Ben Robertson, Special Counsel at Carroll and O’Dea Lawyers, reminds readers of the looming Friday, 22 February deadline for applicable building owners and strata corporations in NSW to register their building if it contains combustible cladding materials.
On a related topic, Carroll & O’Dea Partner Patricia Monemvasitis will chair the New Laws and Practical Leasing Strategies Session at the 6th Annual Retail and Commercial Leasing Review Conference in March.
Strata corporations and certain building owners have 10 days to register with the NSW Government if their building contains combustible cladding materials in either:
– a metal composite panel system; or
– an insulated cladding system.
The registration deadline is the 22nd February 2019 and relates to a wide range of materials including:
– Any cladding system comprising metal composite panels such as aluminium, zinc or copper sandwich panels
– Any insulated cladding system including a system comprising polystyrene, polyurethane or polysiocyanurate. This can include rendered polystyrene foam panels used as architectural detail.
The buildings which must be registered include the following buildings that are 2 storeys or more:
– Apartment buildings;
– Boarding houses, hostels, backpackers accommodation, or residential parts of a hotel, motel, school or detention centre;
– Hospitals, laboratories and health care buildings;
– Assembly buildings, such as theatres, cinemas, universities, child-care centres, night clubs, schools (including any trade workshop or laboratory in a primary or secondary school) and churches; and
– Aged care buildings
The requirement to register with the NSW Government follows the introduction of a NSW-wide ban on certain cladding materials following the tragic Grenfell fire in London in 2017.
Under the new State laws, failure to register a building containing combustible cladding is $1500 for individuals and $3000 for companies.
If a building owner fails to observe a direction to register by their local Council, Fire NSW, the Department of Planning or the Minister, then the fine can be doubled.
Ben Robertson said: “Time is running out for building owners and those holding positions on strata corporations to comply or face significant potential penalties. Any person responsible for the management of any commercial or residential building should be seeking immediate inspections to determine if their building contains any declared product, if they do not know so already.
“The requirement to self report affects a number of different types of buildings that are two storeys and over including apartment buildings, aged care facilities, hotels, student accommodation, cinemas, hospitals, day surgeries, churches, public meeting places and the like.
“The self-reporting of buildings with combustible cladding follows a ban issued in August 2018 of any cladding with a core comprising more than 30% polyethylene. That state-wide prohibition was retrospective and applied to certain multi-storey residential and commercial premises where the banned material is used in external cladding, external walls, external insulation, facades or rendered finishes.
“Owners and strata corporations of affected buildings containing cladding with a core of more than 30% polyethylene can now be issued rectification orders under the Building Products (Safety) Act requiring them to undertake remediation and removal work. If rectification orders are not acted upon corporations and strata body directors can face significant fines and in the case of individuals, imprisonment.
“Using a product after it has been banned or failing to act on a building product rectification order may result in fines for corporations of up to $1.1 million for a corporation; with $110,000 continuing per day for each day the offence continues. For individuals, fines of up to $220,000 or imprisonment for 2 years or both (with $44,000 continuing per day for each day the offence continues), apply.
“Given the significant implications of the new bans on combustible cladding – and the clear onus of responsibility placed on building owners – it is important that building owners seek legal advice as to their potential liability and how they can comply with these new measures,” he concluded.
Before joining Carroll and O’Dea in 2016, Ben Robertson practiced in various private practice firms and was employed as General Counsel and Company Secretary at a leading project home building company. Acting for builders, subcontractors, strata schemes and home owners has seen Ben work across a diverse range of practice areas in the building/construction sphere, including: Providing contract advice for construction tenders, subcontracts, supply agreements, licensing agreements, put and call option agreements, superintendent agreements, rectification works contracts for strata schemes; Dispute resolution during construction phase across a range of projects; Post construction building disputes including representing clients in building defect matters in the Supreme Court NSW and NSW Civil and Administrative Tribunal; Progress claims utilising the Building and Construction Industry Security of Payment Act 1999 (NSW); Advising on Intellectual Property disputes; Providing advice on advertising materials and disclaimers for Australian Consumer Law compliance; Providing advice on Creditor’s Statutory Demands. In addition Ben has acted for strata schemes in levy recovery matters, appearing in contested Local Court hearings and bankruptcy applications in the Federal Circuit Court of Australia. Contact Ben at [email protected] or connect via LinkedIn