BUILDING PRODUCT SAFETY LEGISLATION BRIEFING

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1 This briefing document provides a summary of the new or proposed laws and regulations concerning non-conforming building products (including building cladding. Contents New South Wales... 1 Queensland... 4 Victoria... 8 Western Australia South Australia Tasmania ACT Northern Territory New South Wales NSW Building Products (Safety) Act 2017 This Act enables the Secretary (Commissioner of Fair Trading) to impose a ban on the use of a specified building product in a building, such as external cladding, if the Secretary is satisfied that there is a safety risk posed by the use of the building product, including a safety risk that arises in the event of fire. Key Points: The Act empowers the Secretary to: Prohibit the use of a specified building product in a building; Issue an affected building notice for buildings; and Issue a general warning about a class of buildings that may be affected. The Act also provides that a relevant enforcement authority (generally a council) will be able to make a building product rectification order requiring the building owner to enforce such things as are necessary to eliminate or minimise the safety risk and/or to remediate or restore the building following the elimination or minimisation of the safety risk. Page 1 of 15

2 The Secretary can authorise a building product investigation to determine whether a use of a building product in a building is unsafe, or to ascertain the location of any building in which a building product has been used in a way that is or could be unsafe. Authorised Officers will be used for building product investigations, product assessments or to otherwise investigate and monitor compliance. Impact: The Act makes it clear that it will supersede the National Construction Code (NCC) meaning that a building product may be banned even though the product or certain uses of the product complies with the requirements of the NCC. This means that s despite a product being deemed compliant with the NCC, penalties can be imposed if the produced used contravenes a ban imposed under the Act. A building product is defined under the Act as, Penalties: as any product, material or other thing that is, or could be, used in a building, except asbestos or asbestos product or anything that the regulations declare is not a building product 1. The Act makes it an offence for a person to cause a product to be used in a building in contravention of a building product use ban, or for a person, in trade or commerce, to represent that a building product is suitable for a use in a building if the use would contravene a building product use ban. The maximum penalty in the case of a corporation will be 10,000 penalty units (currently penalty unit is equal to $110) and a further penalty of 1,000 penalty units for each day the offence continues. In any other case, the maximum penalty will be 2,000 penalty units or imprisonment for 2 years, or both, and a further penalty of 400 penalty units for each day the offence continues 2. Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 Key points: Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation introduced the following key requirements: 1 Parliament of New South Wales, Building Products (Safety) Act 2017, 2 Parliament of New South Wales, Building Products (Safety) Act 2017, 3 Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017, view here. Page 2 of 15

3 Mandatory involvement of competent fire safety practitioners in specific fire safety functions; Mandatory submission of endorsed plans and specifications for certain fire safety systems to the certifying authority before those systems are installed; New and changed requirements for the documenting, endorsing and checking of non standard fire safety designs (referred to as performance solutions / alternative solutions under the Building Code of Australia); Limited exemptions from compliance with the Building Code of Australia for minor fire safety system works; New inspection powers for Fire and Rescue NSW for multi unit residential building projects; New critical stage inspections targeting apartments and other buildings where people sleep; Assessment of the ongoing performance of essential fire safety measures must now be undertaken by 'competent fire safety practitioners'. A further summary document is available from the NSW Department of Planning and Environment here. Fire Safety and External Wall Cladding Taskforce A priority activity of the Taskforce established in 2017 has been to identify aluminium composite cladding on buildings, this work has been conducted by NSW Fire and Rescue. At present 417 buildings require further assessment as a high priority because they have cladding in a quantity, location and/or arrangement which potentially increases fire risks. Local councils have been asked to have their authorised fire safety officers inspect these buildings and provide a report back to Fire and Rescue. A total of 222 of the 417 buildings are residential buildings, with 83 classified as high rise (buildings comprising more than 8 storeys). Fire & Rescue is considering the responses received and is continuing to work with councils to finalise the reports. For buildings that were approved by the Department of Planning and Environment (DPE), DPE is issuing notices requiring owners to undertake further investigations. This work is ongoing. Page 3 of 15

