Australia: Residential Focus - 18 July 2018: Part 2

Last Updated: 20 July 2018
Article by Christine Jones and Divya Chaddha
Most Read Contributor in Australia, September 2018

In the media

Missing evidence base for big calls on infrastructure costs us all
When the case for big transport projects is made without due analysis, we risk building the wrong projects. The result is we waste billions of dollars and rob ourselves of the infrastructure our booming cities need to be more liveable. Two stark examples – proposed rail links to Western Sydney and Melbourne airports and road congestion charges – illustrate the problem in different ways (10 July 2018). More...

Clean energy opportunities in Australia's infrastructure sector
The Clean Energy Finance Corporation (CEFC) has identified huge potential for improving sustainability by investing in the Australian infrastructure sector's clean energy opportunities according to a recently released impacts report from The Infrastructure Sustainability Council of Australia (ISCA) (09 July 2018). More...

Global organisations unite to solve fire safety in buildings
RICS has joined more than 30 organisations from around the world to develop landmark industry standards to address fire safety in buildings. The standards aim to set and reinforce the minimum requirements professionals should adhere to ensure building safety in the event of a fire (10 July 2018). More...

Value of apartment construction work set to fall 16% in 2019
The value of work in the multi-level residential construction sector is set for a major downturn, as tighter lending conditions and surging construction material costs weigh on the profitability of the sector (09 July 2018). More...

Australia leading the way in energy storage
Australia is leading the way in residential battery storage, a new report released today by Chief Scientist Dr Alan Finkel has found, with nearly 21,000 battery storage systems installed in homes across the country in 2017 – three times as many as the previous year (06 July 2018). More...

Developing a technology strategy to capitalise on the emerging digital revolution
New digital technologies like BIM and virtual and augmented reality have the power to transform many aspects of the construction industry, but they have yet to find their way into mainstream construction business activities (04 July 2018). More...

GBCA: 'Zero carbon ready' building code could deliver billions in cost and emissions savings
Setting stronger energy standards in the National Construction Code for new buildings would, between now and 2050, reduce energy bills by up to $27 billion, lower energy network costs by up to $7 billion and deliver 78 million tonnes of cumulative emissions savings, according to a new report released today (03 July 2018). More...

CEFC invests in smart meters in new push to give consumers more control over their energy use
The CEFC has completed its first smart meter technology financing, further extending the benefits of distributed clean energy to Australian households and businesses (03 July 2018). More...

PCA: Energy standards in National Construction Code: Built to Perform
The Property Council has welcomed the release of the final report of the Building Code Energy Performance Trajectory Project. The report shows that setting stronger energy standards for new buildings in the National Construction Code could between now and 2050 reduce energy bills by up to $27 billion (03 July 2018). More...

Aon warns about PFAS chemicals
Aon has warned property sellers, developers and construction companies to do due diligence on properties to ensure they haven't been contaminated by per-and poly-fluoroalkyl substances, known as PFAS chemicals (02 July 2018). More...

Innovative mining projects share in $7 million
Today the Turnbull Government announced project funding investment in drone technology designed by Western Australian business Emapper, to do the necessary environmental mapping required for any mine site, reducing safety risks to workers (03 July 2018). More...

New South Wales

Two new big solar farms to begin construction in NSW "in coming weeks"
New South Wales looks set to add more than 460MW of new large-scale solar capacity, with German-based developer Belectric confirming it was ready to start construction works on the first of two new solar plants "in the upcoming weeks." (12 July 2018). More...

Regulator cancels lightning ridge mineral claims
The Resources Regulator has cancelled two mineral claims at Lightning Ridge due to non-compliance issues and work health and safety breaches by the claim holder, Mr Sheref Sancar (12 July 2018). More...

Public Warning – do not deal with Jack Younes
Consumers are being warned not to deal with unlicensed contractor Jack Younes, who was recently convicted and fined $75,000 over home building and consumer law offences (09 July 2018). More...

Free testing for loose-fill asbestos insulation for Newcastle residents
Newcastle home-owners can now register for free loose-fill asbestos insulation testing following the NSW Government's decision to expand the state-wide Taskforce (02 July 2018). More....

