Cladding Safety Victoria (CSV) recently published its report, 'Compliance in Building Design’ (Report), following its review and assessment of more than 800 Victorian buildings with combustible cladding products. The Report, which was directed at answering the question about who is responsible for the widespread use of combustible cladding in Victoria, serves to put consultants and building surveyors on notice about their potential exposure in cladding recovery claims. In this article, we summarise the key conclusions in the Report and set out some of our key takeaways.
Key Findings
CSV, the organisation tasked with managing the Victorian Government’s $600M cladding rectification program, has recently delivered the Report following its review of information relating to the use of aluminium composite panels and expanded polystyrene (cladding) products for 804 referred buildings.
In preparing the Report, CSV examined the role of builders, architects, building surveyors and fire engineers in the selection, design, approval and ultimate installation of combustible cladding in the context of attributing responsibility for the ‘cladding crisis’.
CSV highlighted that:
- 172 architects, or 5% of the average number of architects registered between 2007 and 2018, were associated with projects assessed by CSV as non-compliant. Twenty-three individual architects were associated with 50% of those non-compliant projects;
- 113 fire engineers, representing 81% of all fire engineers involved in the analysed projects, were associated with non-compliant projects. Of the 113 fire engineers, there were 6 engineers who were associated with 50% of non-compliant projects; and
- 111 building surveyors, representing 82% of all building surveyors involved in the analysed projects were associated with non-compliant projects. Of the 111 building surveyors, there were 18 building surveyors who were associated with 50% of non-compliant projects.
Architects
CSV found that architects were primarily responsible for the selection of non-compliant cladding. This was because in many instances, they failed to ensure that designs contained sufficient detail to enable builders to construct a compliant building.
Engineers
CSV observed that:
- combustible cladding was largely not addressed by fire engineers in their assessments of buildings, even though fire engineering reports were prepared for more than 50% of projects reviewed;
- where a performance solution had been designed by a fire engineer and accepted by a building surveyor, those assessments were likely ‘without foundation, if not wholly unreasonable’;1 and
- fire engineers cannot discharge their obligations by considering only matters raised in the brief provided by their client. Instead, fire engineers are expected to conduct a general review of the design documentation to identify and take steps to correct issues which are identified.
Building Surveyors
CSV was critical of building surveyors for issuing building permits and failing to document performance solutions, despite the proposed use of combustible cladding being readily identifiable from the design documents.
Builders
CSV was not overly critically of builders, seemingly on the basis that many builders involved in the non-compliant projects were unsophisticated operators within the industry. This proposition appears open to debate given that many builders were highly experienced and had at their disposal internal consulting and design capabilities.
Minimum responsibilities and recommendations
The Report also identified a set of ‘minimum responsibilities’ for each of the relevant professions.
The ‘minimum responsibilities’ provide that architects, building surveyors and fire engineers have broad responsibilities to ensure the compliance of buildings with the Building Code of Australia (BCA), regardless of the scope of their briefs and/or engagements.
Similarly, architects, fire engineers and building surveyors could not deflect responsibility by assuming that others were responsible for identifying any non-compliance: ‘A failure by one professional does not absolve another of their own responsibilities.’2
CSV recommended that the failures within the industry could be addressed by:
- legislating the duties of the industry professionals;
- introducing a chain of responsibility regime;
- mandating continuing professional development for all registered persons having a material impact on building outcomes;
- ensuring that designs contain a proposed compliance pathway for key building elements;
- codifying the circumstances in which builders should stop work and defer to design professionals where designs are inadequate/unclear; and
- ensuring that occupancy permits should confirm that the completed building work complies with the approved building permit.
Observations
Our key takeaways from the Report are as follows:
- The Lacrosse decision arguably disposed of the argument that the ‘peer professional opinion’ defence can be used to successfully defend combustible cladding litigation on the basis that the belief that combustible cladding complied with the Building Code of Australia was unreasonable.
CSV’s findings in the Report appear to support this position, namely the data undermines the argument that there was a widespread misunderstanding of the relevant sections of the BCA within the profession given the relatively small number of individuals involved in the non-compliant projects. We note however, CSV’s conclusion that the failure to comply with the BCA was ‘systemic and widespread’. - CSV does not consider or comment on the role of the relevant regulator, the Victorian Building Authority (VBA), or its predecessor.
This appears to be because the VBA’s role in the ‘cladding crisis’ fell outside the scope of the Report, which was directed at analysing the data relating to non-compliance by building professionals. Given the statistical analysis in the Report appears to support to conclusion that misuse of combustible cladding was widespread and long-running, it is notable that compliance and enforcement action by the VBA significantly increased only after the Lacrosse fire occurred. It would be interesting to consider whether a more proactive response from the regulator might have changed the outcome of the cladding crisis and whether a more proactive role from the regulator is warranted moving forward. - The analysis and conclusions in the Report suggest that architects, building surveyors and fire engineers can expect to be the primarily targets in any recovery proceeding commenced by the State of Victoria pursuant to section 137F.of the Building Act 1993 (Vic).
- The ‘minimum responsibilities’ stipulated in the Report are likely to create an interesting tension in circumstances where parties to a construction contract often seek to limit the role of a professional, with a view to reducing the price of the services to be provided. It would therefore be prudent for professional consultants to consider the ‘minimum responsibilities’ identified by CSV in the Report when pricing their services, given that the Report suggests that the onus is on the professional consultant to ensure that those minimum standards are met.
1 Compliance in Building Design, Section 3.3 Page 12
2 Compliance in Building Design, Page 32
