By Phillip Leaman

29 June 2020

Many owners corporations have issues with combustible cladding. A Malvern Road property's attempt to get a solution to avoid full replacement was not approved by the Building Appeals Board.

The Building Appeals Board has rejected a Malvern Owners Corporation’s application for a determination that partial removal of combustible cladding will comply with legal requirements, based on insufficient expert evidence.

An Owners Corporation for a mixed residential & retail building on Malvern Road, Malvern, that has almost one-quarter of its external surfaces clad with combustible expanded polystyrene cladding was issued with a building notice by the municipal building surveyor for the City of Stonnington in June 2018.  The building notice required the Owners Corporation to show, within 30 days, why the cladding should not be removed in 30 days.

The Owners Corporation decided to engage Roscon Property Services (“Roscon”) to prepare a fire engineer’s report to assess what work would be required to ensure the building complied with the relevant performance requirements of the National Construction Code.

The report prepared by Roscon dated 3 April 2019, and which was said to have been ‘authorised and approved’ by fire engineer, John Kendrick, gave an opinion that, subject to certain further remedial work being undertaken, the building could retain the existing combustible wall cladding and still meet the applicable fire safety performance requirements of the National Construction Code.

The Owners Corporation made an application to the Building Appeals Board for a ‘design determination’ under section 160A of the Building Act 1993 in reliance on the opinion in the Roscon Report to the effect that the combustible cladding could be retained subject to further remedial works being undertaken.

During the hearing, John Kendrick the fire engineer who appeared for the Owners Corporation in the Building Appeals Board proceeding and who had ‘authorised and approved’ the Roscon Report “…inexplicably…almost immediately conceded that all the [combustible cladding] should be removed from the building“, which was inconsistent with the opinion expressed in the Roscon Report that he had approved.

After hearing from the Chief Officer of the Melbourne Fire Brigade, the Victorian Building Authority and Mr. Kendrick, the Building Appeals Board did not accept the findings or recommendations expressed in the Roscon Report and found that the Roscon Report lacked probative value.

The Owners Corporation’s application for a building design determination based on the recommendations in the Roscon Report was therefore dismissed by the Building Appeals Board.

The Owners Corporation will now need to undertake further work to obtain a solution for the removal and replacement of the conbustible cladding.

We have experience in dealing with building defects concerning combustible cladding and with  Cladding Safety Victoria for high risk buildings that are part of the government funded scheme.

It is important that a fire services engineer carefully reviews the work required to comply with any building order to ensure that the Building Appeals Board accepts the proposed course of action.

For legal assistance with building defect issues concerning Owners Corporations please contact Phillip Leaman or one of the Owners Corporation Team.

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