Following the Grenfell Tower fire in June 2017, the New South Wales Government has taken a number of steps to raise awareness of the fire safety issues associated with external wall construction and the use of certain aluminium composite panels. It has put in place various initiatives intended to keep residents safer in their homes. These initiatives have regulatory implications for the building and construction industry, as well as certifying authorities involved in the construction process.

We set out below an overview of the main developments in New South Wales. Other States and Territories have also taken steps to address concerns with external wall cladding and it will be interesting to see whether a national approach to cladding issues emerges.

1. Proposed New South Wales Government fire safety reforms

On 28 July 2017, the New South Wales Minister for Better Regulation, Matt Kean announced an extensive 10 point plan for fire safety reforms in New South Wales, as follows:

  1. A comprehensive building product safety scheme that would prevent the use of dangerous products on buildings.

  2. Identifying buildings that might have aluminium or other cladding.

  3. Writing to the building / strata managers or owners of those buildings to encourage them to inspect the cladding and installation of cladding, if it exists.

  4. NSW Fire and Rescue visiting all buildings on the list, as part of a fire safety education program. This will allow them to gather information they need to prepare for a potential fire at that building, and provide additional information to building owners.

  5. Creating a new fire safety declaration that will require high rise residential buildings to inform state and local governments as well as NSW Fire and Rescue if their building has cladding on it.

  6. Expediting reforms to toughen up the regulation of building certifiers.

  7. Reforms to create an industry based accreditation that will ensure only skilled and experienced people can do fire safety inspections.

  8. Establishing a whole of government taskforce that will coordinate and roll out the reforms.

  9. Instructing all government departments to audit their buildings and determine if they have aluminium cladding, with an initial focus on social housing.

  10. Writing to local councils to follow up on correspondence they received from the state government in 2016, after Melbourne’s Lacrosse Tower fire in 2014.

As each of these initiatives is rolled out, industry participants should be aware that regulatory changes may affect their ongoing responsibilities and potential liability exposure.

2. Establishment of Fire Safety and External Wall Cladding Taskforce

On 16 June 2017, an inter-agency Fire Safety and External Wall Cladding Taskforce was established by the New South Wales Government to prioritise and address fire safety requirements for residential buildings (including external wall cladding). The taskforce is working together with the Federal Government, local councils and industry to implement reforms that will further strengthen the protections in place for fire safety, focussing firstly on residential buildings.

3. Audit by New South Wales Government

The New South Wales Government has now conducted an audit of more than 178,000 building projects across the state and had identified 1,011 buildings which may have dangerous cladding. Following the audit, the New South Wales Government requested that owners of properties identified in the audit as potentially having dangerous cladding, review the materials used and make any changes necessary to ensure compliance with the BCA.

4. Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017

In addition to the 10 point plan, the New South Wales Government has also enacted the Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 (NSW), which came into effect on 1 October 2017. The purpose of the new regulation is to implement some of the recommendations made as a result of the independent statutory review of the Building Professionals Act 2005 (NSW). The review found a number of issues with the New South Wales building regulation and certification system and made a number of recommendations to strengthen and simplify the system. We note that the new regulation does not specifically address cladding issues.