In the media
Standards Australia Provides temporary free access to
mandatory construction course
Due to the current restrictions on the construction
industry, Standards Australia in partnership with the NSW Office of
the Building Commissioner and TAFE NSW is providing free access to
an e-learning module, "The value of Australian Standards"
(22 July 2021).
More...
Sentinel's Build to Rent is Australia's first
Carbon Neutral Certified apartment building
A Build to Rent project in Subiaco, Western Australia has
become the first Carbon Neutral Certified apartment building in
Australia under the Climate Active Carbon Neutral Standard for
Buildings (21 July 2021).
More...
Engineered stone has become popular in homes across
Australia – but it's left a deadly legacy
Engineered stone benchtops have transformed kitchens and
bathrooms across Australia, but the number of people being
diagnosed with a serious lung condition after working with it is
continuing to rise at an alarming rate (15 July 2021).
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Building Commissioner targets bottom 20pc
NSW Building Commissioner David Chandler has confirmed
that 20 per cent of developers are currently underperforming
– and that they're up for review. Newly-enacted
legislation has helped push NSW ahead of other states in the race
to beef up regulation of an industry notorious for poor oversight
(23 July 2021).
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Watchdog orders more defects to be fixed in Sydney's
Opal Tower
The orders were issued after inspectors found incorrectly
fitted shades on the tower's facade and fire-safety problems
(23 July 2021).
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Moving towards reopening of Sydney construction
sites
The Australian Constructors Association welcomes advice
that Sydney construction sites are confirmed to reopen on 31 July
2021 (20 July 2021).
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Statement on NSW construction industry pause
While the pause on construction in NSW is disappointing,
the industry will work with Government to ensure construction can
safely and swiftly resume as soon as conditions allow, said
Infrastructure Partnerships Australia Chief Executive (17 July
2021).
More...
Crown's prized $2.2 billion Sydney tower is leaking
water less than a year after being built
The 271 metre tower became the tallest in Sydney when it
opened in December but work is now underway to fix an issue in its
basement (13 July 2021).
More...
Published – articles, papers, reports
Australian Bureau of Statistics
14 July 2021:
Dwelling commencements rise in March.
ABCC Industry Update – 15 July 2021 edition
In this edition of Industry Update we recognise NAIDOC
Week and feature how Indigenous Australian businesses can tender
for Commonwealth funded work, our recent wages audit of apartment
building projects, the 2.5 per cent increase to the minimum wage, a
report evaluating our impact on security of payment regulation,
litigation news and more. Read the Industry
Update – July 2021 edition.
Practice and courts
ABCB: The process for developing Performance Solutions
A2.2(4) is now in effect
What this means is that the NCC provisions for developing
Performance Solutions is now legislated under the NCC Governing
Requirements, and must be used by all practitioners when developing
Performance Solutions. Below are the available resources for this
process (19 July 2021):
The handbook: Performance Solution process
Case study: Accessible entrance
ABCB: A step by step guide to preparing for NCC
Provision A2.2(4)
One helpful blueprint for this reform has been the
Shergold-Weir
Building Confidence report commissioned by the Building
Ministers Forum. Two of the recommendations (14 and 15) were
centred around the documentation and approval of Performance
Solutions, and as a fire engineer, these were of particular
interest (15 July 2021).
ABCB Consultations
WMTS-040 | Public comment draft round 1
This Technical Specification sets out requirements for
metallic and plastics bodied waste pipe outlets and gratings,
separate or integral, for sanitary plumbing applications. Closes 3
August 2021. Read more
here.
Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key
dates in the amendment cycle process for NCC 2022 to allow
stakeholders time to participate. These adjusted dates
include:
May – July 2021: NCC 2022 public comment draft released for
public consultation.
May 2022: NCC 2022 preview published at ncc.abcb.gov.au.
If you have any questions regarding the delayed adoption of NCC
2022, please submit an
online enquiry.
Have your say on changes to how building design and
construction is regulated in NSW
The development of supporting regulations is the next step
on delivering on this piece of the Government's building reform
agenda, with the scheme commencing on 1 July 2021. In response to
your feedback, we've drafted a report that explains the changes
that were made to the draft regulation. Click
here for more information.
Conflicts of interest – savings and transitional
arrangements
Clause 71 of the Regulation introduces savings provisions for
certain conflict of interest situations where the certifier was
appointed before 1 July 2020 and the work will be completed before
1 July 2022. The provisions relate to council-certified
developments and to developments where the certifier gave advice on
how to comply with the BCA deemed to satisfy provisions. For all
the changes, access the Amendment Regulation
here.
New mandatory standards for building rectification
The standard will be reviewed and updated prior to the 1
July 2021 commencement of the Government's game changing
building reform agenda underpinned by the
Design and Building Practitioners Act 2020. The first Practice
Standard will initially apply to certifiers working on residential
apartment buildings, where the majority of problems and complaints
have been received. The
Practice Standard for registered certifiers is available on the
Fair Trading NSW website.
Building Information Modelling (BIM) for WHS
management
What is the best practice and implications of using BIM in
WHS management? Timeline of project: Project completion: Mid 2021.
Research submissions are now open. Apply online at the eTender
website.
