Key Takeaways:
- The Building Appeals Board rejected an owners corporation’s bid to keep some of its combustible cladding because the supporting expert evidence did not hold up.
- The fire engineer changed position at the hearing and accepted that all the cladding should go, leaving the report with no foundation.
- With the application dismissed, the owners corporation faced full removal at its own cost.
- Since September 2023, Victoria has moved to a risk-based approach, so partial rectification can now be accepted in the right circumstances, provided the evidence stands up.
Combustible cladding is one of the most expensive and stressful issues an owners corporation in Victoria can face. A building on Malvern Road, Malvern, found this out when its attempt to avoid full cladding replacement was knocked back by the Building Appeals Board. The short version is that the Board refused to accept that partial removal would comply, because the expert evidence behind that solution was not strong enough to rely on.
What happened in the Malvern combustible cladding case?
The building was a mixed residential and retail property with a significant proportion of its external walls clad in combustible expanded polystyrene. The sequence was straightforward:
- In 2018, the City of Stonnington’s municipal building surveyor issued a building notice requiring the owners corporation to show cause why the cladding should not be removed.
- The owners corporation engaged a property services firm to prepare a fire engineer’s report on what work would be needed to meet the National Construction Code.
- The report concluded the building could keep its existing cladding, subject to further remedial works.
- Relying on that report, the owners corporation applied to the Building Appeals Board for a determination under section 160A of the Building Act 1993.
Why did the Building Appeals Board reject the partial removal proposal?
The proposal collapsed on the evidence. At the hearing, the fire engineer who wrote and approved the report accepted that all the combustible cladding should be removed, directly contradicting the report the owners corporation was relying on.
After hearing from the Chief Officer of the Metropolitan Fire Brigade (now part of Fire Rescue Victoria), the Victorian Building Authority (whose functions are now part of the Building and Plumbing Commission) and the fire engineer, the Board found the report lacked probative value and dismissed the application. The owners corporation had to start again on a plan for full removal and replacement.
Can you keep combustible cladding if a fire engineer signs off on it?
Possibly, but not on the strength of a report alone. Combustible cladding such as expanded polystyrene is non-compliant under the prescriptive rules, but the regulations also allow performance-based solutions. A compliance assessment under section 160A of the Building Act is one way to test such a solution:
- The owners corporation applies to the Building Appeals Board for a determination that its proposed approach meets the performance requirements of the National Construction Code.
- If the Board is satisfied, the cladding arrangement can be accepted.
- If it is not, the application fails and the original building notice or order stands.
The Malvern case shows the weakness of this pathway. A favourable report on paper counts for little if the expert cannot stand behind it.
If your owners corporation is holding a fire engineer’s report and trying to work out whether it will hold up, it is worth getting an experienced strata consultant to review the process before you commit to an application.
Does this mean partial cladding removal is never accepted?
No, and this is the part the headline can hide. The section 160A pathway can succeed when the evidence is strong, and it did even in this period. In a Building Appeals Board case from the same time, In the matter of 14 Elliot Avenue, Carnegie [2020] VBAB 19, an owners corporation facing a near-identical situation of expanded polystyrene cladding and a council removal notice was allowed to keep the cladding, because its sprinkler system, the limited placement of the cladding and a sound fire engineering case satisfied the Board on overall fire safety.
The wider approach has since moved further in a risk-based direction. On 21 September 2023 the Minister for Planning issued Minister’s Guideline 15, which introduced a risk-based framework for combustible cladding:
- Cladding is now graded by risk category, not a simple pass or fail.
- The focus is the risk of fire spread between apartments.
- Building surveyors and councils can consider solutions that do not remove all the combustible material.
So partial rectification is now a legitimate option in the right case. The Malvern lesson still applies though. The solution is only as good as the evidence behind it.
Why does expert evidence matter so much in cladding cases?
The Malvern outcome turned entirely on the expert evidence. The report said one thing, the expert said another, and the report became worthless to the Board. The takeaways for an owners corporation:
- Engage an expert to assess the building on its merits, not to support a desired outcome.
- Make sure the fire services engineer can defend the opinion in front of the Board.
- Weigh the cost of getting it wrong: wasted fees, lost time, and full removal at the owners corporation’s expense.
Who pays for combustible cladding rectification in Victoria?
For years, Cladding Safety Victoria funded rectification for the highest-risk buildings from the statewide audit. That program has now remediated almost all of those buildings and is winding down, with the focus shifting to lower-risk buildings through the Cladding Remediation Partnership Program. What this means for most owners corporations today:
- Government funding is no longer a safe assumption, and eligibility depends on risk rating, construction type and use.
- Mixed-use buildings are more complex, because commercial owners are treated differently from residential owners.
- Establishing the building’s true risk profile early is the key to understanding both the obligation and any funding pathway.
The safe planning assumption is that you will need to budget for at least part of the cost yourselves. Where the cladding stems from defective building work, it is also worth considering whether the owners corporation can recover some of that cost from the parties responsible.
What should your owners corporation do after a cladding building notice or order?
The first few weeks matter most. In practice:
- Engage a suitably qualified fire engineer to assess the building on its merits.
- Work out whether a compliance assessment, an appeal, or a negotiated risk-based plan suits your building.
- Keep lot owners informed and budget realistically for the works.
Above all, avoid shortcuts. A solution that cannot be defended at the Building Appeals Board is not a solution at all.
Getting the right help with combustible cladding
Combustible cladding is one of the most complex issues an owners corporation can face, and the right process at the start makes all the difference. Strata Management Consultants works with owners corporations across Victoria to manage the response to building notices and orders, coordinate the right experts, liaise with councils and Cladding Safety Victoria, and keep lot owners informed at every step.
If your building is working through a cladding issue, you are welcome to talk it through with the team.
Case discussed: In the matter of 14 Elliot Avenue, Carnegie [2020] VBAB 19, Victorian Building Appeals Board. Full determination available on request from the Building Appeals Board registry.
Case discussed: Malvern Road combustible cladding determination, Victorian Building Appeals Board. Available on request from the Building Appeals Board registry.