4 Queensland Building and Construction Legislation (Non-conforming Building Products Chain of Responsibility and Other Matters) Amendment Act 2017 (QLD) Key Points: The legislation and Code of Practice 4 will apply to both individuals and corporations who are persons in the chain of responsibility for a building product as outlined by S74AE of the Queensland Building and Construction Code 5 : The Act defines who is in the chain of responsibility for a building product as follows: A person is a person in the chain of responsibility for a building product if (a) The person (i) designs, manufacturers, imports or supplies the building product; and (ii) knows, or is reasonably expected to know, the product will or is likely to be associated with a building; or (b) the person installs the product in a building in connection with relevant work 6. A building product is defined under the Act as: A building product is any material or other thing associated with, or that could be associated with, a building 7. The Act imposes the following responsibilities/duties for those caught in the chain of responsibility: S74AF Primary duty of person in the chain of responsibility Each person in the chain of responsibility for a building product must, so far as reasonably practicable, ensure that the product is not a non-conforming building for an intended use. S74AG Additional duty relating to accompanying information 4 Queensland Government Department of Housing and Public Works, Non-Conforming Building Products: Code of Practice, pg.2 5 Queensland Building and Construction Commission Act 1991 (as amended by the Queensland Building and Construction Commission (QBCC) and Other Legislation Amendment Act 2017) 6 Queensland Building and Construction Commission Act 1991 (as amended by the Queensland Building and Construction Commission (QBCC) and Other Legislation Amendment Act 2017) 7 Queensland Government Department of Housing and Public Works, Non-Conforming Building Products: Code of Practice, pg.2 Page 4 of 15

5 (1) A person in the chain of responsibility for a building product who designs the product must ensure, so far as reasonably practicable, that, if the person gives the design to another person who is to give effect to the design, the design is accompanied by the required information for the product. (2) A person in the chain of responsibility for a building product who manufactures, imports or supplies the product must ensure, so far as reasonably practicable, that when the person gives the product to another person the product is accompanied by the required information for the product. (3) For subscription (2), a person gives a building product to another person if the persona) Sells, supplies or otherwise transfer of the building product to the other person. b) Facilitates the sale, supply or transfer of the building product to the other person. (4) A person who installs a building product in a building must ensure, so far as reasonably practicable, that the owner of the building is given information about the product prescribed by regulation for this subsection. (5) A regulation, for subsection (4) or subsection (6), definition required information, may prescribe the following requirements for information about a building producta) Matters that must be included or provided for in the information; b) Matters that must not be included or provided for in the information; c) The form in which the information must be given. (6) In this section- Required information: for a building product, means information about the product that- (a) For each intended use of the product, states or otherwise communicates the following- (i) The suitability of the product for the intended use and, if the product is suitable for the intended use only in particular circumstances or subject to particular conditions, the particular circumstances or conditions; (ii) Instructions about how the product must be associated with a building to ensure it is not a non-conforming building product for the intended use; (iii) Instructions about how the product must be used to ensure it is not a non-conforming building product for the intended use; and Impact: (b) Complies with the requirements for the information, if any, prescribed by regulation for this definition. 8 On the face of it the main burden of responsibility falls onto the designer, manufacturer, importer and installer of a building product. 8 Queensland Building and Construction Commission Act 1991 (as amended by the Queensland Building and Construction Commission (QBCC) and Other Legislation Amendment Act 2017), accessed 23/01/2018. Page 5 of 15