Cases
NSW
Level 1 Construction Pty Ltd v Canterbury-Bankstown
Council [2021] NSWLEC
1405
APPEAL – development application – in fill
affordable housing under the SEPP – whether proposed
development can be characterised as multi dwelling housing –
the application of the Low Rise Housing Diversity Design Guide
– compatibility with the character of the local area –
setbacks – adequacy of private open space – solar
access – density – visual privacy – amenity for
future residents and neighbours.
State Environmental Planning Policy (Affordable Rental Housing)
2009 cll 4, 10, 13, 14, 15, 16A.
State Environmental Planning Policy (Exempt and Complying
Development Codes) 2008 cl 1.5.
Nutek Constructions Pty Ltd v Slotwinski
[2021] NSWSC 832
APPEALS – leave to appeal – from the Appeal
Panel of the New South Wales Civil and Administrative Tribunal
– where plaintiff alleged that Appeal Panel took wrong
approach in assessing damages – where issue raised by
plaintiff in Supreme Court not argued before the Tribunal at first
instance or the Appeal Panel – where plaintiff bound by how
it conducted its case at first instance and on appeal to the Appeal
Panel – where even if damages methodology was incorrect it
was the plaintiff who led the Appeal Panel into error –
summons dismissed.
APPEALS – leave to appeal – whether plaintiff
demonstrated anything more than error – no matter of
principle – where two prior hearings and two appeals –
no basis for leave demonstrated – leave to appeal
refused.
Cohen v Double Bay Bowling Club (No 2)
[2021] NSWSC 872
BUILDING AND CONSTRUCTION – statutory duty under s
177 not to do something that removes support from supporting land
to supported land – allegation that vibrations from work on
supporting land caused removal of support by supporting land to
supported land – where proposed Technology and Construction
List Statement did not allege facts that if proved would show how
vibrations removed such support – where the only geotechnical
evidence adduced by plaintiffs was to effect that the vibrations
themselves have caused damage to supported land – where
plaintiffs also alleged that breach of statutory duty constituted
by failure of owner of supporting land to contract with its builder
to prevent builder using vibratory equipment.
CIVIL PROCEDURE – amendment – Technology and
Construction List Statement – claim for breach of the
statutory duty in s 177 of the Conveyancing Act 1919 – where
earlier application to amend List Statement refused – where
proceedings on foot for two years – whether proposed List
Statement alleged facts that if proved could amount to a breach of
such statutory duty.
Phibbs v Giannone [2021] NSWCATAP
223
APPEALS – appellant failed to attend Tribunal
hearing – procedural fairness provided to parties – no
unfairness to appellant – leave to bring appeal refused
– contractor onsite wiring damages.
Egan v Commissioner for Fair Trading, Department Of Customer
Service [2021] NSWCATAD
209
ADMINISTRATIVE LAW – building and construction
– licence – home building – experience –
Instrument.
The Owners – Strata Plan No 89005 v Stromer
[2021] NSWSC 853
BUILDING AND CONSTRUCTION – civil procedure –
application to amend Technology and Construction List Response
– proposed amendment to limitation defence based on
construction of Home Building Act 1989 (NSW), ss 18C and 18E and
schedule 4, clause 109 – defendants had previously withdrawn
limitation defence – prejudice to the plaintiff if limitation
defence now re-introduced – whether consistent with
overriding purpose and dictates of justice to grant leave to amend
– leave refused.
CIVIL PROCEDURE – application for leave to file a
cross-summons and list cross-claim statement against
sub-contractors of the defendant builder – where no material
facts pleaded or alleged defects particularised in support of the
allegations – application dismissed.
Woodward v Warwick Green Building Pty Ltd
[2021] NSWCATAP 210
BUILDING AND CONSTRUCTION – Home Building Act 1989
(NSW) – contract not complying with the Home Building Act
– quantum meruit – whether do-and-charge building
contract an entire contract – where owner had paid invoices
issued by builder but failed to pay further invoices –
whether assessment of value of benefit received by owner should
include work the subject of invoices which had been paid –
sufficiency of evidence – whether builder had established the
reasonable value of work performed.
Precision Flooring Pty Ltd v Armstrong
[2021] NSWSC 844
ADMINISTRATIVE LAW – appeal – questions of law
– whether ground properly involved no evidence point –
intermediate findings – ultimate findings – whether
some probative evidence – adequacy of reasons –
procedure fairness – appeal upheld – judgment below set
aside – remitter.
AGC Roof Maintenance Northern Division Pty Ltd v Chief Commissioner
of State Revenue [2021] NSWCATAD
199
TAXES AND DUTIES – payroll tax – independent
contractor – common law employee – relevant contract
– 90-day exemption – services to the public exemption
– two-person exemption.
Home Building Act 1989 (NSW); Payroll Tax Act 2007 (NSW); Taxation
Administration Act 1996 (NSW).
Legislation
NSW
Regulations and other miscellaneous instruments
Mutual
Recognition (Automatic Licensed Occupations Recognition) Regulation
2021 (2021–405) – published LW 23 July 2021 –
an unrestricted electrician's licence held by an individual
under the Construction Occupations (Licensing) Act 2004 of the
Australian Capital Territory.
Electricity
Infrastructure Investment Amendment (Consumer Trustee) