As foreshadowed in our May 2020 article, the Victorian Planning Minister has now prohibited the use of certain external wall cladding products in the construction of multi-storey buildings.

The declaration (‘Declaration’) was made under s 192B of the Building Act 1993 (Vic) (‘Building Act’) on 28 December 2020 and published in the Government Gazette on 13 January 2021. Section 192B gives the Minister power to ban certain cladding products that the Minister considers are likely to cause a risk of serious injury, death or severe property damage.

The Declaration will come into force on 1 February 2021, with prospective effect. Under s 192B(2) of the Building Act, the Declaration does not apply to any building work ‘under a permit in respect of which the application for the permit was made to the relevant building surveyor before the declaration took effect’. In other words, the prohibition does not apply retrospectively to products already installed, approved for installation, or included in a permit application prior to 1 February 2021.

The Declaration replaces the earlier Minister’s Guideline, ‘MG-14: Issue of Building Permits where building work involves the use of cladding products’. The Declaration goes further than the previous guideline: it now applies to any person involved in the carrying out of building work (rather than just building surveyors), has mandatory effect and prohibits a wider category of cladding products.

Scope of Declaration

The Declaration prohibits the use of:

  • aluminium composite panels with a core of less than 93% inert mineral filler (inert content) by mass in external cladding as part of a wall system; and
  • expanded polystyrene products used in an external insulation and finish (rendered) wall system.

in the course of any building work for buildings of Type A or Type B construction. Type A and B buildings, as defined in the Building of Code of Australia, include residential buildings at least two storeys high and commercial buildings at least three storeys high.

Reasons for the Prohibition

The Minister has determined that these cladding products pose a sufficiently high risk when used on multi-storey buildings as to warrant their prohibition.

In particular, the Declaration notes that these categories of products do not meet the deemed-to-satisfy provisions of the Building Code, and while they have been used as part of a performance-based solution in recent years, experience has shown that:

  • validation of such performance solutions can be difficult due to lack of documentation;
  • performance solutions have been misused; and
  • on-site construction standards do not always ensure that the building meets the standard intended during the design process.

The Declaration also refers to commentary from building professionals both within Australia and internationally, who have questioned the effectiveness of current building regulations to ensure that performance solutions using these products have full regard to all relevant risks, are in the best interests of the public and occupants, and deliver a building which achieves the level of performance expected of current and future owners.

As a result of this Declaration, the performance solution pathway for these products has been removed and Victoria has some of the strictest standards in Australia for the use of external cladding products.