The Owners - Strata Plan No 84411 v The Council of the City of Sydney; The Owners - Strata Plan No 84717 v The Council of the City of Sydney

The complex known as VSQ 1

1. Buildings A and B front Ascot Avenue and Building B has a northern frontage to Hutchinson Walk. Building C has frontages to Hutchinson Walk and Defries Avenue to the west. Building D has a western frontage to Defries Avenue. Buildings A, B, C and D are approximately 8 storeys high. Building E is at the southern end of the complex and is higher than all the other buildings with approximately 15 storeys. Building E is the only building in the complex with a sprinkler system, a building occupant warning system (BOWS) and an emergency warning and intercommunication system (EWIS). The car parking parts of the complex are sprinkler protected. All the buildings in the complex include a smoke detection and alarm system.
2. There is a courtyard in the centre of the complex over a podium below. The swimming pool complex is housed within a structure located in the courtyard, which includes a stair access from the building foyers below to the courtyard. The complex has multiple entrances and the vehicular entry to the podium is accessed within Building C from Defries Avenue.
3. The complex includes a building product which is cladding constructed with an ACP with what is believed to be a core of 100% polyethylene (PE), which is combustible. The ACP cladding is used in discrete locations on the façades and plant rooms of the complex, as identified in photographs included in the quantity surveyor's report (Ex A, tab 10, ff 266-275, 279-287, 289 and 291-294). The Cladding Assessment Report estimates that the ACP cladding comprises approximately 2.3% of the area of the façades of the complex. There is ACP cladding used as a cladding material internally in the complex, including in the plant rooms (Ex A, f 320) and foyers (Ex A, ff 306-309).

Legislative framework

1. The BPS Act commenced on 30 November 2017. The long title states that it is "An act to prevent unsafe use of building products in buildings and to provide for the rectification of affected buildings; and for related purposes".
2. The Council gave the Orders pursuant to s 20(1) of the BPS Act. Section 20 of the BPS Act is in the following terms: 20 Power of relevant enforcement authority to order rectification (1) A relevant enforcement authority may make an order under this section (a building product rectification order) in respect of a building. (2) A building product rectification order is an order that requires the owner of a building to do such things as are necessary for either or both of the following purposes: (a) to eliminate or minimise a safety risk posed by the use in the building of a building product to which a building product use ban applies, (b) to remediate or restore the building following the elimination or minimisation of the safety risk. (3) A building product rectification order may be made only if the relevant enforcement authority is satisfied, on reasonable grounds, that the building is an affected building. (4) For the purposes of any proceedings relating to a building product rectification order or proposed building product rectification order, an affected building notice or a general building safety notice is evidence that the use in a building of the building product specified in the notice poses a safety risk of a kind specified by the Secretary in that notice. (5) However, a relevant enforcement authority may make a building product rectification order in respect of a building whether or not the relevant enforcement authority has received an affected building notice or general building safety notice in respect of the building. Note - For example, a council may make a building product rectification order if, as a result of its own investigations, it identifies an affected building.
3. Section 9 of the BPS Act is in the following terms: 9 Secretary may prohibit use of building products (1) The Secretary may, by written notice published on the internet, prohibit the use of a specified building product in a building if the Secretary is satisfied on reasonable grounds that the use is unsafe. (2) A prohibition imposed under this section is a building product use ban. (3) A building product use ban may be imposed to apply in any of the following ways: (a) it may apply to a specified use or uses or to all uses of a building product in a building, (b) it may apply to any building or only to a specified class of buildings, (c) it may apply to use by specified persons or classes of persons, (d) it may apply subject to specified exceptions (for example, an exception that permits use of the building product only by a specified class of persons), (e) it may be subject to conditions or unconditional, (f) it may apply in any other way authorised by the regulations. (4) A building product use ban that prohibits an unsafe use of a building product is not invalid merely because it also prohibits another use of the building product that is not an unsafe use if the application of the ban to that other use could not reasonably be avoided and the ban operates reasonably and appropriately in prohibiting the unsafe use.
4. The building product use ban (the ban) issued under s 9(1) of the BPS Act was made by the Commissioner for Fair Trading and commenced on 15 August 2018 and remains in force until it is revoked (Ex A, tab 14). The ban prohibits the use of ACP cladding with a core of greater than 30% PE by mass in any external cladding, external wall, external insulation, façade or rendered finish in Class 2, 3 and 9 buildings of two or more storeys and Class 5, 6, 7 and 8 buildings of three or more storeys (with some exceptions that are not relevant to these appeals).
5. Pursuant to s 20(3) of the BPS Act, it was agreed by the parties that the complex is an "affected building" within the meaning of s 17, which is in the following terms: 17 Affected building (1) For the purposes of this Part, a building is an affected building if a building product the subject of a building product use ban has been used in the building for a use that is prohibited by the building product use ban. (2) It does not matter that the building product was used in the building before the building product use ban was in force.
6. Section 4 of the BPS Act regarding the meaning of the safety risk posed by the use of a building product is in the following terms: 4 Safety risks and unsafe use of building products (1) For the purposes of this Act, there is a safety risk posed by the use of a building product in a building if any occupants of the building are or will likely be at risk of death or serious injury arising from the use of the building product in the building. (2) A risk can be considered to arise from the use of a building product in a building even if the risk will only arise in certain circumstances or if some other event occurs, such as fire. (3) The regulations may prescribe other circumstances in which a safety risk is posed by the use of a building product in a building. (4) For the purposes of this Act, the use of a building product in a building is unsafe if there is a safety risk posed by the use of the building product in the building.
7. The parties agreed that the safety risk to the occupants of the complex posed by the use of the ACP cladding on the façade of the complex is the risk of fire.
8. Section 7 of the BPS Act is in the following terms: 7 Use of building product (1) A building product is used in a building if it is incorporated into, connected to, or otherwise installed in a building by means of building work. (2) The use of a building product in a building has a corresponding meaning. (3) A use of a building product in a building includes a misuse of a building product in a building.
9. It was uncontroversial in the hearing of the appeals that the ACP cladding, the subject of the ban, is a building product within the meaning of s 7 of the BPS Act used as cladding on parts on the façades of the complex.
10. Section 26 of the BPS Act is in the following terms: 26 When a building is "made safe" For the purposes of this Part, a building is made safe if the safety risk that is posed by the use of a building product to which a building product use ban applies, as identified by the Secretary in an affected building notice, is eliminated or, if it is not reasonably practicable to eliminate the safety risk, is minimised as far as practicable.
11. The provisions of the EPA Act, including Sch 5, apply to building product rectification orders as if they were development control orders. Section 21(1) of the BPS Act is in the following terms: 21 Statutory provisions applicable to building product rectification order (1) The Environmental Planning and Assessment Act 1979, and any regulations under that Act, apply to a building product rectification order as if the order were a development control order, except as provided by subsection (3). …
12. As the complex is a building within the meaning of the EPA Act (s 1.4), the relevant provisions under the EPA Act regarding development control orders apply to the appeals. A building owner to whom a building rectification order is given may appeal to the Court and the right of appeal is contained in s 8.18(1) of the EPA Act and is conferred on the owner of the building to whom the building rectification order is given. On hearing an appeal against a building product rectification order, the Court has the powers under s 22(3) of the BPS Act and s 8.18(4) of the EPA Act to make orders. Section 8.18(4) of the EPA Act is in the following terms: … (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.

