New cladding law for private building owners

October 23, 2018

The New Law is contained in the Building and Other Legislation (Cladding) Amendment Regulation 2018


The New Law commenced on 1 October 2018. 


Who is affected by the New Law?


The New Law imposes obligations on private owners of buildings that:

  1. are class 2 to class 9 buildings (essentially all residential and commercial buildings, other than residential houses and other low rise residential use and buildings);

  2. are of Type A and Type B construction; and

  3. were given developer approval to build, or alter the cladding, after 1 January 1994 but before 1 October 2018.

 

A body corporate is regarded as the owner of buildings comprising more than one lot.

 

What are the obligations and process?

 

The New Law imposes a three-stage process on owners of relevant buildings. The aim is to identify and assess the fire risk of cladding products.


The process is a three-stage process involving the completion of details and lodging documents on the online system at www.saferbuildings.qld.gov.au.


The stages are as follows:

 

  1. Stage 1 by 29 March 2019.  Owners are required to register their buildings on the Safer Buildings website and complete the online combustible cladding checklist (part 1) by 29 March 2018.  Completion of this stage will determine if further action is required.

  2. Stage 2 by 29 May 2019.  Owners are required to engage a building industry professional to prepare a building industry professional statement.  Once this statement is received owners must complete the online combustible cladding checklist (part 2) and upload the building industry professional statement onto the online system.  Building owners who know or suspect their building has combustible cladding may skip stage 2 and engage a fire engineer to complete stage 3. 

  3. Stage 3 by 3 May 2021.  Once building owners received the building fire safety risk assessment and fire engineer's statement they must by 3 May 2021:

    1. complete the online combustible cladding checklist (part 3); and

    2. upload the building fire safety risk assessment and fire engineer statement onto the online system. 

 

The building fire safety risk assessment aims to:

  1. determine the composition of the cladding;

  2. identify the type of insulation material used; and

  3. identify whether existing fire safety measures will be able to cope with the identified higher risk. 

 

The building fire safety risk assessment will also determine if rectification is necessary.


Failure to comply with the New Law may attract a penalty.  An owner must keep copies of the documents for at least seven years after copies are given to the QBCC. 

 

 

Who determines if the cladding is nonconforming


The Queensland Building and Construction Commission (QBCC) determines if the cladding is nonconforming. 


Owner's obligations if cladding is nonconforming


Owners will be required to:

  1. display a notice in a conspicuous position at the entrance to the building and near the fire indicator panel; and

  2. if the building comprises of two or more lots, provide a copy of the fire safety risk assessment to all lot owners and tenants.

 

The owner must attend to the above within 60 business days of receiving the fire safety risk assessment.


What are the implications if you are buying or selling?

 

If a building is sold at any time during the three-stage process referred to above, owners must provide:

 

  1. buyers with notice (in the approved form) about the status of compliance with the process; 

  2. buyers with a copy of all relevant documents; and

  3. the QBCC with a copy of the notice provided to the buyer. 

 

From settlement buyers will be responsible for complying with the New Law.

 
If the building is part of a community title scheme, it may prudent to disclose nonconforming cladding to perspective buyers, pursuant to section 223 of the Body Corporate and Community Management Act 1997 to avoid a claim for breach of warranty (or potentially termination of the contract).

 
If acting for a buyer a body corporate records search should be conducted to ascertain if combustible cladding is present. 
 

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