A new regulation introduced in Queensland further develops the statutory approach to combating combustible cladding risksOct 2018
The Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) came into effect on 1 October 2018, and is the latest introduction in a series of legislation to come into effect in Queensland related to the management of the fire safety risks associated with combustible cladding.
The Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) ( the Cladding Regulation ) amends the Building Regulation 2006 (Qld) to introduce new obligations on owners of certain buildings affected by combustible cladding.
The Regulation applies to owners of buildings classified within classes 2 – 9 of the Building Code of Australia, which notably excludes certain residential dwellings (including detached houses, town houses and particular boarding houses) and non-habitable structures such as private garages.
Where the building is made up of two or more lots (e.g. multi-residential buildings made up of separate units) then the body corporate for the building is taken to be the ' owner' who is responsible for complying with the Regulations. Developers will need to be aware that they are likely to be held responsible for compliance where they own or have an interest in the majority of lots or otherwise control the body corporate.
The Regulation requires that all owners follow a new three stage process:
Owners must by 29 March 2019 (or by an earlier date determined by the QBCC if it considers that cladding forming part of the relevant building poses an immediate risk of serious injury) ( the Compliance Period ) complete the checklist found at the Queensland Government’s Safer Buildings website .
Failing to comply with Stage 1 within the Compliance Period carries a maximum penalty of $2,611.00.
If the checklist reveals that the relevant building may contain combustible cladding, the owner must, within the Compliance Period, complete a further checklist and a statement prepared by a building industry professional (which includes building certifiers, builders, fire safety professionals, architects and engineers).
Failing to comply with Stage 2 within the Compliance Period carries a maximum penalty of $2,611.00.
If the results of the checklists completed in Stage 1 and Stage 2 were not completed or reveal that the relevant building may contain combustible cladding (or a QBCC investigator has reason to suspect that a completed checklist is false or misleading), the owner must:
(a) by 27 August 2019 engage a fire engineer (and notify the QBCC that a fire engineer has been engaged) or it will be liable to pay a penalty of up to $6,527.50; and
(b) by 3 May 2021 provide the QBCC with material reporting on the combustibility of the cladding, including a statement prepared by a fire engineer or it will be liable to pay a penalty of $21,540.75.
If the assessment by the fire engineer reveals that the relevant building contains combustible cladding then the owner must, within 60 business days, display the required notice in a conspicuous position on the building until the combustible cladding is removed or the building is certified to be compliant with the Building Code. If the owner fails to do so it will be exposed to a maximum penalty of $3,916.50.
It appears that the Regulation will apply to both new and existing buildings regardless of whether:
(a) the relevant building was given development approval (that extended to the cladding); or
(b) the cladding for the building has a current certification.
New owners will need to be mindful that they will assume the obligations of the previous owner where the previous owner has yet to comply with the Regulation before the change in ownership.
It remains to be seen how the QBCC will react to combustible cladding that is not removed or brought into compliance with the Building Code if the penalty regime provided under the Regulation is not effective.
For instance, it is yet to be seen how the Regulation will operate in the context of existing duties arising under the Queensland Building and Construction Commission Act 1991 (Qld) in relation to non-conforming building products. Builders, suppliers, installers and others who may be deemed to be in the chain of responsibility for non-conforming building products should be wary that the obligation for owners to notify the QBCC of the presence of combustible cladding may have the effect of causing the QBCC to investigate further to determine if the cladding is non-conforming. This may lead to the QBCC issuing a direction to the builder, supplier, installer (etc.) to take action to address the risks posed by the combustible cladding (which may include removal at that person’s expense).
For information or a discussion on how the Regulation may affect your building or development, please do not hesitate to contact Partner Mark Kenney .
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