Expert evidence

1. The applicants relied on the expert fire engineering evidence of Lee Clark and the Council relied on the expert fire engineering evidence of Allan Harriman. The experts prepared a joint report (Ex A, tab 11).
2. The experts agreed that the occupants of the existing development consist of the tenants, owners and visitors to the residential units and common areas; the staff including the building manager and the cleaners; and the contractors that access all areas of the development including plant rooms. The experts agreed that the safety risk to occupants only arises in the event of a fire involving the ACP cladding.
3. The undisputed conclusion of the quantity surveyor's report is that the cost of removing and replacing all the external ACP cladding on the façades and plant rooms of the existing development is $495,838.00 (excluding preliminaries, builders overhead and margin and a contingency) (option 1); and the cost of removing only the ACP cladding identified to be removed by the Cladding Assessment Report is $98,703.20 with the same exclusions (option 2) (Ex A, tab 10, f 252).
4. According to Mr Clark, the premise of the Cladding Assessment Report is to remove the ACP cladding only where it poses an unacceptable risk and to mitigate the fire risk of the remaining ACP cladding by maintaining current risk mitigation measures, annual inspections and certification, and by identifying and removing potential ignition sources, as detailed in the report (Ex A, tab 8, f 167). Mr Harriman noted that the identification and removal of potential ignition sources, such as removing or encasing the cabling of high voltage light fittings within or near the ACP cladding, has not been costed by the quantity surveyor's report as part of option 2. In Mr Harriman's view, the ACP cladding would have to be removed in certain locations in order to remove potential ignition sources, and according to Mr Clark, this can be done leaving the ACP cladding in situ.
5. The experts agreed on the removal of the ACP cladding proposed to be removed and replaced by the Cladding Assessment Report. I accept the agreement of the experts.
6. The experts disagreed on whether it is necessary to remove and replace all of the external ACP cladding on the façades and plant rooms of the complex.
7. In Mr Harriman's view, it is necessary to remove all of the ACP cladding in order to eliminate the safety risk associated with the external ACP cladding. In his opinion, the ACP cladding can be easily removed and replaced because it was applied to the façades after other materials were in place and so the removal of the ACP cladding does not require other materials to be disturbed. According to Mr Harriman, the Cladding Assessment Report does not minimise the safety risk because it proposes leaving external areas of the ACP cladding in situ. The ACP cladding is highly combustible and when alight, it forms flaming droplets that can fall to surfaces below or can 'plane' to other parts of the building remote from the fire, resulting in multiple fires.
8. In Mr Clark's view, the ACP cladding can be left in situ in locations where the burning ACP cladding would not pose an unreasonable risk and where there are alternative fire exits. These locations are shown on photographs and coloured green in the quantity surveyor's report (Ex A, ff 297-305, 309-319 and 321-325).
9. The experts agreed that the ACP cladding on the southern façade of the plant room on Building E should be removed and replaced, because the southern façade of the plant room aligns with the southern façade of Building E and is directly over a fire exit at ground level. The experts disagreed on whether the ACP cladding on the remaining façades of the plant room on Building E and the façades of the plant rooms on other buildings should be removed and replaced. According to Mr Clark, a fire in the plant room is unlikely because the flat roofs are covered in non-combustible pebbles. In the event of a fire in a plant room, it is unlikely that the complex would be evacuated and the risk of falling debris and droplets for occupants and fire fighters below is extremely low. According to Mr Harriman, there is a risk of a fire starting in a plant room, including that a contractor working in a plant room may start a fire with an electrical power tool.
10. The experts disagreed on whether the ACP cladding on the soffit and fascia of the roof and cladding the structure of the swimming pool enclosure located within the courtyard should be removed and replaced. According to Mr Harriman, all the ACP cladding on the swimming pool enclosure located within the courtyard should be removed and replaced, as the open fire stair to Building B is nearby and smoke from the burning ACP cladding could enter the stairs. Furthermore, the structure within the courtyard provides access via a stair from the foyer below to the courtyard and if the ACP cladding were alight, this would prevent a means of egress for occupants. In Mr Harriman's opinion, smoke within the courtyard is subject to environmental conditions and may not rise. Mr Harriman noted that a scope of work has not been prepared to detail the changes required to the ACP cladding on the soffit and fascia of the swimming pool enclosure to limit the potential ignition sources as elected as a mitigation measure by the Cladding Assessment Report (Ex A, f 167). Mr Clark agreed with Mr Harriman that a small amount of smoke may enter the open fire stair to Building B from the burning ACP cladding on the soffit and fascia of the roof of the swimming pool and entry structure; and he agreed that the behaviour of smoke is subject to environmental conditions, however, in his view, smoke in the courtyard is most likely to rise and be blown away.
11. The experts disagreed on whether the removal and replacement of two ACP cladding panels in a vertical rise of cladding on the western elevation of Building A is likely to be effective in minimising the safety risk to occupants in the event of a fire. According to Mr Harriman, there is no evidence that the removal of two panels, or approximately 1.8m of vertical cladding, is effective in minimising the safety risk posed by the ACP cladding in the event of a fire. There is no research to establish that a 1.8m break in the cladding is sufficient to prevent a fire leaping across the gap. According to Mr Clark, the removal of two panels would at least delay the spread of fire and give occupants more time to leave the complex in the event of a fire.
12. The experts disagreed on whether the removal and replacement of ACP cladding in the vicinity of entries to the complex was necessary, including the façades on either side of the northern entry to Buildings B and C (Ex A, tab 10, ff 303-304), the soffit of the western entry to Building B (Ex A, tab 10, ff 310-311) and the vehicular entry (Ex A, tab 10, f 301). According to Mr Clark, these entries have glass walls and doors so that occupants leaving the complex in the event of the ACP cladding being alight in one of these locations could see any falling lit debris or debris and could turn around and use an alternative exit. According to Mr Harriman, visibility can be difficult in smoke, people may panic and may not make a rational choice to turn around and use another exit in the event of the ACP cladding around an entry being alight.

Jurisdiction

1. The applicant submitted, in summary, that s 20(2)(a) of the BPS Act clearly stipulates, in respect of building product rectifications orders, that they are to require the owner of a building to do such things as are necessary to either eliminate or minimise a safety risk posed by the use in the building of a building product to which a building product use ban applies. A plain reading of that section does not admit of an interpretation that every risk must be eliminated, that removal and replacement is the inflexible and invariable approach that must be adopted, or that the only way to minimise a safety risk posed by non-compliant cladding is its complete removal and replacement. The relevant "safety risk" which is the focus of the BPS Act is the safety risk to occupants of a building; not property damage. This is because "safety risk" is defined in s 4 of the BPS Act.
2. Section 26 of the BPS Act applies. It prescribes when a building is to be regarded as having been "made safe" as a result of work carried out which either eliminates or minimises the risk from a product which is the subject of a building product ban. A building is regarded as having been "made safe" if "the safety risk that is posed by the use of a building product to which a building product use ban applies, as identified by the Secretary in an affected building notice, is eliminated or, if it is not reasonably practicable to eliminate the safety risk, is minimised as far as practicable". It follows that the following two elements should have informed Council's consideration and formulation of the Orders:

• the extent of elimination or minimisation of a safety risk must be measured against the risk of death or injury to persons, not the property itself; and
• inherent in the definition of safety risk and what it means when a building is made safe is a consideration of what is reasonably practicable.

