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Most of you would have heard about the 2017 Grenfell Tower fire in London, the 2014 Lacrosse building fire in Melbourne and/or the 2012 West Terrace fire in Bankstown NSW. The result of those fires is the renewed focus in fire safety laws for strata buildings, especially those with external combustible cladding.

In New South Wales, those laws involve:

  1. Building Products (Safety) Act 2017 (NSW);
  2. Environmental Planning and Assessment Regulation 2000 – which was amended under the Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018; and
  3. State Environmental Planning Policy Amendment (Exempt Development—Cladding and Decorative Work) 2018 (NSW).

In brief, the legislative framework seeks to (i) ban certain products from being installed on buildings (Type A or Type B construction) regardless of whether they may have a current CodeMark Certification, (ii) override various requirements of the BCA where there is an inconsistency with respect to the product bans, (iii) identify and collect information about buildings to which external combustible cladding has been applied, (iv) maintain a statutory register of the affected buildings with certain information to be provided to Fire and Rescue NSW and (v) to restrict or prohibit cladding and decorative work from being carried out as an exempt development.

The Victorian case law for the 2014 Lacrosse building fire has awarded $5.7 million dollars in damages apportioned between the building surveyor (33%), architect (25%), fire engineer (39%) and Mr Nicolas (3% – that’s the person that left the cigarette in the balcony and then the 14 floors above went up in flames in less than 13 minutes). Interestingly, the manufacturer of the cladding material was not sued, presumably due to jurisdictional / practical complexities (the product was made overseas).

As the problematic cladding products were commonly in use before the legislative change (some estimate the remedial costs to be at $1 billion dollars for this State alone), the NSW Government has initiated Project Remediate to assist affected buildings to remove certain cladding materials (and has established a new “Office of Project Remediate”). This includes a 10-year interest free loan to apartment owners as part of the assistance package. The NSW Government has a wealth of information on this topic –

Incidentally, we note the passing of the Strata Building Bond and Inspection Scheme in 2018 (being around the same time as the legislative changes as mentioned above). This is incorporated into Part 11 of the Strata Schemes Management Act 2015. The 2% developer bond covers various rectification works for new buildings which could cover the cladding issue if it is a problem. But you will need to check whether the developer bond is applicable to the building.

If you or your strata scheme requires further assistance relating to external cladding or strata issues generally (or you are thinking about buying into a strata unit), we can certainly assist with the myriad of legislation and legislative changes involved!

More Information

Please contact our Property/Strata law team at Matthews Folbigg Lawyers on 9635 7966 if you would like advice or assistance.