(a) Types 1 and 2, comprising 54% polyethylene and 48% polyethylene respectively, primarily installed to the tower portion of the Building;

(b) Type 3, comprising 29% polyethylene primarily installed to the main entry awning on Green St; and

(c) Type 4, comprising 85% polyethylene primarily installed to the townhouses.

Types 1, 2 and 4 ACP types are classified as Category A under the Insurance Council of Australia protocol[1], which is the category with the worst fire performance characteristics. These ACP types are installed to the residential parts of the Building, being the tower and townhouses.

1. In correspondence dated 25 November 2024 from OC1's manager, Mr Tal Sahar of Tideways, which was included in the Supplementary Report in 'Appendix A - Stakeholder Correspondence' (OC1 Correspondence), Mr Sahar:

(a) states that it approves the proposed cladding rectification works in line with Basic Expert Risk Assessment Report v1.0, being an earlier version of the RA Report, or as otherwise determined by the BAB; and

(b) confirms that the proposed works may not result in a reduction in the insurance premium or excess.

1. Correspondence from the Applicant's property manager confirms that an insurance premium loading will apply due to the Partial Retention of cladding on the building, although the loading is not quantified.
2. We note that occupancy permit No. 01509 was issued on 2 April 2015 by Andrew Lehmann (BS-U15013) of PLP, some five and half months following the Lacrosse building fire in Docklands. This fire highlighted the significant risks associated with external fire spread caused by combustible ACP used in building façades.
3. A building notice was served on the lot owners and OC1 by the municipal building surveyor of the City of Yarra on 25 July 2022 (Building Notice) to show cause why:

(a) all combustible materials attached to all external parts of the apartment buildings and ground floor commercial tenancies should not be removed, and

(b) all combustible material attached internally to the soffit of the basement carpark ceiling should not be removed.

1. Whether there was a response to the Building Notice and the present status of the Building Notice were not raised by any party during the hearing.
2. The First Interested Party, Adam Calleja, the RBS for the proposed rectification works, made no submissions.
3. The Second Interested Party, the municipal building surveyor for the City of Yarra (MBS), also made no submissions, however correspondence from the Council was provided advising that the acting MBS has no objection to the Partial Retention proposed in the RA Report.
4. The Third Interested Party, the Fire Rescue Victoria Commissioner (FRV), submitted a Statement of Contentions and raised the following issues with regard to the application:

(a) Dr Barnett, being the original fire safety engineer employed on the project, has a conflict or perceived conflict of interest in now preparing a risk assessment for the original builder, Crema, when he was the original fire safety engineer employed at Olsson when the Building was designed and constructed.

(b) In determining potential fire brigade intervention activities, reasonable emergency vehicle access is not available to any aspect of the tower building, with the descriptions of fire brigade intervention based on positioning of aerial appliances along the relevant Building perimeters, designated Sectors 1 to 4 in the FRV submission. FRV considers that the site presents significant access challenges which will impede effective fire extinguishing activities in the event of a façade fire.

1. The Fourth Interested Party, Cladding Safety Victoria, raised no technical matters with regard to the application before us but reiterated that it considers Ministerial Guideline MG15 (MG-15) to be applicable and endorses a risk-based approach to cladding fire risk.

1. In reaching the following findings, we have considered all the submissions and information placed before us.

1. As noted above, the Applicant, being OC1, was represented by Dr Barnett. However, Dr Barnett was actually retained by Crema, and both the RA Report and Supplementry Report state that they were prepared 'for the sole use of' Crema. The Owners Corporations, including OC1, were only identified as stakeholders, alongside other organisations.
2. Dr Barnett has assumed multiple roles in this matter, which, as submitted by FRV, could give rise to allegations of conflicting interests. The following aspects of Dr Barnett's involvement when considered together concern us:

(a) Dr Barnett was the original fire safety engineer employed by Olsson on behalf of their client, Crema, and in this capacity he rejected the use of a combustible ACP and required the Building to be constructed using non-combustible external wall materials as required by the BCA DtS provisions.