1. There is no definition in the BPS Act as to what is "reasonably practicable". The applicants are unaware of any relevant case law. However, the expression "reasonably practicable", is a concept that is well known in what can broadly be termed "safety" legislation in the workplace in various jurisdictions across Australia (including under the Heavy Vehicle National Law). For example, in the Work Health and Safety Act 2011 (NSW) what is reasonably practicable in relation to duties to ensure health and safety under that Act is defined as (s 18): that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising.
2. Similarly, in the Heavy Vehicle National Law (schedule to the Heavy Vehicle National Law Act 2012 (Qld) incorporated into other State and Territory legislation), what is reasonably practicable in relation to a duty under that law is defined as: that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including - (a) the likelihood of a safety risk, or damage to road infrastructure, happening; and (b) the harm that could result from the risk or damage; and (c) what the person knows, or ought reasonably to know, about the risk or damage; and (d) what the person knows, or ought reasonably to know, about the ways of - (i) removing or minimising the risk; or (ii) preventing or minimising the damage; and (e) the availability and suitability of those ways; and (f) the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.
3. The Courts have considered the meaning of the words "reasonably practicable" with the result that the following general principles can be gleaned from their consideration: (a) The words "reasonably practicable" does not mean what might be physically possible. Something may be physically possible, yet not reasonably practicable. It requires a computation, in which "the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them" (Edwards v National Coal Board [1949] 1 KB 704 ("National Coal Board") at [712]-[713] (per Asquith LJ); (b) The words "reasonably practicable" should bear their ordinary meaning and call for the making of a value judgment in light of all the facts (Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [53]); (c) The words do not require a duty holder to take every possible step that could be taken. Bare demonstration that a step might have had some effect on safety does not demonstrate a breach of a duty (Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ).
4. The applicants respectfully submit that the use of the expression "reasonably practicable" in the BPS Act, importantly where Parliament has made no attempt at the definition of the expression, signifies that Parliament's intention was to leave the issue as one of applying common sense to the circumstances of the case. It is not correct to say that the BPS Act fetters either the Council, or the Court, from taking any relevant consideration into account. There is nothing in the BPS Act to prevent the Court from taking into account expense and difficulty of removal and replacement, and balancing the reality of risk against cost and other considerations, particularly where lot owners must bear substantial remediation costs involved in one approach as opposed to another.
5. In the context of the BPS Act, the meaning of what is "reasonably practicable" must accordingly take into account an assessment of: (a) the likelihood of the risk occurring; (b) the degree of harm that might result ie the risk of death or serious injury to persons associated with completing the Report Scope of Works contended for by the Appeal Applications; (c) what the Applicants know or ought to know about the risk; (d) the availability and ways of eliminating or minimising the safety risk; and (e) a proportionality assessment of the difference between the costs associated with complying with the Orders and the costs associated with completing the Report Scope of Works contended for aby the Appeal Applications.
6. This is an approach which is consistent with the Insurance Council of Australia's Residual Hazard Identification/Reporting Protocol (ICA Protocol) in the consideration of providing insurance cover for a building with non-compliant cladding, and for setting insurance premiums according to any residual risk presented by the use of ACPs or combustible façade materials.

Assessment of risk

1. The Cladding Assessment Report indicates that there are limited ignition sources near the combustible cladding. The Cladding Assessment Report Scope of Works envisages removing and therefore eliminating all realistically imaginable potential ignition sources. The cladding poses no risk if there is no ignition source. The relevant limitation of potential ignition sources works include: "(a) any external lighting shall be inspected to verify that it is low voltage or that cables within 100 mm of the ACP, including the insulation and sarking, are either not exposed (enclosed within conduit) or provided with an approved and tested fire rated barrier between the cable and the ACP; (b) any electrical power cabling, including associated GPOs, is physically separated from the sarking and insulation and is run within cable ducts, cable skirtings or conduit and is generally in accordance with the relevant parts of the Australian Wiring Codes AS/NZS 3000 and any other related codes; (c) lightning arrestors shall not run within 3 m of combustible cladding; (d) HVAC Condensers (and other plant) shall not be located within 6m of combustible cladding; (e) the use of the external façade or roof of the building for any installation of lighting, lasers, pyrotechnics, or fireworks shall be prohibited unless assessed by a fire engineer; (f) all hot works within 6 m of the ACP shall be subject to a risk assessment and shall be covered by a hot work permit and procedure. The organisation undertaking the hot works shall be informed that the cladding is combustible."
2. In the event that there is any residual risk remaining, despite the elimination of realistically imaginable ignition sources, the Cladding Assessment Report Scope of Works also contemplates implementing the following strategy to further mitigate and eliminate the risk of fire spread: "(a) Reducing undue spread of fire by limited removal of combustible cladding and limiting ignition sources; (b) Protecting occupants evacuating the building from exposure to falling debris and exposure to radiant heat from fire in the cladding by removing combustible cladding from internal paths of travel and fire exits; (c) Limiting fire spread to adjacent buildings (no measures required as buildings are separated); (d) Protecting the fire brigade (no measures required as no combustible cladding is installed above or near the fire hydrant booster and sprinkler booster assembly)."
3. Mr Clark, in his oral evidence, stated that if any fire were to occur in the plant rooms on the rooftops: "(a) occupants would be unlikely to be evacuated and, in fact, were unlikely to even be aware of the existence of the fire; (b) fire fighters would not be fighting the fire from the street level but rather on the rooftop level; (c) accordingly, the risk of falling debris and/or droplets for residents and/or firefighters down below is extremely low."
4. Accordingly, the likelihood of risk must further be assessed by reference to the fact that if the Cladding Assessment Report Scope of Works is accepted by the Court as the appropriate strategy of dealing with the non-conforming cladding, any residual risk that remains after the removal of realistic ignition sources, the interruption of cladding panels that remain and the property's existing early warning systems (ie the sprinkler and smoke alarm detection system), provide a complete reply to any submission that a realistic degree of harm to occupants remains.

Costs

1. The cost of the works and the Report Scope of Works has been set out by Mr Zakos in the quantity surveyor's report and can be summarised (Ex A, Tab 10, ff 252 and 326) as follows: "(a) Cost of Works in Orders (less the $64,422.00 relating to internal cladding in Building B/C internal lobby): Grand Total of $747,395.32 (excl GST) [note net trade total is $560,260.40 excl GST]; (b) Cost of Works in AED Report Scope of Works of $143,020.94 (excl GST) [note net trade total is $98,703.20 excl GST]. This means there is a cost differential of $604,378.38 (excl GST)."
2. The Council contends for complete removal of all combustible cladding. Whilst this option may be physically possible it comes at a very substantial cost to the lot owners; a cost which is disproportionately expensive when compared with the Cladding Assessment Report which realistically eliminates or minimises the risks as far as reasonably practicable.