6 Arguably consultants (e.g. engineers and architects) are not captured within the chain of responsibility because they are not designers of building products. However, the inclusion of the words, or other thing associated or could be associated with a building opens the scope for a broader interpretation. In addition, if a consultant specifies a specific product to be used and that product is non-conforming or a banned product then there is potential for the consultant to be caught within the chain of responsibility. Consultants should also expect to see increasing information from those in the chain of responsibility regarding the products being used. Depending on the role being undertaken, appropriate questions should be asked that reflect the responsibilities under this legislation form those in the supply chain. Penalties: The legislation introduces a number of penalties including (the penalty unit value in Queensland is $ current from 1 July 2018). Breaches of the duties contained in the legislation (maximum penalty 1000 penalty units); representations about the performance of a building product that does not comply with the relevant regulatory provisions in circumstances where the person knows, or ought reasonably to know, that the building product does not comply (maximum penalty 1000 penalty units); and failure to notify the Queensland Building and Construction Commission (QBCC) about a non-conforming building product where the person becomes aware, or reasonably suspects, that the building product is a non-conforming building product for an intended use (maximum penalty 50 penalty units). Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) This Regulation, which commences on 1 st October 2018, will compel owners of private buildings to complete an online checklist to assist the Queensland Building and Construction Commission (QBCC) to identify which buildings are affected by combustible cladding. Owners will have 6 months to do this. Key Points: It requires owners of private buildings to register using an online system and complete an online checklist for the building. The checklist will need to be provided to the QBCC before 29 March A private building for the purpose of the Cladding Regulation is defined as: a class 2, 3, 4, 5, 6, 7, 8 or 9 building of either Type A or Type B Construction; for which a building development approval was given after 1 January 1994 but before 1 October 2008, for building work to: o building the building; or o alter the cladding on the building; and Page 6 of 15

7 is owned by one or more private entities or if a private entity jointly holds more than a 50% interest in the building. If the online checklist indicates that a private building may be affected by combustible cladding, the owner will be required to complete a Part 2 Checklist and provide the QBCC with a statement about whether or not the building may be an affected private building. This statement is known as Building Industry Professional Statement and must be prepared by a building industry professional. If a building is considered to be an affected private building, the private building owner will be required to complete a Part 3 checklist and obtain a Building Fire Safety Risk Assessment and a Fire Engineer Statement by 3 May The Cladding Regulation will also impose other obligations on owners affected private buildings including: the requirement to display a notice that the building is an affected private building; lot owner and tenants are to be provided with a copy of the Building Fire Safety Risk Assessment; on the sale of buildings, the original owners are to provide the new owners with notice of compliance with the Cladding Regulation. Impact: Private owners will need to take steps to complete the online registration and Part 1 checklist as soon as possible. Consultants will potentially be involved through the preparation of the Building Industry Professional Statement and the Building Fire Safety Risk Assessment and a Fire Engineer Statement. Penalties: Failure by the building owner to comply with the reporting requirements range from 10 penalty units to 165 penalty units (the penalty unit value in Queensland is $ current from 1 July 2018). Failure by building industry professionals and fire engineers to comply with their obligations - 10 penalty units. QLD Non-Conforming Building Products Audit Taskforce On 17 May 2018, the Taskforce Status Report was tabled in the QLD Parliament and included six key recommendations supported by the government, including regulatory measures to map the path forward for the private sector the report can be viewed here. In parallel with the report, two continuing professional development (CPD) courses developed for fire engineers, in conjunction with The University of Queensland (UQ), have been conducted to provide a better understanding of façades subject to fire. Page 7 of 15

