Queensland Member Advice | Legislative Changes - Non-Complying Cladding

27 July 2018

On Friday 27 July the Queensland Government announced that the Building and Other Legislation (Cladding) Amendment Regulation 2018, which amends the Building Regulation 2006 and State Penalties Enforcement Regulation 2014, would commence 1 October 2018.

This is available at https://www.legislation.qld.gov.au/view/html/asmade/sl-2018-0110

We have been advised that you please note the following timeframes outlined in the regulation:

Commencement – 1 October 2018
Completion of part 1 – 29 March 2019
Completion of part 2 – 29 May 2019
Engagement of fire engineer – 27 August 2019
Completion of part 3 – 3 May 2021

Information to support the regulation is being finalised and will be available through the HPW website.

Representatives from AIBS were invited to provide feedback into the draft regulation. Whilst applauding the proactive approach the Qld Government has demonstrated with respect to the issue of non-combustible cladding, AIBS did not support the Building and Other Legislation (Cladding) Regulation in its draft form.

Concerns with the draft regulations included:

  1. AIBS can see a significant unintended consequence in identifying buildings with combustible cladding and have a risk assessment authored by a fire engineer published/affixed to the building as is proposed by the Regulations. The Regulations are silent as to what the process with respect to identified ‘at risk’ buildings is once this fire engineering risk assessment has been made. AIBS is concerned that the logical consequence of this process is that the building will be rectified based on the fire engineers report. Subsequent to this, it is not unreasonable to expect that claims for compensation will arise based on the costs of rectification, which will generally fall back to the Building Certifier who may have in all good faith approved the building in accordance with the interpretation of the code at the time of approval.

  2. AIBS identified issues with definitions of person included as “Building Industry Professionals” as contained within the regulations, specifically that there is no requirement to hold PI insurance for some of the professions titles listed as Building Industry Professionals. Further, even if PI insurance is not required, in the current insurance climate there will possibly be no certifiers or fire engineers available due to the propensity now to exclude cladding works from PI. 

  3. Further, AIBS is concerned that the definition of “Building Industry Professionals” is broad and includes individuals such as structural and civil engineers who may lack the requisite knowledge in interpreting and applying the Building Code of Australia.

  4. AIBS strongly believes that the identification process should include Queensland Fire and Emergency Services as an advice agency. This is analogous for certain performance solutions that involve fire safety systems. The inclusion of independent third party oversight is an important consideration as the Regulations adopt a broad risk based approach to building safety. Our position is that assessment and identification of buildings where cladding is an issue should be done in a way that is transparent and repeatable.  It should not be done by the building owners or the person they employ to do this work.  There is too much risk of understatement of the risks and insufficient transparency. The regulations provide considerable latitude in the acceptable risk threshold for the fire engineered solution, but in relation to the information provided to date do not include an ultimate bench mark of community acceptable risk.

Whilst it was pleasing to note that some AIBS concerns with respect to the draft Regulations were considered and adopted by the Department, on balance AIBS remains of the opinion that in a number of respects the Building and Other Legislation (Cladding) Amendment Regulation 2018 lacks certainty and may create liabilities to a range of building professionals who had acted in good faith at the time of the construction of the affect buildings. For this reason AIBS did not support the introduction of the Building and Other Legislation (Cladding) Amendment Regulation 2018.

AIBS will however continue to advocate on behalf of members in relation to this and other important issues.