In the media
Signs emerging that worst is behind building industry
Led by New South Wales and Victoria, encouraging building approval numbers have bolstered hopes that the troubled building industry is at last emerging from the worst of its woes. Matthew Kandelaars, Group Executive Policy and Advocacy, Property Council, said while pleasing to see apartment approvals on the rise, they are still close to half of what was being built over the same period in 2017-18 (2 December 2024). Read more here.
Despite misconceptions about productivity decline, detached home building in Australia remains the most efficient in the world. We debunk the myths surrounding its output and explore how evolving home designs challenge these assumptions
There has been a decline in labour force productivity within the home building industry in Australia. This is then suggested to contribute to the deterioration in the housing supply. These two contentions are premised on the basis that outputs from detached home building have remained constant over recent decades while labour inputs have increased over the same period. This is erroneous and ignores the labour structure in our industry (27 November 2024). Read more here.
New construction watchdog hammers home priorities for Building Commission NSW
NSW's new Building Commissioner James Sherrard has officially started in his role leading the state's first dedicated building and construction regulator. His focus builds on the success of the regulator in restoring quality and public confidence, while looking towards further industry reform (5 December 2024). Read more here.
Exploring the Applications of Graphene in Construction
Graphene, a remarkable two-dimensional material made up of sp2 hybridized carbon atoms arranged in a hexagonal lattice, is making waves in the construction industry thanks to its unique properties. Its incredible mechanical strength allows for significant improvements in concrete, making it up to 2.5 times stronger and four times less permeable to water than traditional concrete. This means that structures can be built using less material without compromising safety or durability, potentially cutting CO2 emissions by as much as 30 % (27 November 2024). Read more here.
NSW women in construction winners celebrated for innovation and female leadership
Diversity and inclusion and how they can deliver profound benefits for the nation were the themes among finalists for the National Association of Women in Construction (NAWIC) NSW Chapter's annual awards for excellence. The not-for-profit organisation is run by women volunteers and allies that host and deliver various events to further women in the construction industry. Last week, the organisation announced its winners (2 December 2024). Read more here.
Recycled materials – how to bridge industry and government responsibility
The transition to a circular economy in the infrastructure sector, where materials are designed to be reused, remanufactured, or recycled, has become a defining imperative. But who is responsible for catalysing the change? Is it government or industry? According to circular economy engineer at Arcadis, Lloyd Parker, significant progress hinges on a collaborative effort between government and industry (5 December 2024). Read more here.
Why foreign buyers are leaving Australia's property market
The number of Australian homes bought by foreigners fell last year, as high stamp duty costs deter potential buyers. The number of approved residential real estate investments by overseas buyers fell to 5581 in financial year 2024, down from 6576 in 2023 (15 per cent), figures from the Foreign Investment Review Board (FIRB) show. The downturn reflects the government's efforts to reduce foreign investment and cut migration, experts say (28 November 2024). Read more here.
'Yes in God's backyard': Labor offers cash for church housing
Church groups are signing up for federal funds to build homes for people in need and fill a gap in the broader housing market, prompting the government to offer them more cash if they are willing to release land that has been unused for decades. Housing Minister Clare O'Neil told faith leaders on Tuesday that they stood to gain a bigger share of a $10 billion federal housing fund if they followed the example of Baptists and other churches by using their land for emergency accommodation (3 December 2024). Read more here.
HIA Welcomes Regional Housing Focus in Coalition's $5 Billion Housing Plan
"The Housing Industry Association (HIA) welcomes the Coalition's commitment announced today to invest in supporting growth and delivery of housing across regional Australia through its $5 billion Housing Infrastructure Programme," HIA Chief Executive Industry & Policy, Simon Croft said today (4 December 2024). Read more here.
In practice and courts
WMTS:101-2024 | Public Comment Draft Round 1
The draft amendments to this technical specification incorporate the minimum requirements for the connection of commercial catering appliances employed for the preparation, cooking, and holding of food to the water service and sanitary plumbing piping. The ABCB is undertaking consultation to ensure stakeholders are informed of the development of all proposed new or amended Technical Specifications. In undertaking this consultation stakeholders have an opportunity to provide input and/or comment during the Technical Specification's development (5 December 2024). Access the public comment draft here.
Publications
New Prefabricated, modular and offsite construction
handbook
This handbook was developed in collaboration with Building
4.0 CRC and provides guidance on how to use prefabricated, modular
and associated Modern Methods of Construction (MMC) technologies
safely, sustainably and in compliance with the National
Construction Code (NCC). It helps increase the understanding and
effectiveness of existing building standards and regulations, and
to respond to government and industry requests for guidance on
achieving NCC compliance in buildings that use MMC (22 November
2024). Read the handbook here.
