Cladding Ban in NSW

 

On 10 August 2018, the NSW Commissioner for Fair Trading issued a Building Product Use Ban in respect to aluminium composite panels (ACP) under the Building Products (Safety) Act 2017 (NSW) (the Act).

 The Product Ban prohibits the use of ACP with a core comprised of greater than 30% polyethylene in any external cladding, external wall, external insulation, façade or rendered finish. The ban commenced on the 15th of August 2018

 The Product Ban applies to the following classes of buildings:

 

Type

Class

Examples

Type A Construction

Class 2, 3 and 9 buildings with a rise in storeys of three or more

units, residential buildings & public buildings

Type A Construction

Class 5, 6, 7 and 8 buildings with a rise in storeys of four or more

office buildings, shops or retail, car parks & laboratories

Type B Construction

Class 2, 3, and 9 buildings with a rise in storeys of two or more

as above

Type B Construction

Class 5, 6, 7 and 8 buildings with a rise in storeys of three or more

as above

 

There are exceptions to the Product Ban are outlined below:

  1. The building product is not deemed combustible by passing testing in accordance with AS1530.1 testing; or
  2. The building product and the proposed external wall assembly has successfully passed a test for both the external wall fire spread and the building-to-building fire spread classifications in accordance with AS 5113. Further, the building proponent (which includes the owner) issues a statutory declaration that the building product will be installed in a manner identical to that tested; and
  3. The AS 1530 and AS5113 tests have been carried out by an Accredited Testing Laboratory and are dated after 1 July 2017.

 The ban is retrospective, therefore, the Product Ban will apply to buildings where ACP is already installed where the exceptions do not apply. It does not matter that the ACP was installed before the Product Ban came into force.

However, the Commissioner has indicated in the guidance notes issued with the Product Ban, that this does not automatically mean that all affected buildings must be rectified.

Under the Act, the Commissioner can issue an affected building notice identifying that the building may be impacted by the Product Ban and identifying particulars of any safety risks. The affected building notice is given to owners, occupiers, the City Council and Fire and Rescue NSW.

Also under the Act, the relevant enforcement authority can make a building product rectification order for an affected building. That order can require an owner to:

  1. eliminate or minimise a safety risk posed by the use in the building of ACP the subject of the Product Ban;
  2. remediate or restore the building following the elimination or minimisation of the safety risk.

The Department of Planning and Environment has released a draft Environmental Planning and Assessment Amendment (Identification of Buildings with Combustible Cladding) Regulation 2017 (the draft Regulation) that would require owners of buildings with combustible external wall cladding to register the building with the government.

The draft Regulation is currently being finalised. More details about the draft Regulation are available on the Department of Planning and Environment's website.

Click here to see the Department of Fair Trading guidelines on the ban.