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NSW government expands combustible cladding ban

The NSW Government’s latest response to the numerous combustible cladding tragedies both overseas and in Australia came into effect on 22 October 2018.  The impact of these regulations is as follows:

Aluminium composite panel ban

Prior to the 22 October regulations coming into effect, the NSW Government took steps to limit the use of combustible cladding products by announcing, on 21 August 2018, that aluminium composite panels (ACPs) (generally made up of two thin sheets of aluminium separated by a core material such as polyethylene) were banned in the following types of buildings under the Building Code of Australia (BCA):

  • Residential buildings containing two or more dwelling units, boarding houses and health care buildings, with a rise in storeys of three or more;
  • Office buildings, shops, factories and car parks with a rise storeys of four or more.

If your building is affected by the ban you may be required to remove the non-compliant cladding, however, the ban does not automatically amount to a direction to remove the panels.

Exceptions to ACP ban

There are two circumstances under which a building product will be exempt from the ban:

  1. Where the building product successfully passes a test under the Australia Standard 1530.1-1994 and is not deemed combustible; or
  2. Where the building product and proposed external wall assembly passes a test for both the external wall and building-to building fire spread classifications under AS 5113 and the person proposing to use the building product issues a statutory declaration that the building product will be installed in an identical manner to the tested prototype.

For more information on the ACP ban, head to the NSW Fair Trading website.

22 October combustible cladding regulation

The most recent regulations impose strict registration obligations on owners of buildings which contain combustible cladding and are used as a residence, accommodation or another type of building where large numbers of people gather or sleep e.g. schools, boarding houses, night clubs, aged care buildings and hospitals.

The new regulations that commenced on 22 October are the Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation (NSW) 2018 and the State Environmental Planning Policy Amendment (Exempt Development— Cladding and Decorative Work) 2018.

Under Division 7C of the EPAA Amendment Regulation, owners of certain buildings with external combustible cladding are now required to register their building with the NSW Government through the cladding registration portal.

Registration details

Owners of buildings with external combustible cladding must provide the NSW Department of Planning Secretary with the following details relating to their building:

  • Name and address of the owner;
  • Address of the buildings;
  • Classification of the building under the BCA;
  • The number of storeys in the building bother above and below ground; and
  • A description of the external combustible cladding applied to the building, including the materials and extent of the building to which the cladding is applied.

Timeframe for registration

The above information must be provided to the Planning Secretary:

  • In the case of a building occupied before 22 October 2018, on or before 22 February 2019; or
  • In any other case, within 4 months of the building first being occupied.

For more information on the types of buildings that must be registered, consult the NSW Government cladding registration checklist.

If you require assistance regarding building products, registration obligations or your liability for defective cladding please contact Morrissey Law & Advisory.

Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.