Tribunal Finds Biowood Cladding is Combustible and a Major Defect

Posted on Feb 25, 2020 by Jason Dunn   |   Categories: Building & Construction

On 15 November 2019 the Civil and Administrative Tribunal New South Wales handed down
its decision in The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and
Frasers Putney Pty Ltd [2019]. This decision is the first of its kind and sure to send
shockwaves through the construction industry in the wake of the defects and flammable
cladding disasters.

The building’s owners corporation alleged that the external “Biowood” cladding installed on
the external walls of the Sydney unit complex by the builder and developer was defective as
it is combustible and fails to comply with the Building Code of Australia (“BCA”) and
therefore is in breach of the statutory warranties in section 18B of the Home Building Act
1989 (“HBA”).

Biowood is popular wooden panelling made from 70% reconstituted timber and 23% PVC
used on residential and commercial buildings across Australia and overseas.

The builder and developer respondents in their defence argued that:

1. The Tribunal and the applicant were bound by the Interim Occupation Certificate
(“IOC”) and must assume that the preconditions to its grant are met; and

2. The IOC creates an irrebuttable presumption of law and is conclusive evidence
that all requirements in respect of its issuance and of matters precedent and
incidental have been complied with.

The Tribunal disagreed and held that it is not bound by the administrative issuing of an IOC,
if it were, then the jurisdiction of the Tribunal (and the District and Supreme Courts) would
be extinguished and the Tribunal and Courts would be bound by the opinion of the author
of an IOC. Such a result would undermine the legislative intent of the HBA.

Further, the Tribunal held that the issuing of the IOC does not prevent the Tribunal from
determining whether cladding complies with the BCA or not and was satisfied that the use
of Biowood as attachments to the external walls is a breach of the statutory warranties in
section 18B(1)(b), (c) and (f) of the HBA.

The Tribunal ordered that the respondents rectify the breach of the statutory warranties in
section 18B of the HBA by removing the Biowood attachments installed on the façade and
replace the Biowood with attachments that comply with the codes, standards and statutory
warranties. The Tribunal further ordered that the respondents pay the applicant’s costs.