8 Work is also underway to establish a materials library to assist industry professionals to quickly and cost effectively identify the fire behaviour of cladding products. Victoria Building Act 1993 Part 3 Changes Changes to the Building Act 1993 came into effect on 1st July 2018 that introduce additional limitations on the issuing of building permits and assist in providing a clear allocation of responsibility and control over any building project. The reforms include: Additional limitations on the issue of building permits; Notification of non-compliance during building work; Notification to the RBS of a change of builder; Notification to the VBA and Council of a change of builder; Notification of change of name, address or ownership; Suspension of building permits; Inspection of building work and mandatory notification stages; Changes to the appointment of Municipal Building Surveyors; Unregistered or unlicensed plumbers unable to profit from contracts; New registration requirements for building companies; Ongoing transition to time-limited registration; Registration renewals now due three months before expiry; Powers to immediately suspend an individual or company registration; Amendments to the fit and proper person test. Impact: Consultants may wish to have particular regard to the following reforms from the list above. Section 24A(1) imposes additional compliance requirements that a building surveyor must be satisfied with prior to issuing a building permit. These include: Building work to be carried out by a builder who is specified under section 24B for that work; and The builder is named in the building permit; and In the case of building work under a major domestic building contract: o where the cost of work exceeds $16,000 the name of the builder in the contract must be the same builder named in the certificate of insurance; and o the major domestic building contract was entered into by a person entitled to do so. Page 8 of 15

9 New section 24B specifies who can be named as the builder on a building permit. This is summarised below, and is dependent on the total cost of the building work and whether the work is under a major domestic building contract. The total cost of building work is inclusive of labour and materials, as prescribed in Part 12, Division 2, Subdivision 4 of the Act. The following persons can be named as the builder on a building permit. Any building work with a total cost of $10,000 or less: Building practitioner Owner of the building/land Registered architect. Non-domestic building work with a total cost of more than $10,000: Registered building practitioner Owner of the building/land Insured architect. Domestic building work under a major domestic building contract: Builder who entered into the contract and whose registration authorises the carrying out of the work. Domestic building work not under a major domestic building contract, with a total cost of more than $10,000 but not more than $16,000: Owner of the building/land. Domestic building work not under a major domestic building contract, with a total cost of more than $16,000: Owner of the building/land per section 25B of the Act. Regulation 36A states that the relevant building surveyor may be satisfied that the name of the person named on a contract is the same as the person on a certificate of insurance by examining: an extract of the major domestic building contract showing the names of the parties to the contract in relation to the proposed building work; and a copy of the certificate of insurance from an insurer providing the required insurance in relation to the proposed building work. To coincide with regulation 36A, the additional information that may accompany an application for a building permit has been amended to allow requisition of: evidence that the building work is to be carried out by a builder who is specified under section 24B of the Act for that work; Page 9 of 15

10 an extract of the major domestic building contract (if applicable), showing the names of the parties to the contract in relation to the proposed building work to be carried out under the major domestic building contract; and a copy of the certificate of insurance (if applicable) from an insurer, providing the required insurance in relation to the proposed building work. It must also be noted that where a building permit names an appropriately registered company as the builder, the building permit must also specify the name of a natural person on whom directions, notices and orders under the Act can be served. Further information on the 2018 reforms can be found on the Victorian Building Authority website here. Victorian Cladding Taskforce The Victorian Cladding Taskforce handed down its interim report in November 2017, which found widespread non-conforming cladding. In response to the report, a new Ministerial Guideline MG-14 9, released on 13 March 2018, restricts the use of aluminium composite panels with 30% or more polyethylene, as well as certain expanded polystyrene products, as part of an external wall. On buildings that require Type A or Type B construction, these products can now be used only if the application for the building permit includes a determination by the Building Appeals Board (BAB) confirming compliance. The Building Product Safety Alert of March confirms that this BAB determination is required even if the product has CodeMark certification, and even if a building surveyor interprets that other concessions may apply. The Government has most recently announced (26 th July 2018) that the Local Government Act will be amended to create Cladding Rectification Agreements (CRA). CRAs will be similar to existing Environmental Upgrade Agreements, which enable owners to upgrade their homes to make them more environmentally friendly and pay it off via their council rates. The arrangement will be between owners (or owners corporations), lenders and local councils providing long term, low-interest loans to pay for building work to rectify cladding. Owners would be charged via their rates over a minimum period of ten years, with costs transferred with the property if sold. The Victorian Building Authority (as at 26 th July 2018) has almost completed its audit of 1,369 planning and building permits and has issued more than 100 building orders to residents. Western Australia 9 Minister s Guideline MG-14,13 March 2018 click here. 10 Building Produce Safety Alert Use of ACP and EPS as external wall cladding, 13 March 2018 click here. Page 10 of 15

