Combustible cladding continues causing quandaries for apartment owners and builders

LG Leader April 2020

Recently, the Victorian Civil and Administrative Tribunal delivered its judgment in what has become known as the “Lacrosse case” – Owners Corporation No.1 of PS613436T & Ors v LU Simon Builders P/L & Ors (click here for a summary of this decision).

In this decision, the VCAT found that the use of Aluminium Composite Cladding on the exterior of an apartment building in Melbourne contravened provisions of the Building Code of Australia (“BCA”) (now the National Construction Code) which require external walls of a residential building to be non-combustible.

In a decision made public earlier this month – The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63 – the New South Wales Civil and Administrative Tribunal determined that Biowood cladding used on the exterior of residential buildings contravened the same provisions of the BCA considered by VCAT.

The Tribunal ordered that the builder and developer of the buildings remove and replace the cladding with non-combustible cladding which complies with the BCA.

Unlike the Lacrosse case, the relevant residential buildings had not suffered any fire damage. It is reasonably assumed that the potential combustibility of the Biowood cladding had been identified through an audit of the building’s fire safety.

In this case, the respondents argued that Biowood did not contravene the BCA as it did not facilitate a rapid spread of fire. The Tribunal rejected this argument, finding that Biowood was combustible in the ordinary sense of the word.

The implications of this case potentially broaden the scope of building fire safety audits required for residential buildings throughout Australia. The NCAT decision has confirmed that for external cladding to be BCA-compliant, they must be non-combustible in the ordinary sense of the word. The fact that some forms of cladding may not facilitate the spread of fire as rapidly as others is not relevant.

This means that all forms of combustible cladding, not just ACP, used on residential buildings must be reviewed and relevant authorities undertaking building rules assessments under the Development Act 1993 must carefully review proposed cladding to ensure that it is non-combustible. If in doubt, advice from a suitably-qualified fire engineer should be obtained prior to determining the grant of building rules consent.

For further information please contact Victoria Shute on vshute@kelledyjones.com.au or 08 8113 7104.