• for buildings of Type A and Type B construction that are the subject of applications for building permits made after 1 February 2021, the use of the following products is prohibited:
  • aluminium composite panels (ACPs) with a core of less than 93% inert mineral filler (inert content) by mass in external cladding as part of a wall system; and
  • all expanded polystyrene (EPS) products used in an external insulation and finish (rendered) wall system (together, the Prohibited Products); and
• Minister’s Guideline 14: Issue of Building Permits Where Building Work Involves the Use of Certain Cladding Products dated 13 March 2018 (MG-14) is revoked.

By way of example, Type A construction includes an apartment building with a rise in storeys or 3 or more, or an office building with a rise in storeys or 4 or more. Type B construction includes an apartment building with a rise in storeys of no more than 2, or an office building with a rise in storeys of no more than 3.

A copy of the Declaration can be accessed in the Victorian Government Gazette.

The Prohibited Products are not, however, prohibited from use for:

• Class 1 and 10 buildings, such as a detached house, a guest or boarding house for less than 12 people, a private garage, or a shed; and
• buildings of Type C construction, such as an apartment building with a rise in storeys of no more than 1, or an office building with a rise in storeys of no more than 2.

Revocation of MG-14

In accordance with MG-14, a building surveyor is currently required to apply to the Building Appeals Board for approval where buildings of Type A or Type B construction are designed to include either:

• an ACP comprising a polyethylene core of 30% or more polyethylene by mass; or
• an EPS product used in an external insulation and finish (rendered) system.

From 1 February 2021, MG-14 will be revoked. This means that it will no longer be necessary to apply to the Building Appeals Board for a determination before a building permit is issued. This applies to all new Type A or Type B construction, where such products are intended to be used.

What is the reason for the Declaration?

The Minister for Planning gave the following reasons for making the Declaration:

• the Prohibited Products cause or will likely cause occupants, members of the public and occupants of neighbouring buildings to be at risk of death or serious injury; and property to be at risk of a severe damage in event of a fire when used in buildings of Type A and Type B construction;
• the Prohibited Products do not fulfil the requirements of the National Construction Code deemed-to-satisfy provisions for Type A and Type B construction;
• whilst currently capable of being the subject of a performance-based solution, building audits conducted over recent years have demonstrated that:
  • validation of performance solutions can be difficult due to a lack of documentation;
  • performance solutions have been misused; and
  • on-site construction standards and controls do not always ensure that the building is built to the standard intended through the design process; and
• commentary from eminent professionals, both within Australia and internationally, have called into question the effectiveness of the current building regulatory control system’s ability to ensure that, where a performance solution is used, it:
  • has full regard to all relevant risks;
  • is in the best interests of the public and occupants; and
  • delivers a building that achieves the level of performance expected of current and future owners.

What does this mean for practitioners and building/home owners?

• The prohibition only applies to buildings of Type A and Type B construction that are the subject of an application for a building permit made on or after 1 February 2021.
• The prohibition is unequivocal and applies even where a performance solution has been developed, such that the use of the products is or would be compliant with the National Construction Code.
• Where an application for a building permit is made on or after 1 February 2021, building surveyors must not issue a building permit where the Prohibited Products are specified to be used in the building's external wall systems.
• The prohibition does not apply to:
  • existing and completed buildings of Type A and Type B construction;
  • Type A and Type B construction that is the subject of building permits that were issued before 1 February 2021;
  • Type A and Type B construction that is the subject of an application for a building permit made before 1 February 2021;
  • Class 1 and 10 buildings, whenever designed and constructed; and
  • repairs, alterations and rectification works that do not require a building permit.
• For current construction where a building permit has already been issued permitting the installation of ACPs and EPS, building surveyors and builders may wish to pause to ensure that a robust performance solution, that complies with the National Construction Code, is in place.
• For ACPs and other external cladding products that fall outside the definition of the Prohibited Products:
  • building surveyors are no longer required to apply to the Building Appeals Board for approval;
  • a building surveyor may nonetheless, at their discretion, make an application to the Building Appeals Board for approval; and
  • the specified products must comply with the deemed-to-satisfy provisions of the National Construction Code, or be the subject of a robust performance solution that complies with the National Construction Code.

For more information or advice about the impact of these changes, please contact our specialist team to discuss further.