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Combustible cladding compliance - new obligations in Queensland

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This article was written by Tai Laves, David Bell and Chris Pitson.

On 1 October 2018, the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) (Cladding Regulation) will commence in Queensland. The Cladding Regulation requires assessment and management of combustible cladding which has been used in the construction of 'private buildings'.

Do these changes apply to me?

The Cladding Regulation applies to all owners of 'private buildings'.  A private building is defined under the Cladding Regulation as a building which satisfies all of the following:

  • is owned by one or more private entities, or where private entities jointly hold more than a 50% interest in the building; and
  • it  has a development approval that was given after 1 January 1994 to construct the building or alter the cladding on the building; and
  • it is considered a Class 2 to 9 building of either Type A or B construction. These classifications are defined in the Building Code of Australia.

The Cladding Regulation is designed to capture most low rise residential and commercial buildings. The Building Code of Australia defines classes 2 – 9 as including: residential apartment buildings (class 2), hotels (class 3), office buildings (class 5), shopping centres (class 6), carparks and warehouses (class 7), factories (class 8) and hospitals and other public buildings (class 9).

The type of construction classification of a building is determined by its class and height. For example, a residential apartment building with 4 or more stories is classified as Type A construction and so will be subject to the requirements of the Cladding Regulation. Comparatively, a single floor office building is classified as Type C construction and is not caught by the Cladding Regulation.

The "owner" of a building is usually the registered owner of the land. The owner of a private building which is subject to a community title scheme will be the body corporate.  For buildings constructed on leasehold land, the tenant is usually considered the owner as it is entitled to the rents and profits of the building.  The State and statutory corporations are not considered owners for the purposes of the Cladding Regulation.

I own a private building – what do I need to do?

All current owners of private buildings will be required to self-assess the cladding on their private building. The results of this self-assessment may mean owners have to complete a 3 stage process:

Stage 1: Self-Assessment

You must undertake an online self-assessment of the combustible cladding on your building by:

  • registering on the Queensland Building and Construction Commission (QBCC) online assessment system; and
  • providing to the QBCC a completed combustible cladding checklist (part 1) for your building.

This stage must be completed by 29 March 2019.

Stage 2: Assessment by a building industry professional      

If the Stage 1 online self-assessment indicates that your building might be affected by combustible cladding, you must complete the combustible cladding checklist (part 2) and give the QBCC a building industry professional's statement about the type of cladding and whether or not the building is considered an affected building.

This stage must be completed by 29 May 2019.

Stage 3: Assessment by a fire engineer                                      

If the results of the Stage 2 online assessment system indicate your building is considered an affected building, you must engage a fire engineer by 27 August 2019 to complete a fire safety risk assessment of the cladding's combustibility.

You must submit this fire safety risk assessment, along with the fire engineer's statement and the combustible cladding checklist (part 3), to the QBCC by 3 May 2021.

Outcome

If the result of the 3 stage process is that your building is affected by combustible cladding and is therefore non-conforming, you must:      

  • display a notice (in the approved form) that the building is affected by combustible cladding; and
  • provide a copy of the fire safety risk assessment to each lot owner and tenant of the building.

The building notice must be displayed and the fire safety risk assessment given to each owner and tenant within 60 days of receiving the fire safety risk assessment.

I am selling my private building – what do I need to do?

If you are looking to sell your private building, you must give the new owner:

  • a notice (in the approved form) outlining the extent to which you, as the original owner, have complied with the Cladding Regulation; and
  • copies of each document given to the QBCC or required to be kept under the Cladding Regulation.

You must also provide the QBCC with a copy of the notice given to the new owner.

You need to do this before settlement. 

As part of your settlement preparation, you need to ensure that you can inform the purchaser of your Cladding Regulation compliance to date.  Failure to give a purchaser the required documentation could result in you being issued a fine of up to 20 penalty units (currently $2,611.00).

I am looking to purchase a private building – what do I need to do?

Purchasers of private buildings do not have any obligations under the Cladding Regulations during the purchase process. However, obligations under the Cladding Regulation will pass to the purchaser at settlement, with anything done by the original owner being taken to have been completed by the purchaser as the new owner.

Purchasers entering into contracts between 1 October 2018 and 29 March 2019 should test early in the transaction whether the seller has taken steps to comply with the Cladding Regulation. If the seller has not completed Stage 1: Self-Assessment, the purchaser may not know whether the building is subject to combustible cladding and could be required to commence the Cladding Regulation compliance process themselves.

Purchasers should undertake an effective due diligence to assess the seller's compliance with the Cladding Regulation and identify any attendant risks. The results of the due diligence should allow the purchaser to consider the extent to which the sale contract needs to address cladding combustibility risks.

Moving forward

The Cladding Regulation will impose obligations on nearly all commercial building owners in Queensland.

If you require any advice or assistance in relation to your specific obligations under the Cladding Regulation, please do not hesitate to contact us to discuss further. 

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