(b) Dr Barnett has now prepared the Supplementary Report for Crema proposing to partially retain combustible ACP which is contrary to his original FER advice and with significantly poorer fire performance characteristics than the material assessed by Aurecon and approved by the original RBS. He has submitted the Supplementary Report as an expert.

(c) Dr Barnett stated that he represented OC1, however, his client is Crema, and the Supplementary Report simply identifies 'the Owners' as 'key stakeholders'.[2] Further, the only relevant statement from OC1 concerning the proposed Partial Retention of the combustible ACP is contained in the OC1 Correspondence attached as an Appendix to the Supplementary Report.

1. We consider that there is a significant distinction between being a client and being consulted with as stakeholders. It is unclear to us how Dr Barnett has managed the duties he owes to his client, Crema, who clearly has a financial interest in reducing the number of combustible ACPs to be replaced in circumstances where we were advised that Crema, or its subcontractor, would pay for the cost of remediation, with those owed to the Owners, whose interest is to maximise the safety of the Building as far as is economically viable.
2. The above conflict concerns us, particularly given the way in which the use of combustible ACPs came about in the first place. The statement contained in the OC1 Correspondence from the OC1's manager provides us with little comfort, and in effect it asks the BAB to assess the Partial Retention proposal and determine whether that is appropriate for the Building.
3. Pursuant to s 161 of the Act, we must consider and determine whether the Partial Retention should be permitted as a modification to the Regulations pursuant to s160(2)(b) of the Act. Section 162(3) of the Act requires that we not grant that relief sought 'unless [we are] satisfied that to do so is reasonable and not detrimental to the public interest'. In order to assess whether the Partial Retention is reasonable and not detrimental to the public interest, we consider that it is appropriate to adopt a risk-based approach to consider the fire risk inherent in the Partial Retention.
4. However, we adopt the risk-based approach bearing in mind the concerns we have about the RA Report, the Supplementary Report, and the issues set out in these findings.
5. In order to determine whether the Partial Retention is reasonable and not detrimental to the public interest, we will consider the initial installation of combustible ACP, the residual fire risk resulting from the Partial Retention, and submissions made about the cost of full replacement compared with the cost of the Partial Retention.

1. We have set out above the manner in which the combustible ACPs were installed on the Building.
2. Based on the information provided, we have been unable to reconcile how the regulatory process has led to the current fire safety outcome of having combustible ACPs installed on the Building, particularly given that the original proposed combustible ACPs were initially rejected by Olsson during the design phase.
3. Notwithstanding that throughout the hearing the Applicant referred to the product approved by the Aurecon Assessment as being 'Sky Rainbow A2', the Aurecon Assessment is titled 'Kingspan Panel Assessment'. 'Sky Rainbow' appears to be a separate company from 'Kingspan' as indicated in the product information in Appendix A of the Aurecon Assessment, and we were not able to find any reference to 'Sky Rainbow' in the Kingspan literature.
4. Further, Crema advised us at the hearing that their processes with the sub-contractor involved travelling to China to observe manufacturing and fire tests of the Sky Rainbow A2, which would seem to confirm that the product is not from Kingspan. Additionally, the literature in the Aurecon Assessment describes the Sky Rainbow A2 as a 'Fireproof A2 Class ACP' which comprises a mineral core. However, the ACP that was installed comprises a black or grey plastic polyethylene core. Based on these differences, along with any fire test results, it would have been expected that such distinctions could have been readily identified through the assessment process described, and subsequently prior to installation. The fact they were not is of great concern.

