One bunch of owners of a building with defective cladding is shouldering the cost of façade replacement itself – to the tune of $300,000 – instead of chasing the builders or other parties. Is this what poor building quality has come to? Looks like it.
With the Building Ministers Forum due to meet this Friday, it’s tempting to think the built environment is trying to make sure they put action on compliance at the top of their action agenda.
Over the past six weeks, there’s been revelations of serious defects at Sydney’s Opal Tower, the collapse of a freeway sign on the Tullamarine Freeway in Melbourne, which turned out to be missing a crucial part and this week the combustible cladding on the façade of Melbourne’s Neo200 Tower lit up and put cladding back in the headlines.
What all these flaws have in common – in precast design, manufacture and installation, missing strengthening plates on the freeway signs and combustible high-rise cladding – is the culture of non-compliance and its life-threatening consequences for the public.
The driver of the vehicle crushed by the sign was described in media reports as “lucky” to escape injury and is reportedly preparing to litigate. An investigation by VicRoads established the sign was missing a vital strengthening plate, which was in the design but was not installed during construction.
A subsequent audit has found other signs with similar issues.
The residents of Opal endured weeks of stress and anxiety, as well as economic hardship, and the investigation into the building’s defects revealed issues throughout the supply chain from design through to final delivery.
One person was treated for smoke inhalation as a result of the Neo200 fire, and more than 200 have been evacuated and must seek temporary accommodation under an emergency order issued by Melbourne City Council following the blaze.
The Victorian Chapter of the Australian Institute of Architects has responded to the Neo incident with a renewed call for action on implementing the recommendations of last year’s Shergold + Weir report, commissioned by the Building Ministers Forum.
Chapter president Amy Muir said building quality and safety must be a priority.
“While the Victorian government has put in place some changes since Lacrosse [another building façade fire], much more remains to be done if the community is to have confidence that the building and construction industry is properly regulated and compliance is appropriately enforced,” Ms Muir said.
She said the Institute and its members will “continue to push for meaningful change to the building procurement process to ensure that cost alone is not the sole consideration, rather long-term safety and quality are counted as key determinants in the decision-making process.”
Chief executive of the Fire Protection Association Australia, Scott Williams, told The Fifth Estate there is a need for a national regulatory and oversight body for buildings similar in powers and functions to the Civil Aviation Safety Authority.
He says the bottom line in terms of addressing the issue of non-compliance is that “affirmative action has not been taken” at a national level.
Expert reports have been commissioned and delivered, inquiries have been held and press releases have been carefully crafted – but no real action has been seen.
Mr Williams says the situation is similar to the massive global recall of car airbags in recent times.
Takata airbags were found to be unsafe and to pose a threat to lives, and the Australian government made manufacturers take responsibility and rectify the affected vehicles at no cost to the public.
Owners carrying the burden of the failure of others
But with defective apartments, owners are being left to pick up the tab, even though they have bought the property trusting it is both safe and compliant with the building code.
Mr Williams says government should be taking responsibility as they collect levies from buildings, and also because ultimately one of the reasons Australians fund and support our governments is to ensure we are kept safe.
Some workable and practical plans
The current situation with non-compliant buildings such as Neo200 requires a form of risk planning he described as a “swiss cheese model”.
Plan A would be to have a compliant building that met the minimum standards of the building code that ensure fire and life safety. He said this plan has “clearly failed” in the case of a building with combustible cladding.
Plan B involves providing sprinklers and some form of fire or smoke detection; and plan C – a sprinkler and alarm system that turns on and alerts people to evacuate and makes it safe to do so. Plan D is the fire services arriving and being equipped to deal with a known situation.
In the case of Neo200, the Metropolitan Fire Brigade did know before arriving that the building had combustible cladding. That’s because the Victorian Building Authority’s cladding audit had established the existence of flammable cladding and assessed the property as presenting a “moderate” risk level.
