Australia: Construction & infrastructure news – 28 August 2017

Last Updated: 3 September 2017
Article by Troy Lewis

In the media

National

AGL agrees to sell North Queensland gas assets
Energy giant AGL has agreed to sell its North Queensland gas assets to an Asian-Australian consortium – continuing its intentions to exit the exploration and production of natural gas (25 August 2017). More...

What subcontractors and suppliers need to know about head contractor insolvencies
All up, 1,481 companies within the construction sector entered some form of external administration over the 12 months to March this year according to data from the Australian Securities and Investments Commission. Of these, 1,112 were liquidated. That raises questions about what subcontractors and suppliers need to be aware of when parties up the chain become insolvent and what decisions and actions they need to undertake (24 August 2017). More...

New South Wales

Light rail project reaches new milestone
Parramatta Light Rail has reached the next major milestone with the release of the project's environmental Impact Statement (EIS) to allow for community and stakeholder feedback. "Parramatta Light Rail will revolutionise the way people move around the region, and create more local jobs, and improve the access to major health and sporting destinations (25 August 2017). More...

Inspectors target structural collapse after spate of incidents
WorkSafe inspectors will hone in on the risks of structural collapse during construction work as part of their latest safety blitz following a spate of incidents in recent months. As part of the state-wide campaign, inspectors will focus on buildings and associated structures under construction including walls and frames (21 August 2017). More...

$500 million to grow local economies
Premier Gladys Berejiklian announces the opening of the Growing Local Economies Fund, which will use an innovative new funding model to target $500 million in investments in business-boosting infrastructure across regional NSW (17 August 2017). More...

Queensland

Risky, flammable building products targeted in new Queensland safety blitz
Queensland Parliament hands new powers to the construction watchdog to crack down on suppliers of flammable cladding and other unsafe building products, in the wake of the Grenfell Tower fire in London. Suppliers of flammable cladding and other unsafe building products will be held accountable by Queensland's construction watchdog under new powers granted by State Parliament (25 August 2017). More...

Underground coal gasification now prohibited in Queensland
A ban on underground coal gasification (UCG) in Queensland is now the letter of the law, following the successful passage of legislation in Parliament today. Issues associated with two of the three trial projects and the uncertainty about commercial scale operations, have highlighted significant risks with this industry which are just not acceptable, according to the Government (25 August 2017). More... More...

Conservation foundation loses appeal against Carmichael coal mine
Environmentalists who have lost another appeal against Adani's $16 billion Carmichael coal mine in Queensland's Galilee Basin say the decision is "just another step in the most significant environmental campaign of our generation" (25 August 2017). More...

New FIFO law benefits regional communities
The Palaszczuk Government today delivered on its election commitment to legislate against 100 per cent fly-in fly-out (FIFO) workforces on large resource projects near regional communities (24 August 2017). More...

Bill brings certainty to landholders, resources industry
New legislation introduced into Parliament today will provide landholders and resource companies with greater certainty when negotiating conduct and compensation agreements and make good agreements. The Mineral, Water and Other Legislation Amendment Bill would streamline and improve negotiation processes, making it easier for landholders and resources companies to co-exist (22 August 2017). More...

Huge North Queensland hydro and solar project
The construction of more than 500 megawatts of hydro and solar is one step closer after an agreement was signed yesterday between Powerlink and Genex Power Limited to progress Stage 2 of the Kidston Hydro-Solar Project (19 August 2017). More...

Victoria

Experts recommend significant changes to West Gate Tunnel project <
A panel of architects, landscape architects and urban designers has recommended that the Victorian government make significant changes to its plans to connect central Melbourne to the city's west via a major road and cross-river tunnel and bridge system (23 August 2017). More...

Power station emissions regulated by EPA Victoria
Power stations in Victoria must operate under an Environment Protection Authority Victoria (EPA) licence and ensure strict emission limits are adhered to or face prosecution for breaches of the Environment Protection Act 1970 (18 August 2017). More...

