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The article below is a repost. Originally posted on 2019-02-05 and can be accessed through this link.
As the fall-out continues to the latest Melbourne apartment building fire, the inaction, and finger-pointing that has plagued the work of the Victorian Government’s Cladding Taskforce has been highlighted once again.
Former Victorian premier and co-chairperson of the Cladding Taskforce, Ted Baillieu, revealed that the Spencer St building which caught fire on the morning of February 4, 2019, had been issued building notices with respect to the cladding on the building, although it had not been fully assessed.
“My understanding is that the building in question this morning was one that’s been audited by the MCC, the Melbourne City Council, in the first instance and looked again at by the VBA (Victorian Building Authority) and it hasn’t been finally assessed by an expert panel,” Mr Baillieu was quoted as saying by the Herald Sun.
“But it did receive building notices in July of last year and again in October of last year when the building notice was issued.
“And as I understand it was reissued because there was a reconfigured owners corporation.
“And that building notice identified the problem with cladding and was effectively a show-cause notice why the cladding shouldn’t be removed, which is an invitation to the owners corporation to either take remedial action or remove the cladding.”
The notice provided to the building reportedly ordered the Owners Corporation to install more smoke alarms in bedrooms near the flammable cladding and remove cladding from the balconies and some of the walls.
The Owners Corporation chairperson confirmed smoke alarms were installed, however, the MFB reported that some had alarmingly been covered with plastic, rendering them useless.
“We believe at this stage the combustible cladding will have been one of the fuels that escalated the fire,” Metropolitan Fire Brigade assistant chief fire officer Trent Curtin said.
“It’s my understanding occupants have taken plastic and wrapped it around the smoke alarm to stop it activating in the case of cooking or other products of combustion in an apartment.”
The MBF said covering smoke alarms was a dangerous practice that it strongly warned against.
Victorian planning minister Richard Wynne admitted that the process for removing cladding was slow, but said the building’s safety systems worked well to ensure the building was evacuated and the fire was contained.
Mr Wynne said that all prospective apartment purchasers should carry out due diligence on the fire risk of the cladding and said the government is considering mandating a duty to disclose cladding fire risk in the sale contract.
Since its inception, the Victorian Cladding Taskforce has inspected over 2000 buildings and 1200 had been assessed on its risk.
The Taskforce has its critics, of course.
Sahil Bhasin, general manager of engineering firm Roscon, said it was up to the state government and the Victorian Building Authority (VBA) to increase safety standards and the enforcement of those standards.
Mr Bhasin told the Herald Sun even a relatively simple solution, such as ensuring that removing cladding from every second balcony, would go a long way to stopping fires from spreading up the outside of the building.
“We’ve got too many buildings like this in the CBD where remedial action needs to be taken,” he said.
There are different types of notices, ranging from show-cause notices to notices which require a building to be evacuated and the building essentially classified as unsafe for occupation.
Once an Owners Corporation receives a show-cause notice, it is up to that Owners Corporation to respond to the notice within the timeline specified on the notice.
That response will need to address the concerns raised in the notice. As Mr. Ballieu described, that response will need to explain why the cladding should not be removed and what other actions the Owners Corporation might take to ensure the safety of the building and its occupants.
Receiving such notice is understandably a tough time for affected property owners, particularly those serving on their Owners Corporation committee, but inaction is not an option when this occurs.
WHAT SHOULD AN OWNERS CORPORATION DO IF IT RECEIVES A BUILDING NOTICE ABOUT CLADDING?
When an Owners Corporation receives a show cause notice or a notice to repair, the committee should immediately authorise their own investigations into the cladding on their property.
They can do this by liaising with their Owners Corporation manager and instructing them to:
- Request the original plans from the builder/developer
- Request receipts for the cladding used on the property by the builder/developer and photos of its installation
- Authorise an independent expert to complete a stage one visual inspection of the cladding at the property
- Request your building’s latest Annual Essential Safety Measures (AESM) report from your Owners Corporation manager/AESM provider
Your Owners Corporation should be doing everything in its power to respond to the notice in a timely manner and ensure the notice is removed. As long as such a notice is issued against your building, it will appear in title searches, Owners Corporation certificates, and any other documents which may affect the sale of a lot within that Owners Corporation.
