New combustible cladding regulations to commence in New South Wales - Construction & Planning

New regulations will commence on 22 October 2018 that require owners of certain buildings to check for external combustible cladding and register all affected buildings with the NSW Government.

The new legislation giving effect to these changes are the Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2018 (Regulation) and the State Environmental Planning Policy Amendment (Exempt Development – Cladding and Decorative Work) 2018 (SEPP Amendment).

These regulations have been made shortly after the first building product use ban was imposed on certain aluminium composite panels under the Building Products (Safety) Act 2017 on 15 August 2018. All new laws apply to both new and existing buildings.

Building types

The Regulation applies to the following building types (both new and existing buildings) of two or more storeys:

residential apartment buildings;
other types of residential buildings where unrelated people sleep (e.g. hotels, boarding houses, backpackers, student accommodation);
aged-care buildings, hospitals and day surgeries (and any associated single dwellings within the building); and
public assembly buildings (e.g. theatres, cinemas, schools and churches and any associated single dwellings within the building).

Cladding types

The Regulation applies if any of the above buildings have external combustible cladding made of the following materials:

metal composite panels, including products that consist of aluminium, zinc, or copper outer layers and a core material; or
insulated cladding systems, including systems comprised of polystyrene, polyurethane, and polyisocyanurate.

Building plans that provide for certain "alternative solutions" (under the Building Code of Australia) involving external combustible cladding are required to be referred to Fire and Rescue NSW for review.

Registration deadlines

Owners of any of the above buildings that are identified to have external combustible cladding must register their buildings with the State Government through a new online portal. The portal has yet to be set up, however you can be notified when it is available by entering your details on this page.

For buildings occupied before 22 October 2018, the deadline for registration is 22 February 2019. For new buildings that are yet to be occupied, the deadline for registration is 4 months after the building is first occupied.

A person who fails to register buildings with external combustible cladding is liable for a fine of $1,500 ($3,000 for companies). The fine is doubled if the person or company fails to register buildings despite having being directed to do so by the Minster for Planning, Planning Secretary, Fire and Rescue NSW or a local council.

A register of buildings that contain external combustible cladding will be maintained by the Department of Planning. The Secretary may provide details to Fire Services and may make the register public.

No 'cladding statement' required

When the Regulation was placed on public consultation in late 2017, it included a requirement for building owners to provide a 'cladding statement' that detailed whether, in the opinion of a 'properly qualified person', the cladding posed a safety risk and options to minimise any such risk.

This requirement is not part of the new Regulation. Building owners are only required under the new Regulation to register the details of certain buildings with external combustible cladding with the Government.

SEPP Amendment

Various SEPPs will also be amended on 22 October 2018 to restrict the circumstances in which cladding can be approved without development consent. The SEPPs that will be amended include the:

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017; and
State Environmental Planning Policy (Infrastructure) 2007.

If you are concerned that a building may be affected by either the ban on aluminium composite cladding or the new Regulation, we suggest that you seek legal advice. You can contact a member of our team by using the details listed in the column to the right.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.