The eastern wall of the Building abuts Fleming Place as shown below -

Fleming Place is only a road at its northern end abutting Little Collins Street.

1. The Building has combustible Aluminium Composite Panels (ACP) installed on its North, East and West Elevations as shown in the figures below -

1. A Building Notice dated 18 October 2024, issued by the Municipal Building Surveyor for the City of Melbourne alleged that -

(a) Contrary to reg 10 of the Building Regulations 2018 (the Regulations), ACP had been used as a component of the external walls of the Building in contravention of Performance Requirements CP2 and CP4; and

(b) The Building is a danger to the life, safety, or health of any member of the public or any person using the Building or to any property (the Building Notice).

1. The Building Notice required the Applicant to show cause why -

(a) The ACP should not be removed and replaced with a material compliant with the Regulations and the Building Code of Australia (the BCA); or

(b) As far as it is reasonably practicable, remove and replace the ACP whereby it can be demonstrated that the extent and configuration of the cladding satisfies the Regulations and the BCA performance requirements.

1. The Applicant engaged Basic Fire Pty Ltd trading as Basic Expert (Basic Expert) to conduct a risk assessment of the Building to determine the likelihood and consequence of fire spread through the installed ACP and to propose rectification works that would minimise that risk. A Basic Expert report dated 9 December 2024 (the Risk Assessment Report) proposed a Cladding Rectification Strategy as shown in the Figures below -

1. On 14 March 2025 on behalf of the Applicant, Basic Expert filed with the BAB an application pursuant to s160(2)(b) of the Building Act 1993 (the Act) seeking a Determination that, having regard to the Risk Assessment Report, cl 3.1(b) of Specification C1.1 of the Building Code of Australia 1996, Volume One applies to a Class 5 and 6 building in a modified or varied form (the Application).
2. On 13 May 2025, the BAB issued Directions and Orders -

(a) Naming First, Second and Third Parties as Interested Parties to the Application;

(b) Requiring the Applicant to file with the BAB and send to the Interested Parties its Statement of Contentions, and

(c) Giving the Interested Parties the opportunity to file and serve a Statement of Contentions (if any) responding to the Application.

THE APPLICANT'S STATEMENT OF CONTENTIONS (IN SUMMARY)

1. The Applicant submits that the rectification strategy shown and described in the Risk Assessment Report involves upgrades to the fire safety system which will enhance the overall safety of the Building by removing the exiting ACP-PE -

(a) Around the Ground Floor entry and the entry canopy and first floor on the North elevation;

(b) Around the booster assembly and up to 9 metres on the East elevation; and

(c) Up to 9 metres from the roof of the adjoining building on the West elevation.

THE FIRST INTERESTED PARTY'S STATEMENT OF CONTENTIONS

1. Mr Kairouz did not file a Statement of Contentions.

THE SECOND INTERESTED PARTY'S STATEMENT OF CONTENTIONS

1. In an email to BAB dated 9 June 2025, the Municipal Building Surveyor stated that he did not wish to file any material in support of or in opposition to the Applicant's Application.

THE THIRD INTERESTED PARTY'S STATEMENT OF CONTENTIONS (IN SUMMARY)

1. On behalf of the Fire Rescue Commissioner, Fire Rescue Victoria (FRV) submitted that -

Sector 1 - Little Collins Street Elevation (North)

1. It supports the removal of ACP from ground level up to a height of 9 metres. However, external fire attack on the retained ACP above 9 metres will require aerial appliances**.**
2. Little Collins Street is a single vehicle carriageway providing one way access with parking on the Northern side of the street at the location of the Building.

1. Although the FRV supports the removal of ACP from Ground Level to a height of 9 metres, it does not support the retention of ACP above this height.
2. It contends that retention of ACP above the fire hydrant and sprinkler booster system produces a considerable risk of flaming droplets and falling debris to the area immediately below after firefighters have connected hoses to the feed hydrants and booster connections thereby creating an unacceptable hazard during the emergency response procedures. This hazard can only be avoided by removal of ACP to the full height of the Building.
3. Finally, aerial firefighting appliances maybe impeded by the width of Little Collins Street and the limited locations to connect to a public water main within that street.

Sector 3 - South Elevation (Access Laneway - extension of Fleming Place)

1. FRV supports the removal of ACP from Ground Level to 9 metres above Ground Level.
2. However, in combating an incident involving ACP in this location, firefighters will need to undertake external suppression activities at the pedestrian level, using aerial appliances connected to a public water main within Little Collins Street.
3. Similar to Sectors 1 and 2, the aerial appliances may be impeded by vehicles parked in Little Collins Street or the delay setting up an alternative location.
4. Finally, the Risk Assessment Report fails to refer to or address the following issues -

(a) The Cladding Assessment Report Rev.01 dated April 2023 (the 2023 CAR);

(b) How the wall insulation on the internal side of the ACP influences the evaluation or rectification strategy;

(c) How the Queensland Guideline is relevant to this proceeding which involves a building in Victoria;

(d) Architectural Drawing No: 24-20-WD08 A1 (Early Works) does not show removal of ACP to a height of 9 metres above Ground Level; and

(e) The hose reel cabinet adjoining the Early Warning Intercommunication System (EWIS) cabinet is used for storage of items obstructing the use of the hose reel which may prevent the occupants of the Building undertaking an initial fire attack.