1. The Supplementary Report follows the principles and methodology outlined in the Society of Fire Safety Practice Guide[3] (the Practice Guide) based on the 'So Far As Is Reasonably Practicable' (SFAIRP) approach. We have no objection to the methodology set out in the Supplementary Report and the adoption of a risk-based approach for this matter. However, we do not consider that the issues identified below have been adequately addressed or mitigated through the analyses presented:

(a) The SFAIRP approach is precaution-focussed and requires greater accountability than subjective 'reasonably practicable' outcomes based on a risk matrix, such as would apply from the hazard-focussed approach 'As Low As Reasonably Practicable'. Options to eliminate or minimise the fire risk should be made based on the level of available precautions rather than the level of risk. This means that what can be done should be done unless it is reasonable in the circumstances to do something less. The Practice Guide details these differences in approach and advises that SFAIRP is appropriate to address insurance and monetary issues. In our view, the issues identified below fail to meet the SFAIRP approach that is used in the Supplementary Report.

(b) Fire brigade intervention has been discounted on the basis that the proposed design does not rely on the fire brigade. We consider that this is erroneous because fire brigade intervention may be necessary when the fire safety features do not perform as intended, when the fire severity exceeds that anticipated, or where human/occupant activities or behaviours are not as envisaged. It is not acceptable to us that fire brigade intervention is disregarded in this manner where the proposal includes retention of combustible ACP cladding.

(c) Further, with respect to fire brigade intervention, the tower building perimeter/façade cannot be accessed with aerial appliances from any direction due to its position within the Subject Land. The site plan shown below, taken from the RA Report, shows the difficulty arising should fire brigade intervention be necessary: Swan and Green Streets can be used to locate aerial appliances, subject to protection from the Swan Street tram lines, but are too far from the Building to facilitate an effective aerial appliance position. The railway lines to the south and dimensions of Byron Street prevent the positioning of aerial appliances for fire extinguishment from these directions. Consequently, only handheld hoses from ground or podium levels could be used for a façade fire, and we consider this an unacceptable design impediment which has not been adequately considered in the analysis. These issues were raised by FRV in their Statement of Contentions.

(d) It is also noted that the peer review report prepared by Warringtonfire[4] did not address issues concerning fire brigade intervention. We consider such matters to be integral with the SFAIRP approach and hazard identification and consequence assessments.

(e) The slab edge detail shows polyester insulation with steel flashing, referred to as 'smoke seal construction'. At the hearing, it was confirmed that this feature was installed for acoustic purposes and not fire safety, albeit some separation benefit can be derived from the construction of these elements. We consider that the polyester insulation, being combustible, is unsuitable for the use as a smoke seal and not reliable for achieving smoke proof performance. Further, the polyester insulation could contribute to unanticipated flame spread though the wall cavities regardless of the adjacent ACP.

(f) The Symbols and Materials Legend (Figure 1 of the Supplementary Report) also shows some back-pans to be ACP (AP-02), which appear to represent the aluminium fins at spandrel junctions (Figure 16 of RA Report and Figure 2 of Supplementary Report). These are also installed adjacent to polyester insulation, and this combination of materials gives rise to potential fire intensity and a path of fire spread within wall cavities particularly if the polyester insulation is not replaced. These sections may behave very differently to the steel plate back-pan and polyester insulation configuration at slab edges which was described and analysed in the Supplementary Report.

(g) The Supplementary Report does not address horizontal fire spread across the tower or how a tower façade fire incident would be extinguished. There are no horizontal 'fire breaks' comprising non-combustible cladding for those levels which are proposed to retain combustible ACP. Therefore, multiple Single Occupancy Units (SOUs) on the same level may be exposed to a façade fire particularly with prevalent wind conditions. We consider the absence of options to facilitate fire brigade intervention raises an incident of this type to a higher risk ranking due to the potential exposure of multiple apartments.

(h) The Supplementary Report assigns a likelihood rating of 'unlikely' or 'rare' for the tower fire scenarios based on ACP Types 1 and 2 (comprising approximately 54% and 48% polyethylene core respectively). This is compared to the townhouse fire scenarios which are also assigned a likelihood rating of 'unlikely' even though this combustible ACP is Type 4 (comprising 84% polyethylene core). It would be expected that Type 4 ACP has poorer fire performance characteristics compared to Types 1 and 2 ACP and the increased likelihood of ignition and spread should be reflected in a higher likelihood rating of 'probable' if exposed to a fire source.

