Queensland introduces regulations targeting combustible cladding - Construction & Planning

Following the lead of New South Wales, Queensland has introduced a new regulation dealing with combustible cladding, which takes effect on 1 October 2018 and affects building owners in Queensland.

The Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) (the Regulation) amends the Building Regulation 2006 (QLD) and requires owners of private buildings to undertake a three stage process, managed through an online system, to identify whether a building is affected by combustible cladding.

The Regulation aims to ensure that:

building owners have the necessary information to make informed decisions about fire safety risks;
governments use evidence based-data to inform future policy decisions; and
the Queensland Fire and Emergency Services is assisted in operationalising resources to respond to identified high risk buildings.¹

The Queensland Building and Construction Commission (QBCC) is the regulator responsible for the online checklist and register.

Buildings covered by the Regulation are class 2-9 buildings of Type A or Type B construction for which building approval was given after 1 January 1994² and before 1 October 2018.

THE THREE STAGE ROLLOUT OF THE REGULATION

Stage 1

Stage 1 will require building owners to register and answer questions about the building to determine if the building is privately owned, its approximate size and materials used on the outside of buildings (if known).

By 29 March 2019,³ building owners must register with the QBCC (using the online system) the owner's name and address of the owner's building, as well as give a copy of a completed combustible cladding checklist (Part 1) to the QBCC.⁴ Failure to do so may attract a maximum penalty of 20 penalty units.

Stage 2

Stage 2 will require a building owner to engage a building industry professional to answer technical questions, such as whether the material used is potentially combustible. This stage may be bypassed if building owners are already aware that their building has combustible cladding.

By 29 March 2019,⁵ building owners must give the QBCC a copy of:

a completed combustible cladding checklist (Part 2) for the owner's building; and
a statement about whether or not the building may be an 'affected private building' (a building industry professional statement).⁶

An affected private building is one which has combustible cladding forming part of, or attached or applied to, an external wall or another external part of the building other than the roof. Failure to provide the checklist and statement may attract a maximum penalty of up to 20 penalty units. An owner must keep Part 1 and Part 2 checklists for at least seven years.⁷

Stage 3

For buildings potentially affected by combustible cladding, the owner must engage a fire engineer to prepare a building fire safety risk assessment.

The building fire safety risk assessment aims to:

determine the composition of the cladding;
identify the type of insulation material used; and
identify whether existing fire safety measures will be able to cope with the identified higher risk.

The assessment will also determine whether rectification is necessary.

By 27 August 2019,⁸ a building owner must give to the QBCC the name and registration number of the fire engineer engaged to complete the assessment. Failure to do so will attract a maximum penalty of 50 penalty units.⁹

By 3 May 2021,¹⁰ a building owner must, unless it has a reasonable excuse, give to the QBCC (using the online system) a copy of each of the following documents for the owner's building:

a completed combustible cladding checklist (Part 3);
a report about the cladding forming part of, or attached or applied to, an external wall or another external part of the building other than the roof (cladding report); and
a statement about the building fire safety risk assessment.¹¹

Failure to do so may attract a maximum penalty of 165 penalty units. An owner must keep copies of the documents for at least seven years after copies are given to the QBCC.

ACTION REQUIRED ONCE STAGE THREE IS COMPLETED

Within 60 days of receiving the cladding report, an owner must display, in a conspicuous position at the building, a notice in the approved form for the building.¹² Failure to do so may attract a maximum penalty of up to 30 penalty units.

An owner must also ensure that a copy of the cladding report is given to each lot owner (if the building comprises of more than two lots) and each tenant for a given building.¹³ Failure to do so may attract a maximum penalty of up to 20 penalty units.

WHAT IF A BUILDING'S OWNERSHIP CHANGES?

A change of building ownership attracts further statutory duties for building owners. If one or more of the relevant stages has been completed, an owner must give the new owner:

notice, in the approved form, about the extent to which the original owner has complied with Part 4A; and
copies of each document given by the original owner to the QBCC under Part 4A.

They must also give the QBCC a copy of the notice given to the new owner.¹⁴ Failure to do so may attract a maximum penalty of up to 20 penalty units.

Footnotes

¹ Explanatory notes for Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD).

² Buildings constructed before 1994 may also fall within scope of the Regulation if rectification work was performed between 1 January 1994 and 1 October 2018.

³ 29 March 2019 is the end of the compliance period for Stage 1, unless the QBCC has given the owner notice under regulation 16ZM(2) or the QBCC commissioner extends the period pursuant to regulation 16Q.

⁴ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16Q.

⁵ 29 March 2019 the compliance period for Stage 2 ends, unless the QBCC has given the owner notice under 16ZM(2) or the QBCC commissioner extends the period pursuant to 16T.

⁶ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16T.

⁷ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16R.

⁸ The compliance period for regulation 16W ends on 27 August 2019, unless extended by the QBCC commissioner pursuant to regulation 16W(4).

⁹ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16W(1).

¹⁰ 3 May 2012 the compliance period for regulation 16X ends, unless the QBCC has given an owner notice under regulation 16ZM(2), or the compliance period is extended by the QBCC commissioner pursuant to regulation 16X(6).

¹¹ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16X.

¹² Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16ZA.

¹³ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16ZB.

¹⁴ Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) regulation 16ZD.

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.