Infinity Tower Brisbane – Cladding
Body Corporate for Infinity 1 Community Titles Scheme 45404 v Queensland Building and Construction Commission & Anor [2025] QCAT 54
Infinity 1 Body Corporate took the Queensland Building and Construction Commission (QBCC) and Karimbla Constructions Services to the Queensland Civil and Administrative Tribunal (QCAT) over alleged defective building work on the Infinity Tower.
In September 2020, the Infinity 1 Body Corporate applied to the Queensland Civil and Administrative Tribunal (QCAT) for an administrative review of the Queensland Building and Construction Commission’s (QBCC) decision not to issue a direction to rectify alleged defective building work on the Infinity Tower. The application named both QBCC and the builder, Karimbla Constructions Services Pty Ltd, as respondents. This followed a 2019 complaint to the QBCC regarding the use of combustible materials on the building’s exterior. The hearing was in September 2024 with the decision delivered in February 2025
The Building
Source: Courier Mail
Meriton’s Infinity Tower is 223 metres in height with 70 storeys, or 79 if you include the basement levels, located in the Brisbane CBD. It features curved aluminium composite panel (ACP) sunscreens that appear as horizontal stripes around parts of the building.
The building was certified when the 2009 edition of the Building Code of Australia (BCA) was in effect and was completed in April 2014. It has a smoke detection system and occupant warning system and is fully sprinkler protected. There are no balconies and a fire station is two blocks away.
The Cladding
ACPs have a combustible polyethylene (PE) core which is sandwiched between two thin solid aluminium sheets which are non-combustible.
The cladding on the Infinity Tower was designed as sunshades and does not extend to the ground. They are attached to, but do not form part of the external wall. They are connected to each edge slab perimeter with a steel bracket arrangement. There is an air gap between the sunshades and the external walls of the building. At the closest point, the curved profile of the sunshades brings them less than approximately 300mm from the external glazing of the apartments.
The sunshades span horizontally between groups of four or more sole-occupancy units and are not vertically continuous. There is vertical separation of 2.4 metres above a panel to the underside of the panel on the slab above.
The Complaint to QBCC
In July 2019, the QBCC received a complaint by the Body Corporate alleging that 162 building work complaints set out in a Defects Register/Report should be the subject of a Direction to Rectify (DTR).
The body corporate followed the QLD legislative cladding identification process and engaged a Fire Engineer to asses risks. The ACP sunshades were tested and found to have a core material with 95% PE.
One of the defects in the report was described as –
External cladding, sun blinds, acrylic signage and ACP (aluminium composite panels) panels. These panels are fixed above around and on paths of egress and fire doors with glue and plastic packers …
The installed cladding does not comply with the requirements of the BCA as a DTS solution, in regard to spec C1.1, 2.4, spec C1.10 and clause 7…
The QBCC’s direction was based on concerns that the cladding did not comply with the 2009 BCA, including Deemed-to-Satisfy (DTS) Specification C1.1 Fire-resisting construction, General Requirement 2.4 (a)(iii). They needed to assess whether the use of the ACPs as sunshades attached to an exterior wall of a very tall building constituted an undue risk of fire spread via the facade of the building.
Undue risk of fire spread – BCA 2009, Specification C1.1 FIRE-RESISTING CONSTRUCTION, clause 2.4(a)(iii).
In June 2020, the QBCC completed its investigation and did not issue a DTR for the ACP sunscreens. The Body Corporate challenged this and requested an internal review.
The review decision resulted in a DTR for part of the complaint. It ordered the removal of ACPs at the ground level near the building exits.
The installation of the cladding to the ground level fire isolated exits do not comply with Spec C1.10-3 of the BCA 2009 Vol 1 in that the composite panels are flammable resulting in unacceptable health and safety risk to the users and occupants of the building in the event of a fire. Pertains to item 135 of the QBCC complaint form.
The Body Corporate then took their case to the Queensland Civil and Administrative Tribunal.