The Council's submissions

1. It is common ground that the Secretary has not issued an affected building notice under s 18 of the BPS Act. Accordingly, s 26 has no application in these proceedings.
2. In this case, a safety risk exists as defined in s 4 of the BPS Act because a banned building product is used in the buildings and the buildings are affected buildings under s 17.
3. The Orders are expressed in the terms permitted by s 20(2) of the BPS Act. That is, they require both the elimination or minimisation of the safety risk under s 20(2)(a) and the rectification and remediation of the affected building under s 20(2)(b).
4. Even if the Court were to accept that s 26 applies, the applicants do not address the actual wording of the section. The expression "reasonably practicable" applies only to the elimination of the safety risk. Minimisation is only considered if it is not reasonably practicable to eliminate the risk. However, minimised is qualified differently - "minimised as far as practicable", not "as far as reasonably practicable".
5. The difference in the choice of words is deliberate. The obligation to minimise the safety risk as far as practicable is not qualified by a requirement of reasonableness. The applicants' approach here is plainly directed to minimisation and not elimination so the concept of reasonableness does not arise and questions of cost are not relevant.
6. As these are the first appeals to come before the Court, the Council is not aware of any authority directly on the BPS Act or on the meaning of s 26.
7. Care has to be taken in attempting to attribute meaning to the words in one statute from words in another. The provisions in other legislation referred to in the applicants' submissions are of very limited assistance and must be treated with caution.
8. Whilst there is no direct authority on the use of the expression "reasonably practicable" in the BPS Act, the expression itself has been the subject of considerable judicial consideration.
9. In Barry Edward McDonald (t/as B.E. McDonald Transport) v Girkaid Pty Ltd & 4 Ors; Robert Bryce & Co Ltd v Girkaid Pty Ltd & 4 Ors; Hudson Resources Pty Ltd & 5 Ors v Robert Bryce & Co Ltd [2004] NSWCA 297; (2004) Aust Tort Reports 81-768, the Court of Appeal said: "193 A brief survey of authorities which have considered a statutory duty which turned on practicability bears out this conclusion. Thus, in Adsett v K & L Steelfounders and Engineers Ltd [1953] 1 WLR 773; [1953] 2 All ER 320 applied in Brear v British Paints Ltd [1978] 2 NSWLR 253 at 258, it was held that in determining whether a provision requiring "all practicable measures to be taken" has been complied with, regard must be had to the state of knowledge at the material time. 194 Authority also dictates that the question of practicability should be determined in a common sense manner. All the circumstances of the case, including practice, should be taken into account: Jayne v National Coal Board [1963] 2 All ER 220 at 223 (where Veale J said it was "clearly impracticable to take precautions against a danger which could not be known to be in existence"); Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 244 per Wilcox J; F D R Pty Ltd v Gilmore; Gilmore v Cecil Bros (1998) 80 IR 411. Something is "practicable" if it is capable of being put into practice or feasible: Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305 per Stephen and Mason JJ; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 at 268 per Young J (as he then was); see also M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 199 ALR 290 at [65]. 195 Finally I note that the question whether a step or precaution is "practicable" requires making a value judgment in the light of all the facts: cf Slivak v Lurgi (Australia) Pty Limited, above, at 322 [53] per Gaudron J."
10. In Slivak v Lurgi (Australia) Pty Limited (2001) 205 CLR 304; [2001] HCA 6, Gaudron said at [53] footnotes omitted: "[53] The words 'reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases: • the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"; • what is "reasonably practicable" is to be judged on the basis of what is known at the relevant time; • to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk".

The applicants' approach to the Orders

1. The applicants' case is flawed for at least the following reasons: 1. Firstly, the safety risk exists because of the presence of the banned cladding in the buildings. The relevant risk is in the event of a fire. Thus, it should be assumed that there is a fire and how the risk created by the presence of the banned cladding is to be eliminated or minimised in the event of a fire; 2. Secondly, the applicants attempt to introduce the vague and ill-defined notions of the "undue spread of fire" and in Mr Lee Clark's oral evidence that a fire is "unlikely"; 3. Thirdly, the applicants focus on the risk during evacuation and then cast the onus on occupants to avoid the safety risk in the event of evacuation; 4. Fourthly, the Cladding Assessment Report is uncertain as it provides no clarity as to the works to be carried out in those locations where it suggests that the banned cladding may remain in situ. It provides no sound basis for certain and enforceable Orders; 5. Fifthly, the applicants focus is upon the costs to them of eliminating (or on their analysis minimising) the risk and not upon the practicability of eliminating the risk.

The relief now sought

1. The applicants say they seek an order pursuant to s 8.18(4)(b) of directing the Council to vary the Orders. However, the relief is expressed to be an order of the Court that the Orders be varied to require the applicants to implement the Cladding Assessment Report within a reasonable time. The formulation suggested is not within the Court's power. The formulation more accurately reflects the Court's powers under s 8.18(4) but is nonetheless still uncertain.

Safety risk

1. The applicants' approach here misconceives the nature of the safety risk as defined in the BPS Act. They also fail to understand the requirements of the Orders to eliminate or minimise the safety risk and, even on the assumption that s 26 applies, the meaning of "made safe".
2. The following facts are not in dispute that: 1. The building product the subject of the ban is present in each of Buildings A, B, C, D and E. Each of those buildings is a residential flat building and of a class to which the ban applies; 2. The product in this case is believed to be a full (ie 100%) PE core which is combustible; 3. Each building is therefore an affected building; 4. The "occupants" of each building included the following 3 principal groups: 1. Tenants, owners and visitors within the units, and common areas including the stairs, courtyard, pool and gym; 2. Staff (building manager and cleaners) to all areas of the building; 3. Contractors to all areas of the building including plant rooms; 1. The presence of the banned ACP cladding is a risk to occupants, the principal risk is in the event of a fire involving the banned ACP cladding; 2. The presence of the banned product gives rise to a "safety risk" as defined; and 3. The requirements of the Orders, if met, would eliminate the safety risk.
3. There is therefore no doubt that the presence of banned ACPs in each building constitutes a safety risk as defined in ss 4(1) and 17 of the BPS Act.
4. There is also no doubt that the use of ACP is banned in these buildings under the ban. Its use is banned because it is highly combustible.
5. Thus the presence of the ACP cladding in each building will continue to present a safety risk unless it is eliminated in accordance with the Orders.

Eliminating or minimising the safety risk

1. Where banned cladding is a safety risk in an affected building, the simplest and most obvious method of eliminating the risk is to remove the banned cladding.
2. These buildings only have cladding over 2.3% of the external areas of the building. There are 319 apartments in the five buildings.
3. Mr Clark suggests that the risk of a fire occurring is very low. However, this is not what the BPS Act requires. The risk assumes that there is a fire.
4. There is no dispute that the banned cladding is readily capable of being removed wherever it occurs in the buildings. Indeed, as Mr Clark conceded, the most difficult location is the southern elevation of the plant room on the roof of Building E. Yet the applicants agree that the cladding should be removed here but not elsewhere.
5. As Mr Harriman observed in oral evidence, the banned cladding is the last element to be installed and can be the first to be removed. He gave the example where a portion of cladding could be left in place and sealed so as not to interfere with tiling or waterproofing. Here, there is no practical or technical impediment to the removal of the cladding that would necessitate leaving all or part of it in any location in place.
6. The applicants' attempted reliance upon the ICA Protocol is misplaced. The document is a report for the insurance industry. It has no statutory force and provides no guidance either to the Secretary, the Council or to the Court as to what action is required to eliminate or minimise a safety risk in an affected building. Plainly, the insurance industry has its own interests including to limit the exposure of insurers to pay out claims in relation to banned cladding. In short, the document is irrelevant to the assessment of the elimination or minimisation of risk in relation to these, or any other, individual affected buildings.