Legal action against CFMEU for allegedly threatening to shut down Melbourne project
Federal Court proceedings have been launched against the CFMEU and two representatives for allegedly preventing non-financial members from working at a Melbourne construction site (18 August 2017). More...

Angry tradies chase builder for millions over apartment project
A Melbourne builder is being hunted by angry tradesmen who claim they are owed millions of dollars for work on an apartment complex in which underworld figure Mick Gatto has a financial interest (18 August 2017). More...

Practice and courts

Infrastructure Australia: Infrastructure Priority List: Call for submissions
Infrastructure Australia is calling on Australian governments and industry leaders to identify infrastructure problems and opportunities of national significance as part of its 2018 Infrastructure Priority List (IPL) update. The revised IPL is due for publication in February 2018. The submission period will close on 27 October 2017. Proponents can make a submission via the Infrastructure Priority List—Call for submissions page.

ABCC Code for the Tendering and Performance of Building Work 2016
The Code for the Tendering and Performance of Building Work 2016 applies to companies who wish to undertake Commonwealth-funded building work. Building industry participants covered by agreements made prior 2 December 2016 have until 29 November 2018 to ensure their agreements are Code compliant.

New South Wales

New South Wales Government: Have your say on the new home building insurance standards
SIRA is encouraging builders, homeowners, financial service providers, and other interested people to provide input on the proposed new home building compensation insurance standards in NSW. To have your say and find out more, visit the SIRA website at www.sira.nsw.gov.au (18 August 2017).

New South Wales BPB: NCC consultation ends 10 September: fire safety in high-rise buildings
The Australian Building Codes Board is exhibiting proposed changes to the National Construction Code (NCC) relating to fire safety in high-rise buildings (23 August 2017). More...

New South Wales BPB: Strata building bond scheme now commences 1 January 2018
The new strata building bond and inspection scheme will now commence on 1 January 2018. More...

Queensland

Construction Materials Environmental Management Conference
Register now to attend the CMEMC17 on 13 September 2017 in Brisbane.
Co-hosted by Cement Concrete and Aggregates Australia (CCAA), the Institute of Quarrying Australia (IQA), and EHP—the day's program will focus on sharing and promoting good environmental management practices, and provide a forum to foster improved relations between industry operators and government representatives about environmental management regulatory issues.

Cases

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30
Appeal allowed. Mining – Application for mining lease – Statutory conditions – Proper construction of s.74(1)(ca)(ii) of Mining Act 1978 (WA) – Where statutory regime conferred power on executive government of State to grant exclusive rights to exploit resources of State – Where s.74(1)(ca)(ii) provided application for mining lease "shall be accompanied by" mineralisation report – Effect of non-compliance with s.74(1)(ca)(ii) – Whether non-compliance with s.74(1)(ca)(ii) invalidated exercises of jurisdiction to progress application through to grant. Words and phrases – "condition precedent", "indefeasibility", "informality", "irregularity", "jurisdictional error", "shall be accompanied by". Mining Act 1978 (WA), ss.71, 74, 74A, 75, 116(2).

Gaycel Pty Ltd v Heski Carpenters Pty Ltd [2017] VSC 450
JUDICIAL REVIEW – Decision of VCAT – Building dispute involving 'cost plus contract' and provision of estimate – Alleged misleading and deceptive conduct in provision of estimate – Whether failure to consider evidence of inducement and loss given 'cost blowout' – Whether failure 'to apply the law of negligence' – Whether question of law raised in relation to alleged common law claim for delay damages – Whether discretion miscarried in refusing amendment – No merit to the extent any question of law was raised – Leave refused – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s.148.

H Troon v Marysville Hotel and Conference Centre [2017] VSC 470
CONTRACTS – Building Contract – Modified AS2124-1992 – Provision of Security – Performance Guarantee – Clause 5 (as modified) – Unconditional Banker's Undertaking – Application for interlocutory injunction to restrain recourse to security – Whether serious issue to be tried as to existence of negative stipulation – Beneficiaries unconscionable conduct in seeking recourse – Whether Principal's conduct in relation to issue of Final Certificate was unconscionable – Operation of Clause 42.8 of the Contract.

Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121
BUILDING AND CONSTRUCTION - Building and Construction Industry (Security of Payment) Act 1999 (NSW) (the Act) – ss.13, 21(3), 29, 31 – Building and Construction Industry (Security of Payment) Regulation 2008 (NSW) (the Regulation) – whether the defendant's payment claim dated 16 December 2016 complied with the requirements of ss.13(7) and (9) as being accompanied by a compliant supporting statement – whether the supporting statement which accompanied the claim complied with the requirements of ss.13(7) and (9) and the Regulation – HELD: supporting statement did not comply because the declaration contained in it was made on a date earlier than the payment claim identified as the one it purported to support – HELD: the purported payment claim did not effectively invoke the procedures under the Act – HELD: the adjudication determination of the second defendant void – where notice of acceptance of appointment under s.21(3) was actually received by the plaintiff but in a manner not expressly provided for by s.31 – HELD: actual receipt was effective notification under s.21(3)(a) – HELD: adjudication determination out of time under s.21(3)(a) but not void – under s.29(4) adjudicator not entitled to be paid any fees and expenses.

Burragubba v Minister for Natural Resources and Mines [2017] QCA 179
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – PROCEDURES PROVIDED BY STATUTE – where the appellants were registered native title claimants under the Native Title Act 1993 (Cth) (the NTA) – where the National Native Title Tribunal (NNTT) had determined that the grant of mining leases over land the subject of the native title claim could be done as a 'future act' under the NTA – where the appellants sought judicial review of the NNTT determination – where the first respondent decided to grant three mining leases to the second respondent under the Mineral Resources Act 1989 (Qld) (the MRA) – where, in making the decision, the first respondent concluded that native title proceedings had been 'resolved', without consulting the appellants, although the judicial review proceedings were reserved pending judgment – where the MRA sets up a scheme for objections to the grant of a mining lease to be made within a limited time and for those objections to be considered by the Land Court – where the appellants had not lodged an objection under the MRA scheme – where the primary judge concluded that the MRA provided a comprehensive code for affording procedural fairness and had excluded the common law right to procedural fairness – whether the MRA excluded the common law right to procedural fairness – whether the first respondent was referring to the native title claim being 'resolved' in the sense of being extinguished or in the sense that the grant of a mining lease could be done as a 'future act' under the NTA – whether the first respondent was obliged to consult with the appellants before concluding that the grant of a mining lease could be done as a 'future act' under the NTA.

Terera v Clifford [2017] QCA 181
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent had performed tiling work for the applicants – where the applicants complained to the Queensland Building and Construction Commission and rectification work was completed – where the applicants remained unsatisfied with the work and refused to pay for the work – where the dispute proceeded to the Queensland Civil and Administrative Tribunal (QCAT) and then the QCAT Appeal division (QCATA) – where the applicants were successful only in part, and a costs order was made against the applicants – where the applicants seek leave to appeal the QCATA decision and the costs order – where the applicants require an extension of time in which to appeal – whether an extension of time is necessary and appropriate – whether leave should be granted to allow the applicants to bring the appeal.

Legislation

New South Wales

Bills assented to
Coal Mine Subsidence Compensation Act 2017 No 37 — Assented to 14 August 2017.
Environmental Planning and Assessment Amendment (Staged Development Applications) Act 2017 No 38 — Assented to 14 August 2017.
Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 No 39 — Assented to 14 August 2017.

Queensland

Bills passed
Building and Construction Legislation (Non-conforming Building Products - Chain of Responsibility and Other Matters) Amendment Bill 2017

Introduced by: Hon M de Brenni MP on 25/05/2017 Stage reached: Passed with amendment on 24/08/2017. Amendment of s 3 (Objects of Act) Section 3— inserts— (e) to regulate building products to ensure— the safety of consumers and the public generally; and (ii) persons involved in the production, supply or installation of building products are held responsible for the safety of the products and their use.

Bills

Building Industry Fairness (Security of Payment) Bill 2017
Introduced by: Hon M de Brenni MP on 22/08/2017 Stage reached: Referred to Committee on 22/08/2017.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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