In Brief: The Victorian cladding audit extends to school buildings. Schools may receive Building Orders. Funds may be available to rectify cladding
The Victorian Cladding Taskforce was established in July 2017 to address concerns about combustible cladding on buildings in Victoria.
The Victorian Building Authority (VBA) later commenced a state-wide audit of buildings constructed after March 1997 to identify buildings with 'non-compliant' cladding.
Although mainly focussed on apartment buildings, the audit also extends to:
- Class 3 buildings of three or more storeys. Class 3 buildings are residential buildings other than houses or apartments and include, boarding housing or other student accommodation and staff housing; and
- Class 9 buildings of two or more storeys. Class 9 buildings are buildings of a public nature and include, school education buildings and performance buildings.
Audit results are assessed by expert panels, and if appropriate, are shared with Municipal Building Surveyors (MBS) who are empowered to issue Building Notices requiring owners to 'show cause' why combustible cladding should not be removed from a building. An MBS also has power to give mandatory Orders including in response to an unsatisfactory response to a Building Notice, such as to carry out works or to prohibit occupation of a building.
For "highest-risk" buildings, the VBA may by Ministerial Declaration step into the role of the MBS and issue Building Notices/Orders directly to owners. The VBA has now been declared the MBS for 328 buildings, including some buildings of a public nature and schools.
The audit targets materials that do not meet the Building Code of Australia's Performance Requirements. Two prominent examples of cladding materials whose non-compliant use may not meet such Performance Requirements are:
- Aluminium Composite Panels (ACP) containing a core of 30% polyethylene or more; and
- Expanded Polystyrene (EPS) - which is given a render finish.
There are many different kinds of ACPs, all of which comprise two thin aluminium sheets enclosing a core. It is important to note that the composition of the core of some ACPs is not combustible.
The use of cladding materials has been widespread due to being lightweight, easy to install, insulating and cost-effective. Their composition can make them highly combustible and their use non-compliant. However, the presence of combustible materials on a building does not of itself mean that that building element is non-compliant. Further enquiries are required in order to characterise its status properly.
Unfortunately, cladding type can be difficult to identify after installation, often requiring expert assistance and invasive testing as a first step in the necessary enquiries.
Rectification and funding
If a building requires rectification works to achieve compliance (following upon a Building Order or otherwise), the extent of necessary works will vary case by case depending on factors including the extent and location of combustible cladding, and the nature of other building elements and characteristics. Due to this, the costs to rectify non-compliant cladding installations will vary. In 2018-19, the Victorian School Building Authority spent some $11 million rectifying 16 government school buildings clad with combustible materials.
Funding may be available to assist schools pursuing rectification works.
There are three remaining funding rounds to take place for the Victorian Government's $400 million Non-Government Schools Capital Fund, available to Catholic and independent schools for works including the planned removal of cladding.
Separately, an announced Victorian Government fund of $600 million to rectify buildings clad with 'high-risk' non-compliant cladding (presently thought to be around 500) may benefit schools in that category with the Building Amendment (Cladding Rectification) Act 2019 coming into force on 19 November 2019. Although apartment buildings are the main focus for the $600m fund, schools may find themselves eligible for financial assistance for rectification works. Supporting that fund (and potentially the Non-Government Schools Capital Fund) is a mechanism by which Government can "step in" and pursue the legal rights that owners may have against wrongdoers responsible for the non-compliant cladding on their buildings.
Where financial assistance is not available or is insufficient, and if engagement with project participants and/or experts to investigate the extent of non-compliance and possible rectification approaches does not produce a positive outcome, schools may need to pursue wrongdoers via legal action if seeking recovery of rectification costs incurred.
In the meantime, schools should be aware of the strict deadlines for response to Building Notices, and should seek advice before responding to any such Building Notice.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.