Who is responsible for Victoria’s combustible cladding epidemic?

Over the last decade, there have been several disastrous building fires caused by non-compliant combustible cladding. Thousands of owners have faced huge costs and escalating insurance premiums due to combustible cladding on their buildings. Questions remain around who is responsible.

Cladding Safety Victoria (CSV), the body responsible for delivering the Victorian Government’s $600 million Cladding Rectification Program, has now published its findings in response to these questions in its ‘Research analysis – compliance in building design’ report (CSV Report).

The CSV Report involved reviewing original plans and permits for 1,000 privately-owned apartment buildings with combustible cladding, particularly aluminium composite panels (ACP) and expanded polystyrene (EPS). The review also found that key professionals, such as architects, draftspersons, fire safety engineers (FSEs), and building surveyors were responsible for the widespread misapplication of combustible cladding, echoing the findings of Judge Woodward (as he was then) in the Lacrosse decision.

Taking a step back – Victoria’s building permit process

The building permit process in Victoria is intended to ensure that only buildings designed in accordance with the National Construction Code (NCC), which forms part of the Building Code of Australia (BCA), are constructed.

A Registered Building Surveyor (RBS) can only issue a building permit if they are satisfied that the design complies with the BCA. The responsibility for preparing compliant designs and permits falls on professionals engaged for those services, such as building designers, FSEs and building surveyors.

The NCC is a performance-based code which sets out certain performance requirements for buildings, but does not mandate how these requirements are met. This approach allows flexibility in design and promotes innovation by allowing either “deemed-to-satisfy solutions” or “performance solutions”.

A deemed-to-satisfy solution simply means that, by reason of the material or methodology used, the performance requirement is deemed to have been met. A performance solution instead requires demonstration that a particular approach meets the performance requirements in the individual situation.

One performance requirement is that a building includes elements that limit the spread of fire. The extensive use of a combustible wall product on the façade would not be deemed to satisfy this performance requirement and instead requires justification by an appropriately qualified professional that the relevant performance requirements can be achieved by mitigatory measures (e.g. external sprinklers and fireproof awnings over exits etc.) despite the risk of the material.

Given the dual pathways available to comply with the NCC, it is critical to follow the building permit process properly. Failure to do so may cause a builder to be issued with a permit for non-compliant works, leading to the construction of non-compliant and unsafe buildings.

What did CSV review?

The CSV Report reviewed:

• building permits, to identify the professionals responsible for the project
• architectural and building plans and associated documents, to identify the specified cladding used
• Fire Engineer Reports (FERs), to determine whether the specified cladding was assessed for suitability by an FSE
• building and occupancy permits, to establish when construction was completed and whether a performance solution related to the combustible cladding existed.

If ACP or EPS was specified on a building plan without a corresponding performance solution, CSV considered this as non-compliant. In the rare case a performance solution was found to have been developed by an FSE, CSV considered whether the proposed solution was satisfactory.

CSV’s findings

As documented in its report, CSV found that:

• architects and draftspersons specified combustible cladding in 75 per cent of the 659 cases where cladding compliance could be determined
• FSEs prepared FERs for only 71 per cent of buildings where combustible cladding was specified in building and design plans. However, only 15 per cent of these reports considered the suitability of the cladding before endorsing its use
• in 72 per cent of cases, RBSs failed to identify compliance issues with ACP or EPS, and instead issued building permits without requiring a performance solution to address the combustible cladding
• in many instances, building design documentation lacked appropriate detail to determine what, if any, external wall cladding product was specified by the building designer, potentially resulting in builders installing non-compliant materials without, or contrary to, a building permit in breach of the Building Act 1993 (Vic).

Although the reasons for the use of combustible cladding was not part of the scope of the analysis, the CSV Report concludes that the specification of combustible cladding suggests that these professionals either did not:

• know that external wall cladding on apartment buildings must be non-combustible unless there is a suitable performance solution;
• turn their mind to whether the specified external wall cladding was non-combustible; or
• know that ACP or EPS are combustible.

What next?

The findings reveal a considerable need to improve the understanding of compliance requirements among the key professionals responsible for building designs and permits. The CSV Report recommends:

• clear duties are legislated so that all professionals who are responsible for building outcomes can be held accountable for safety, quality, and professionalism
• architects, draftspersons, and engineers certify that their designs for apartment buildings are complete and comply with the BCA
• a chain of responsibility regime be introduced for all relevant individuals involved in the building industry, including developers, designers, manufacturers, distributors, and builders to ensure buildings are safe and meet the requirements of the BCA
• mandatory continued professional development
• designs should be required to specify the proposed compliance pathway for key building elements
• builders to stop work and seek professional design input when faced with inadequate designs
• occupancy permits to confirm that the completed building work complies with the approved building permit.

What does this mean for you?

Professionals involved in building design hold a critical role in ensuring that construction is safe and in compliance with the NCC. However many have fallen short in properly carrying out their role. The CSV Report serves as a timely reminder to remain vigilant when providing design services to ensure that product specifications, especially potentially dangerous materials, comply with the performance requirements under the NCC.

Builders should also ensure that building designs are compliant with the NCC and should follow up with building designers where there is a lack of appropriate specification, or where specification of a product appear non-compliant.

If you need assistance with managing any disputes or legal risks related to cladding, please get in touch with our team below.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Kyle Siebel

Valentina Hanna

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