Review of the Fair Work Amendment (Secure Jobs, Better
Pay) Act 2022
HIA refers to the joint review of the operation of the
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
(Secure Jobs, Better Pay Act), and amendments made by Part 16A of
Schedule 1 of the Fair Work Legislation Amendment (Closing
Loopholes) Act 2023 (Closing Loopholes Act) as announced on 2
October 2024 (Review) (28 November 2024). HIA provides this
response to the Review here.
Building Approvals, Australia
The Australian Bureau of Statistics released data that
showed the total number of dwellings approved rose 4.2 per cent in
October to 15,498, after a 5.8 per cent rise in September.
Approvals for private dwellings excluding houses (including
townhouses and apartments) rose 24.8 per cent to 5,859, to the
highest level since May 2023. Single family housing approvals fell
by 5.2 per cent in October, after reaching a two-year high in
September (2 December 2024). Read more here.
Construction Work Done, Australia, Preliminary
This release provides preliminary estimates of value of
total construction work done, building work done and engineering
construction work done. In seasonally adjusted terms, in the
September quarter, total construction work done rose 1.6% to
$73,344.9m, building work done rose 0.7% to $38,638.0m and
engineering work done rose 2.6% to $34,706.9m. Overall, the trend
estimates for total construction work done rose 0.7% (27 November
2024). Read more here.
Cases
Pafburn Pty Limited v The Owners - Strata Plan No 84674 [2024] HCA 49
Tort – negligence – concurrent wrongdoers –
proportionate liability – where owners corporation claimed
damages from developer and head building contractor for
construction of building – where claim for economic loss
arising from breach of duty imposed on person carrying out
construction work by s 37 of Design and Building Practitioners Act
2020 (NSW) ("DBPA") – where duty to exercise
reasonable care to avoid economic loss caused by defects in or
related to building arising from construction work – Whether
Pt 4 of Civil Liability Act 2002 (NSW) can limit liability for
damages for breach of s 37 of DBPA.
Words and phrases – "apportionable claim",
"building work", "concurrent wrongdoers",
"construction work", "direct liability",
"duty of care", "non-delegable duty",
"personal liability", "proportionate
liability", "statutory duty", "vicarious
liability".
Civil Liability Act 2002 (NSW) – ss 5Q, 34, 34A, 35,
39(a).
Design and Building Practitioners Act 2020 (NSW) – ss 7(3),
32, 33, 34, 35, 36(1), 37, 38, 39, 40, 41.
Innovative Builders and Engineers Pty Ltd v Shah [2024] NSWCATOD 196
APPEAL – error of law – adequacy of reasons –
no legal basis disclosed for order making director of building
company personally liable for breach of contract – failure to
determine scope of work under residential building contract before
determining damages – appeal allowed – remitted for
rehearing.
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 60,
80, Sch 4, c12; Civil and Administrative Tribunal Rules 2014 (NSW),
r 25; Home Building Act 1989 (NSW), ss 7, 10.
The Owners - Strata Plan 82089 v Omaya Holdings Pty Ltd (No 3) [2024] NSWSC 1511
BUILDING AND CONSTRUCTION – contract – defects
– where first defendant builder and second defendant
developer entered building contract – where plaintiff owners
corporation alleges general and fire safety defects – where
principal claim arises from contention that the "effective
height" of building exceeds 25 metres – whether
inadequate fire safety measures for building – construction
of the Building Code of Australia – meaning of
"effective height" – meaning of "storey"
– whether garbage collection area, or, in the alternative,
car park entry, is the "lowest storey" of the
building.
BUILDING AND CONSTRUCTION – contract – where plaintiff
owners corporation alleges a building contract between the second
defendant developer and third defendant – where no written
contract – where third defendant not licensed to perform
residential building works – whether contract may be inferred
by circumstances.
Civil Liability Act 2002 (NSW); Design and Building Practitioners
Act 2020 (NSW); Environmental Planning and Assessment Act 1979
(NSW); Environmental Planning and Assessment Regulation 2000 (NSW);
Home Building Act 1989 (NSW).
Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd (No 2) [2024] NSWSC 1555
COSTS – where successful party seeks indemnity costs
– purported Calderbank offer – whether unreasonable for
unsuccessful party to reject offer – HELD – offer not
take effect as a Calderbank offer – not unreasonable for
unsuccessful party to reject offer – variation to costs order
to correct naming of first defendant.
COSTS – unsuccessful application for indemnity costs –
costs follow the event – HELD – first defendant to pay
the plaintiffs' costs of application.
Building and Construction Industry Security of Payment Act 1999
(NSW) s 25(4)(b); Civil Procedure Act 2005 (NSW) s 98; Home
Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
rr 36.16, 42.1, 42.2, 42.4.
