Cladding Safety Victoria Regulations 2020 (Vic): So Clad You Asked

Following assent to the Cladding Safety Victoria Act (Vic) 2020 (“Act”) on 4 November 2020, the Governor in Council signed off on the Cladding Safety Victoria Regulations (Vic) 2020 (“Regulations”) on 1 December 2020. This article will set out the particulars of the Regulations, predominately focusing on the rules relating to seeking funding from Cladding Safety Victoria (“CSV”). 

The Issue

Over the last few years, cladding issues have been a hot topic of the Victorian property industry due to cladding material being non-compliant with safety standards regarding combustibility. This is particularly concerning for residential apartment buildings, where such cladding could increase the spread and intensity of a fire. When this issue first came to rise, we saw a game of pass the blame (and therefore the responsibility to rectify) – from the building developers; to builders; to owners; to government, with no party willing to put their hand up for the costly resolution.

The Victorian Government has responded by setting up Cladding Safety Victoria. The Regulations guiding CSV are not particularly lengthy and focus on the process for applicants seeking funding to rectify non-compliant cladding.

Funding Regulations

For the purpose of section 28(2) of the Act, regulation 7 sets out the criteria for prioritisation of funding, highlighted as follows:

• Recommendations from the VBA, municipal building surveyor or Fire Rescue Victoria regarding overall risk;
• The relevant class of building (ie. apartment or other residential building/dwelling; office/retail building; carpark; warehouse/factory; public building or non-habitable structure);
• Occupant density based on maximum number of people to be accommodated according to the occupancy permit;
• The type, amount and configuration of non-compliant cladding and the extent it would affect the spread/intensity of a fire;
• Means of affixation of non-compliant cladding;
• The fire rating of external walls, including the type of insulation used;
• Proximity of non-compliant cladding to potential ignition sources;
• Adequacy of means of egress/ingress in the building; and
• Whether the original builder can complete the rectification work (NB: considerations include registration as a building practitioner; resources and capacity to complete within a timely manner; completion within the CSV determined budget; and general suitability to carry out the works).

Regulation 8 states that an application by a registered owner or owners corporation for financial assistance must be made in Form 2 within 60 days of receipt of an invitation from CSV. CSV need only consider a non-compliant application if it considers it appropriate to do so. Form 2 is an extensive form, with the following required:

• Details of the owners corporation; applicant and building (including class);
• Building insurer details, including the policy and any claims made;
• Whether the developer or original builder is an owner of any lots;
• Whether the developer, builder or a third party have been approached for rectification works at their own cost;
• Details of the original builder, architect, draftsperson, surveyor and fire safety engineer;
• Whether litigation is proposed and if not, why not;
• Whether rectification works have commenced;
• Whether there has been a Building Appeals Board modification or compliance assessment determination;
• Copies of contracts with the builder, surveyor, architect and fire safety engineer;
• Copies of any building notices or orders;
• Whether any product identification testing has been arranged, including any results;
• Quotes to rectify non-compliant cladding;
• Copies of the occupancy permit; building permits and endorsed plans; and
• Copies of any court, tribunal or board orders.

Regulation 9 states that a funding agreement must be entered into before any grant of financial assistance is provided by CSV under section 30 of the Act. The prescribed agreement (Form 3) is contained in the Regulations and is relatively simple. Required details include:

• Details of the rectification works;
• The amount of funding granted by CSV;
• The amount/coverage of building insurance; and
• The timing of grant payments.

Conclusion

As above, the Regulations are relatively straight forward in setting out the requirements for funding applications. Upon review of the relevant forms, the drafters of the Regulations appear to have focused on a user-friendly system, with the forms containing boxes to be ticked and detailed instructions where documentation is required to be provided.