This knowledge is why the MFB arrived with platform equipment capable of tackling fires at greater heights than standard units, Mr Williams said.
A “show cause” notice had also recently been issued by the VBA to the building’s owners corporation, which requires it to justify why the cladding should not be rectified.
Mr Williams said that knowing about the presence of non-compliant cladding is, however, not the end of the story in terms of risks a fire brigade may encounter in event of an incident. Other defects that may be present – and have been found in other high-rise buildings – include non-compliant fire doors, defective fire door seals and non-compliant fire separation walls.
And what’s next is…
In terms of the bigger picture, right now there are two things to be dealt with in terms of non-compliant construction, he said.
One is the legacy of past non-compliance in buildings such as Neo, the other part of the equation is ensuring the compliance of building stock going forward.
Each day that passes without action being taken on oversight, compliance and enforcement is likely to add to the legacy of defective buildings.
We need a national taskforce
“The government needs to convene a national taskforce,” Mr Williams said.
It needs to be truly independent, non-political and an effective collaboration between government and industry, he said.
It needs to have the powers of a regulator – similar to the Civil Aviation Safety Authority – and it needs to oversee and work to achieve national consistency in terms of implementing the National Construction Code.
He pointed out that a body like the CASA exists because there are some products and services, such as airplanes and flights, that need to be strictly regulated “or people can lose their lives”.
A building is a big collection of products and services, he said. And lives are relying on the safety of them.
“Near enough is not good enough.”
The legal view – it’s time for owners to organise before it’s too late
Chief executive of Grace Lawyers, Colin Grace, has worked on many cases involving building defects and non-compliant buildings.
He told The Fifth Estate there are concerns that in the coming weeks and months when the full force of the new NSW and Queensland laws addressing non-compliant cladding is felt, local authorities and councils may issue “gotcha” orders to owners’ corporations obliging them to pay the cost of making their buildings compliant.
Unless “somebody takes the reins” on making the industry and authorities shoulder the cost of fixing non-compliance, owners are likely to be left holding the bill.
Mr Grace said he has clients in New South Wales that are currently in the process of paying to have cladding removed and remediated.
Some are just paying the bill, instead of chasing the developers or builders
One owners’ corporation he has worked with made the “commercial decision” that spending around $300,000 to remove flammable cladding and have the façade rendered as a substitute was a more astute decision than taking the litigation pathway to attempt to make the builder or other parties take responsibility.
He said that generally, the whole situation with building defects is a mess.
Rules and action around defects are disjointed in terms of varying state and territory approaches, and there is “no clear direction” overall.
Lawyers from his practice frequently visit sites with remedial builders called in to fix a defect issue and find themselves asking “How could they have done this?”
The culture of non-compliance is coupled with an “erosion of consumer rights” that has occurred in recent years, with high-rise buildings four storeys or above no longer covered by builders warranty insurance, and the general consumer warranty period on buildings whittled down from seven years to just two.
There has been a “watering down and pulling back of rights consumers once had,” Mr Grace said.
Reports over the past 24 hours around the Neo200 fire have attributed the fire starting to a dropped cigarette butt. Others have highlighted the building’s record of overcrowding in some apartments, objects kept on balconies and short-term letting.
However, Mr Grace said the main point is not how the fire started – it is what happens after a fire starts.
Don’t worry about how the fire starts, what’s the response?
Fire protection is about stopping a fire, he said.
“You can blame overcrowding or cigarettes, but the bottom line is, once a fire starts, the issue is how a building responds.”
He said it is possible to minimise the risk of ignition sources near flammable façade cladding through measures such as banning BBQs on balconies, as has happened in some buildings in Queensland, or by banning smoking, but this does not fix the risk.
For example, a fire can start because of fat spattering during cooking and igniting a fire which can then travel across carpet, up curtains and out to the balcony and façade.
It comes down to the fundamental question of whether a fire is a catastrophic risk after ignition [due to defects] or is it a minimal risk because the building is compliant, Mr Grace said.