With new legislation to crack down on non-complaint buildings across Queensland, it is critical to check if your building is at risk, writes Commercial Litigation Senior Associate, Charles Lethbridge.
As a blaze ripped through the Neo200 tower early on Monday, February 4, dozens of residents in the building in Melbourne’s CBD scrambled to save their belongings and pets before reaching safety.
It is thought a discarded cigarette was responsible for igniting combustible cladding in the building’s exterior causing a fire to tear through five balconies in a matter of minutes and then destroy 14 apartments beyond repair.
The highly flammable wall was the same as used in London’s deadly Grenfell Tower, which burned in 2017 killing 72 people, but deemed ‘safe to occupy’ after an audit prompted by the Lacrosse Tower fire in Docklands in 2014.
In January 2019, Lacrosse Tower owners were paid $5.7 million in damages after a similar fire caused by a cigarette engulfed their units in flames.
Clearly, the risk of flammable cladding needed to be addressed in Australia, so to avoid a deadly disaster, state building regulators have cracked down on non-compliance in buildings.
The Queensland Government enacted a new regulation on October 1 with a view to mitigate the risk of non-compliant cladding, with a staggering 12,000 buildings expected to be captured by the Building and Other Legislation (Cladding) Amendment Regulation 2018.
Private owners of multi-storey buildings which were built, or have been modified since 1994, must urgently complete Stage 1 of the Safer Buildings checklist by 29 March, 2019.
What buildings must comply with the new laws?
For a building to be assessed, it must meet each of the following criteria’s as defined under the regulation as “Private Building”:
- It must be privately owned;
- It must be a class 2 to 9 building;
- It must be a ‘type A or B construction’; and
- built, or had the cladding altered, after 1 January 1994 but before 1 October 2018.
Does my building fit the criteria?
QBCC has provided a simple diagram to determine whether your building fits the criteria.
The regulations identify which buildings are captured for assessment and has established an online system to register and complete processes.
The regulation has been staged as follows:
Stages & Compliance Periods
| Stage | Requirement | Compliance Period End Date | Extensions | Penalties |
| 1 – Registering and giving completed checklist to QBCC (part 1) | Owners of Private Buildings are required to:
| 29 March 2019 | Application for extending the compliance period has now expired (1 March 2019) | 20 penalty units |
| 2- Building industry professional | After Stage 1, if QBCC identify the building as potentially having combustible cladding, the owner must provide to QBCC
**If owner knows building has combustible cladding, they can skip stage 2 by giving notice to QBCC online and move to stage 3 – engage a Fire Engineer. | 29 May 2019 | Any application to extend compliance must be lodged with the QBCC at least 28 days before the Compliance Period | 20 penalty units |
| 3- Fire risk assessment – giving fire engineer details to QBCC |
| 27 August 2019 | Any application to extend compliance must be lodged with the QBCC at least 28 days before the Compliance Period | 50 Penalty units |
| 4 – Building fire safety risk assessment & fire engineer statement – giving completed checklist and related assessment and statement to QBCC | Within compliance period – provide to QBCC
| 3 May 2021 | Any application to extend compliance must be lodged with the QBCC at least 28 days before the Compliance Period | 165 penalty units |
Is your building non-compliant?
If your building has non-conforming cladding you must:
- Display an affected private building notice
- Give to every lot owner and tenant a copy of the building fire safety risk assessment
Are you a body corporate? You must comply with the regulations as you are treated as the owner.
Bodies Corporates are treated as owners and must comply with the above stages.
Are you buying a unit? Do your due diligence to check if your building is non-complaint
Section 223 of the Body Corporate and Community Management Act 1997 provides for implied warranties in a contract for sale of a lot – this includes:
- There are no latent or patent defects in the common property other than defects arising through fair wear and tear or defects disclosed in the contract
- The body corporate records do not disclose any defects
If you are purchasing a unit in an affected building, you could be faced with special levies to rectify the non-conforming cladding.
As a prospective unit owner, it is important to be hyper-vigilant and have your property lawyer obtain body corporate searches to identify potential liability and future special levies and to ascertain if the Body Corporate is complying with its obligations under the new regulation.
