New scheme to require NSW building owners to register buildings with cladding

In response to the growing controversy surrounding the non-compliant use of cladding materials following the Lacrosse and Grenfell Tower fires in Melbourne and London, the NSW Government has released draft regulations for public comment as part of its ten-point plan for fire safety.[1]

The draft regulations introduce a new scheme to collect information on the prevalence of combustible cladding in certain high-risk buildings, and will require owners of multi-storey residential and commercial buildings with combustible cladding to register their buildings and pay for expert independent fire-risk assessment. Also released was a proposal to tighten the exempt development framework (as it applies to combustible cladding) by amending various State Environmental Planning Policies (SEPPs).

DRAFT REGULATION 1: THE PROPOSED REPORTING SCHEME

The Department of Planning and Environment (DPE) has released a consultation draft of the Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 (Cladding Amendment).

The Cladding Amendment establishes a scheme for the collection of information about certain types of buildings that have had combustible cladding applied to external walls.

What is combustible cladding?

‘Combustible cladding’ is defined as:

• any cladding comprised of materials that are capable of readily burning including timber, polystyrene, vinyl or polyethylene; and
• any cladding system that incorporates elements that are capable of readily burning, such as combustible framing or insulation.

Which buildings will the scheme apply to?

The scheme will apply to all buildings in NSW, except:

• class 1, class 1a or class 10 buildings (single dwellings, small boarding houses and hostels, and non-habitable buildings including garages, sheds and other structures);
• single storey buildings of class 2, 3 or 9 (apartments, boarding houses, hostels, care-homes, other long term transient residential buildings, hospitals, and other public buildings);
• buildings of 2 storeys or less of class 5, 6, 7 or 8 (office buildings, retail shops, car parks, warehouses, laboratories and factories); and
• temporary structures.

Essentially, the scheme will apply to all multi-storey buildings except residential buildings under two storeys and non-residential buildings under three storeys.

In its current form, the scheme will also extend to all future buildings constructed after the Cladding Amendment commences. However, the DPE has indicated that, given stricter fire safety controls will apply to new constructions subject to various recent reforms in this area, it is considering whether to limit the Cladding Amendment to only apply to new buildings if they were approved before it commences.

When must building owners provide information to the DPE?

The scheme will impose a duty on the owner of a building to which combustible cladding has been applied to provide information to the DPE, unless that building is an excluded class of building.

The information must be provided in two stages: the ‘registration’ stage and the ‘statement’ stage.

1. Registration stage

The registration stage of the scheme requires the owner of a building to which combustible cladding has been applied to provide the DPE with the following details:

• the name and address of the owner of the building;
• the address of the building;
• the number of storeys and classification of the building under the Building Code of Australia; and
• a description of the type and extent of combustible cladding applied to the building, including the materials used in the cladding.

A building to which the Cladding Amendment applies must be registered with the DPE within the following timeframes:

• 3 months after the commencement of the Cladding Amendment for buildings that were occupied before this time; or
• 3 months after the building is first occupied, if it had not already been occupied before the Cladding Amendment commences.

Registration will be required even if an owner has already obtained an expert report stating that the cladding on the building is safe.

Authorised fire officers and local councils are also granted powers to require the owner of a building to register details of the building and any cladding applied to it with the DPE.

2. Statement Stage

The statement stage of the scheme requires the owner of a building to which combustible cladding has been applied to provide the DPE with a ‘cladding statement’.

A cladding statement must include:

• a statement that the cladding on the building has been inspected by a properly qualified person;
• that person’s determination as to whether the cladding presents a risk to the safety of persons or to the spread of fire, in the event of a fire, including reasons for this opinion; and
• details of actions necessary to address any such risk that person has identified, giving reasons the specified actions were chosen.

Building owners will not receive any government subsidies to engage an expert to complete a fire risk assessment of their building, and are wholly responsible for funding and organising the preparation of a cladding statement.

A cladding statement must be provided to the DPE within the following timeframes:

• 7 months after the regulation commences or the building is first occupied for residential buildings, health care buildings, aged care buildings and early childcare centres without a fire sprinkler system; or
• 11 months after the regulation commences or the building is first occupied for any other building (with a progress report required at 7 months).

Penalties

Under the Cladding Amendment, the proposed penalties for failing to register a building or provide a cladding statement are set at $1,500 for individuals and $3,000 for corporations.

Once a building has been registered, the DPE will enter the information (including the cladding statement) on a register, which may be provided to Fire and Rescue NSW or otherwise made public.

The collection of this information is intended to prevent further fires by enabling Fire and Rescue NSW to prepare pre-incident plans and assisting Local Councils to issue fire-safety orders.

DRAFT REGULATION 2: PROPOSED CHANGES TO EXEMPT DEVELOPMENT

To complement the proposed reporting scheme, the NSW government also released an Explanation of Intended Effects with the Cladding Amendment.

This details a proposal to amend various SEPPs to reduce the risk of non-compliant combustible cladding being installed on high risk buildings as exempt development. These amendments turn on the new definition of ‘combustible cladding’ which is introduced by the Cladding Amendment.

SEPP (Exempt and Complying Development Codes) 2008 is proposed to be amended to specify that:

• cladding, re-cladding and decorative work on external walls cannot be carried out as exempt development on high risk buildings (i.e. residential apartments, boarding houses, shop top housing, seniors housing, commercial and industrial buildings); and
• the installation of cladding and decorative work as exempt development on buildings that are not high risk must not utilise combustible cladding.

The following SEPPs are also proposed to be amended to provide that the installation of cladding and decorative work on external walls can be undertaken as exempt development only when the material used is not combustible cladding:

• SEPP (Infrastructure) 2007; 
• SEPP (Educational Establishments and Child Care Facilities 2017);
• SEPP (Three Ports) 2013;
• SEPP (Affordable Rental Housing) 2009;
• SEPP (Mining, Petroleum Production and Extractive Industries) 2007; and
• SEPP (Western Sydney Parklands) 2009.

Specific amendments are also proposed for the SEPP (Kosciuszko National park – Alpine Resorts) 2007.

FURTHER INFORMATION

Both proposals are open for public consultation until 16 February 2018.

• See the FAQ released with the Cladding Amendment.
• See the proposal to amend the SEPPs.