Items in the joint report

1. The following brief comments are made in relation to each item in the joint report where the experts disagree.

Items 1, 2 and 8 - Plant Rooms to Buildings A, B and E

1. Mr Harriman's evidence should be accepted that hot works capable of causing a fire may occur inside or outside the plant rooms. Molten droplets may be carried by the wind and panels once alight may "plane". Banned cladding exists inside and outside both buildings and is within 6m of an ignition source. Heating, ventilation, and air conditioning (HVAC) condensers are present within the plant rooms and represent an ignition source. A fire in the cladding presents a risk to occupants in the courtyard below. The cladding to each of these plant rooms is readily accessible and can easily be removed. The costs in relation to these items is minimal. Mr Harriman denied the risks were "fanciful".
2. For the same reasons, leaving the cladding in place on 3 of 4 of the façades to plant room E does not eliminate or minimise the safety risk. The remaining cladding continues to constitute a safety risk for the reasons given by Mr Harriman but would be easier to remove than the cladding on the southern elevation.

Item 3, 5 and 7- main entrance to building B, C and D and E and to building elements of buildings A and B

1. The applicants accept that cladding should be removed entirely from around the entrance lobby between Buildings C and D, yet resist removing the cladding from the opposite location between Buildings A and B. Instead, they suggest the creation of a 1.83m "fire break" in the vertical elements of the cladding on either side of the entrances. Mr Clark proposes this option on the basis that 1.83m represents the width of two panels of cladding. He conceded that the suggested "fire break" was not based upon any testing or analysis. At best, he relies upon his own estimate that this might delay the spread of fire upwards from the lower portion of cladding. There is no indication and no basis to determine how long that delay might be. The "fire break" cannot prevent the downward movement of heat, molten droplets or debris from the remaining banned cladding below or to adjacent parts of the building.
2. Mr Clark acknowledged the potential sources of ignition identified by Mr Harriman including a car fire, a fire in the adjacent apartments or a fire in the gym bursting through windows.
3. Further, the avoidance of risk from this exit in the event of a fire relies upon occupants making a rational decision to avoid that exit if the adjacent cladding has ignited and is dropping molten metal to the ground. Mr Clark conceded that occupants, including contractors who may not be familiar with the building would not necessarily make a calm or rational decision to avoid that exit. Mr Harriman observed that humans are creatures of habit and could be expected to attempt to use the exit with which they are most familiar. These are residential buildings and there is no requirement for fire drills or training. Other occupants may be alcohol or drug affected, disabled or heavy sleepers.

Item 9 - Swimming Pool on ground floor

1. The applicant proposes that this cladding remain. It is asserted that there are limited potential sources of ignition. As Mr Harriman states in relation to this item, the banned cladding is around the roof parapet and awning soffit and is therefore above occupants using any of the doors associated with the building. He also said in oral evidence that there is a risk from smoke to balconies above and to the adjacent open fire stairs. Leaving the banned cladding in place is a "do nothing" option that neither eliminates or minimises the safety risk. The sole matter relied upon is that there are limited ignition sources but this is not the test. If the banned cladding is in place, there is a safety risk in the event of a fire. Further comment is made below in relation to the mitigation measures proposed at paragraphs [19]-[28] of the Cladding Assessment Report.

The Cladding Assessment Report and the Scope of Works

1. The Cladding Assessment Report is still in draft form. It is expressed to be subject to comment from all stakeholders and ultimate agreement on a proposed method on which the cladding assessment is based. At section 1.4, the report also notes the following: "Retention of Aluminium Composite Panel Full may not achieve approval from regulatory authorities. Compliance with the Building Code of Australia is subject to approval of the solution documented in this report by regulatory authorities."
2. It is therefore also at best preliminary.
3. As already observed, the applicants' approach in its Scope of Works is to minimise the risk of ignition and not the safety risk to occupants in the event of a fire.
4. The same may be said of the so-called mitigation measures that also introduce an unacceptable level of uncertainty. Mr Harriman described these measures as "motherhood statements". The description is apt as they do not identify with any precision what work is to be carried out so as to form the basis of a certain and enforceable order. The following questions and comments reinforce the uncertainty: 1. How much cladding is to be removed to install electrical conduits? 2. If it is necessary to remove cladding to access and treat electrical wiring, why not just remove the cladding altogether? 3. How many existing lights need treatment? 4. Where will lights be relocated to if they cannot remain within the cladding? 5. HVAC and gas hot water heaters were clearly visible during the site inspection within 6m of external walls to the plant rooms but Mr Clark maintains these can remain. This is contrary to the mitigation measure identified at [26] on folio 167. 6. Subjecting "hot works" to a risk assessment and informing contractors of the existence of banned cladding tends to reinforce the concern that the safety risk exists and that hot works will occur. Those measures would be unnecessary if the cladding is removed and the risk eliminated.

Applicants' assertion as to the degree of harm

1. In response to the applicants' submissions, the Council says: 1. The carpark and Building E are sprinkler protected. The bulk of the cladding is located in Buildings A to D which are not sprinkler protected so there is no additional protection to those buildings. Moreover, the sprinklers are internal and provide no protection to the spread of fire from external cladding. 2. Smoke detectors are intended as an early warning system providing a local warning system for occupants of each apartment. Unless there is smoke penetration from the outside, the smoke detectors are unlikely to be activated in the event of a fire in the banned cladding. So in that event, they do not provide an early warning system to occupants. 3. Building E is required to be provided with a Building Early Warning System and an Intercommunication System. However, Mr Clark's evidence was that occupants would not respond and evacuate. If the fire brigade is required to attend, they would first evacuate the building thus delaying their operations resulting in a larger fire to fight. If fire fighters are fighting the fire from the roof, it is difficult to understand how it could be suggested there is no risk from falling debris.
2. The costing should also allow for contingencies. The summary of opinion in the report of George Zakos in tab 10 of Ex A, f 252, sets out the costs, contingencies and margins for Option 1 - All ACP Removed and Replaced. Deducting $64,422.40 from the Net Trade total of $560,260.40 results in a figure of $495,838.00. Adopting Mr Zakos' calculations at Ex A, f 252, the following would be the correct calculation of costs for Option 1: SUBTOTAL (NET TRADE TOTAL) $495,838.00 On-costs on the Net Trade Total: ADD: Preliminaries (15%) $74,375.70 Subtotal $570,213.70 ADD: Builders Overhead and Margin (20%) $114,042.74 TOTAL (excl GST) $684,256.44 ADD: Contingency (5%) $34,212.82 GRAND TOTAL (Excl GST) $718,469.26
3. In any event, the costs cannot be said to be disproportionate. There are 319 units in the buildings. If the cost of total removal is $718,469.26, that equates to a cost per unit of $2,252.25.

