Apartment owners battling to have combustible cladding replaced on their buildings have won a landmark legal victory – giving hope to the thousands more facing similar dangers, writes Sue Williams.
And in a significant although not directly related move, the NSW Government has established an expert panel of building and construction specialists to help support the removal of unsafe cladding across the state.
In an Australian first, a major building company that installed timber-PVC Biowood cladding on four apartment multi-storey blocks in Ryde has lost its appeal against being forced to rectify the work.
Further, if it doesn’t reach agreement with the owners on the timetable for the remediation, a date will be set for them by the state authorities.
“This is a precedent for Australia,” said the victorious owners’ lawyer Faiyaaz Shafiq of JS Mueller & Co Lawyers. “This is the first reported case where a court or tribunal has upheld a finding that a particular type of cladding is combustible.
“The outcome of the case represents a win for owners’ corporations and sends another timely warning to builders and developers that use of combustible cladding is fraught with risk and carries with it substantial consequences.”
Concern about combustible panels follows the catastrophic 2017 blaze at London’s Grenfell Tower in which 72 people died after fire raced up the building fuelled by aluminium composite cladding. In Melbourne, a cladding fire at the Lacrosse building in 2014 saw owners win $5.7 million in damages.
Currently, there are two class actions underway in Australia against the manufacturers of cladding, and a call went out earlier this week from the apartment owners peak body, the Owners Corporation Network, for other affected strata schemes to join.
Pleased and relieved
In the meantime, in this latest case, Lindsay Spencer, chair of the owners corporation of The Gardens at Putney Hill, developed by Frasers Property and built by Taylor Construction Group, said the owners and residents of the 148 apartments of the scheme were “pleased and relieved” at the verdict.
“They [Taylor and Frasers] appealed the original decision that they should replace the panels and now they have lost, we hope it ends here,” he said. “No one wants to live with this kind of risk to their safety.
“We hope this decision now makes the situation clearer for others living with combustible cladding. Others builders have to look at it, and deal with it.”
The Appeals Panel of the New South Wales Civil and Administrative Tribunal (NCAT) threw out an appeal by Taylor Constructions and Frasers Putney against an NCAT decision last year that the Biowood cladding was combustible, posed an undue risk of fire spreading and should be replaced.
It ruled that any fire spread via the external walls where the Biowood cladding is located could enter the building from the façade by windows and balconies from level to level.
Meanwhile Minister for Better Regulation and Innovation, Kevin Anderson, said the new Cladding Product Safety Panel will assist the NSW Building Commissioner, building owners, councils and other regulators by identifying, and where necessary testing, the safest ways to remove and replace high-risk cladding.
“The panel will provide expert advice on how to undertake rectification work where unsafe cladding has been identified,” Mr Anderson said.
“It will also, for the first time, provide consistent and clear advice on what products can safely be used when replacing combustible cladding.
“We know it can be confusing for owners and insurers who are sourcing products to replacing unsafe cladding. The panel will provide details of which products and installation systems can be used safely and comply with the Building Code of Australia, relevant Australian Standards and insurance requirements.”
The eight-member panel will be chaired by Professor Mark Hoffman, who led the investigation into building failures at Mascot and Opal towers. It consists of members with expertise in building and construction, product testing, building surveying, certification and fire safety engineering.
In the Putney Gardens case, there is one more appeal option against the decision possible, to the Supreme Court but Taylor Construction would not say what it plans to do. “We have no comment to make at this stage,” said Stephen Williams, the general manager commercial. “We are still reviewing the decision.”
Calls to the representative for Frasers Property were not returned.
The companies argued to the NCAT Appeals Panel that the building had already been issued with an interim occupation certificate which created a presumption that the works performed in the building complied with statutory warranties and all the relevant codes and standards.
The Panel, however, ruled that occupation certificates do not prevent owners from suing for building defects.
Mr Shafiq said the decision is now a precedent for the thousands more buildings with Biowood panelling, and other combustible cladding, across Australia. “It now means owners in my client’s building, and others, can have more certainty to get on with their lives,” he said.
“Combustible cladding presents a risk that if fire happens in a multi-storey building and you don’t have time to escape, then we saw what happened with Grenfell and the terrible sight of people throwing themselves out of windows with so many lives lost.
“This product may look aesthetically pleasing but people need to be able to safely sleep at night in their homes, and builders need to be careful.”
Class actions call
The two class actions currently running are against Germany-based Alucobond manufacturer 3A Composites and supplier Halifax Vogel Group, and against the Australian company Fairview Architectural, the supplier of polyethylene-core Vitrabond panels based in Lithgow, NSW.
Last month (July) Fairview announced it had initiated voluntary administration.
OCN administrator Karen Stiles said if a building had cladding it could register to join the class action, which is independent of any other action the scheme might be taking.
“OCN supports owners’ rights to pursue their full legal rights in terms of building defects,” she said. “Of course, it is wrong that they have to [initiate action] – unlike other consumers saddled with faulty products like Takata airbags or Infinity Cable where the product is recalled by the manufacturer at their own cost.
“But that’s the current state of Australian play sadly. Hopefully our owner advocacy will improve the situation for future owners.”
A version of this article first appeared in Domain in the Sydney Morning Herald, The Age , Brisbane Times and online.