Australia: Victorian Cladding Remediation Partnership Program – new guidelines

On 21 September 2023, the Victorian Government announced the Cladding Remediation Partnership Program (Program), which focuses on the remediation of buildings where combustible cladding is present but presents a lower risk than cladding on buildings remediated under Cladding Safety Victoria (CSV)'s $600 million program to remove and replace combustible cladding on high and extreme risk residential buildings.

In particular, the Program aims to reduce owners' costs in mitigating cladding risk and to provide greater clarity on what owners need to do.

As part of the Program, the Minister for Planning has issued Minister's Guideline 15: Remediation Work Proposals for Mitigating Cladding Risk for Buildings Containing Combustible External Cladding (MG-15). MG-15 provides guidance to municipal building surveyors and private building surveyors on fulfilling their combustible cladding-related functions under the Building Act 1993 (Vic) (Building Act) and Building Regulations 2018 (Vic).

The Cladding Risk Mitigation Framework (CRMF) forms part of MG-15 and has been developed to provide guidance on how to make buildings sufficiently safe. It is stated to be consistent with the Victorian Government's established approach to risk and is based on technical tools developed by CSV.

These documents consider cladding remediation solutions that address cladding risk without fully removing combustible cladding, where possible.

Buildings covered by the Program

The Program covers Class 2 and Class 3 buildings which are three storeys and above. These include:

• domestic apartment buildings
• residential buildings (other than Class 1 or Class 2 buildings) that provide long-term or transient accommodation for unrelated persons such as boarding houses, hotels, student accommodation or residential care buildings.

At the time of publishing this article, the Department of Transport and Planning website states that the Program applies to Class 9 buildings two storeys and above, such as public and public assembly buildings. However, MG-15 and the CRMF do not refer to Class 9 buildings.

Key aspects of the Program

The CRMF sets out the Victorian Government's policy for cladding risk mitigation, procedures for addressing risk, and a list of intervention solutions. In particular, the CRMF provides that:

• where remediation work is required, a remediation work proposal should seek to achieve an acceptable Cladding Risk rating without requiring the full removal and replacement of all combustible cladding
• in respect of combustible cladding and where appropriate, municipal building surveyors should consider issuing a 'Letter of Action', drawing the attention of the building owners to the Program before issuing enforcement action such as a 'building notice' or 'building order' under Part 8 of the Building Act.

Effect of the Program

MG-15, CRMF and the Program generally appear to reflect the existing approach to combustible cladding remediation works under the CSV. That approach is now being extended to municipal and private building surveyors to guide their approach to enforcement action under the Building Act.

However, it is unclear where the CRMF fits within existing tools for assessing fire safety in buildings such as the provisions of the Building Code of Australia (BCA), the Australian Fire Engineering Guidelines (AFEG) or applications to the Building Appeals Board (BAB). MG-15 and the CRMF contain no mention of the AFEG, BCA provisions relevant to fire safety or the BAB.

The assessment tools and procedures in the CRMF are brief and focus almost solely on limited classes of combustible cladding with no reference to the two pathways to regulatory compliance for a building under the BCA, being a deemed-to-satisfy solution or a performance solution.

The CRMF also requires municipal and private building surveyors who are rarely qualified fire engineers to make assessments using the CRMF procedure in the context of what are often highly complex technical fire engineering issues.

Following the release of MG-15 and the CRMF, leading expert fire engineers have expressed concerns about whether the CRMF will clearly address the underlying fire risk posed by combustible cladding on residential buildings and how it will interact with established and peer-reviewed fire safety assessment tools.

MG-15 and the CRMF may reduce building notices and orders by municipal building surveyors which place an immediate and often onerous obligation on building owners to manage rectification works in circumstances where they are not responsible for installing the combustible cladding in the first place. Conversely, it may become another regulatory step that owners must complete before undertaking a comprehensive assessment of compliance and fire risk under the BCA, the AFEG and possibly the BAB, as most building owners in this situation currently do.

Further, assuming that the application of the CRMF by municipal or private building surveyors leads to a reduced risk in the dangers of combustible cladding, then risks to life and property should also be reduced. These are undoubtedly positive outcomes.

However, these documents are unlikely to solve surrounding issues posed by combustible cladding such as:

• the underlying issue that most buildings affected by combustible cladding will not comply with the BCA
• the increased insurance premiums paid by owners of buildings affected by combustible cladding may not significantly reduce, or may not reduce at all, where combustible cladding remains on their building
• the financial impacts caused by the requirement on owners to disclose the existence of combustible cladding in vendor statements on the sale of a property, in certificates issued by owners corporations to prospective purchasers of apartments, or in rental agreements disclosed to potential tenants.

In short, the impact of MG-15 and the CRMF remains to be seen.

For more information about the Cladding Remediation Partnership Program and to access the MG-15 and CRMF, visit the Department of Transport and Planning website.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.