Non-Compliant Cladding, Fire Safety and Performance Based Solutions

Non-Compliant Cladding, Fire Safety and Performance Based Solutions

27 Jun 2019

By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers

With recent high-profile incidents and the building industry wide concerns about combustible building cladding, it is very much topical to be questioning to what extent all potentially problematic building products ought to be replaced, at massive cost to owners or developers.  Or is there another alternative that is less “draconian” and yet still preserves acceptable levels of fire safety for owners and occupants?

A recent 2018 determination by the Building Appeals Board in Victoria found that an holistic or “global” approach to examine all fire safety features at specific premises can be adopted.  This appears to be an alternative to leaping to a “one size fits all” prescriptive demand that all problematic façade products be replaced wherever found on a building.

The Building Appeals Board determination concerned was in regard to three separate applications all heard together, regarding a residential apartment block of 27 apartments over four levels in addition to a basement car park.

This was an appeal of a Direction to Fix Building Work by the VBA under s37B of the Building Act 1993, with the main question being whether the building design (incorporating Unitex expanded polystyrene (“EPS”) cladding, QT eco-series cladding and aluminium composite panels) complied with the Act and the Regulations.

The five main issues for consideration were said to be:

(i)    Is the as-constructed fire sprinkler system adequate, so as to provide appropriate fire protection?  (This is also relevant to the acceptability of non-compliant cladding, safe egress for occupants, and fire hydrant booster assembly location).

(ii)   Does the building allow a safe means of escape for residents?

(iii)   Should the timber wall lining in the entry foyer be removed and replaced with non-combustible material?

(iv)  Does all of the combustible external cladding need to be replaced with non-combustible material?

(v)   Should the fire hydrant booster assembly be relocated?

Sprinkler System

The consultant report (Residential Fire Sprinkler System Review Report) of June 2018 (“the Sprinkler Report”) examined the as-constructed sprinkler system, and indicated that the “design drawings and hydraulic calculations have been prepared to meet the requirements of AS2118.4-2012”.

This Report also found that the sprinkler system had been installed in accordance with that Australian Standard save for some features that needed to be rectified (these items were eventually listed in the Determination as items involving the sprinkler system that needed to be fixed, as a pre-condition to acceptance of the performance based solution).

The fire engineer engaged on behalf of the Builder advised:

  • The design of the sprinkler system complies with AS 2118.4-2012, which is one of the pre-conditions to the concessions in Vic Part H103 to the Building Code being available (Vic H103); and
  • Due to the above, the concessions in Vic H103 apply to the site.

In contrast, the VBA’s expert argued that Vic H103 does not apply because the pre-conditions to its application had not been satisfied.  This was partly because the VBA’s expert contended that AS 2118.4-2012 does not apply given the building exceeded four stories in height.

Consequently, it was contended by the VBA’s expert that the sprinkler system must instead comply with AS 2118.1-1991 which has more stringent requirements for buildings over 4 storeys.  While the Applicant contended the building was only four stories, the contrary position was that the basement should also be regarded as a “storey”.

The Board found there was no “hard and fast rule” on whether or not a basement should be counted as a “storey”, and that the number of storeys will depend on the actual features of the specific building.

The Board considered that if appropriate steps were taken to isolate the underground car park basement from the accommodation levels above, then the phrase storeys in height would not include the basement in this case.

Relevant factors included:

  • The basement is used solely for parking motor vehicles and ancillary purposes;
  • It is constructed of concrete and masonry including the floor between it and the Class 2 apartments above;
  • The compartments were separated by materials having an FRL with not less than 90/90/90;
  • The only opening and penetration that could reduce fire resistance was to be resolved by replacing the glass adjacent to door DB-01 between the basement and lift lobby with an alternative construction achieving a -/60/60 FRL;
  • The basement is equipped with a hydrant and hose reel within 4 m of the exit door;
  • Compliant paths of egress to exits (travel distances) existed in the basement, alongside good fire brigade access via the roller door.

Does the building provide a safe means of escape for residents?

The Deemed to Satisfy (“DTS”) Building Code provisions were not used as a compliance pathway but instead a performance solution was developed by Mr Paul Verheijden in a fire engineering report.

The fire engineer for the VBA took issue with said report’s approach as qualitative with a subjective method of analysis.  He said this was not appropriate and that qualitative approaches should only be used for minor single non-compliance issues.  He also criticised what he saw as deficiencies in the sprinkler system and said it should have been a “Part 1” system under AS 2118.1-1999.

However, the Board found that if the sprinkler system was rectified in accordance with the remedial work recommended in the Sprinkler Report, this would overcome any genuine shortcomings.  Indeed the Board considered this would lead to a safer building than one completed fully pursuant to the DTS provisions of the Building Code (ie with non-combustible walls but no sprinkler system).  There was also a building occupant warning system (fire alarm) protecting the SOUs.

When all factors were considered the Board found that the as-constructed sprinkler system (subject to the remedial work being completed) would allow the occupants safe evacuation pursuant to the performance requirements in EP2.2.  This was when seen as part of the overall fire safety systems active and passive in the building when considered as a complete package.

Timber wall / ceiling lining in entry foyer

This concerns the direction to remove timber cladding in the entry foyer, namely the Brush Box hardwood.

A Fire Assessment Report from Exova Warrington Fire identifies Brush Box as having a Group 3 rating, meaning it is permitted for use under DTS provisions in public corridors and other areas, but not acceptable in “fire isolated exits and fire control rooms”.

While the VBA described the Entry Foyer as a “fire isolated exit”, the Board instead examined the definitions in the Building Code, and decided that the Entry Foyer was properly to be regarded as either a “public corridor” or “other areas”.  It did not meet the Building Code definition of a “fire isolated exit”.

