On 21 September 2023 a new guideline was issued on behalf of the Victorian Government in relation to the approaches that ought to be adopted by Municipal Building Surveyors and Private Building Surveyors with respect to remediation work proposals to deal with “Combustible External Cladding”.

Arguably the advent of this new guideline, that must be adopted by Building Surveyors, may herald a changing emphasis away from a default position of replacing all combustible cladding towards a more risk-based mitigation strategy, and a higher emphasis (in appropriate circumstances) on partial cladding replacement and/or reliance on the overall active and passive fire safety systems at a building.

The relevant instrument is Minister’s Guideline 15, that was issued under section 188(1)(c) of the Building Act 1993 by the Minister of Planning on 21 September 2023.  It is stated in the preamble that Municipal and Private Building Surveyors “must have regard to this Guideline pursuant to section 188(7) of the Act”.

This Guideline does not apply to every building in Victoria that has combustible cladding that does not comply with the deemed-to-satisfy provisions of the Building Code / NCC.  Instead, it is stated to apply only to buildings which are “classified as Class 2 or Class 3 by the NCC or contain any component which is classified as Class 2 or Class 3”, for which the works were completed or final approval issued before 1 February 2021, and which have “Combustible External Cladding”.

The term “Combustible External Cladding” is defined for the purposes of Minister’s Guideline 15 to mean:

• Aluminium composite panels (ACP) with a polymer core which is installed as external cladding, lining or attachments as part of an external wall system; and
• Expanded polystyrene (EPS) products used in an external insulation and finish (rendered) wall system.

There are also graded definitions to measure the extent of a risk with combustible cladding; the relevant category terms being “Low Cladding Risk”, “Elevated Cladding Risk” and also “Unacceptable Cladding Risk”.  Each of these key terms are said to have the meanings given to them in the “Cladding Risk Mitigation Framework”.

Regard should also be had to this document known as the “Cladding Risk Management Framework” [1], which is defined in the Guideline to be “the document of that name published by the Department of Transport and Planning on 22 September 2023, as updated from time to time.” 

This document (the CRMF) consists of some 10 pages of more detailed guidance which seeks to “remove uncertainty amongst municipal building surveyors, building owners and building practitioners about the practical and reasonable measures that can be taken to make a building sufficiently safe from a cladding fire risk perspective.”   We note the reference to “sufficiently safe”, which is not the same as “completely safe” and has elements of subjective discretion to be applied.

Refer to page 2 of the CRMF under paragraphs 1.1.1 to 1.1.7 for more detail on the purpose and objectives of the “framework”, which should be considered carefully by the Council Municipal Building Surveyors (“MBS”) and also Private Building Surveyors (“PBS”), as well as building owners and practitioners, alongside Minister’s Guideline 15.

The definition of “Acceptable Cladding Risk” in the CMRF means where the building:

• Achieves a “Low Cladding Risk” rating; or
• Presents an overall level of risk to the life and safety of the occupants of the relevant building which is reasonably similar or less than the risk which would be presented by the same building, if that building had no combustible external cladding.

The definitions of “Low Cladding Risk” and also “Elevated Cladding Risk” are defined in technical terms in relation to the risk of fire spread between Sole Occupancy Units in “sprinkler protected” versus “not sprinkler protected” parts of the building where there is combustible external cladding.  This is as set out in Table 1: Cladding risk rating categories, found in section 2.2 of the CMRF. 

Likewise, “Unacceptable Cladding Risk” is also defined in that section 2.2 table, and has technical benchmarks associated with it.  In other words, it is not simply that cladding system and building which does not meet the definition of “Acceptable Cladding Risk” referred to above.

Regard would most likely need to be had to advice from a suitably qualified fire engineer, in order to assess what level or risk applies to the building.  The level of risk may vary depending on the layout and location of the combustible external cladding on the building and may differ with some parts of the building compared with others.