(i) The heritage overlay of the site and enhanced public value of the clock tower building has not been weighed against the decision to retain combustible ACP on the Building. We consider that these matters are relevant to the question of whether the Partial Retention is not detrimental to the public interest.

(j) The egress system comprises a number of departures from the BCA DtS provisions, including extended travel distances and scissor stairs with an internal discharge in lieu of discharging directly outside. There was no evacuation analysis presented within the RA Report, or an analysis of the capacity of the egress system to cope with a multi-floor evacuation scenario, nor an analysis of the capacity of the egress system to concurrently facilitate fire brigade intervention. If internal access is the only means to extinguish a façade fire, then the egress system and fire brigade entry internally is paramount to the assessment of building fire risk. This issue is covered in a single statement contained in the Supplementary Report Table 7.2 under scenario F4_Tower: 'we do not expect this to impede occupant egress or internal brigade intervention_._' Consequently, we do not consider that this issue was adequately investigated or addressed within the RA Report given internal fire brigade intervention appears to be the only strategy available to FRV in the event of a façade fire.

1. We are also concerned that the Partial Retention will result in an ongoing insurance premium burden for the Building owners. While the fact of a 'premium loading' has been disclosed in correspondence dated 9 September 2021 from OC1's manager, the extent of such loading is unknown. The rising cost of insurance is a significant public interest issue, and there is no indication as to how this premium will be allocated in the future. For example, will the premium be distributed equitably across all owners of the Building and safeguarded for its lifetime, or will owners of properties where the combustible ACP is to be retained face a disproportionately higher insurance premium compared to those whose properties do not have non-combustible replacements?
2. We also consider that the insurance 'premium loading' should have been included in the cost analysis provided in the Supplementary Report to assess the long-term financial impact of the Partial Retention.
3. There may be further disadvantages for Owners of those properties where combustible cladding is retained. These could include the imposition of fire safety restrictions on balconies, as recommended in the Building Notice and the FRV Guideline, and potential impacts on property resale values. We consider that the willingness of Owners to accept retained combustible cladding, along with any associated restrictions on use or amenity, is a matter of public interest.
4. The reasonable elimination of fire risk is consistent with a SFAIRP approach. However, given the site complexity, limitations on the fire brigade intervention, heritage considerations, and the additional insurance premiums to be borne by the owners for the Building's lifetime, an SFAIRP approach should have accounted for the necessary precautions to address these issues. We do not consider that the Supplementary Report explains or justifies why it is considered reasonable to only partially remove combustible cladding, but unreasonable to remove further combustible cladding to mitigate these issues. For these reasons, we consider that the Partial Retention would be detrimental to the public interest were it to be implemented.

1. The cost of the Partial Retention is estimated by Crema to be $1.3m, while the cost to replace all combustible ACPs is estimated to be $2.3m. The cost for the complete replacement of all combustible ACPs has been estimated by extrapolating the unit cost per panel for the Partial Retention. A detailed cost analysis was not presented, meaning that the cost versus fire risk for other options was not available. The conclusion drawn in the Supplementary Report is that:

This cost in implementing this strategy (full replacement at ~$2.3m) is not practical compared to the cost effectiveness and residual risk of the other strategies identified, which violates SFAIRP [So Far As Is Reasonably Practicable].[5]

1. We do not accept this assessment and conclusion for the following reasons:

(a) The extrapolation of the unit cost per ACP in this manner ignores set up costs which would be expended irrespective of the number of ACPs replaced. The cost of total ACP replacement should therefore be less per panel over the entire Building.

(b) Following the initial hearing on 17 September 2024, we requested in Directions and Orders dated 3 October 2024 a statement and cost schedule of the proposed construction method so we could assess how the ACP replacement was to be undertaken and whether the cost to further mitigate fire risk was warranted from a cost perspective. This was not provided although it was advised at the hearing on 5 March 2025 that a swing bridge arrangement was to be used.

