Cladding on fire, high rise with cracks: What’s next for building industry regulation?

Since the Grenfell Tower tragedy, defects in high rise residential buildings have grabbed headlines, concerned the public and drawn the attention of regulators. While fire spread strikes a particular fear, the threat of structural failure has also captivated us, with the evacuation of a residential high rise building unprecedented in our industry.

It was in 2017 in the wake of Grenfell, that the Buildings Ministers Forum commissioned a report on the compliance and enforcement systems for the building and construction industry: “Building Confidence: Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia”.

The report’s authors, Professor Peter Shergold and Bronwyn Weir released their findings in February 2018, among them that greater focus is required to enhance public trust through improvements in areas such as:

  • roles, responsibilities and accountabilities of parties
  • education and training
  • licensing and accreditation
  • quality and assurance
  • inspection regimes
  • auditing and enforcement practices.

The report provided 24 recommendations and we have highlighted a few of the recommendations below:

  • introducing a nationally consistent registration system for certain categories of building practitioners and compulsory Continuing Professional Development
  • increased levels of prescribed requirements for the registration of building practitioners
  • creating a central database in each jurisdiction to provide information on regulatory activities and to make the work of the BMF accessible by the owners or purchasers of buildings
  • imposing a duty on design practitioners to prepare documentation to demonstrate that the proposed building will comply with the NCC, including an independent third party review
  • maintaining a comprehensive digital building manual for Commercial buildings to be passed on to successive owners.

A year on and the NSW Government has responded to the report stating that the following major reforms will be implemented:

  • appointment of a Building Commissioner
  • an overhaul of compliance reporting
  • implementation of a registration scheme for building practitioners with reporting obligations
  • ensuring that there is an industry wide duty of care to homeowners.

With the response expressed at the level of aspirational goals, an extensive period of industry and community stakeholder consultation is expected.

It was a busy month for report releases in NSW as February 2019 also saw the release of the Opal Tower Final Report commissioned by the NSW Minister for Planning. The Terms of Reference for the report included not only to identify the cause of the damage but also to make recommendations for the avoidance of this type of damage in future.

On the cause of the damage, the report found the as-constructed hob beam/panel assembly was under designed according to the NCC and the Australian Standard for Concrete Structures (AS3600). The report also noted a number of construction and material deficiencies.

In addressing how to avoid this type of incident in the future, the report recommended:

  • the creation of a government Registered Engineers database developed in partnership with an appropriate professional body.
  • independent third party checking and certification of engineering designs and subsequent changes to the design of critical elements by a Registered Engineer, including confirmation of what are the critical elements for all major construction projects.
  • critical stage, on-site checking and certification by a Registered Engineer that construction is as per the design for all major construction projects. All changes to identified critical structural elements that are proposed and made during construction should also be certified by an independent Registered Engineer.
  • an online database be created, where all certifications may be viewed by a broad range of stakeholders including owners and prospective owners; before, during and after construction. The aim is to increase transparency of the approval and certification process.
  • a Building Structure Review Board be formed, with the major purpose being to establish and publish the facts relating to structural damage of buildings arising from design and construction, investigate their causes and to recommend changes to Codes and Regulations where appropriate.

These recommendations focus on increased regulation of the structural design and certification process. Whilst they focus on one (albeit one fundamental) aspect of the design and construction process they are consistent with and in some instances endorse and develop the Shergold Weir recommendations.

We await with interest what form these reforms shall take and the detail of how they will be effected.

Editorial: Christine Jones & Andrew Morello

In the media

'The industry is falling apart': New cladding alert pushes crisis into the suburbs Thousands more properties could now be caught up in Australia's cladding crisis, as authorities issue an alert warning against the use of another nine types of the material, including cladding commonly used on single-storey suburban homes (21 February 2019). More...

When your home is a fire risk but you can’t afford to fix it There are hundreds of buildings around Australia covered in combustible cladding, but fixing the problem is expensive and the only government scheme is yet to hand out a single loan (16 February 2019). More...

Litigation funder IMF Bentham gets behind Australia’s first combustible cladding class action It’s the first time a combustible cladding class action has been launched in Australia and is being backed by global litigation funder IMF Bentham. Compensation is for people who have interests in buildings in Australia that have certain types of aluminium composite panel cladding with a combustible core comprised substantially of polyethylene (PE) (15 February 2019). More...

We need all hands on deck to restore trust in the building industry These cladding events have created a distinct feeling of unease among building professionals, industry members, government bodies and the Australian public. Outrage continues over how these high-rise residential buildings were ever allowed to be clad in such easily flammable materials. It is an oversight on the part of the building and construction industry and Australian governments (14 February 2019). More...

