On a Proper Construction Issue 5: Undue Risk of Fire in Multistorey Buildings – Biowood Meets the Same Fate as ACPS

07 April 2020

In the early hours of 25 November 2014 a fire ripped through the Lacrosse Building on La Trobe Street, Docklands in Melbourne (Lacrosse Fire) forcing the immediate evacuation of approximately 450 to 500 people.1 The Lacrosse Building is a 23 storey mixed-use building which includes 15 levels of residential apartments, with 15 apartments per level. Levels 6 to 21 were affected by the fire. The fire was not contained to its area of origin but spread vertically up the building façade.

Whilst the investigation into the Lacrosse Fire identified a number of issues contributing to the spread of fire, for present purposes the focus is on the external wall cladding and how that cladding contributed to the fire intensity and vertical spread through the building.

The Alucobest cladding installed on the façade of the Lacrosse building was of a type that satisfied the AS/NZS1530.3 test2 which is a method of fire testing to assess the potential fire hazard of wall linings during the early growth of fire in a compartment. The test provides information on ignitability, flame propagation, heat release and smoke release.3

The Building Surveyor gave evidence before the Victorian Civil and Administrative Tribunal (VCAT) that in deciding that the panels selected complied with the Building Code of Australia (BCA)4, he considered, amongst other things, the AS/NZS1530.3 test, and that the panels produced a Spread of Flame Index of 0.5

Despite this, the aluminium wall cladding was combustible and the VCAT ultimately found that it would fail the combustibility test set out in AS1530.16, despite satisfying the AS1530.3 test. As a consequence the VCAT found that the Alucobest cladding did not meet the requirements of the BCA.7

Following the Lacrosse Fire and the now infamously tragic Grenfell Tower Fire in London in June 2017 which killed 72 people, the apartment owners of 3 & 5 Lardelli Drive in Ryde, NSW (Lardelli Building) began to question the suitability of materials used on the façade of their building. The owners commissioned a report from fire engineers to consider whether the Biowood attached to their building façade was suitable for external use on their multistorey residential building.8 Clearly the report found that the Biowood was not suitable and the owners subsequently lodged an application with the NSW Civil and Administrative Tribunal (Tribunal) seeking findings that the residential building work contained non-compliant work in breach of the statutory warranties under the Home Building Act 1989 (NSW), and sought orders for rectification.

Lardelli Building NSWCAT Hearing9

Consequently, the Tribunal was required to consider whether the Biowood, as installed on the Lardelli Building:

  • Was compliant with the applicable codes and standards; and
  • Even if it was compliant with the codes and standards, whether it was fit for purpose?

Turning to the question of compliance with the BCA, the Lardelli Building is a Type A building under the BCA which requires10:

  1. External walls, common walls, and the flooring and floor framing of the lift pits to be non-combustible;11 and
  2. Attachments not to impair fire resistance.12

There are exceptions to the use of combustible materials in certain circumstances.  Relevantly, combustible materials may be used as an “other attachment to a building element”.13 However, for this exemption to apply it must not otherwise constitute an undue risk of fire spread via the façade of the building.14 In addition, the attachment must comply with the fire hazard properties prescribed.15

In the Lacrosse Fire case, the VCAT found that the aluminium panels satisfied the AS/NZS 1530.3 test with a Spread of Flame index of 0, but proved to be dangerously inflammable when subject to a full scale façade test. On this basis, the applicant in Lardelli argued the AS/NZS1530.3 test was not the relevant test to determine Biowood’s combustibility because the AS/NZS1530.3 test was designed for fires within a room, but external fires may behave differently.16

The respondent sought to distinguish the Lacrosse Fire case on the basis that the aluminium panels used on the Lacrosse Building were the external walls, whereas the present case involved the use of Biowood (a combustible material) as an attachment to an external wall and not the external wall itself.17 The respondent contended that it is only the external walls that are required to be non-combustible, and therefore the requirement was only that the attachments not impair the fire resistance.18

Ultimately, the Tribunal found that the Respondents argument defied common sense.19 Even though there was no evidence of a large scale fire testing of Biowood, it is “indisputably combustible and any risk that it will support fire spread between levels presents an undue risk.20 The Tribunal went on to say:

Any undue risk of fire spread by an attachment, even if it otherwise complies with codes and standards for use, must be viewed from the perspective of the type of building it is used on, that is a high rise Type A building requiring external walls to be non-combustible, where any risk of fire has the potential to result in injury to people, physical damage to the property and potential structural failure of the building.


We have known for some time that aluminium cladding poses a serious fire risk in multi-storey buildings. What is now clear from Lardelli, is that other materials may also pose an undue fire risk and therefore not comply with the relevant parts of the National Construction Code (NCC) pertaining fire hazards in Type A buildings.

Owners, builders, developers, building surveyors and anyone responsible for external material selection on multi-storey buildings should carefully consider whether the materials used or to be used on their multi-storey buildings comply with the relevant parts of the NCC pertaining to fire and combustibility. Satisfaction of one Australian Standard fire test may not necessarily mean compliance.

If you would like assistance reviewing your documents or have any issues with regards to building material selection and compliance with the NCC, please contact the authors of this article David Ulbrick, Kate Morrow or Lynn Wolfe, or any member of the Perth Construction Team.

This article was written by David Ulbrick, Partner, Kate Morrow, Special Counsel and Lynn Wolfe, Solicitor.

1 City of Melbourne, Lacrosse Building Fire, Municipal Building Surveyor, 25 November 2014, <https://www.melbourne.vic.gov.au/sitecollectiondocuments/mbs-report-lacrosse-fire.pdf>.
2 Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286 (28 February 2019) [190]-[193], [216], [222].
3 AS/NZS 1530.3:1999.
4 The BCA now forms part of the National Construction Code (NCC).
5 Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (Building and Property) [2019] VCAT 286 (28 February 2019) [150].
6 Ibid [193].
7 Ibid  [245]-[278].
8 The New Daily, Cladding scare spreads as tribunal finds timber panelling poses ‘undue risk’ to residents, 5 December 2019, <https://thenewdaily.com.au/finance/property/2019/12/05/biowood-cladding-unsafe/>.
9 The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63.
10 High rise residential buildings are required to be Type A Construction which is the most fire-resistant construction, specifically requiring external walls be non-combustible.
11 Building Code of Australia, Specification C1.1 cl 3.1.
12 Ibid C1.1 cl 2.4.
13 Ibid C1.1 cl 2.4(a).
14 Ibid C1.1 cl 2.4(a)(iii).
15 Ibid C1.1 cl 2.4(a)(i), C1.10.
16 The Owners Strata Plan No 92888 v Taylor Construction Group Pty Ltd and Frasers Putney Pty Ltd [2019] NSWCATCD 63 (15 November 2019) [134].
17 Ibid [102].
18 Ibid [140].
19 Ibid [141].
20 Ibid [136].

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us