(c) Since the decision that replacement of a significant proportion of combustible ACPs is a necessary outcome of the Supplementary Report, and since replacement works can be readily achieved via a swing bridge method, it is clearly reasonable to replace combustible ACPs. That is, there is limited difficulty in reducing the fire risk by implementation of the replacement works. Any further risk mitigation by increasing the scope of the replacement of combustible ACPs is therefore determined solely on cost and not difficulty.

(d) As cost is the only condition to determine what further mitigation may be reasonable, a detailed cost analysis for all available precautions is necessary. This was not provided.

(e) The cost of total replacement, that is eliminating the fire risk of a façade fire from combustible ACPs, must also be assessed against the inability of the fire brigade to effectively deal with such a façade fire. While the Partial Retention is assessed to mitigate fire spread vertically, no extinguishing solutions have been provided that consider a fire incident which occurs on any of the retained levels.

1. Therefore, the Applicant has not satisfied us that the Partial Retention is reasonable, or conversely, that complete replacement of combustible ACPs is unreasonable. When combined with our conclusion that the Partial Retention is detrimental to the public interest, the application pursuant to s 160(2)(b) of the Act must fail.

1. In considering the application made pursuant to s 160(2)(b) of the Act, we considered the Fourth Interested Party's submissions and reference to MG-15.
2. Under s 188(1)(c) of the Act, the Minister may issue guidelines relating to the functions of municipal building surveyors and private building surveyors under the Act or Regulations.
3. Under s 188(7) of the Act, a municipal building surveyor or private building surveyor must have regard to any relevant guideline under subsection 1(c) or (d) in carrying out a function of the Act or the Regulations.
4. We note that pursuant to section 188AA of the Act, those directions to the functions of the municipal building surveyors and private building surveyors under the Act or Regulations is not to be inconsistent with the Act or the Regulations.
5. MG-15 has been issued pursuant to section 188(1)(c) of the Act, and municipal and private building surveyors must have regard to it pursuant to section 188(7) of the Act.
6. As the BAB is neither a municipal building surveyor nor a private building surveyor, and nor is the BAB reviewing an appeal of a decision made by such a person, MG-15 does not require us to have regard to it in an application for a modification pursuant to s 160(2)(b) of the Act. Notwithstanding that we are not required to have regard to MG-15, we have considered it in arriving at our decision. We note that CSV urges us to adopt a risk-based approach in determining this application, which is clearly consistent with the approach we have taken.
7. As set out earlier in these Reasons, we consider that the Building, which consists of a high rise tower, large Coles supermarket taking up the majority of the ground floor and the heritage overlay incorporating the Clock Tower building, combined with the limited options for facilitating fire brigade intervention, will present unique fire risk challenges associated with a façade fire involving the installed combustible ACPs and polyester insulation. These complexities require a detailed analysis of the proposal which may not have been fully addressed within the scope of MG-15, but which we have considered in this matter based on all the information made available.
8. We also note that horizontal fire spread on levels where the combustible cladding is proposed to be retained will potentially expose more than four SOUs to a façade fire.

1. We have considered all of the information and evidence made available to us and for the reasons provided we are not satisfied that the Partial Retention and concomitant modification or variation of the applicable provision of the building regulations is reasonable and not detrimental to the public interest. Therefore, the application pursuant to s160(2)(b) of the Building Act for the relief sought must be refused.

[1] Insurance Industry, Aluminium Composite Panel and Other Combustible Façade Materials, Residual Hazard Identification / Reporting Protocol, Insurance Council of Australia in conjunction with FPA Australia and Engineers Australia, September 2020.

[3] Society of Fire Safety Practice Guide, Façade/External Wall Fire Safety Design, Revision 002, Engineers Australia Society of Fire Safety, 7 March 2019.

[4] Peer review of cladding fire assessment report, Revision PR2.1 dated September 2021, Warringtonfire, (Appendix E of Supplementary Report).

[5] Supplementary Report, Appendix B, Table 8.3 'Risk Mitigation Strategies', Strategy S2 'Remove all combustible cladding'.