11 Cladding Audit As at May building were identified as being within the audit scope 206 have been cleared and 247 building require more details assessment. The audit is being coordinated by the Building Commission and led by the Department of Mines, Industry Regulation and Safety's Building and Energy division, the Department of Fire and Emergency Services, and local governments. The assessments are due to be completed by the end of September Further information is available here. The Building Commission is assisting owners by undertaking a preliminary assessment to determine whether the existence of cladding on their building poses a level of risk that warrants further investigation. A fire engineer has been engaged to assist the Building Commission with the preliminary assessments and during investigations as required. The Building Commission expects to eliminate some buildings from the audit once the type of cladding has been determined. Any testing that is required will be facilitated by the Building Commission on behalf of owners. The Building Commission is working with Strata Community Australia WA (SCA WA), as a representative group of strata managers, to ensure building owners are updated in relation to the progress of the audit. SCA WA and the relevant local governments are currently assisting the Building Commission by identifying the building owners and representatives for buildings assessed in the audit. The Building Commission will communicate with building owners once the preliminary assessment of their building is completed. Depending on the level of risk identified during the preliminary assessment, owners will be advised that: further investigation of their buildings will not be carried out as part of the audit but that they may wish to have their own assessment done; or their buildings will undergo further investigation including obtaining the building approval documentation from the relevant local government permit authority and the builder. Buildings identified for further investigation do not necessarily have issues with their cladding. These buildings have simply been identified as having external wall cladding incorporated into their construction that, due to factors such as the type, extent and location of the cladding, requires further investigation. The investigation is expected to eliminate many buildings once the type of cladding used has been determined. For example, much of the cladding used in buildings in compressed fibre cement which poses little risk of fire spread. Page 11 of 15

12 For privacy reasons, the Building Commission does not intend to disclose information about individual buildings unless it considers it is in the public interest to do so. South Australia Development (Building Cladding) Variation Regulations 2018 The Regulations 11 came into effect on 12 March 2018 requiring that when designated building products are proposed to be used on designated buildings that the following occur: specific documentation on a designated building product be supplied at application stage, notification be made to council of intended commencement of installation of designated building products, and the completion and submission of a checklist upon installation. Impacts: At the design stage, the builder/designer is required to provide prescribed information on the designated building product, including: the product name/s; product exterior and core material composition; the proposed location of the product/s on the building; proposed installation/fixing method/s; and where the designated building product/s form part of a Performance Solution (as defined by the Building Code), a duly completed performance solution in the gazetted template be submitted in addition to the details identified above. The performance solution must include the evidence to demonstrate to the relevant authority that the designated building product can be used and has been assessed in accordance with the Code. The relevant authority must undertake an assessment of the performance solution which will form part of the approved documentation for building rules consent. At the construction stage, the registered building work supervisor (supervisor) must notify the relevant council that the installation of the designated building product is scheduled to occur within one (1) business day. At this point the council may decide to schedule an inspection of the designated building product s installation. While this is not a mandatory requirement and a building inspector may elect not to visit the site at this stage this step will serve to provide notification to council of this event who can then expect receipt of a completed checklist in due course. 11 Development (Building Cladding) Variation Regulations 2018 click here to view. Page 12 of 15