Resources Regulator secures more money for Muswellbrook community fund
The Resources Regulator has accepted an Enforceable Undertaking proposal from Ridgelands Coal Resources Pty Ltd over their handling of a local community fund, raising an extra $200,000 in the process. . It is alleged Ridgelands failed to establish a $5 million community fund as soon as reasonably practical, which was a condition of the five-year term of Exploration Licence 8064 (02 July 2018). More...

Published

Taking charge: the energy storage opportunity for Australia
Clinton Porteous, Bruce Godfrey, Alan Finkel; Office of the Chief Scientist (Australia): 06 July 2018
This occasional paper provides an overview of energy storage technologies already in Australia and on the horizon, and the opportunities for Australia to lead the world in these fields.

Built to Perform: An industry led pathway to a zero carbon ready building code – final report
ASBEC and ClimateWorks Australia: July 2018
The report calls for a 'Zero Carbon Ready' building code. Built to Perform shows that setting strong energy standards for new buildings in the Code could, between now and 2050, reduce energy bills by up to $27 billion, cut energy network costs by up to $7 billion and deliver at least 78 million tonnes of cumulative emissions savings.

Pathways to housing tax reform
Richard Eccleston, Julia Verdouw, Kathleen Flanagan, Neil Warren, Alan Duncan, Rachel Ong, Stephen Whelan, Kadir Atalay; Australian Housing and Urban Research Institute: 05 July 2018
This research is the final report of the AHURI inquiry into 'Pathways to Housing Tax Reform in Australia.' It features real-world modelling and implementation time frames to steer tax settings that progress the efficiency, equity and sustainability of housing tax policy, and also presents meaningful, long-term political pathways to achieve these outcomes.

Review into the scope of economic regulation applied to covered pipelines: final report
Australian Energy Market Commission: 03 July 2018
This report sets out recommendations by the commission to improve the economic regulation applied to full and light regulation transmission and distribution gas pipelines. If implemented in full, the package of recommendations will assist pipeline users and prospective users to negotiate lower prices and better terms for their gas transportation agreements.

ACI Construction Briefs
A fortnightly communication highlighting key updates related to Australia's construction industry.
09 July 2018: ACI Construction Brief: Could the next RBA move be down?

Australian Bureau of Statistics
11/07/2018: Building Activity, Australia, Mar 2018 (cat no. 8752.0).
11/07/2018: Construction Activity: Chain Volume Measures, Australia, Mar 2018 (cat no. 8782.0.65.001).
11/07/2018: Housing Finance, Australia, May 2018 (cat no. 5609.0).
03/07/2018: Building Approvals, Australia, May 2018 (cat no. 8731.0).

Practice and courts

Infrastructure Priority List - Call for submissions
Infrastructure Australia is seeking submissions for the next update of the Infrastructure Priority List (IPL), which will be published in February 2019. Proposals for all types of infrastructure, including programs of related works and programs for network optimisation must be received before 31 August 2018. More...

Evaluation completed for Lower Fitzroy River Infrastructure Project
Infrastructure Australia has concluded its independent evaluation of the Lower Fitzroy River Infrastructure Project (Rookwood Weir), following a rigorous assessment process (13 July 2018).

Monash Freeway Upgrade Stage 2 designated a High Priority Project
The second stage of Melbourne's Monash Freeway Upgrade has been added to the Infrastructure Priority List as a High Priority Project after the business case was positively assessed by Infrastructure Australia, the nation's independent infrastructure advisor (11 July 2018).

NTC Reminder: New changes for the transport of dangerous goods
The Australian Code for the Transport of Dangerous Goods by Road and Rail is set to be updated with changes designed to reduce the burden on industry when transporting low-risk items and bring into line with new United Nations transport requirements. In May, Transport ministers approved version 7.6 of the Code, with the changes effective from 1 July 2018 and compulsory from 1 July 2019. More...

Infrastructure Australia CEO's newsletter June 2018
Prioritising Reform paper - As the nation's independent infrastructure advisor, Infrastructure Australia is committed to advancing a national reform agenda that delivers inclusive and enduring benefits for all Australians. More...

prefabAUS Conference 2018
11 – 12 September, 2018 Brisbane Convention & Exhibition Centre. More...

