A year after Victoria (VIC) introduced legislation banning the use of unsafe building products, New South Wales has followed suit with a regulation that came into force on the 15th of August. Strata corporations, together with building owners, in the state are advised to keep themselves on their toes.

“As of today any cladding with a core comprised of more than 30% polyethylene is banned in NSW, with limited exceptions,” the disclosure stated.

This means that concerned parties must comply immediately to avoid million dollar fines and possible imprisonment.

The state-wide prohibition affects any form of the combustible building material used in external cladding, external walls, external insulation, facades or rendered finishes for certain multi-storey residential and commercial premises.

Further, the ban is retrospective and applies to the following: buildings built before the ban was formalized, those that are currently constructed and even future developments.

What are the repercussions?

Building owners and strata bodies of affected buildings can now be issued rectification orders under the Building Products (Safety) Act requiring them to undertake remediation and removal work.

In the event that rectification orders are not acted upon, corporations and strata body directors can face significant fines and, in the case of individuals, imprisonment.

Using a product after it has been banned or failing to act on a building product rectification order may  also result in fines for corporations of up to $1.1 million for a corporation (with $110,000 continuing per day for each day the offence continues).

For individuals, fines of up to $220,000 or imprisonment for 2 years or both (with $44,000 continuing per day for each day the offence continues) could apply.

“The clock is now ticking for building owners and strata corporations to act and comply with this NSW wide ban”, said Carroll & O’Dea Lawyers’ Ben Robertson.

Affected buildings will be issued rectification orders mandating building owners to take action now and avoid fines and prison penalties.

Regardless, Robertson underscored that the people of NSW must take the notice seriously.

“[E]ven if no rectification notice has been issued, building owners and their representatives may be held personally liable if appropriate action isn’t taken and banned combustible building material is permitted by them to remain in existing buildings or used in new ones.

“It is very important that building owners seek legal advice as to their potential liability and how they can comply with these new measures,” Robertson said.


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