It is always a good idea to go back to the original builder, where possible, for some clarity around the cladding used on the property.
However, it’s worth noting that – as unfair as this may seem – it is up to the Owners Corporation to respond to the notice, not the builder.
That’s because the Owners Corporation and its members collectively own the common property, which includes the outside structure of the building and it is the Owners Corporation that can make the required changes.
Of course, the Owners Corporation can include any evidence provided by the builder in its notice and it can always consider its legal options and try to force the original builders to repair any defective work (more on this below).
However, a lack of response from the builder is not a valid reason for not responding to the notice issued against the building.
It is also worth noting that a simple email response from the builder may not satisfy the requirements of the notice, which is why receipts for the cladding used as well as photos of its installation is always preferable.
That is why any Owners Corporation which receives a notice should always look to have an external, independent expert investigate the cladding.
Most companies that offer such services will employ a professional fire engineer to complete these investigations.
An initial visual inspection should not cost much more than $1,000 and is a fantastic way for your Owners Corporation to demonstrate that it is taking steps to identify potential solutions to the problem when responding to the server of the notice.
Most of the time, these companies will also help your Owners Corporation respond to the building notice.
Depending on the outcome of the report, the notice may be removed, or further investigations or actions will be recommended.
This can include testing the core of the cladding on the property, whereby the investigators will physically drill out a section of the cladding and have its combustibility tested.
This will also provide your Owners Corporation and all its members with an independent report which can be tabled at the next meeting, included in any sales documents should you wish to sell the property or otherwise need to prove the safety of the cladding in the building.
Getting a copy of your building’s latest Annual Essential Safety Measures AESM report will also help your Owners Corporation demonstrate the safety standards of the building in your Owners Corporation’s response.
The recent fire at Spencer St may have risen up the building, but the internal fire sprinklers and other fire safety systems ensured it did not spread internally and that the building could be evacuated safely, a crucial difference between this incident and the Grenfell Tower in London in 2017 which killed 72 people.
WHAT IF THE INVESTIGATION CONFIRMS THE BUILDING IS UNSAFE?
If your Owners Corporation investigates the cladding on your building and finds that the cladding is unsafe, it is possible that the local council will provide a notice to rectify or, in the worst case, will withdraw the building’s occupancy permit.
If you receive a notice to rectify, your Owners Corporation will need to seek legal and expert advice in terms of how to proceed.
It may be possible that by upgrading the building’s fire and essential safety systems, the building can be made safe.
It may be that the only solution is to remove and replace the cladding, which is a hugely expensive exercise, although the government has implemented the legal framework for Cladding Rectification Agreements.
As the owners of LaCrosse Tower – another Melbourne building that caught fire in 2017 – found out, the legal battle to hold those responsible for selecting, using, and installing these materials is long and arduous.
In that case, the builder LU Simon eventually agreed to replace the cladding. There has, in general, been a trend of active builders replacing combustible cladding in order to maintain their reputation and keep such battles out of the courts.
Of course, owners should consider raising special levies to fund these legal battles and should consult with and consider the advice of in-field experts before making any decisions.
Please note that the information in this article is based on publicly available information about the Neo200 fire which took place on the morning of February 4, 2019, and other cases Strata Plan has witnessed.
The information and guidance in this article are general in nature. If your building is served with a building notice, you should consult your Owners Corporation manager and seek expert advice about the next steps for your property.
If you are concerned about the potential use of combustible cladding on your building and your Owners Corporation is managed by Strata Plan, write to firstname.lastname@example.org to check if your building has been audited – either by your local council or directly by the VBA – and what your Owners Corporation committee is doing about it if it has.