Conclusion

1. The only order the Court should make pursuant to s 8.18(4)(b) of the EPA Act is to modify the time for compliance with the order commencing from the date of the Court's decision.
2. The appeals should otherwise be dismissed.

Safety risk

1. The First Respondent's submissions as to "risk" are misconceived. They fatally underscore the Council's approach to notices issued. As a matter of logic, and as a matter of statutory construction, a "safety risk" necessarily includes the risk, or likelihood, of the fire occurring. Likewise, the mere use of non-conforming cladding does not, contrary to the Council's submission, automatically mean there is a "safety risk" to occupants of the buildings. The use of the cladding, its location, the potential of ignition sources, and other relevant circumstances are relevant to whether or not there is a safety risk, and if there is, the nature of the safety risk. For example, cladding which is on the exterior of a building, used as an architectural feature, on a building where there is no access, no ignition source at all, cannot pose a relevant safety risk.
2. The Council's approach would result in the burden of all non-conforming cladding wherever used, however used, wherever found, irrespective of whether it could ever ignite, as being subject to removal. Even Mr Harriman did not go so far. He acknowledged risk was subject to balancing factors, including the possibility of non-conforming cladding having an available ignition source. If the Court were to adopt the Council's view that any use of a banned ACP cladding automatically amounts to a safety risk, the only possible outcome in every circumstance would be for it to be removed. Such an interpretation is inconsistent with wording of s 20(2)(a) of the BPS Act requiring elimination or minimisation.

Reasonable practicability and cost

1. Notwithstanding that s 26 of the BPS Act refers to a building identified by the Secretary as an affected building, there is no dispute that the buildings are nonetheless affected buildings within the meaning of s 17 of the BPS Act.
2. It makes no sense to argue that the definition of "made safe" does not apply to an affected building identified by Council, as opposed to one identified by some other regulatory authority, particularly when the stated purpose of the BPS Act is to "prevent the unsafe use of building products in buildings and to provide for the rectification of affected buildings". In further support of the applicants' submissions as to the relevance of the "made safe" provision is s 4(4) of the BPS Act. This posits the converse position - ie that a building is unsafe if there is a safety risk. It follows that to remedy a building being "unsafe", it is necessary to consider what it means when a building is "made safe". Therefore, the applicants respectfully submit that s 26 of the BPS Act applies here. The buildings that are the subject of the current appeals must be regarded as having been "made safe" where the risk is "… eliminated or, if it is not reasonably practicable to eliminate the safety risk, is minimised as far as practicable".
3. The applicants respectfully submit that the Council's submissions in relation to the wording of s 26 of the BPS Act undermine its own case. It is precisely because the BPS Act requires a consideration of what is "reasonably practicable" when determining whether a risk must be eliminated that it is appropriate to consider the costs of the elimination. Even Mr Harriman agreed with that approach.
4. The applicants submit in reply that the authority referred to by the Council's submissions (cited in the applicants' submissions) provides support for the applicants' contentions as to the operation of the BPS Act, namely that: 1. "reasonably practicable" means something narrower than what is physically feasible or possible; and 2. to determine what is reasonably practicable it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert the risk.
5. The submission by the Council that the non-conforming cladding is the last thing to be installed onto the building and is therefore readily capable of being removed points only to the physical possibility of complete removal and fails to take into account the cost when weighed against the other factors including the likelihood of the risk arising and the degree of harm which may result.
6. The Council incorrectly submits that the applicants' focus is on costs alone and not the "practicability of elimination". The applicants reject, for the reasons set out above, that: 1. they are required to consider only practicability when assessing elimination as s 26 requires a consideration of what is "reasonably practicable"; and 2. their only focus is on costs. The applicants have clearly also sought to balance the costs considerations against the other relevant factors based on a risk assessment from Mr Clarke, who is a highly competent, experienced and independent expert. Mr Clarke clearly assessed the risks, and his approach is one which not only makes common sense but has the support of a person whose business is fire assessment, risk assessment and safety.

The experts

1. The applicants' expert witness, Mr Clark, is highly experienced (as evidenced by his CV) and showed independence during his cross examination. He did not seek to advocate on behalf of the applicants, made concessions where appropriate and took a common sense approach. On the other hand, and with the greatest respect to Mr Harriman, Mr Harriman took an unreasonably dogmatic and uncompromising attitude to the whole issue. The applicants submit that Mr Clarke's approach and evidence should be preferred to Mr Harriman's. Mr Harriman tended to advocate and put forward unrealistically imaginative views as to ignition sources. For example, Mr Harriman's evidence of leaves blowing from trees found at ground level to rooftop height, becoming lodged under the cladding which is fixed and which has a pebble floor surround, and then being ignited by sparks from an angle grinder igniting with sufficient heat (300 degrees Celsius) was not only particularly far-fetched, but smacked of Mr Harriman's unwavering approach and inability to make a reasonable concession to advocate his client's interests. Mr Harriman's example of a person being asphyxiated in their sleep by smoke from a fire in the swimming pool building roof in circumstances where the smoke is outside in an open courtyard and smoke detectors are installed as part of the applicants' proposed remediation strategy as established by Mr Clarke is another example.

The experts' joint report

1. The applicants make the following brief comments in response to some of the issues raised in relation to the items in the joint report.

Items 1, 2 and 8 - Plant Rooms to Buildings A, B and E

1. The applicants contend that, contrary to Council's submission, Mr Harriman's evidence should not be accepted that hot works could cause a fire to the external cladding of the plant rooms. Mr Clark's evidence was that, whilst possible, if the hot works are controlled in the manner envisaged in the Cladding Assessment Report and ignition sources minimised then the risk of the ACP cladding igniting was unlikely. Even if it did, his evidence was that any debris and molten droplets would likely fall onto the roof where they would be extinguished by falling onto the pebbles. If they did fall over the side from that height, they would likely, in his expert opinion, be extinguished by the time they reached the courtyard level. In addition, Mr Clark's evidence was that it is unlikely that a fire would ignite in an air-conditioning unit (another scenario posited by Mr Harriman) in the plant room without some other source of external ignition.
2. Mr Clark also gave evidence (which is misrepresented in the Council's submissions that if there were to be a fire in the plant rooms on one of the rooftops, the safety risk to the occupants was so low that they were unlikely to be required to be evacuated (and not that the occupants would not respond and evacuate as submitted by Council).

Item 3, 5 and 7- main entrance to Building B, C and D and E and to Building elements of buildings A and B

1. Council submits that there is no reason to treat the entrance lobby between Buildings C and D differently to the entrance lobby between Buildings A and B. This submission glosses over Mr Clark's oral evidence which was that the reason for the different treatment was that there were two sets of fire stairs that lead into the entrance lobby between Buildings C and D and occupants from the apartments above had no choice but to exit via those stairs. Buildings A and B, on the other hand, are assessed differently in that: 1. there are no fire stairs leading into those lobbies; and 2. the doors are made of glass and people in the courtyard would be able to see if there was a hazard in those lobbies and choose a different exit in the event of a fire.
2. The applicants reject the Council's submissions relating to the inefficacy of having a fire break of 1.83 m between cladding at the A/B entrance. Mr Clark's oral evidence indicated that whilst there was no set height for a fire break any such break would, in his expert opinion, slow the spread of fire upwards. His evidence was that any delay would allow for further evacuation which, in turn, minimises the safety risk to occupants.
3. The applicants reject the Council's characterisation of Mr Clark's evidence of Council's submission. Mr Clark acknowledged that whilst potential sources of ignition identified by Mr Harriman including a car fire, a fire in the adjacent apartments or a fire in the gym bursting through windows were possible, he repeated his evidence that because of the location, there would always be other exits available to individuals which minimises the safety risk.
4. The applicants reject the Council's characterisation of Mr Clark's evidence. Mr Clark stated that the vast majority of people would see the fire hazard through the glass windows or see smoke and choose to use another exit to evacuate the building safely, avoiding the fire and/ or smoke.

