New Cladding Laws – A Guide for Building Owners

The Building and Other Legislation (Cladding) Amendment Regulation 2018 introduces a new regime for identifying and assessing the risk of cladding products on privately owned buildings in Queensland. The regulation is the Queensland government’s response to the Grenfell Tower fire and the subsequent work of the Queensland Non-Conforming Building Products Audit Taskforce.

Who is affected?

The regulation applies to private owners (all entities other than the Commonwealth or a State government or their instrumentalities) of buildings:

• in any of classes 2 to 9 of a type A or type B construction (most habitable buildings other than detached houses and town houses separated by fire-resistant walls); and
• approved under a development approval issued between 1 January 1994 and 30 September 2018 (including those where a development approval has been granted to alter the cladding on the building in that period).

For buildings comprising more than one lot, the body corporate is regarded as the owner.

What is required?

Owners of these buildings are required to follow the staged process in the regulation by completing details and lodging documents on the Department’s online system at www.saferbuildings.qld.gov.au within the specified compliance periods:

The compliance periods may be extended with the approval of the QBCC. Applications for extensions must be made at least 28 days before the relevant compliance period expires and may be granted where the QBCC considers an extension is reasonable in the circumstances.

The QBCC may also reduce the compliance periods where it considers there is an immediate risk.

Owners are required to keep copies of the checklists and relevant plans and documents for at least 7 years after lodgement with the QBCC.

Sale of buildings

From 1 October 2018, an owner who sells a building prior to compliance with one or more of the above steps must, before settlement:

• give the purchaser a notice in the approved form about the extent to which the seller has complied with its obligations and copies of all documents; and
• give a copy of the notice to the QBCC.

The required form of notice can be found here.

The purchaser becomes responsible for compliance with the regulation from settlement.

Owners of apartments will also need to carefully consider whether they should disclose the existence of combustible cladding to prospective buyers prior to signing a contract to avoid a claim for breach of warranty (or possibly termination of the contract) under s223 of the Body Corporate and Community Management Act 1997.[i] Whether to disclose will depend on the details disclosed in the body corporate records, the actual knowledge of the seller, what actions have been taken by the body corporate and the potential costs involved

Notification requirements for owners of affected private buildings

Where the building fire safety risk assessment states that the building is an affected private building the owner is required to display a notice in a conspicuous position at the entrance to the building and near the fire indicator panel within 60 business days of receiving the fire safety risk assessment.

In addition, if the owner is the body corporate for a building, it is required to give a copy of the fire safety risk assessment to each owner or lessee within 60 business days of receiving the fire safety risk assessment. Where a lot is sold or leased in the period of 7 years after receipt of the fire safety risk assessment, the body corporate must give each new owner and lessee a copy of the fire safety risk assessment within 60 business days of the person’s name being entered on the body corporate’s roll.

These obligations cease if the combustible cladding is removed from the building or a private certifier gives the owner a notice stating that the combustible cladding complies with the BCA.

Owners of buildings with combustible cladding will also need to consider the implications under their insurance policies.

[i] Section 223 of the Body Corporate and Community Management Act 1997 contains warranties by sellers implied in all contracts for the sale of lots in community titles schemes including that there are no defects in the common property and no actual, contingent or expected liabilities of the body corporate that are not part of the body corporate’s normal operating expenses either known to the seller or disclosed in the records of the body corporate.

Authored by:
Matthew Raven, Partner
Kay Guo, Solicitor