notice and disclosure obligations on owners of affected private buildings, including to:

  • display a notice in a visible location at a main entry to the building advising that combustible cladding is used on the building ; 
  • give each occupant in the building a copy of the building fire safety risk assessment prepared in Stage 3; and 
  • provide any prospective purchaser of the building a notice of compliance with the Regulation. 

What are the consequences for failing to comply? 

The Regulation imposes significant penalties set to encourage compliance and will apply to private building owners that fail to: 

  • comply with Stage 1 (20 penalty units), Stage 2 (20 penalty units) and Stage 3 (50 penalty units and/ or 165 penalty units); 
  • keep the completed checklist and assessment documents for the required period (10 penalty units for each occurrence); 
  • display a notice advising occupants about the existence of combustible cladding (30 penalty units); and
  • provide occupants with a copy of the building fire safety risk assessment (20 penalty units). 

(As at the date of publication, the penalty unit value in Queensland is $130.55)

Costs of complying 

Costs will be incurred by building owners if and when they are required to engage a building industry professional and/ or fire safety engineer to assess the building and rectify non-compliant combustible cladding material. 

The Strata Community Association (Qld) estimates that assessment costs could be between $10,000 and $30,000 per building and similarly, experts warn cladding rectification costs could amount to $60,000.00 per apartment.

Our recommendation

It is important that all private building owners familiarise themselves with the new cladding regime and the obligations imposed at each stage of the process.  It is essential that all requirements are satisfied prior to the end of the compliance period provided under the Regulation in respect of each stage.  

For further information in relation to the Regulation and how it may affect your current or prospective building or occupancy, please contact HopgoodGanim Lawyers’ Construction or Property teams.

Authors
Blake Frost
Special Counsel
Blake is a Special Counsel and senior member of our Construction practice.
Subscribe
Receive email updates of our new publications.