New Non-Conforming Cladding Laws

Monday, December 24, 2019

Most of us will be aware of the horrific Grenfell Tower fire in the UK in 2017 following which the building’s cladding came under the microscope.

The Queensland Government has now introduced legislation to tackle the risk of combustible cladding which the legislation refers to as non-conforming cladding.

The legislation applies to:

  1. Essentially all residential and commercial buildings other than houses, and
  2. For which it has a building approval issued after 1 January 1994 but before 1 October 2018, and
  3. Is a Type A or Type B construction which essentially covers buildings of three storeys or greater. 

If the building satisfies the above criteria then you will need to:

  1. Complete an online checklist through QBCC by 29 March 2019 failing which a fine may be imposed (currently $2,611). If there is no issue with your building then there is nothing further that you need to do other than keep the certification issued to you. If there is an issue then you proceed as below.
  2. If your building may have non-conforming cladding then you must obtain a statement from a building industry professional as to whether or not the cladding is non-conforming and notify QBCC of this by 29 May 2019. If you already know that you have non-conforming cladding then you can skip this second requirement and go to the third.
  3. If you have non-conforming cladding then you must arrange for a qualified fire engineer to undertake a fire risk assessment concerning the safety of the building. This will assess whether the building is safe or whether remedial works are required. The name of the qualified fire engineer must be given to QBCC by 27 August 2017 and the final report must be given to QBCC by 3 May 2021. Failure to observe these requirements by the due date will mean that fines can be imposed (currently $6,527 and $21,540 respectively).
  4. If a building has non-conforming cladding then a notice to this effect must be displayed in a conspicuous place for as long as the non-conforming cladding is place. Furthermore, every lot owner or tenant in the building must be given a copy of the notice as well as to new lot owners and tenants as ownership/occupation changes.

These are the essentials of the new regulations as presently known. Further detail can be found in Building and Other Legislation (Cladding) Amendment Regulation 2018.

One final thought is as regards the sale of property that has non-conforming cladding. Failure to disclose the existence of non-conforming cladding could be a general misrepresentation and could also be a breach of section 223 Body Corporate and Community Management Act 1997 which imposes and obligation on sellers to disclose to buyers latent or patent defects in common property that the seller is aware of or ought to be aware of. This issue has the potential to clause all sorts of problems if sufficient disclosure has not been made and is likely be the cause of litigation in years to come.

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