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Smoke and mirrors cloud the cladding issue

28 Feb 2019

Editorial Comment, By Shane Scanlan

The Neo200 fire in Spencer St on February 4 reignited public disgust that, five years after Lacrosse, this can still happen. But it will continue to happen until liability is determined.

Until “who’s to blame” is universally accepted and legally binding, no real progress is possible.

Like in the 2014 Lacrosse case, builder LU Simon was singled out and besmirched in the media as the obvious villain. But does the “builder” actually define what materials should be used? Or does the builder merely follow the plans and specifications provided?

Wouldn’t the developer, in collaboration with architects, define these things?

What about the role of the fire engineers?

And (to directly address the elephant in the room), what about the role of the building inspectors? Surely the organisation that signed off the building carries responsibility?

It has been well documented that outsourced building inspections have failed the public, but you won’t hear that from the state government. And that’s because such an admission would invite liability to its door. The role may be technically outsourced, but it’s done on behalf of government.

The Melbourne Municipal Building Surveyor finds himself in a curious position in these cladding fire situations. Issuing building orders to rectify problems caused by “approved” non-compliant materials is not a good look.

The Victorian Building Authority and municipal councils are happy to make demands of owners. A series of notices were dispatched late last year.

Indeed, the government position is to burden apartment owners with the responsibility and cost of rectification works. How is that fair? Wasn’t it incumbent on government to ensure apartments were constructed with compliant materials?

Also last year the state government offered loans to owners to undertake remedial works. A generous gesture? Or a cynical attempt to “normalise” the idea that owners are responsible and the government is not?

The process has started, but it’s hard to say how many years we are still away from having a legally binding understanding of exactly where such liability lies.

After a six-week hearing, the Victorian Civil and Administrative Tribunal (VCAT) retired in October to ponder just this question in a test case centred on the Lacrosse situation. As Docklands News went to press, a finding had not been made.

But it is likely that multiple parties will be saddled with proportional blame. In the firing line are owners, builders, developers, building surveyors and inspectors, architects and fire engineers.

And, with so much at stake, the “losers” are not likely to accept the VCAT decision anyway. The Supreme Court is likely to be the next theatre of combat, followed by the Court of Appeal. How far will this go?

Five years could easily turn into 10 years before this fundamental question is resolved.

In the meantime, taskforces, building authorities and councils continue to assess and direct owners’ corporations (OCs) to take action.

Considering that liability is still to be resolved, you can understand OCs wanting to make their buildings safe, but also not wanting to pay for someone else’s mistakes.

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