NCEIF: National Community Engagement for Infrastructure Forum 2018
The Forum (NCEIF) will provide insight on advancing community consultation in the infrastructure and natural resources space; discovering new industry trends and policies which may impact the community engagement framework and the development of infrastructure projects now and in the future; and exploring new tools and the latest research to support community and stakeholder engagement in infrastructure. Dates: 19 – 20 July 2018 at the Crown Conference Centre in Melbourne. More...

New Building Standards

AS/NZS 5033:2014/Amdt 2:2018
Installation and safety requirements for photovoltaic (PV) arrays, Standards Australia.

AS/NZS 5033:2014/Amdt 1:2018
Installation and safety requirements for photovoltaic (PV) arrays, Standards Australia.

New South Wales

BPB: Certification data reporting – more software options now available
9 July 2018 - Better Built Software and Visual Approvals have been added to the list of software products that are fully compliant with the data reporting requirements. More...

BPB: Free testing for loose-fill asbestos insulation in Greater Newcastle
6 July 2018 - Free testing is being offered to owners of pre-1980s homes after a property in the Greater Newcastle region was recently found to contain loose-fill asbestos insulation. More...

BPB: Certification data reporting – second software provider on board
5 July 2018 - PermAssist, development approval and certification software, is fully compliant with the data reporting requirements. More...

NSW Fair Trading: Update on professional indemnity insurance and exclusions
N
SW Fair Trading is aware of certifier concerns that a tightening in the professional indemnity insurance market means they may not be able to obtain a new policy without exclusions, particularly those relating to non-compliant external cladding. The lack of insurance to cover a certifier's statutory liabilities means that the accreditation requirements under the Building Professionals legislation are not being met, affecting their continued operation.
Until clarification of the situation and any broader resolution to this issue, NSW Fair Trading will work closely with individual certifiers to see what can be done. Affected certifiers should contact NSW Fair Trading by phone 8522 7800 or email bpb-accreditation@bpb.nsw.gov.au to discuss their situation.

More housing options for NSW: Low Rise Medium Density Housing Code
The new Code will allow one and two storey dual occupancies, manor houses and terraces to be built under fast-track complying development approval across NSW and also promotes good design for medium density housing. Low-rise medium density housing as complying development is only allowed where medium density development is already permitted under a council's local environmental plan. The Medium Density Housing Code commenced on 6 July 2018.

Greenfield Housing Code
The changes start on 6 July 2018, the new Code will be included in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. In essence; it is a simplifying of the development process and aligning the requirements for development across greenfield areas; the planning rules and the code are also presented in plain English to clearly explain planning rules. More...
Note: There will be a three-year transitional period, where applicants can choose whether to use the Greenfield Code, or the new simplified Housing Code or Transitional Code (until 13 July 2019).

Cases

Hyundai Engineering & Steel Industries Co Ltd v Alfasi Steel Constructions (NSW) Pty Ltd [2018] FCA 1054
ARBITRATION – international arbitration – where award creditor brought proceedings to enforce award obtained in Singapore – whether proceeding brought by award creditor to enforce foreign award should be adjourned – where award debtor seeks to set aside the award in part in the High Court of the Republic of Singapore – application of s.8(8) of the International Arbitration Act 1974 (Cth) – adjournment granted on condition that award debtor provide security for full amount of the award plus interest.
Hyundai and Alfasi entered into a "Sub-Subcontract" by which Hyundai agreed to fabricate and deliver steel for use by Alfasi in the construction of the Sydney International Convention Exhibition and Entertainment Precinct in Darling Harbour, including an exhibition hall and a theatre (the Project).

Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107
INDUSTRIAL LAW – appeal from decision of single judge – where s.490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees "during mealtimes or other breaks" – whether holding discussions before an employee's shift is permitted under s.490(2) – meaning of the term "breaks" – finding that ordinary meaning of the term "break" necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift.
STATUTORY INTERPRETATION – whether the phrase "mealtimes or other breaks" is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes "holding discussions before or after an employee's shift" as an example of a "break" – finding that the phrase "mealtimes or other breaks" is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed.

EHR Resources Ltd, in the matter of EHR Resources Ltd [2018] FCA 997
CORPORATIONS - application for orders that trading in shares following a failure to comply with disclosure obligations was not invalid and orders relieving sellers from civil liability pursuant to s.1322(4) - where admitted contraventions of s.707(3) and s.727 as to disclosure - where cleansing notice under s.708A(5)(e) was insufficient disclosure because trading in shares suspended for more than five days in previous 12 months - contraventions due to honest error which had been explained - cleansing prospectus subsequently issued - application allowed.