13 The supervisor must also complete a prescribed checklist relating to the installation of the designated building product. This checklist should mirror the information supplied in the approved documentation including any performance solutions. Completion of the checklist will ensure that the product approved for use is the product that has been delivered for installation and it is being installed in accordance with the approved documentation. The supervisor must sign the checklist and provide to the council within one (1) business day from the notice of installation being given. A council may impose a penalty if it does not receive the completed checklist within one (1) business day of receiving notification. This process is designed to generate a greater focus at two specific key stages design/approval phase and during initial installation to drive higher standards of documentation, provide the opportunity for a supervisor to detect any potential issues at the commencement of installation and for a council to have awareness and oversight of any issues as they present. Requirement for a Statement of Compliance Importantly, it should be noted that where a designated building product is to be used on a designated building a Certificate of Occupancy cannot be issued without a Statement of Compliance. The Statement of Compliance must be signed at the end of construction to provide confirmation that the building has been built in accordance with approved documentation, including the installation of any remaining designated building product. Use of multiple products / installation in multiple locations on the same building If different types of designated building products are sought to be used under one development approval for example, two types of aluminium composite panel on one project the supervisor must undertake the process above for each product, i.e. notification for each product must be provided to council and a checklist completed regarding the installation of each product as it commences. If the same designated building product is intended to be used at different locations on the same building, the notification/checklist process need only be undertaken once, as it is taken that if a panel has been specified and installed correctly initially, that this standard will be maintained at different locations on the building. However, multiple checklists can be provided to council if supervisor wishes to be proactive in assuring council that product installation is occurring correctly. See full copy of the Advisory Notice issued January 2018 here. Aluminium Composite Panel Building Audits The Department of Planning Transport and Infrastructure (DPTI) is leading a building audit on the use of Aluminium Composite Panels (ACP) on buildings. Page 13 of 15

14 The building audit will be delivered across 3 phases with phases 1 and 2 being delivered in collaboration with councils, the Metropolitan Fire Service (MFS) and the Country Fire Service (CFS). As at May 2018 after an investigation of 4,500 buildings, 77 were identified as warranting further investigation. Tasmania Building Regulations 2016 New regulations took effect from 27 th December The key changes include: High risk building products must be accredited by the Director of Building Control for use in Tasmania. High risk building product definition is limited to Aluminium Composite Panels with a polyethylene core or polystyrene sheeting used as building cladding on buildings over 2 storeys; Clarification of the types of low risk building work where notification to the council permit authority after completion is required; Clarification of the following requirements: o the roles and functions of Reporting Authorities such as the Tasmania Fire Service and the council s environmental health officer; o keeping of maintenance records on essential building services; o that alterations or additions to buildings in bushfire-prone areas do not always require a permit as set out in the current Director s Determination; o providing that an Occupancy Permit is not required for farm sheds with an occupancy of no more than two persons. A full briefing note is available here. Tasmanian Aluminium Composite Panel Audit The audit resulted in one building, the Launceston General Hospital (LGH), requiring rectification works. The remaining 42 buildings considered in the audit were found not to have any additional risk to fire safety. The audit process has resulted in several outcomes which are being progressed, including the rectification works at the LGH (first stage of work completed 22 December 2017), and the adoption of new regulations which commenced on 27 December 2017 restricting the use of aluminium composite panels with a PE core in Tasmania via the Product Accreditation processes in the Building Act Page 14 of 15

15 ACT Inter-agency Building Cladding Review Group The ACT Government is carrying out a review to determine fire safety risks associated with the non-compliant use of external wall cladding and potentially combustible claddings and wall systems on privately owned buildings in the ACT, and buildings owned or leased by the ACT Government. The review group include officials from the Environment, Planning and Sustainable Development Directorate (EPSDD) (building policy), Access Canberra (building regulation) and the ACT Emergency Services Agency (ESA). EPSDD chairs and coordinates the group. For more information on the review click here. Northern Territory The Government has not announced an audit of building cladding but has said that it supports the Federal Government and other states and territories addressing nonconforming and non-complying building products. This briefing not is a summary only of the subject matter covered, without the assumption of duty of care by Consult Australia. The summary should not be relied on as a substitute for legal or other professional advice. Page 15 of 15