1. The Applicant acknowledges that the location of the retained cladding and accessibility from Little Collins Street may pose challenges in the event of a fire. However, the remaining ACP is most likely to be ignited from an internal fire which reaches the flashover and breaches the windows. Due to an automatic fire suppression system, the scenario is unlikely.
2. The 2023 CAR serves as the basis for the Risk Assessment Report.
3. As assessed in Section 6.2 of the Risk Assessment Report, the risks associated with the internal combustible insulation were considered to be tolerable and hence no further action was required. In the absence of a standard practice or guideline for sampling combustible cladding in Victoria, the Queensland Guidelines were used to comply with best industry practice.
4. The removal of cladding has been marked up on the architectural drawings in Section 6.4 of the Risk Assessment Report.
5. The materials stored in the hose reel cupboard will be removed.

1. Section 160(2)(b) of the Building Act 1993 (the Act) states that -

(2) An Application may be made to the Building Appeals Board that a provision of the building regulations -

(a) does not apply; or

(b) applies with the modifications or variations specified in the application -

to a building or land specified in the application.

1. We have considered all the information made available as part of the Application including the Statements of Contentions filed by the Applicant and the Fire Rescue Commissioner.
2. We believe the following issues to be relevant in consideration of the high hazard posed by 100% Polyethylene core ACP and whether the partial retention proposal is reasonable and not detrimental to the public interest.
3. Fire brigade intervention has not been incorporated within the proposed fire safety strategy for the building. This was explained on the basis that the likelihood of ignition of the ACP was low and therefore no fire would occur, so fire brigade intervention was not expected to be necessary and is not relied upon. 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 cladding, particularly in the case of 100% polyethylene core ACP. Furthermore, FRV presented the difficulties associated with a cladding fire at this location however these matters were not further analysed to satisfy FRV and/or facilitate fire brigade intervention.
4. The ACP located on the east façade over Fleming Lane is positioned over the path of travel from the rear exit and located over the booster assembly. This presents additional difficulties for egress and fire brigade intervention. Evacuation analyses and/or emergency procedures which address different fire scenarios should have been considered to assess the impact of an ACP fire at this location and ensure the locations of ACP retention do not adversely impact life safety. Furthermore, FRV expressed concern with 100% polyethylene core ACP positioned above the booster assembly.
5. In contradiction to The Risk Assessment Report clause 2.1.1, a Building Notice has been issued by the City of Melbourne and the matters contained therein are not considered by the Applicant.
6. The Risk Assessment Report in Tables 5 and 6 for the North and East facades identify ignition sources to include vehicles, yet only flame heights resulting from bin fires were considered in the analysis. Vehicle fires including cars, vans and trucks should have been included in the quantitative assessment and analyses presented. Continuous and intermittent flame heights resulting from such fires are considerably more severe than those presented for bin fires.
7. The Risk Assessment Report in Tables 5 and 6 for the North and East facades identify the ACP to present a high fuel load and high contribution to fire spread. Clause 3.2.2 describes a bespoke performance design for structural FRLs, yet no information was provided in relation to this issue or how an ACP fire could impact the design and performance of building FRLs.
8. The Risk Assessment Report concluded that it was not reasonable to remove more ACP on the basis of cost. However, a detailed analysis of cost versus risk was not presented to justify this assertion, and the cost versus risk for other options was not available, for example to account for flame heights resulting from a vehicle/truck fire. Since removal of ACP via scaffolding up to 9m is proposed, replacement works are evidently reasonable. Furthermore, the ACP was installed in 2004 for aesthetic reasons as a refurbishment for the building which reinforces the reasonableness associated with such work scope. That is, there is limited difficulty in further reducing or eliminating fire risk by implementing additional ACP replacement.
9. The Applicant has not established that partial retention of 100% polyethylene core ACP is reasonable, or conversely that further replacement of these ACPs is unreasonable. Therefore, and as envisaged with the So Far As Is Reasonably Practicable approach to fire risk, the difficulty of ACP removal is not a hinderance for this building and removal of the 100% PE ACP should be undertaken until it is no longer reasonable. The Risk Assessment Report has not developed the solution in accordance with this principle.
10. The conclusions drawn in The Risk Assessment Report have not shown that it is in the public interest to retain 100% polyethylene core ACP considering it was approved pursuant to a specific building permit for aesthetic refurbishment purposes.
11. We consider that, based on all the information and evidence made available to us and for the reasons provided, we are not satisfied that a modification or variation of the relevant building regulations is reasonable and not detrimental to the public interest. Therefore, the relief sought in the application pursuant to s160(2)(b) of the Act is refused.