Kang v Bishop (No.2) [2018] NSWSC 1073
(1) Mr Kang's application is dismissed.
(2) Mr Kang is to pay the First and Second Defendant's costs of the proceedings as agreed or assessed.
ADMINISTRATIVE LAW – judicial review – appeal from Local Court– application to quash orders made by Magistrate – jurisdiction of Local Court – whether prosecution in Local Court authorised – whether delegate authorised under Fair Trading Act 1987 (NSW) required to bring prosecution under s.192E and s.192G of the Crimes Act 1900 (NSW) – proper construction of s.14 and s.173 of the Criminal Procedure Act 1986 (NSW) – consideration of the interaction between Criminal Procedure Act, Crimes Act and Fair Trading Act – application dismissed.
COSTS –departure from usual costs order sought – no basis – costs as agreed or assessed
Fair Trading Act 1987 (NSW); Government Sector Employment Act 2013 (NSW); Home Building Act 1989 (NSW).

Ingate v Andrews [2018] NSWCATAP 170
(1) The Respondent's application for costs is refused.
COSTS – costs of internal appeal in proceedings in the Consumer and Commercial Division of NCAT – whether the amount claimed or in dispute is more than $30,000 – whether there are special circumstances warranting an award of costs
Mr Andrews is an architect and licenced builder who built a residence for Mr and Ms Ingate. Mr Andrews applied to the Tribunal for the Ingates to pay him $39,724.21 for certain disputed variations to the building works.

B & M Mitchell Pty Ltd (in liquidation) v Mikell Investments Pty Ltd & Divlist Pty Ltd t/as Contemporary Homes [2018] NSWCATAP 168
Payment of monies held by Tribunal.

Council of the Law Society of New South Wales v Bouzanis [2018] NSWCATOD 109
(3) The respondent is to pay a fine of $5,000.
Solicitor – Professional misconduct – Breaches of ss.254 and 255 Legal Profession Act 2004 admitted – Payment of client's cheque for counsel and expert witness into office account – Proceeds drawn upon for other purposes – Whether misappropriation of funds established. In 2011 Mr and Mrs Setchell retained the Respondent in connection with legal proceedings arising from a home building contract.

TTM Investment Corporation Pty Ltd v Hua Chang Pty Ltd [2018] NSWSC 1078
Security for costs order and freezing order to be granted.
CIVIL PROCEDURE – security for costs – discretionary considerations – where party resisting order not acting purely defensively in main proceedings – relevance of the strength of a party's claim.
CIVIL PROCEDURE – security for costs order – quantum of security – ascertaining quantum where neither party is acting purely defensively in main proceedings – difficulty in ascertaining quantum where claims and cross-claims are interconnected.
CIVIL PROCEDURE – interlocutory application – freezing order – risk of removing assets out of jurisdiction – where party has little to no connection with jurisdiction – where party has commercial incentive to remove assets from jurisdiction.
Development involved the construction of eight units on the land - builder undertook the work pursuant to a written construction contract. Contract price was $3.256 million. Home Building Act 1989 (NSW), s.92(1).

Rekrut v Champion Homes Sales Pty Ltd [2018] NSWCATAP 162
APPEAL – costs – costs order made by Tribunal after Appeal Panel has allowed appeal in part – whether costs order should be set aside - Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW).
The appellants ("the owners") made claims against the respondent ("the builder") under the Home Building Act 1989 (NSW) (HB Act). Exactly three years later, on 23 December 2016, the Tribunal in the first instance ordered that the builder pay to the owners $63,586.59.

Southern Cross Electrical Engineering v Steve Magill Earthmoving [2018] NSWSC 1027
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – application to quash adjudicator's determination – whether adjudicator imposed an onus of proof on plaintiff inconsistent with his statutory obligation to come to his own view on the material – whether adjudicator's determination regarding lineal meterage unreasonable – necessary to consider adjudicator's reasoning in light of statutory requirement to determine often difficult questions within tight timeframe – necessary to have regard to the statutory scheme which renders determination final as to payment claims but otherwise preserves all rights – impermissible to conduct merits inquiry under guise of jurisdictional reasonableness – fair reading of the adjudicator's reasons in context demonstrates no error with regards to onus – not shown that determination was unreasonable to the extent of invalidation – summons dismissed.

