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To Ban or Not to Ban: Grappling with Composite Cladding Rules


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Photo courtesy of Sky News

Potentially flammable composite cladding products continue to make the headlines. However, there are still no clear and nationally-consistent rules around their use on the facades of mid-rise and high-rise buildings.

So far, only one state, NSW, has introduced a ban on the products for buildings above two or three storeys using the Deemed to Satisfy pathway under the National Construction Code [NCC].

The regulations in Queensland focus on non-conformance, not an outright product ban. Victoria now requires products with a combustible core or lamina greater than 30 per cent of the total product to be assessed via a performance solution and building appeals board process.

In South Australia, a performance solution and local council inspection are required. In Tasmania—all products must be accredited and approved for use.

Denita Wawn, Master Builders of Australia CEO, described the rules in other states as a “more measured response” than the NSW ban.

“The decision to either ban or allow this product should be clear and unambiguous; what we have now is a divergent response to the same issue."

“The decision to either ban or allow this product should be clear and unambiguous; what we have now is a divergent response to the same issue,” Ms Wawn says.

Ms Wawn tells Jobsite that the unilateral action taken by NSW creates further confusion about what constitutes allowable and suitable wall structures.

“The action taken suggests a fundamental misunderstanding of the governance structures underpinning the rules of construction and disregard for an existing national mechanism that sets technical provisions for the sector.”

Ms Wawn says that recognition of the National Construction Code’s requirements in state, and territory regulations are “the best way to address the issue.”

Recent changes to the code have clarified requirements for wall assemblies, removed concessions for bonded laminated materials, and introduced a new testing standard for assembled products.

“The NCC at the end of the day is the tool available to all level of governments to set technical provisions for the industry in a nationally consistent way,” Ms Wawn says.

The various new national, state, and territory regulations are going to have an impact on the industry. In NSW, there are already potential implications for builders in terms of their existing supply chains.

“Builders will face commercial and supply chain risk, contract risk, and reputational risk during a transition like this."

“Builders will face commercial and supply chain risk, contract risk, and reputational risk during a transition like this. They will also face a duty of care and insurance risk issues and personal and mental health issues that could affect those operating in the industry exposed to these issues.”

Ms Wawn says there is a “new, heightened appreciation of the need for due diligence.”

This is driven by a number of things, including insurance requirements. For example, to protect their professional indemnity insurance building certifiers are looking more closely at all documentation and pushing the requirement for due diligence back up the chain of responsibility.

The new Non-Conforming Building Products legislation in Queensland is also having an effect. According to Ms Wawn, its requirements around due diligence and mandatory information duties are starting to “become real.”

The MBA is responding to these shifts by promoting Product Technical Statements. To ensure everyone has greater certainty about products being fit for purpose, the MBA is also working with suppliers and manufacturers on the provision of required information in product technical statements.

One concern for the industry is the focus legislation in most states and territories has on addressing concerns around cladding already in place. The complexities around this include what standard will be used to rectify the problem, and where liability will fall, Ms Wawn says.

“It’s a big issue for the sector that’s considered an obstructionist approach and not a solution."

The availability of standards is a concern, particularly for smaller firms. That is the case of the new standard for fire testing of wall assemblies, for instance. Currently, standards referenced in the NCC must be purchased and are not freely and publicly available.

“It’s a big issue for the sector that’s considered an obstructionist approach and not a solution,” Ms Wawn says. “The NSW Government has consulted industry, [about making standards freely available] but it is not hearing what is being said.”

Overall, the MBA wants to see national consistency on technical construction requirements, led through the NCC.

“The NSW ban undermines and confuses requirements of the NCC and adds further complexity to an already complex area,” Ms Wawn says.

At its most recent meeting, the Building Ministers Forum [BMF] established an industry forum which involves stakeholders including the MBA, Australian Institute of Architects, Consult Australia, Building Products Innovation Council, Australian Construction Industry Forum, Fire Protection Association of Australia, and other industry organisations.

Ms Wawn says, the Ministers can work more cooperatively with industry on some of the “more complex” regulatory issues through this forum. 

“There is an opportunity for governments to engage with key stakeholders on some common principles that could be applied nationally” adds Ms Wawn.

The MBA also wants to see suppliers providing more robust and detailed technical information. It welcomed the BMF’s proposal for a national, mandatory permanent labelling scheme for cladding and other high-risk building products.

The BMF will be working with Standards Australia to develop a standard for the labelling of aluminium composite products, which will then be mandated through the NCC.

“A permanent labelling scheme is certainly a solution to the long-term validation issue that the cladding dilemma causes."

“A permanent labelling scheme is certainly a solution to the long-term validation issue that the cladding dilemma causes,” Ms Wawn says. “Suppliers should arrive at solutions to these matters in response to a need in the market.”

In its submission to the Ministers in relation to product labelling, the MBA supported the development of a more effective system for labelling high-risk products, combined with the use of bar-coding technology and consistent product information in Product Technical Statements.

It believes Product Technical Statements should become the new minimum standard.

To improve the big picture regarding compliance, the MBA wants states and territories to focus on implementing the recommendations of the Building Confidence report by Peter Shergold and Bronwyn Weir, which was commissioned by the BMF.

One positive move already underway and embraced by the MBA is the agreement at the recent BMF meeting to focus on strengthening design documentation and the responsibility of design practitioners in building approvals.

“There are currently very few jurisdictions that place a duty on designers to prepare documentation that demonstrates compliance with the NCC,” Ms Wawn says. “This is a fundamental gap in the regulatory regime that could be strengthened across the board.”

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