Item 9 - swimming pool on Ground Floor

1. The applicants reject the Council's submission for the following reasons: 1. leaving the cladding in place is not a "do nothing" approach in circumstances where that proposal is in conjunction with a number of proposals which taken together form the appropriate remediation strategy, including to limit all ignition sources in the area. It is an approach that minimises the risk; 2. Mr Clark, in oral evidence, highlighted that any occupants within that building could simply exit down the stairs inside the building (without going outside through any of the doors) and away from any hazard; and 3. Mr Clark in oral evidence rejected the smoke risk to balconies as minimal and stated that occupants could simply close their door. Mr Clark said the risk to occupants in the fire stairs was a visibility issue rather than a toxicity issue and that given the distance between the pool building and the fire stairs the safety risk was low.

Cladding Assessment Report and the scope of works

1. In response to the Council's submissions, the applicants say that the Cladding Assessment Report clearly sets out the work that is to be completed by the applicants' in order to minimise ignition sources (per items 24-28 of Ex A, f 167). Contrary to the assertion that the Cladding Assessment Report scope for minimisation contains a list of "motherhood statements", the applicants submit that the Cladding Assessment Report contains at least as much detail as the scope of works identified in the current Orders.
2. In response to the Council submissions, the applicants' assert that the purpose of these proceedings is to obtain regulatory authority approval based on what is in the Cladding Assessment Report. Mr Clark has reaffirmed his view that minimisation of safety risk can be achieved using the approach set out in that report both in oral evidence and in the experts' Joint Report.

The relief now sought

1. The Council provides no explanation of its outline submissions as to why it asserts the relief sought by the applicants is uncertain. As per the applicants' Amended Class 2 Applications, the applicants also seek any further orders the Court considers appropriate in addition to orders pursuant to s 8.18(4)(b) of the EPA Act.

