Draft Regulation for Identifying Combustible Cladding in NSW

As part of the NSW Government response initiative to the Lacrosse Fire in Melbourne in 2014 and Grenfell Fire in the UK in 2017, the Department of Planning and Environment has released a draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 for public consultation.

The draft regulation proposes that owners of buildings with combustible external wall cladding will be required to register the building with the state government.

Under the proposed regulations, these building owners will be required to undertake a fire safety assessment and self audit within set timeframes.

Comments on the draft regulations closed on 16 February 2018.

What do the draft Regulations require?

The draft regulations require owners of certain buildings with combustible cladding on all or part of the external walls to provide information in a two stage process:

Registration stage – owners will need to register the building details with the Government within:

• three months of the regulation commencing in the case of a building that was or had previously been occupied
• or in any other case within 3 months after the building is first occupied.

The details that need to be provided at the time of registration will include:

1. the name and address of the owner of the building;
2. the address of the building;
3. the classification of the building under the Building Code of Australia,;
4. the number of storeys in the buildings, above and below ground;
5. a description of any combustible cladding applied to the building, including the materials of which the cladding is comprised; and
6. a description of the extent of application of combustible cladding to the building and of the parts of the building to which it is applied.

Statement stage – following registration, the owner will need to submit a Cladding Statement about the cladding material used on the building, the level of fire risk the cladding presents, and what actions (if any) might be necessary to address those risks.

A cladding statement must also contain the following details:

• the name and address of the owner of the building;
• the address of the building;
• the number of storeys in the buildings, above and below ground;
• a description of the combustible cladding applied to the building, including the materials of which the cladding is comprised;
• a description of the extent of application of combustible cladding to the building and of the parts of the building to which it is applied;
• the details of the properly qualified person who inspected the combustible cladding;
• an explanation of the reasons for that person’s determination as to whether or not the combustible cladding presents a risk to the safety of persons or to the spread of fire;
• if that determination is that the combustible cladding could present such a risk—an explanation of the reasons for choosing the specified actions necessary to address the risk; and
• a description of any documentation prepared or relied on by the properly qualified person to support any opinion referred to in the statement.

In preparing the Cladding Statement, the owner will need to engage an expert to do a fire risk assessment of the cladding, then submit the Statement online about the fire safety of the cladding.

The Statement will need to describe any actions required to be address fire risks.

Deadlines apply for the submission of the Cladding Statement.

What is the purpose of the information?

According to explanatory material released with the draft regulation, The information is required to assist Fire and Rescue NSW (FRNSW) in the prevention of  fires and in fire-fighting efforts at specific buildings and including the conduct of home fire safety checks and pre-incident planning.

The information will also assist the government together with building owners to take action to reduce fire risks and enable the local government to issue fire safety orders and take other action where necessary.

Relevant definitions

The proposed regulation introduces the following definitions (the cladding amendment)

building with combustible cladding means any building that has combustible cladding applied to any of its external walls or to any other external area of the building, other than a roof.

combustible cladding means any cladding comprised of materials that are capable of readily burning (such as timber, polystyrene, vinyl or polyethylene) and includes any cladding system that incorporates elements that are capable of readily burning (such as combustible framing or insulation behind the surface cladding).

Penalties apply

Proposed penalties of $1,500 for individuals and $3,000 for corporations apply in the event of a contravention of the regulation.

Exempt Development

To complement the proposed reporting scheme, the NSW Government has also released an Explanation of Intended Effects on proposed amendments to various SEPPs that allow cladding and decorative work to be carried out as exempt developments for public comment under section 38 of the Environmental Planning and Assessment Act 1999.

Exempt developments are very low impact and minor developments that do not need planning or building approval, provided the proposal meets the prescribed development standards in the relevant SEPP.

The proposed amendments will include:

• The introduction of the definition for “combustible cladding” (i.e. the cladding amendment)
• Amending the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 to specify that:
  • any external cladding or decorative work can no longer be undertaken as an exempt development on certain high risk buildings, including residential apartment buildings, boarding houses, shop top housing, seniors housing, commercial buildings and industrial buildings;
  • where cladding and decorative work is installed on other buildings such as one and two story houses; and
  • as exempt development the material used cannot be combustible cladding.
• Amending a number of SEPPs 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.

More information

Kreisson will provide regular updates on the progress and outcomes of the Public Consultation.

This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.