Active Law: Don’t be Complacent – Is Cladding the Only Issue?

By October 31, 2019Defects

On 4 February 2019, in the early hours of the morning, a blaze started on the 22nd floor balcony of a Melbourne CBD apartment complex, supposedly caused by a discarded cigarette, which spread to the 27th floor, fuelled by the external cladding on the building.

Combustible cladding has also been blamed for the devastating fire that engulfed the London Grenfell Tower in June of 2017 which claimed the life of 72 people. The cladding used in the Grenfell Tower was found to be similar to the cladding that was used in a residential tower that caught fire in Melbourne in 2014 (the Lacrosse Tower). Undoubtedly, the risk of potentially deadly cladding on buildings throughout Australia has sparked concern.

On 1 October 2018, the Queensland Government introduced changes to the Building Regulation 2006 requiring building owners (including body corporates) of certain classes and types of buildings to report to the Queensland Building and Construction Commission on the type of cladding used on their building and, if necessary, engage industry professionals to investigate the building’s fire risk.

To make things a little easier for body corporates, we have put together a fact sheet with information to help you understand whether your building may be affected and explaining your obligations if it is.

In the Meantime

With the heightened risk of serious fire as a result of the possibility of combustible cladding having been used in the building, it is critical that bodies corporate ensure that both their Active and Passive Fire Protection Systems are compliant and properly maintained. Simply put, it can be the difference between life and death, for potentially a large number of people.

Active Fire Protection Systems are, in effect, manual and automatic fire detections (i.e. smoke/fire alarms) and fire suppression systems (i.e. fire sprinklers).

Passive Fire Protection Systems are, in effect, the use of fire-resistance rated walls and floors to compartmentalise the overall building into smaller fire compartments to prevent or slow the spread of fire so as to limit building damage and more importantly perhaps, to provide more time for occupants to evacuate the building. Such systems, unfortunately, can be severely compromised by acts as simple as “chocking” open a fire stairwell door.

While you are finding out whether the cladding on your building does pose a fire safety risk, there are a number of steps the body corporate can take to confirm the fire safety procedures in the scheme are compliant and ensure that not only the occupants are safe, but potential fines are avoided.

Under the Building Fire Safety Regulation 2008 (“the Regulation”) all buildings have annual fire compliance obligations. For residential bodies corporate, a building may be exempt from some of the requirements if the building is classified as a class 1, 1a, 10a or 10b. If you are unsure, the certificate of classification for the building should indicate the building’s class.

For those buildings not exempt, the body corporate must:

1. Maintain at all times, free from obstruction, adequate means of escape in the event of fire threatening any part of the building (an evacuation route). The body corporate must not allow anything to be placed or remain within 2 metres of a final exit outside the building or in another place on an evacuation route if the thing would be likely to unduly restrict, hinder or delay a person in an evacuation. This also includes altering or installing mechanical ventilation or an air conditioning system in a building that may affect a fire-isolated compartment.

It is also illegal to lock a fire evacuation door or to prop a fire door open in a building. This applies to all doors in the path of travel from a common area of the building through to a final exit door;

2. Maintain as required every prescribed fire safety installation to the required standard of safety and reliability. Where repair or other corrective action is required, repairs must be carried out by an appropriately qualified person within one (1) month unless there is a reasonable excuse. Prescribed safety installations can include:

a. Fire extinguishers;
b. Fire hydrants and fire hoses;
c. Fire sprinkler systems;
d. Smoke alarms; and
e. Exit and other signs.

3. Keep a record of maintenance for all work carried out on the prescribed fire safety installations in the building (an occupier statement). These records must be kept for at least two (2) years after they were made and must be kept on the premises in a manner which will preserve them in the event of a fire (e.g. in a fireproof metal filing cabinet) and also in a safe place off the premises;

4. Maintain a fire and evacuation plan and review the plan at intervals of not more than one (1) year apart. The legislation identifies what information is the minimum information required in a fire and evacuation plan which includes, but is not limited to:

a. Details of the persons responsible for developing, changing and reviewing the plan;
b. The evacuation procedures and coordinators;
c. procedures for giving fire and evacuation instructions to the people working in the building;
d. The method of operation of firefighting equipment and manually operated alarms; and
e. The name, contact details and qualification status of the Fire Safety Adviser for the building, if one is required.

The fire and evacuation plan must also include copies of the relevant approvals for the building and be made available for inspection during normal business hours.

5. Display evacuation signs that show the procedures for evacuation from that part of the building;

6. If your building is defined as ‘high occupancy’ (a class 2 or 3 building more than 25 metres high), you must appoint and train a Fire Safety Advisor; and

7. Conduct evacuation drills or practices every 12 months and keep an evacuation practice record.

Big penalties for failing to comply

In 2009, the Queensland Fire and Rescue Service introduced on the spot fines for a breach of the Fire and Emergency Services Act 1990 (“the Act”) and the Regulation. Some breaches attract a maximum fine of $200,000 or three (3) years imprisonment if multiple deaths are caused by a failure to maintain fire systems.

On 13 December 2017, a Townsville body corporate pleaded guilty to six (6) charges for breaches of the Act and was handed a $30,000 fine for failing to maintain prescribed fire safety installations and failing to comply with rectification notices.

In August last year, the body corporate of a 35-unit Kangaroo Point complex was fined $21,000 plus court costs for 21 breaches of the Act and the Regulation. Fire inspectors of the Queensland Fire and Emergency Services repeatedly directed the body corporate to rectify breaches between August 2017 and January 2018 relating to numerous fire risks in the building, including locking a fire door, not providing evidence of compliance, failing to ensure required fire safety installations were maintained and not attending to fire risks relating to the garbage chute. The Court found the body corporate’s actions exposed the residents to serious risk.

Act Proactively

As we say, the Active Fire Protection Systems and Passive Fire Protection Systems can mean the difference between life and death, for possibly a large number of the occupants. While bodies corporate are investigating whether the claddings used in their buildings are combustible, it is perhaps more critical than ever to take steps to ensure that these fire protection systems are compliant and fully operational.

The bodies corporate need to be vigilant about their obligations and compliance requirements. It is the responsibility of the body corporate to ensure the appropriate fire safety procedures are implemented and compliant. Accordingly, that then becomes a responsibility of the Committees for those bodies corporate.

Failing to maintain the fire safety systems may expose the body corporate to potential liability and may also have implications on your insurance cover in the event a fire was to occur. If you are unsure whether your building complies with the requirements, engage a reputable licensed fire service contractor. If your building is more than 25 metres in height, we recommend you engage an independent specialist to ensure your building is compliant.

Disclaimer: Reliance on content.

The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.

Author: Mark Mellick, Active Law