8/16/2020 Owners win battle over Biowood cladding | FLAT CHATFLAT CHAT

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Owners win battle over Biowood cladding

12/08/2020 · Jimmy-T 1 

Apartment owners battling to have combustible cladding replaced on

Elsewhere in this post 
their buildings have won a landmark legal victory – giving hope to the
Precedent
thousands more facing similar dangers, writes Sue Williams.
Pleased and relieved
Cladding panel
And in a signi cant although not directly related move, the NSW Possible appeal
Government has established an expert panel of building and construction Class actions call
specialists to help support the removal of unsafe cladding across the
state.

In an Australian rst, a major building company that installed timber-PVC Biowood cladding on four
apartment multi-storey blocks in Ryde has lost its appeal against being forced to rectify the work.

Further, if it doesn’t reach agreement with the owners on the timetable for the remediation, a date will be set
for them by the state authorities.

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Precedent

“This is a precedent for Australia,” said the victorious owners’ lawyer Faiyaaz Sha q of JS Mueller & Co
Lawyers. “This is the rst reported case where a court or tribunal has upheld a nding that a particular type of
cladding is combustible.

“The outcome of the case represents a win for owners’ corporations and sends another timely warning to
builders and developers that use of combustible cladding is fraught with risk and carries with it substantial
consequences.”

Concern about combustible panels follows the catastrophic 2017 blaze at London’s Grenfell Tower in which
72 people died after re raced up the building fuelled by aluminium composite cladding. In Melbourne, a
cladding re at the Lacrosse building in 2014 saw owners win $5.7 million in damages.

Currently, there are two class actions underway in Australia against the manufacturers of cladding, and a call
went out earlier this week from the apartment owners peak body, the Owners Corporation Network, for other
affected strata schemes to join.

Pleased and relieved

In the meantime, in this latest case, Lindsay Spencer, chair of the owners corporation of The Gardens at Putney
Hill, developed by Frasers Property and built by Taylor Construction Group, said the owners and residents of
the 148 apartments of the scheme were “pleased and relieved” at the verdict.

“They [Taylor and Frasers] appealed the original decision that they should replace the panels and now they
have lost, we hope it ends here,” he said. “No one wants to live with this kind of risk to their safety.

“We hope this decision now makes the situation clearer for others living with combustible cladding. Others
builders have to look at it, and deal with it.”

The Appeals Panel of the New South Wales Civil and Administrative Tribunal (NCAT) threw out an appeal by
Taylor Constructions and Frasers Putney against an NCAT decision last year that the Biowood cladding was
combustible, posed an undue risk of re spreading and should be replaced.

It ruled that any re spread via the external walls where the Biowood cladding is located could enter the
building from the façade by windows and balconies from level to level.

Cladding panel

Meanwhile Minister for Better Regulation and Innovation, Kevin Anderson, said the new Cladding Product
Safety Panel will assist the NSW Building Commissioner, building owners, councils and other regulators by
identifying, and where necessary testing, the safest ways to remove and replace high-risk cladding.

“The panel will provide expert advice on how to undertake recti cation work where unsafe cladding has been
identi ed,” Mr Anderson said.

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“It will also, for the rst time, provide consistent and clear advice on what products can safely be used when
replacing combustible cladding.

“We know it can be confusing for owners and insurers who are sourcing products to replacing unsafe
cladding. The panel will provide details of which products and installation systems can be used safely and
comply with the Building Code of Australia, relevant Australian Standards and insurance requirements.”

The eight-member panel will be chaired by Professor Mark Hoffman, who led the investigation into building
failures at Mascot and Opal towers. It consists of members with expertise in building and construction,
product testing, building surveying, certi cation and re safety engineering.

Possible appeal

In the Putney Gardens case, there is one more appeal option against the decision possible, to the Supreme
Court but Taylor Construction would not say what it plans to do. “We have no comment to make at this stage,”
said Stephen Williams, the general manager commercial. “We are still reviewing the decision.”

Calls to the representative for Frasers Property were not returned.

The companies argued to the NCAT Appeals Panel that the building had already been issued with an interim
occupation certi cate which created a presumption that the works performed in the building complied with
statutory warranties and all the relevant codes and standards.

The Panel, however, ruled that occupation certi cates do not prevent owners from suing for building defects.

Mr Sha q said the decision is now a precedent for the thousands more buildings with Biowood panelling, and
other combustible cladding, across Australia. “It now means owners in my client’s building, and others, can
have more certainty to get on with their lives,” he said.

“Combustible cladding presents a risk that if re happens in a multi-storey building and you don’t have time to
escape, then we saw what happened with Grenfell and the terrible sight of people throwing themselves out of
windows with so many lives lost.

“This product may look aesthetically pleasing but people need to be able to safely sleep at night in their homes,
and builders need to be careful.”

Class actions call

The two class actions currently running are against Germany-based Alucobond manufacturer 3A Composites
and supplier Halifax Vogel Group, and against the Australian company Fairview Architectural, the supplier of
polyethylene-core Vitrabond panels based in Lithgow, NSW.

Last month (July) Fairview announced it had initiated voluntary administration.

OCN administrator Karen Stiles said if a building had cladding it could register to join the class action, which
is independent of any other action the scheme might be taking.

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“OCN supports owners’ rights to pursue their full legal rights in terms of building defects,” she said. “Of course,
it is wrong that they have to [initiate action] – unlike other consumers saddled with faulty products like Takata
airbags or In nity Cable where the product is recalled by the manufacturer at their own cost.

“But that’s the current state of Australian play sadly. Hopefully our owner advocacy will improve the situation
for future owners.”

A version of this article rst appeared in Domain in the Sydney Morning Herald, The Age , Brisbane Times and online.

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