The Legal Case
The proceedings commenced in September 2020 when the Body Corporate applied to the tribunal pursuant to 87 of the QBCC Act. The Body Corporate argued that the ACPs did constitute an undue risk of fire spread via the facade of the building and that the QBCC’s decision should be reversed and the builder, Karimbla Constructions Services Pty Ltd, should pay for the removal of all horizontal sunshades.
It was firstly confirmed that the QBCC’s directive to rectify the cladding was justified and within its authority and that the tribunal had jurisdiction to review the decision as it was filed within six years and six months after completion of the building work.
The remaining question is whether the building work was defective and whether or not the use of the ACPs constituted an undue risk of fire spread via the facade of the building.
Did affixing ACPs constitute an undue risk of fire spread via the facade of the building?
The senior building certifier who certified the Infinity Tower had decided that the sunscreens complied with the DTS provisions of Specification C1.1 because:
he thought that the use of aluminium composite panels was acceptable because it was believed that they complied with deemed-to-satisfy provisions as it was the thinking of the day that the panels did not constitute an undue risk of fire spread via the facade of the building because the test certificates showed they had a spread of flame index of 0.
He relied on Form 15 and 16 certificates of the installation and design of the façade curtain wall system provided by a registered professional engineer which was common practice in the industry at the time.
The Parties served evidence prepared by fire safety experts. The two expert witnesses in the case produced a joint report where they agreed that:
- that NCC BCA Volume 1: Class 2 to Class 9 Buildings, 2009 edition applies;
- that the sunblinds are aluminium panels containing a polyethylene core;
- that the sunblinds are attached to, but do not form part of the external wall;
- that BCA 2009 Specification C1.1 Clause 2.4 permitted combustible attachments to external walls only if the requirements of Clause 2.4 were met.
All parties accepted the ACPs were combustible due to their PE core. They agreed that the sprinkler system has a significant part to play in ensuring safety of occupants of the building, regardless of the source of the fire.
Testing demonstrated there would be no lateral or vertical fire spread because
- the panels were protected by end caps and edge angles,
- the height of the sun blinds restricted the fuel load,
- the fuel load would be consumed before fire spread occurred,
- the panels are attached without a cavity so there is no chimney effect.
The Decision
The tribunal took into account the characteristics of the building and fire safety features, the location of the cladding, the possibility of fire spread, gravity of the risk, fairness and cost.
QCAT found that the ACP sunshades, while combustible, did not constitute an “undue risk” of fire spread when assessed under the 2009 BCA, which was the applicable code at the time of construction. QCAT confirmed the QBCC’s decision not to issue a broader direction to rectify and concluded that their use in this configuration did not breach fire safety provisions or justify regulatory intervention.
Conclusion
This decision highlights the complexity of applying modern and evolving fire safety standards to buildings constructed under earlier standards.
When the Infinity Tower was constructed and certified, the building code at the time permitted the use of sunscreens constructed with some combustible material if they did not constitute an undue risk of fire spread via the facade of the building.
If the Infinity Tower was constructed today, it would not have had the ACPs attached to the exterior of the building in that configuration. However, not all cladding requires complete removal. Decisions must be made on a case-by-case basis. This is why the QBCC’s rectification scope of works was to remove the cladding from above the ground level fire isolated exits was upheld.
The BCA still permits the use of awnings as ancillary elements and the use of ACPs can be possible if an acceptable Performance Solution can be developed.
In Queensland, the use of ACP with a PE core of greater than 30% by mass on all new buildings is now banned. The Lacrosse building fire in Melbourne in 2014 and the Grenfell tragedy in London 2017 have shown us that non-compliant or non-conforming combustible cladding can lead to catastrophic events.
Fire risk must be evaluated holistically, within the context of the original design compliance, the building code provisions, and the building’s fire safety systems. The case also highlights the importance of distinguishing between compliance and fire safety risk.
An interesting point noted from this case was that the Body Corporate’s expert witness approached the matter as though it was up to the QBCC and the Builder to prove the ACPs were satisfactory, when in fact it was up to the Body Corporate to demonstrate that they were unsatisfactory.
Note: This article about a publicly available case and CJK were not involved in the proceedings.