This article was written by Amy Munro, Eden Bird, Kyriakos Tsoukalas.
Planning Minister signals prohibition on cladding products
On 27 May 2020, the LIV reported that the Victorian Minister for Planning, Mr Richard Wynne, intends to prohibit two types of external wall cladding products from being used by any person in the course of carrying out building work on Type A and Type B buildings in Victoria.
At a general level, where the building is residential or public in nature, 'Type A' typically designates buildings that are three or more storeys high whilst 'Type B' buildings consist of no more than two storeys. Where the building is commercial, 'Type A' buildings are those that comprise four or more storeys. 'Type B' commercial buildings are limited to three storeys in height.
If enacted, the prohibition will apply to expanded polystyrene (EPS) as well as aluminium composite panels (ACP) that have a core or lamina comprising less than 93% inert mineral content by mass. Submissions to the Property and Environmental Law section of the LIV on this proposed declaration close on 31 October 2020.
Would the declaration apply retrospectively?
No. The declaration would not have retrospective effect. The declaration can only take effect from the date on which it is published in a Government Gazette or any later date specified in the declaration itself. If a party applied to a building surveyor for a permit before the declaration took effect, then that permit would not be caught by the proposed declaration.
Section 192B(2) of the Building Act 1993 (Vic) (the Act) provides that 'A declaration under [section 192B(1)] does not apply in relation to the use of an external wall cladding product under a permit in respect of which the application for the permit was made to the relevant building surveyor building before the declaration took effect' (emphases added).
Section 192B(9) of the Act indicates that declarations take 'effect on the later of the following:
- the date the declaration is published in the Government Gazette;
- any later date specified in the declaration' (emphasis added).
For completeness, whilst this proposed declaration will not have a retrospective effect, the Victorian Building Authority can issue building notices under the Act that require the rectification of ACP cladding regardless of when the cladding was installed.
What power does the Planning Minister have to declare the prohibition?
Where is the power to make declarations found?
Section 192B of the Act, which the Victorian government inserted relatively recently through the Building Amendment (Registration of Building Trades and Other Matters) Act 2018 (Vic).
What does this power enable the Minister to do?
Section 192B(1) enables the minister to declare by notice that an external wall cladding product such as ACP/EPS is 'prohibited from being used by any person in the course of carrying out any building work in connection with the construction of a building.'
The Act defines 'external wall cladding product' as 'any duct or material that is, or could be, used on or in the external wall of a building' and excludes anything that Building Regulations 2018 (Vic) do not classify as external cladding products. The regulations currently exempt neither EPS nor ACP cladding products.