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334
APPEALS: building information certificates; unauthorised works to dwelling house; dwelling not built in accordance with complying development certificate; nominal development application assessment required; amenity impacts; view loss; overheight fence; requirement for stormwater easement.

Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 1033
COSTS – party/party – bases of quantification – indemnity costs – proceedings by employer for indemnity for workers compensation benefits paid – judgment in related proceedings finding negligence of defendant causing personal injury to worker – Calderbank offer made by plaintiff – where offer open for 5 weeks – where offer involved elements of compromise – where offer rejected by defendant – whether rejection unreasonable – costs awarded on indemnity basis from date of offer.

M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No.2) [2018] NSWLEC 101
PRACTICE AND PROCEDURE – notice of motion – whether appropriate to hear issues raised as separate questions – where similar submissions would be made in hearing of another notice of motion in any event STATUTORY INTERPRETATION – whether amendments to the Environmental Planning and Assessment Act 1979 (NSW) have the effect of constituting a new statutory entity or continuing an existing entity – application of interpretive principles JOINDER – whether appropriate to join planning panel to Class 1 proceedings – where panel is the consent authority but decision is deemed to be made by Council – where panel has power to control and direct Council COSTS – costs sought in relation to conciliation conference – presumptive rule against costs. in Class 1 proceedings – costs sought against non-party – where agreement reached in conciliation conference but planning panel exercised its power to control and direct Council.

Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No.15) [2018] NSWSC 1019
EXPERT REPORT – assessment of reasonableness of flood engineer's belief about capacity of dam – reliance on events that post-date flood event – opinion with absence of reasoning – no question of principle.

Wharekawa v AEA Constructions Pty Ltd [2018] NSWSC 1023
COSTS – party/party – bases of quantification – indemnity costs – judgment for plaintiff in proceedings for negligence causing personal injury – offer of compromise and Calderbank offer separately made by plaintiff – where offers rejected by defendant – where damages awarded by judgment greater than plaintiff's offer of compromise and Calderbank offer – where plaintiff prima facie entitled to indemnity costs unless Court otherwise orders – Uniform Civil Procedure Rules 2005 (NSW), r.42.14 – whether significant change in plaintiff's case between date of offer and date of trial – where expert medical reports not served on defendant at time of offer – where plaintiff's statement and other medical reports raising same evidentiary issues nevertheless served on defendant by the time of offer – costs awarded on indemnity basis from date of offer.

Legislation

Commonwealth

Acts

National Housing Finance and Investment Corporation Act 2018
03 July 2018 - An Act to establish the National Housing Finance and Investment Corporation.

Regulation

Public Works Committee Amendment (Snowy Hydro Limited) Regulations 2018
12/07/2018 – No longer in force - These regulations amend the Public Works Committee Regulation 2016 to exempt Snowy Hydro Limited from being subject to the provisions of the Public Works Committee Act 1969.

Security of Critical Infrastructure Rules 2018
05/07/2018 - These rules specify the requirements for an electricity generation station and gas transmission pipeline to be considered a 'critical infrastructure asset' for the purposes of subsection 10(2) and subsection 12(2) of the Security of Critical Infrastructure Act 2018, prescribe the Tasmanian Gas Pipeline as a 'critical infrastructure asset', and ensure the Government has access to 'operational information' in order to determine the national security risks in 'critical infrastructure assets'.

National Housing Finance and Investment Corporation Investment Mandate Direction 2018
03/07/2018 - This instrument gives directions to the Board of the National Housing Finance and Investment Corporation (NHFIC) in relation to the performance of the NHFIC's functions.

New South Wales

Regulations and other miscellaneous instruments

Environmental Planning and Assessment Amendment (Low Rise Medium Density Housing) Amendment Regulation 2018 (2018-368) — published LW 5 July 2018.

Environmental Planning Instruments

Standard Instrument (Local Environmental Plans) Amendment (Low Rise Medium Density Housing) Repeal Order 2018 (2018-369) — published LW 5 July 2018.
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Medium Density Housing) Further Amendment 2018 (2018-370) — published LW 5 July 2018.

For the full text of Bills, and details on the passage of Bills, see Bills.

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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