Findings

1. A building product rectification order is an order, pursuant to s 20(2) of the BPS Act, that requires the owner to do such things as are necessary to, in the first instance, eliminate or minimise a safety risk posed by the use of the building product to which a building product use ban applies in the building.
2. I am satisfied that the complex known as VSQ 1 is an affected building within the meaning of s 17 of the BPS Act. The external combustible cladding attached to or forming parts of the façade of the complex, including the façades of plant rooms, identified by the experts as ACP cladding with a core of 100% PE, is a building product the subject of a building product use ban made pursuant to Pt 3 of the BPS Act and in force.
3. The safety risk posed by the external use of the ACP cladding in the complex is the likely risk of death or serious injury to any occupants of the complex arising from the use of the ACP cladding in the circumstance of a fire. The Cladding Assessment Report acknowledges the defined safety risk posed by the use of ACP cladding on parts of the façade by recommending the removal of some combustible cladding (ACP cladding), "where paths of travel and openings are at risk [in order to] limit fire spread and radiant heat exposure" (Ex A, tab 8, f 157).
4. The external ACP cladding poses a safety risk in the complex within the meaning of s 4 of the BPS Act in the circumstance of a fire. The safety risk posed by the combustible cladding is a consequence of both the risk of the ACP cladding enabling the rapid spread of fire within the complex, including starting multiple fires as described by Mr Harriman, and the risk of falling burning debris. The building product use ban (Ex A, tab 14, ff 514-515) found that fires associated with ACP cladding with a PE core on Types A and B construction pose a safety risk, as follows: "Recent public events have demonstrated the safety risk associated with the use of ACP with a PE core in multi storey buildings… Events such as the Lacrosse building fire in Melbourne on 25 November 2014 and the Grenfell Tower fire in London on 14 June 2017 demonstrated that there are likely to be public safety risks associated with the use of certain types of cladding, including ACP with a PE core… Fires which are associated with external cladding consisting of ACP with a PE core, such as the Lacrosse Building fire and the Grenfell Tower fire, introduce additional risk owing to the rapid vertical spread of fire associated with these building products… The Lacrosse Building fire was managed by an internal sprinkler system that was found to have operated well above specification in the majority of units impacted by the fire to stop its spread. It therefore cannot be presumed that a sprinkler system would operate to mitigate the spread of fire in similar circumstances. NSW Fire and Rescue identify building products including ACP with a PE core as a safety risk capable of causing rapid fire spread. The use of such building products may put fire fighters and occupants in unsafe situations including exposure to falling debris in the instance of fire… PE is a thermoplastic substance which has poor fire performance and is quickly prone to melting and dropping when exposed to high temperatures, such as in the event of a fire. The heat from a fire can quickly conduct through the outer ACP, noting the width of these panels is no greater than 6mm, and ignite the highly flammable core. These materials combust in a manner that makes fire response extremely challenging for emergency services."
5. The parties disagreed on whether s 26 of the BPS Act has application in these proceedings. It is necessary to construe the text of s 26 so that it is consistent with the language and purpose of the instrument. Section 26 is relevant to the appeals because it describes, for the purposes of Part 4 of the BPS Act, when a building is made safe. A building is made safe if the safety risk that is posed by the use of a building product to which a building product use ban applies is eliminated, or if it is not reasonably practicable to eliminate the safety risk, is minimised as far as practicable. It is not necessary for a building to be the subject of an affected building notice issued by the Secretary within the meaning of s 18(1) of the BPS Act for the relevant enforcement authority to be able make a building product rectification order under Pt 4 of the Act in respect of the building (s 20(5)). Therefore, the operation of s 26 cannot be dependent on the Secretary issuing an affected building notice. If an affected building notice has not been issued by the Secretary, but the relevant enforcement authority has made a building product rectification order, then s 26 applies because it describes what is necessary for the building to be made safe, notwithstanding that an affected building notice has not been issued. I accept the applicants' submission that it follows that to remedy a building being "unsafe" under s 4 of the BPS Act, it is necessary to consider what it means when a building is "made safe". I accept the Council's submission that the expression "reasonably practicable" under s 26 applies to the elimination of the safety risk and minimisation is only considered if it is not reasonably practicable to eliminate the risk.
6. The term "reasonably practicable" used in s 26 of the BPS Act is undefined by the BPS Act. I have taken "reasonably practicable" to mean that the requirements involved in the measures necessary to eliminate the risk can be weighed against the safety risk as defined by s 4 of the BPS Act. I do not accept the applicants' position that it is necessary to take into consideration the likelihood of the risk occurring in weighing up whether it is reasonably practicable to eliminate the safety risk posed by the use of the banned ACP cladding on the façade of the complex. A risk can be considered to arise from the use of a building product in a building even if the risk will only arise in certain circumstances or if some other event occurs, such as a fire, under s 4(2) of the BPS Act. The experts agreed that the safety risk only arises in the event of a fire involving the ACP cladding. For the purposes of the BPS Act, a safety risk is posed by the use of the banned ACP cladding on the façades of the complex.
7. The ACP cladding, used as external cladding in the complex, should be removed and replaced with non-combustible cladding in order to make the complex as safe as possible by eliminating the source of the safety risk. Only if it is not reasonably practicable to eliminate the safety risk, is it acceptable to minimise the safety risk as far as practicable. In all the circumstances of these appeals, it is reasonably practicable to eliminate the safety risk. I do not accept the applicants' submission that leaving the majority of the combustible cladding in place meets the requirement of s 20(2) of the BPS Act to do such things as are necessary to eliminate or minimise the safety risk posed by the use of ACP cladding.
8. The mitigation measures posited by the Cladding Assessment Report are those measures described above at [44] and listed under a heading, "Limitation of potential ignition sources - Potential ignition sources shall be identified and removed including -" (Ex A, tab 8, f 167). The mitigation measures are not, as submitted by the applicants, a "scope of works". The list of mitigation measures is not a scope of works because the actual works required, and the location of those works, are not identified by the list. The list is merely a brief, or a performance specification, that is not yet sufficiently quantified to be able to be accurately costed by the quantity surveyor.
9. I prefer and accept Mr Harriman's evidence. ACP cladding with a PE core is highly combustible and forms flaming droplets during a fire and is capable of causing rapid fire spread. The flaming droplets can spread in all directions and start multiple fires. On the basis of all of the evidence before me, the presence of the ACP cladding on the external façades of the complex, even in discrete locations and on a proportionally small area of the façade, poses a risk of death or serious injury to occupants of the complex in the event of a fire.
10. I do not accept that the mitigation measures adequately minimise the safety risk posed by the retention of most of the ACP cladding. The safety risk posed by the ACP cladding is not limited to the ignition of a panel by a potential ignition source. The safety risk is a function of the ACP cladding enabling the rapid spread of fire within the complex and of falling burning debris from the alight ACP cladding. These consequences of a fire making contact with the external ACP cladding are not addressed by the relocation of potential ignition sources.
11. The experts agreed that smoke from the burning ACP cladding on the swimming pool enclosure would enter the nearby open fire stair of Building B. In the event of a fire near the swimming pool enclosure, smoke from the burning ACP cladding on the swimming pool enclosure entering the nearby open fire stair of Building B is a safety risk. I am satisfied that it is reasonably practicable to eliminate the safety risk posed by the use of combustible cladding on the swimming pool enclosure by removing the ACP cladding. Removing the potential ignition sources near the ACP cladding on the swimming pool enclosure would not address the risk of a fire ignited elsewhere in the complex making contact with the ACP cladding and the resulting smoke entering the open fire stairs.
12. While it may occur that an occupant observes falling, burning debris outside the glass doors in the event of a fire and then opts to turn around and use a different exit; plainly, an occupant may exit from the glass doors without being able to observe falling debris in the event of a fire and then be exposed to falling debris from the alight ACP cladding above or near the door, because burning debris has only just begun to fall, or because of low visibility due to the presence of smoke. It is not acceptable to rely on the occupants of the complex observing the conditions in the public domain or the courtyard through the glass walls or doors in order to dissuade them from exiting the complex using the entry that they may otherwise use daily. The complex is vast with 319 units and in the event of a serious fire, many occupants will be trying to exit the complex at once and so it is essential that all egress paths, and not just discharge doors from fire-isolated stairs, are made as safe as possible.
13. I accept that there will be a differential cost between the Council's position of requiring all of the external ACP cladding to be removed and replaced with non-combustible cladding (option 1) and the applicants' position of removing only some of the ACP cladding and replacing with non-combustible cladding (option 2) and that option 1 is very likely to be the more expensive strategy. I do not accept that the differential cost is as great as the value submitted by the applicants, because the quantity surveyor's report does not include, as part of the costing of option 2, the cost of the mitigation measures posited by the Cladding Assessment Report as essential to the mitigation strategy (see Ex A, tab 10, ff 396-400). An accurate comparison of the differential cost of the two options would require the mitigation measures to be scoped and costed as part of the mitigation strategy. There are other more specific mitigation measures identified in the Cladding Assessment Report that could have been costed as part of option 2 and were not; for example, in relation to the door separating Building B lift lobby on level 3 from the main lobby on level 2, "the door shall be fitted with ambient and medium temperature smoke seals and intumescent fire seals to all edges of the fire door" (Ex A, tab 8, f 163).
14. I accept the applicants' submission that a plain reading of s 20(2) of the BPS Act does not admit of an interpretation that every risk must be eliminated, or that the only way to minimise a safety risk posed by non-compliant cladding is its complete removal and replacement. However, in all the circumstances of these appeals, I am satisfied that it is reasonably practicable to eliminate the safety risk posed by the ACP cladding used on the façades of the complex, for the following reasons:

• I accept Mr Harriman's evidence that the ACP cladding is applied to the façades in a manner that does not require the removal of other finishes and that it is possible and reasonably straightforward to remove the external ACP cladding and replace those panels with non-combustible cladding.
• The ACP cladding is applied to the façades of the complex in discrete locations and the removal and replacement of the external combustible cladding poses minimal inconvenience and disruption, other than the financial cost to lot owners, to the occupants of the complex.
• The differential cost between option 1 and option 2 including the mitigation measures is less than the value submitted by the applicants.
• The cost of removing and replacing the ACP cladding with non-combustible cladding will be borne by the lot owners of the two strata schemes of this complex which amounts to $2252.25 per unit (depending on how the costs are distributed across the two strata schemes). This cost is not an unreasonable impost on lot owners given the safety risk posed by the presence of the external combustible cladding.

1. The removal of all external ACP cladding and replacement with a non-combustible cladding meets s 20(2) of the BPS Act, but it does not entirely eliminate a safety risk in the event of a fire because there remains, outside of the purview of the ban, combustible cladding on internal walls of the complex, including within the northern entry foyer of the complex (Ex A, tab 7, f 150 and tab 10, ff 306-309).
2. The terms of the Orders include a compliance period for the applicants to comply with the Orders. The Court directed, by consent, that the operation of the Orders was stayed until further order in both matters on 5 August 2021. The parties agreed during the hearing that it was not necessary for the Court to amend the Orders to change the compliance period so that the period commenced from the date of the Court's final orders, as the parties anticipated reaching an agreement on modified compliance periods in both matters. The Council in written submissions concluded that the Court should modify the time for compliance with the Orders without nominating a time period for compliance. Without an agreement between the parties as to the modified compliance periods, it is better left to the parties to negotiate suitable periods. The Council has power to modify the compliance periods required by the Orders (Sch 5, Pt 10 to EPA Act).

Proceedings 2020/200746

1. The orders of the Court are: 1. The appeal is dismissed. 2. The Exhibits are returned.

Proceedings 2020/200747

1. The orders of the Court are: 1. The appeal is dismissed. 2. The Exhibits are returned.

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