The tightening of legislation around cladding continues with the Victorian Government issuing the Prohibition of High-Risk Cladding Products Declaration (the Declaration).
The Declaration was made under s192B of the Building Act 1993 (Vic) (the Act) where it gives the Minister power to ban certain cladding products that are likely to cause a risk of serious injury, death, or severe property damage.
The Declaration replaces the Minister’s previous guideline, MG-14: Issue of Building Permits where building work involves the use of cladding products, where liability now extends to any person (instead of only building surveyors) who is involved in carrying out the building work, and building surveyors are no longer required to apply to the Building Appeals Board for approval for using certain products and prohibits a wider category of cladding products.
Penalties of $80,000 will apply to individuals and up to $400,000 for building companies.
The Declaration provides that Type A and Type B construction are subject to the prohibitions of applications for building permits from 1 February 2021.
The prohibition includes the use of:
- aluminium composite panels (ACP) with a core less than 93% inert mineral filler (inert content) by mass in external cladding as part of wall systems; and
- expanded polystyrene products (EPP) used in external insulation and finish (rendered) wall systems.
The Relevant Buildings
Type A construction includes:
- Class 2 (apartment buildings), class 3 (long-stay accommodation), and class 9 (public buildings) of a rise of 3 or more storeys; and
- Class 5 (office buildings), class 6 (retail buildings), class 7 (storage-type buildings), and class 8 (process/factory/workshop buildings) of a rise of 4 or more storeys.
Type B construction includes:
- Class 2 (apartment buildings), class 3 (long-stay accommodation), and class 9 (public buildings) of a rise of 2 storeys; and
- Class 5 (office buildings), class 6 (retail buildings), class 7 (storage-type buildings), and class 8 (process/factory/workshop buildings) of a rise of 3 storeys.1
The Minister considered it appropriate to ban the future use of these products as they will likely cause occupants, members of the public, and occupants of neighbouring buildings to be at risk of death or serious injury and property to be at risk of severe damage in event of a fire.
In accordance with the Act, the Minister provided the following reasons:
- these products do not fulfil the requirements of the National Construction Code deemed-to-satisfy provisions for Type A and B construction;
- The ACP and EPP previously permitted under MG-14 were part of a performance-based solution, however building audits over recent years were difficult to validate due to lack of documentation, the solutions were misused, and on-site construction standards and controls did not always ensure that the building was built to the intended standard;
- These products presented a higher risk to occupant safety where adequate consideration is not given to how individual building products will impact the overall safety of building at the time of construction and the performance of these products over the building’s life cycles; and
- Commentary from highly regarded Australian and International professionals have called into question the effectiveness of the current building regulatory control system’s ability to ensure that it regards all the relevant risks, is in the best interest of the occupants and public, and achieves the level of performance that is expected of current and future owners.
This prohibition applies to all buildings of Type A and Type B construction that are subject to an application for a building permit made on or after 1 February 2021.
This prohibition will reduce the risk of fire spread in multi-storey buildings and the risk to the safety of occupants, the public, and surrounding properties.
The Minister’s Guideline, MG-14, is now revoked and replaced by the Declaration.
 NCC 2019 Volume One Amendment 1, Part C1, Table C1.1 & https://www.abcb.gov.au/Resources/Publications/Education-Training/Building-classifications
Morrissey Law + Advisory communications are only intended to provide commentary and general information as at the date of publication. They are for reference purposes only, do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be obtained about particular transactions, contracts or matters of interest before taking any action based on this communication. Authors and contributors may not be admitted in all State and Territories.