Champion Home Sales Pty Ltd v Voulgaris [2024] NSWCATAP 244
HOME BUILDING – enforceability of a builder's damages
clause where the builder had terminated a contract for lack of
finance by owner – no certificate of insurance issued to the
owner – whether the builder's claim is for the payment of
damages under a contract for residential building work –
application of s 92 and s 94 of the Home Building Act –
whether work of a preparatory nature is residential building
work.
COSTS – Calderbank letter – exercise of discretion for
indemnity costs.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014; Home Building Act 1989
(NSW).
The Owners Corporation SP 90832 v Dyldam Developments Pty Ltd [2024] NSWSC 1519
BUILDING AND CONSTRUCTION – Design Act ss 36 and 37 -
Certifiers Act ss 13 and 14 – proceedings by Owners
Corporation against the third defendant accredited certifier for
breach of the duty of care imposed by s 37 of the Design Act on the
footing that the third defendant carried out construction work in
or related to a residential strata apartment complex – third
defendant denies that it carried out construction work and denies
that the Design Act can apply by virtue of the existence of a
Practice Standard under the Certifiers Act.
PRACTICE AND PROCEDURE – UCPR r. 28.2 – Civil Procedure
Act 2005 (NSW) ss 56(1)-(2) – parties frame the following
separate question "Did the Third Defendant carry out
"construction work" within the meaning of Part 4 of the
Design and Building Practitioners Act 2020 (NSW) in respect of the
development of the Complex?" – where during argument on
the question it emerges that the question will not conduce the
just, quick and cheap disposition of the real issues in the case
because it is likely to cause delay and the answer lacks utility
– order for determination of separate question revoked.
Building and Development Certifiers Act 2018 (NSW); Civil Procedure
Act 2005 (NSW); Design and Building Practitioners Act 2020 (NSW);
Environmental Planning and Assessment Act 1979 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).
Damico v Secretary, Department of Customer Service [2024] NSWCATOD 192
ADMINISTRATIVE LAW – administrative review –
contractor licence – painter – fit and proper
person.
Administrative Decisions Review Act 1997; Child Protection
(Offenders Registration) Act 2000; Home Building Act 1989.
Van der Rijt v Collins [2024] NSWCATAP 247
APPEAL- common property rights by-law- consent required under
sections 143 and 149 of the Strata Schemes Management Act
2015.
Civil & Administrative Tribunal Act, 2013 (NSW); Strata Schemes
Management Act 1996 (NSW); Strata Schemes Management Act 2015
(NSW).
Chaar v The Owners – Strata Plan 57161 [2024] NSWCATAP 242
APPEAL – error as to date not impacting decision –
no basis for grating leave to appeal.
LAND LAW – Strata title – two-year limitation period
– date from which that period commences – extension of
time not permitted.
Strata Schemes Management Act 2015 (NSW).
COURTS AND JUDGES – Supreme Court – jurisdiction
– whether Supreme Court lacked jurisdiction to make
declaration that condition of by-law unjust – where statute
conferred function of finding condition unjust on NSW Civil and
Administrative Tribunal.
LAND LAW – strata title – By-laws – whether
condition of by-law that exclusive use rights cease unless
obligations complied with unjust – whether condition harsh,
oppressive or unconscionable – whether respondents liable in
damages under by-law for failure to comply with obligations under
by-law – whether respondents liable for reasonable costs and
expenses incurred in recovering outstanding levies – whether
respondents liable for costs and expenses incurred in claiming
damages under by-law.
Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, Subcll 5,
6, 8; Civil Procedure Act 2005 (NSW), ss 56, 98; Contracts Review
Act 1980 (NSW), ss 4, 7, 9; Industrial Arbitration Act 1912 (NSW),
s 49; Interpretation Act 1987 (NSW), ss 34, 35; Strata Schemes
Management Act 2015 (NSW), ss 8, 86, 90, 135, 139, 142, 144, 145,
149, 150.
The Owners – Strata Plan No 89074 v Ceerose Pty Ltd [2024] NSWSC 1494
BUILDING AND CONSTRUCTION – claim for breach of statutory
warranties under Home Building Act 1989 (NSW) – proceedings
on foot for 8 years – before the Court on 52 occasions
– parties reach agreement 'in principle' for builder
to rectify defects but no final agreement reached more than a year
later – owner refuses access to builder to rectify defects
– referral to engineer/barrister – 13-day reference
– referee provides liability and quantum reports totalling
440 pages.
REFEREE – reference made to facilitate just, quick and cheap
resolution – principles at [5]-[9] – whether to adopt
report – principles at [10]-[14] – whether interests of
justice served.
