Combustible Cladding Claims Clarified
The Owners – Strata Plan No 92450 v JKN Para 1 Pty Limited & Anor [2023] NSWCA 114
Quick Read
This NSW Court of Appeal decision about combustible cladding on a Parramatta strata building that was developed, designed and built by Toplace clarifies construction compliance obligations under the Home Building Act 1989. The primary issue was whether the aluminium cladding had to meet the prescribed standards in the Building Code of Australia or whether it was enough that they met lower ‘deemed to satisfy’ requirements via an alternative approach. A secondary issue concerned the appropriate way to assess loss and damage. After considering construction laws and the circumstances, the NSW Court of Appeal decided that where no detailed alternate cladding solution was prepared or submitted that met fire safety standards, strict compliance with the Building Code of Australia was necessary. It also decided the standard way to assess loss was the cost of replacing the cladding.
Implications
Where cladding doesn’t meet the Building Code of Australia ‘deemed to satisfy’ there is a presumed breach of the Home Building Act 1989 statutory warranties.
Where no alternative solution for cladding is prepared, assessed and certified before the construction certificate, the presumed breach of the Home Building Act statutory warranties continues.
It is the builder’s and/or developer’s obligation to establish that an alternative solution exists and satisfies the performance requirements of the Building Code of Australia.
Full Report & Case Details
This decision by the highest Court in NSW was an appeal from a single judge in the NSW Supreme Court.
The dispute was about combustible cladding on a Parramatta strata building that was developed, designed and built by JKN and Toplace and whether it complied with statutory warranties under the Home Building Act 1989 in relation to fire safety standards under the Building Code of Australia.
The 28-storey strata building was built using aluminium composite panels as external cladding which Fire & Rescue NSW identified did not meet the prescribed standards under the Building Code of Australia for fire resistance and recommended replacement.
The strata corporation argued that the non-compliance was a breach of the statutory warranties under the Home Building Act 1989 and so it was entitled to damages for the cost of removing it and replacing it with compliant panels from the developer and builder.
The developer and builder, who were responsible for the building's design and construction, argued that despite not satisfying the prescribed requirements, the cladding was not combustible as it was adequately fire resistant and that it did not need replacing. They also argued that any breach was merely technical.
The primary issue was whether the cladding complied with the Building Code of Australia and was non-combustible. Compliance under the Building Code of Australia can be achieved in two ways.
Keywords
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