Given the above analysis, the Board determined that the use of the timber lining in this area was allowable under the DTS provisions, and did not need to be removed.

Should all non-compliant cladding be removed?

EPS cladding

EPS cladding is not compliant under the DTS provisions because it is highly combustible but it can comply under a secondary pathway.   That route is via a performance solution developed by a fire safety engineer.

By the hearing date the Builder had already removed a large amount of the EPS cladding from the façade and replaced this with QT panels or Loxo autoclaved aerated concrete blocks.  This left limited EPS cladding on the east and west elevations and EPS used more extensively on the north and south elevations.  The VBA was primarily concerned with the north and south elevations only.

The Builder’s fire engineering expert considered it was sufficient to replace sections of EPS cladding with less combustible QT panels at the ground level so that no more than 2 stories were connected by combustible cladding.

Relevant factors for the Board included:

  • Where there is a break in vertical continuity of EPS cladding, then the risk of flame spread is appreciably reduced;
  • Remaining panels of Unitex EPS cladding on the north and south elevations were non load-bearing and located more than 3 metres from the property boundary; and
  • The EPS panels had a flame-retardant additive to help prevent accidental ignition from small flame sources.

There were a range of other site conditions raised by the Builder to argue that the EPS cladding did not constitute an appreciable fire risk and the existence of these other factors was not challenged.

Taking all factors into account as a global and holistic package, as it were, the Board did not accept that the limited use of remaining EPS cladding on the building posed an appreciable fire risk.

This was subject however to isolating the EPS cladding from mechanical vents or close proximity to electrical outlets.

QT Panels

The term “QT” Panels is a reference to Quick v Tuff cladding.  QT Panels were not objected to by the VBA where installed on the east and west elevations.

In regard to the north and south elevations only a minority of the surface comprised QT Panels, and they were mainly used to achieve separation, or a “break”, between the remaining Unitex EPS panels.

Because the QT panels are not loadbearing and have good fire-resistant properties, the Board did not uphold the VBA’s direction to remove these panels.

Alpolic-FR ACP cladding

Aluminium composite panels (“ACPs”) usually have a polyethylene core, which is highly combustible, and ACPs also fail the DTS pathway to compliance under AS1530.1.

In this specific scenario, the use of ACPs was limited to the uppermost level, that is set back from the storey below by a considerable distance.

Therefore the ACPs were separated from the floor below by a balcony / terrace area.  This location limited the risk of flame spread vertically and the risk of falling molten drops.

In this specific scenario with the actual conditions on site, the Board did not find that removal of the ACP cladding on the north elevation of the top storey was necessary.

Fire Hydrant Booster Assembly

A modification under section 160 of the Act was sought to allow openings in the building to remain within 10 metres of the fire hydrant booster assembly.  This was on the condition that the booster assembly would be protected by two rows of cut off sprinklers fixed to an external wall of FRL 90/90/90.

Also of relevance was the 1.8 metre masonry block wall shielding the fire hydrant booster assembly, that would give further protection.

The fire brigade (MFB) had no objection to the modification sought. Given this, the Board accepted the opinion of the Chief Officer of the MFB, on the condition that cut off sprinkler heads were installed according to their listing, and allowed the modification sought by the Developer.

Section 160A Application 

As described above, the Board decided that the limited used of the cladding systems must be subject to the remedial work set out in the Sprinkler Report and in the Board’s Reasons for their determination being satisfactorily completed.

The Board determined that the use of EPS, QT and ACP cladding meets the performance requirements of the Building Code under CP2, based on this specific design and overall suite of safety features.   As a consequence, the requirements of the Regulations were also met.


It would appear that the Building Appeals Board will be heavily influenced by fire engineering expert opinion, and will give close consideration to the overall holistic factors or ingredients that comprise a building’s overall level of compliance with fire safety.

Just because one has a “combustible” cladding product that does not comply with the Deemed to Satisfy (or prescriptive) provisions of the Building Code, does not necessarily mean that all of this cladding product needs to removed – at great expense to the Owners of the building.

The use of the cladding product must always be viewed in terms of where it is used on the building and all the other features in terms of fire safety measures (both active and passive).  In turn, a performance-based solution may be available to allow some of the non-compliant product to be retained.

Such factors as the ability of occupants to safely evacuate in the event of fire, and appropriate access to the fire brigade are critical ingredients to this “global approach”, as is the efficacy of fire suppression measures such as a satisfactory fire sprinkler system.

While it is true that every building is different to a greater or lesser degree, these are the types of concepts that need to be considered and adopted, in order to permit a holistic acceptance of all ingredients that comprise a building’s fire safety level.

If the overall context is favourable, as was the case for this project, then some combustible products may be used as cladding in particular areas of the building, despite their otherwise problematic nature and the fact they breach the prescriptive Building Code requirements.

For more advice on building regulation and enforcement and construction related disputes more generally, one should seek expert legal advice from construction law practitioners with a pedigree in advising on such matters.

This could include advice on how to respond appropriately to building orders and directions relating to such aspects as façade cladding and other aspects of fire safety.

This is a Lovegrove and Cotton publication.

For related articles on cladding please see:

How to Respond to Cladding Rectification Notices and Orders in Victoria

Full Replacement of all EPS Cladding on Apartment Buildings may not be Ordered if Performance Based Solutions are Satisfied

Appealing cladding related building notices under the Building Act 1993 (Vic)

Cladding safety Victoria funding and demands for cladding regularisation – the interplay


This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton Cladding Compliance and Regularisation Lawyers

For thirty years, Lovegrove & Cotton have provided advice and represented property owners, builders, and building practitioners in cladding regularisation matters. Please see the cladding section page for more information.

Please see our page for more information. If you wish to engage the firm, feel free to contact us via our website, by emailing, or via phone at (03) 9600 4077.