The case for passive homes as a national standard: Opinion The energy policies and building standards that govern our homes need to keep us comfortable and limit global warming. Passive house, a rigorous building standard for ultra-low energy buildings, ticks these boxes (14 February 2019). More...

Ministers back combustible cladding ban Building ministers at federal and state levels have agreed in principle to ban “unsafe” combustible cladding materials in new construction projects. The ministers also agreed on the need to enforce the National Construction Code, which bars the use of combustible cladding on buildings three storeys or higher (11 February 2019). More...

Opal report clarifies rare occurrence but structural design consistency is essential The final report on structural failures in the Opal Tower by three Professors of Engineering states that the failures were a rare occurrence says the Urban Taskforce. The final report on the structural failures on the Opal Tower focuses on engineering design errors as the primary cause (22 February 2019). More...

Hundreds still homeless as report finds Opal Tower beams 'burst' under pressure With 259 units of the 392-unit apartment complex still empty following its evacuation, the NSW Government releases its final report into the Opal Tower cracks, finding that more work needs to be done (21 February 2019). More...

Biggest overhaul of building laws in New South Wales history The NSW Government will appoint a Building Commissioner to act as the consolidated building regulator in NSW, including with responsibility for licensing and auditing practitioners. The plan will also clarify the law to ensure there is an industry-wide duty of care to homeowners and owners corporations so that they have the right to compensation where a building practitioner has been negligent (11 February 2019). More...

Registration of all building practitioners required in New South Wales to lift confidence The announcement by the NSW Government that they will register building practitioners will lift confidence in the building industry say the Urban Taskforce. Most builders, developers and design consultants involved in high rise buildings in New South Wales perform at a high professional level (11 February 2019). More...

Published

AIBS Member Communique - Building Ministers Forum At the conclusion of each Building Ministers Forum (BMF), a communique is issued on behalf of the Chair and the State & Territory Ministers. The communique from this BMF can be found here (11 February 2019).

In practice and courts

AIBS Statement – PI insurance availability AIBS has released a statement regarding the availability of PI insurance for building surveyors in Australia (21 February 2019). More...

ABCB Advice: CodeMark Certificates withdrawn Certificates of Conformity have recently been withdrawn by the relevant Certification Body. Withdrawal of these Certificates of Conformity means that they are no longer current and are therefore not recognised as a form of evidence of suitability under NCC Volume One A2.2 and NCC Volume Two 1.2.2, as implemented through State and Territory legislation (20 February 2019). More...

ABCB reminder: NCC 2019 All three volumes of the NCC 2019 preview, as well as The Guide to Volume One, are now available to download. To get your copy, log into your NCC account through the NCC Online or create your NCC account and login to access. NCC 2019 will be adopted from 1 May 2019. If you’d like an overview of the key changes and dates, please check out the latest ABCB Connect article.

NSW Fair Trading: Changes to building laws In response to the Building Confidence Report, the Government will support the majority of recommendations, including requiring that: builders declare that buildings have been built according to their plans, and requiring building designers and builders to be registered for this purpose (19 February 2019. More...

Public Warning – Do not deal with CDA Fencing Pty Ltd and Matthew Geoffrey Rixon NSW Fair Trading Commissioner, Rose Webb, has issued a public warning advising consumers not to deal with CDA Fencing Pty Ltd and Matthew Geoffrey Rixon – or his suspected aliases “Matthew Douglas” and “Matt Douglas”. Fair Trading reminds consumers to only deal with licensed traders if the work requires a licence. Licences can be verified on Fair Trading’s website (22 February 2019). More...

New dates for Environmental Planning & Assessment Act updates Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans.

Cases

New South Wales

The Sydney Building Company Limited v Sinac [2019] NSWCATAP 43APPEAL – Determination of jurisdiction below – appeal form interlocutory decision. HOME BUILDING – Time by which application must be commenced – completion of works.

Bulloch v Linden Building Services Pty Ltd t/as Linden Constructions [2019] NSWCATAP 42APPEAL – Costs – substantive proceedings settled before hearing – discretion to order costs – whether one party was almost certain to have succeeded if heard.

Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40APPEAL – Contract – identity of contracting builder – Home Building Act 1989 – error of law

Hamed v Borg [2019] NSWCATAP 38APPEAL – Home building – where parties contracted for construction of granny flat – where builder installed water tank on pavers – where tank fell over causing damage – whether Tribunal’s decision that builder not responsible for collapse of tank was legally unreasonable – whether decision was against the weight of evidence due to the Tribunal’s failure to give a plumber’s report any weight – whether Tribunal failed to have regard to relevant considerations or critical evidence when failing to consider plans – whether appellant should be permitted to raise a new ground of appeal at the hearing.

Legislation

New South Wales

Regulations and other miscellaneous instruments

Home Building Amendment (Miscellaneous) Regulation 2019 (2019-76) — published LW 15 February 2019