FAQs for Councils

Councils have an important role to play to support the implementation of the new cladding regulation. To support the role of councils the Government, through the Cladding Taskforce, will provide councils with information from the registration process.

This information will supplement council’s own records and will include general information about the individual building such as the number of storeys, a description of the cladding and its location on the building. Access to the information will make it easier for councils to determine whether to use their compliance and enforcement powers as the primary building control authority.

Councils can then decide on their next steps. For instance, councils can undertake further investigations, which could lead to issuing fire safety orders for remedial action to address any risks associated with the cladding. The registration information should also help councils to determine which buildings to prioritise.

Councils have broad existing powers for compliance and enforcement under the Environmental Planning and Assessment Act 1979. Fire and Rescue NSW (FRNSW) also has enforcement powers, however, these powers are limited compared with council powers. The Department of Planning and Environment also has enforcement powers, but these relate only to development consents issued by or on behalf of the Minister for Planning.

The regulation puts new requirements on building owners to register their buildings through an online portal. Additional compliance and enforcement powers are provided to ensure this occurs.

Under the new regulation, councils and FRNSW will have additional powers and responsibilities to:

• Direct owners to register their building if they have identified a building with external combustible cladding that is not registered. Such a direction may require registration earlier than the prescribed time frame in the regulation.
• Notify the Department of Planning and Environment if they issue a direction. A simple online process for these notifications will be developed. Further information on this will be provided in the coming months.
• Issue penalties of up to $1500 for individuals or $3000 for corporations if they fail to register their building. Further penalties can be issued if building owners or corporations fail to respond to directions. These are $3000 and $6000 respectively.

Where it is necessary to undertake rectification works associated with external combustible cladding, there are several pathways that could be considered. For example, councils have discretion on whether to issue fire safety orders and can determine the terms that are appropriate to form part of any order. This allows flexibility for specific circumstances on a case-by-case basis. Rectification works could also be undertaken via the development approval process.

The ban and the regulation are complementary. The Department of Finance, Services and Innovation and the Department of Planning and Environment have worked collaboratively to develop these reforms. The purpose of the cladding regulation is to identify new (those that are not occupied when the regulation commences) and existing buildings that may contain a range of combustible cladding products that could be a fire safety risk, and which may need further assessment.

The product use ban is primarily aimed at preventing the use of specific cladding products on buildings in the future. More information regarding the Building Products (Safety) Act 2017 and the product use ban is available from the NSW Fair Trading website.

The NSW Cladding Taskforce is an interagency group chaired by the Secretary of the Department of Finance, Services and Innovation and includes agencies such as the Department of Planning and Environment, FRNSW and the Office of Local Government.

The Taskforce is a forum that allows the agencies to coordinate their actions including the use of their statutory functions. Generally, the actions of its member agencies in relation to councils are coordinated through the Taskforce.

The new regulation requires owners to register existing buildings on a NSW Government portal between 22 October 2018 and 22 February 2019. For new buildings, the deadline for registration will be four months after the building is first occupied.

Owners will register their buildings on an online NSW Government system. Options are being developed to regularly transmit this information to councils and FRNSW.  The intention is to provide frequent information to councils rather than wait until the end of the registration period.

No. Building owners must still register their building even if it is subject to a fire safety order.

The NSW Government will launch a public awareness campaign before registrations are due.

The Government, through the Taskforce, has worked to raise public awareness of the cladding issue before making this regulation. The Government also wrote directly to more than 5,000 building owners, and managers of buildings, identified in an audit, to provide information about the actions they should take to ensure the safety of their building.

The draft regulation exhibited last year contained a proposal to require building owners to engage a properly qualified person to undertake an inspection and technical assessment of registered buildings. It was proposed that the owner would then rely on this assessment to complete a cladding statement about the fire risk of the cladding and any actions necessary to address the risk.

Since then, there has been a tightening in the professional indemnity insurance market, which has the potential to affect the availability of experts to carry out the work. To help deal with issues around the supply of experts, mandatory assessments have been removed from the regulation. These may be considered at a later stage.

The insurance challenges faced by the industry are complex and the Government is in active discussions with insurers on the matter. However, this will not impact the requirement for buildings to be registered. The registration process will proceed and will assist authorities to undertake necessary actions to help mitigate risks posed by the presence of external combustible cladding.