MITIGATION – obligation on plaintiff to act reasonably
– principles and case law review at [38]-[53] – Owners
v Di Blasio Constructions considered – whether plaintiff owes
duty to allow builder to minimise its damages.
SCOTT SCHEDULES – history and purpose – amendment, at
[114]-[118] – whether referee made ruling that defects not in
Scott Schedule would not be considered – whether referee
denied natural justice by considering defects not in Scott
Schedule.
Civil Procedure Act 2005 (NSW), s 56(1); Evidence Act 1995 (NSW), s
69(3); Home Building Act 1989 (NSW), ss 18B, 18BA, sch 4 s 125;
Home Building Amendment Act 2014 (NSW); Uniform Civil Procedure
Rules 2005 (NSW), rr 2.1, 2.3, 15.2, 20.14(1), 20.17, 20.20,
20.24(1).
Crystele Designer Homes Pty Ltd v Wood [2024] NSWSC 1438
Administrative Law – Judicial Review – Judicial
Review of an Appeal Panel of the NSW Civil and Administrative
Tribunal Council – relief sought.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014; Civil Procedure Act 2005 (NSW);
Competition and Consumer Act 2010 (Cth); Fair Trading Act 1987
(NSW); Home Building Act 1989 (NSW); Supreme Court Act 1970
(NSW).
Legislation
Proclamations commencing Acts
Aboriginal Land Rights Amendment Act 2022 No 68 (2024-612) – published LW 6 December 2024
Regulations and other miscellaneous instruments
Energy and Utilities Administration Amendment (Abolition of Net Zero Board) Regulation 2024 (2024-601) – published LW 29 November 2024
Environmental Planning and Assessment Amendment (Hornsby Transport Oriented Development Precinct) Regulation 2024 (2024-588) – published LW 27 November 2024
Environmental Planning and Assessment Amendment (Macquarie Park Transport Oriented Development Precinct) Regulation 2024 (2024-589) – published LW 27 November 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-602) – published LW 29 November 2024
Surveying and Spatial Information Regulation 2024 (2024-605) – published LW 29 November 2024
Government Sector Legislation Amendment (Miscellaneous) Regulation 2024 (2024-611) – published LW 4 December 2024
Referable Debt Order (2024-614) – published LW 6 December 2024
Environmental Planning Instruments
Canada Bay Local Environmental Plan (Housing) (Map Amendment No 1) (2024-590) – published LW 27 November 2024
Muswellbrook Local Environmental Plan 2009 (Amendment No 21) (2024-607) – published LW 29 November 2024
Orange Local Environmental Plan 2011 (Amendment No 40) (2024-608) – published LW 29 November 2024
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous) 2024 (2024-609) – published LW 29 November 2024
State Environmental Planning Policy Amendment (Bankstown Transport Oriented Development Precinct) 2024 (2024-591) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Bella Vista and Kellyville Transport Oriented Development Precincts) 2024 (2024-592) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Crows Nest Transport Oriented Development Precinct) 2024 (2024-593) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Exemptions) 2024 (2024-594) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Homebush Transport Oriented Development Precinct) 2024 (2024-595) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Hornsby Transport Oriented Development Precinct) 2024 (2024-596) – published LW 27 November 2024
State Environmental Planning Policy Amendment (Macquarie Park Transport Oriented Development Precinct) 2024 (2024-597) – published LW 27 November 2024
Wollongong Local Environmental Plan 2009 (Map Amendment No 8) (2024-610) – published LW 29 November 2024
Cessnock Local Environmental Plan 2011 (Amendment No 44) (2024-615) – published LW 6 December 2024
Coffs Harbour Local Environmental Plan 2013 (Map Amendment No 12) (2024-616) – published LW 6 December 2024
Hay Local Environmental Plan 2011 (Amendment No 1) (2024-617) – published LW 6 December 2024
Penrith Local Environmental Plan (Industry and Employment) (Map Amendment No 3) (2024-618) – published LW 6 December 2024
Shoalhaven Local Environmental Plan 2014 (Amendment No 55) (2024-619) – published LW 6 December 2024
Bills assented to
Royal Botanic Gardens and Domain Trust Amendment Act 2024 No 86 – Assented to 02 December 2024
State Insurance and Care Governance Amendment (Governance Arrangements) Act 2024 No 88 – Assented to 02 December 2024
Revenue Legislation Further Amendment Act 2024 No 90 – Assented to 02 December 2024
Environmental Planning and Assessment Amendment (State Significant Development) Act 2024 No 91 – Assented to 02 December 2024
Transport Administration Amendment (NSW Motorways) Act 2024 No 95 – Assented to 02 December 2024
Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Act 2024 No 96 – Assented to 02 December 2024
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.