29 May 2020

New Cladding Prohibitions in Victoria

  • 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:

  1. the date the declaration is published in the Government Gazette;
  2. 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.

A Guide to Investing in Australian Real Estate

Investing Down Under offers a quick overview of the legal, taxation, FIRB and structuring issues you may encounter when investing in Australian real estate.

COVID-19: Implications for Business

The spread of Coronavirus (COVID-19) has forced us to think and act differently. Beyond the human response, now is the time to think about what the consequences may be on your business, and how best you can prepare for those.

Share on LinkedIn Share on Facebook Share on Twitter
    You might also be interested in

    This article was written by Katherine Vines, Carl Black, Jaime Greenacre, Emily Bell and Grace Bettridge. The Planning and Development Amendment Act 2020 (WA) (Act) was passed by the Western...

    26 June 2020

    This article was written by Nicole Morris, Isolde Daniell, Chris Seaman and Jock Hamilton. Further to our previous summary of the Design and Building Practitioners Act 2020 (NSW), we now provide...

    26 June 2020

    This article was written by Chris Wheeler and Lachlan Forrester. After much anticipation, the ACT Government has announced a new (and short-term) 50% remission to the Lease Variation...

    26 June 2020

    This article was written by Isolde Daniell, Lucinda Ower, Chris Seaman and Jock Hamilton. The Design and Building Practitioners Act 2020 (NSW) As foreshadowed in our previous update on building...

    19 June 2020

    You may also be interested in...

    Legal services for your business

    This site uses cookies to enhance your experience and to help us improve the site. Please see our Privacy Policy for further information. If you continue without changing your settings, we will assume that you are happy to receive these cookies. You can change your cookie settings at any time.

    For more information on which cookies we use then please refer to our Cookie Policy.