Articles

By Justin Cotton, Director, Lovegrove & Cotton

With a recent article the writer examined the problems surrounding the Building Code and its enforcement with respect to aluminium composite panels (“ACPs”) used for building cladding, and the dangers of combustibility and fire spread.  This of course is not a problem that is specific to Australia as we have seen with recent incidents overseas.  In this follow up article the options for reform for the future are looked at in more detail.

Incidents such as that at Grenfell Tower highlight the need for Australia to adopt best practice building models in matters of external cladding and fire safety.  If this were not to occur, then potentially it could lead to a similar incident on Australian soil where serious injury or loss of life could eventuate.

Of real concern has been the use of so called “PE” cladding products with a polyethylene core that is highly combustible and that are no longer used in many overseas markets.  Instead these markets are using an alternative “FR” cladding product that has a much lower polyethylene composition at its core.  While there is still some combustibility with the FR product the level of this is lower compared with the PE cladding.

Best practice models start with using internationally recognized and calibrated testing methods that are up to date and duly recognize the composite nature of the product that is “under the microscope”, as it were.

If ACPs can be tested based on full scale façade examinations, as used overseas, rather than utilizing the outdated and limited methodology under AS1530.1-1994, then ACPs will be far more likely to meet the “Deemed to Satisfy” (“DTS”) provisions in the Building Code.  In addition, the chances of unsafe external cladding products being approved would be minimized.

The current testing under the Australian Standard involves a small scale test of the product over a furnace and the concern has been this is testing perhaps only one element of a composite product, rather than a “whole of wall” testing method (as used for example in the United States).

In 2016 an industry reform proposal was submitted to the Australian Building Codes Board (ABCB), being a “Proposal for Change”.  This was effectively an application to the ABCB for it to amend Clause C1.12 of the Building Code of Australia (“the BCA”).

The Proposal for Change arose following the concerns over these cladding products and their combustibility and the proposal was to insert a new sub-paragraph (g) into Clause C1.12.  In support of this application a specialist fire engineering report was submitted to the ABCB to consider.

The new sub-paragraph (g) that was put up for consideration reads as follows:

“(g)   aluminium composite panels may be used as an external wall lining where:

• each external face of the panel is non-combustible; and
• the mineral filled core contains not less than 70% non-combustible materials; and
• each adhesive layer does not exceed 1 mm in thickness; and
• the total thickness of the adhesive layers does not exceed 2 mm; and
• the product must receive a group number 1 when tested or predicted in accordance with clause 4 of specification C1.10 as proposed within the BCA 2016; and
• the product is tested as one component and receives a minimum fire classification of Class B, S2, d0 of EN 13501-1.”

Key features of this change include the testing of ACPs for combustibility as a whole and entire product in accordance with an internationally recognized and adopted standard of testing (namely, under EN 13501-1), and the benchmark level of combustibility will be a Group 1 rating which is the highest rating for fire safety.

So what is this new proposed testing method?  The standard EN 13501-1 in conjunction with NFPA285 is a proven international testing methodology, and in the Proposal for Change it was submitted that this should be utilized to assess Deemed to Satisfy compliance.

The testing method involves a full scale test adopted by most European countries and the United States, and if used can cut out the need to rely on third party certification under performance based alternative solutions.

In recent news it appears that the full wall testing of combustibility of ACPs will be available in Australia, but perhaps not until 2018.

A full wall (whole of façade) test makes sense from a practical perspective.  External cladding products are not installed on buildings as individual components, and therefore should not be tested for fire resistance / combustibility in that way. Given that ACPs are installed as whole or entire products, they should be assessed under a full scale façade test.

Therefore an amendment to insert a new sub-paragraph (g) into Clause C1.12 of the Building Code may be worthy of support, as the most reliable DTS pathway to compliance.  This is chiefly because it involves a testing method that is not outdated and inappropriate for use with ACPs, but which is in accordance with world standards and is internationally recognized.

Performance Based Path to Compliance

As a secondary route to compliance, ACPs can be assessed and approved under the “alternative solution” performance based route under the Building Code.  This would be by way of “third party certification”, which in some respects is already mandatory under the BCA given that the DTS method is effectively outdated and unreliable.

Currently third party certification takes place via Code Mark Certificates of Conformity.  This would involve a verification method under A2.2 of the Building Code, for example fire engineering (FER) reports and/or Code Mark product certification accredited through the Joint Accreditation System of Australia and New Zealand (JASANZ).  This is evidence of suitability of cladding products, to assess whether a benchmark of equivalent to or better than DTS standards has been met.

The party specifying or wishing to use a particular cladding product must be able to demonstrate to the “Authority Having Jurisdiction” (“the AHJ”) that the product satisfies the relevant BCA Performance Requirements.  For example, CP2(a)(iv) in the BCA says that:

“…a building must have elements which will, to the degree necessary, avoid the spread of fire between buildings and in a building.”

It would appear that the AHJ will be the “Permit Authority” in regard to a building project, or the relevant building surveyor (be it a private or local government building surveyor).  This means that it may come down to the individual building surveyor’s discretion (as the AHJ) on whether an alternative solution and thus an external cladding product achieves compliance.

This may be a recipe for danger, particularly if the Building Code DTS benchmarks suffer from a lack of clarity, or rely on a testing method that is outdated or that does not fully allow for the composite nature of the product under consideration.

However, the Code Mark Scheme or third party certification (Certificates of Conformity) could be a legitimate second pathway to compliance on the strict condition that:

• There is a tighter regulatory and enforcement system instigated to monitor the Code Mark Scheme and to ensure that conditions in Certificates of Conformity are complied with fully (for example conditions about the method of fixing of panels and the type of fixing to be used);
• There is more uniformity in the engineering method used to grant Certificates of Conformity; and
• The AHJ can have regard to a clear and unambiguous BCA clause that assesses whether an ACP is compliant and safe (ie the suggested change to Clause C1.12), and which is based on reliable testing methods.

The issues surrounding the Code Mark Scheme currently mean there is too much uncertainty and too much reliance on the individual discretion of an AHJ.  These problems should be attended to by the ABCB before any new standard such as AS 5113 is implemented, because that standard will need to involve third party certification.

Part of the attraction of the preferred pathway to compliance under the DTS provisions and the new full scale testing process, will be that the inherent risk factor of imposing independent judgment on an AHJ will be eliminated, and there would be no need for third party certification.

If ACPs can be reliably tested and assessed as safe and compliant then there is little reason they cannot be used, as they are (widely) in foreign markets.  If they cannot be safely used, apart from risks to life there will be significantly negative consequences for Architects, who currently specify the use of exterior cladding in their designs, builders and developers, building surveyors and a range of other industry stakeholders.  This includes those who rely on the ACP industry for employment.

Many will know that the problems of ACP reform have been referred to a Senate Committee.  While this may result in the banning of certain cladding products from the Australian market, this does not solve the problem of the perhaps tens of thousands of buildings across Australia that are currently clad with unsafe cladding products.  Such buildings will need to be regularly audited to ensure that their fire systems are perfectly ‘up to scratch’, as a minimum.

Given the events at Grenfell Tower last year, and the number of buildings constructed using composite cladding materials, everyone needs to be secure in the knowledge that the products are reliable and safe. It is submitted therefore that as this discussion first started in 2010 in the ACT, that Australia-wide reform to the Building Code in this area is well overdue.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.