The key emphasis is on how the MBS or a PBS should assess a “Remediation Work Proposal” to address non-compliant combustible cladding on such buildings.  That term is defined as:

• A proposal prepared by the owner of a Relevant Building or anyone authorised on their behalf for the work to address the Combustible External Cladding; or
• A proposal prepared by Cladding Safety Victoria to address the Combustible External Cladding on a relevant building.

This will clearly depend very much on the appropriate risk category for the premises based on the above definitions, which will have regard to other elements such as sprinkler protection and other fire safety systems rather than solely looking at the extent and combustibility of cladding.

It is said that Municipal Building Surveyors and Private Building Surveyors, when fulfilling their functions under the Building Act 1993 and the Regulations, must have regard to the Cladding Risk Mitigation Framework and any information or advice provided to these professionals by Cladding Safety Victoria (CSV) or the Department of Transport and Planning after the date of the Guideline.  That is, if that information or advice is expressly identified as being supplied for the purpose of the Guideline.

The purpose of the Guideline is to provide guidance to an MBS or a PBS when fulfilling these functions, including where:

• An MBS has served a Building Notice, Building Order or Emergency Order in respect of Combustible External Cladding and is considering a Remediation Work Proposal in response; or
• An MBS is considering whether to issue a Building Notice, Building Order or Emergency Order and is considering a Remediation Work Proposal about the combustible cladding; or
• An application for a Building Permit has been made to a PBS or an MBS for the performance of remedial work in relation to the combustible cladding.

The purpose of the Guideline is also said to be to supply guidance on how an MBS or a PBS should assess Remediation Work Proposals for such cladding where the proposal does not include the full removal and replacement of the cladding.

If one examines the CRMF, it could be argued that the emphasis is more on avoiding the full replacement of all cladding (where possible and technically justified) in favour of either targeted removal and replacement in certain areas, and/or upgrades and maintenance of other active and passive fire safety systems in the building.

For instance, paragraph 2.3.3 amplifies the notions of “proportionality” and “scalability” in responding to cladding fire risk on buildings.  That paragraph reads:

“This policy applies the principle of proportionality and scalability in responding to cladding fire risk on buildings in Victoria.  Applied to relevant buildings, the primary focus is on achieving an acceptable cladding risk rating.  The recommended focus is targeted combustible external cladding removal in conjunction with enhancements of the building’s active and passive fire safety systems proportionate to the risk exposure presented by combustible external cladding.”

At the very least, this heavily emphasises a ‘holistic’ approach that takes into account all active and passive fire safety features at a property, rather than only focussing on the type and combustibility of cladding products present and the fact they are banned or non-compliant products.

Table 2 on page 5 of the CRMF sets out potential actions for cladding risk remediation based on the cladding risk rating category, and even for “Unacceptable” risk it does not necessarily mandate full replacement of all combustible cladding on the building.

There is also section 3.6 of the CRMF that states that an MBS “should consider” issuing a “letter of action” to the relevant owner or Owners Corporation before issuing an enforcement instrument (such as a Building Notice or Order), or where such an instrument has already been served, before taking any enforcement action on it, so as to:

• alert the Owners to the Guideline and the CRMF; and/or
• advise on the suitability of any Remediation Work Proposal that may have been put forward on behalf of the Owners or by the CSV prior to that date.

Again, this demonstrates that the expectation is that an MBS will adopt potentially a more symbiotic relationship with affected owners and the CSV in relation to the formulation of a Remediation Work Proposal to resolve the issues. 

Written By Justin Cotton, Director, Lovegrove and Cotton Construction and Planning Lawyers

References

[1] The Cladding Risk Mitigation Framework is available at: https://www.planning.vic.gov.au/guides-and-resources/building-policy/building-reform/Cladding-remediation-partnership-program

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 enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.

For further articles on cladding, please refer to:

Due Diligence for Registered Certifiers with Emphasis on Combustible Cladding and Performance Requirements under the Building Code

Appealing Cladding Related Notices and Under the Building Act 1993 (Vic)

How to Respond to Cladding Rectification Notices and Orders in Victoria

Disclaimer

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.