New laws relating to combustible cladding
29 January 2019
Owners of certain buildings with external combustible cladding will be required to register the building by virtue of amendments to the Environmental Planning and Assessment Regulation 2000 (NSW). 

The Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018 (NSW) (Amendment Regulation) came into effect on 22 October 2018. It requires that owners of affected residential and public buildings occupied before 22 October 2018 be registered through the NSW Cladding Registration portal by 22 February 2019. 

New buildings must be registered within four months of the building first being occupied.

Building safer communities

The aim of the new regulation is to identify and collect information on affected buildings. The regulation applies to certain buildings of two or more storeys, including residential apartment buildings, aged-care buildings, hospitals and day surgeries, hotels, boarding houses and student accommodation.

Registration of these buildings allows Fire and Rescue NSW to respond accordingly in the case of an emergency and educate occupants on additional fire safety.

It also helps local councils determine if buildings need to be further assessed or if rectification work is required.

More pressure on agents

A new clause 69A was introduced into the Home Building Regulation 2014 (NSW) to extend the definition of “major defect” to external combustible wall cladding. Further, since 15 August 2018 the use of aluminium composite panels (with a core comprised of 30 per cent or more polyethylene) as external cladding has been banned. This applies to all building products, even if used prior to the ban. 

NSW Fair Trading says strata agents managing multi-storey residential buildings must: 
(a) Review all design and construction documents to determine whether the external wall cladding uses the banned cladding product
(b) Check that the annual fire safety statement is up-to-date
(c) Engage a fire safety professional

While NSW Fair Trading has remained silent on the issue of accountability in relation to the new regulation, under the Amendment Regulation, an authorised fire officer (or fire safety professional) is defined as a person authorised [1] to give fire safety orders.

The added pressure on agents to identify and register affected properties supports REINSW’s on-going argument that the NSW Government is unfairly increasing agent responsibilities. As with smoke alarms, REINSW maintains that agents do not have the requisite skills or experience to make such determinations and forcing them to do so endangers public safety.

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[1] By section 9.35(1)(d) of the Environmental Planning and Assessment Act 1979 (NSW)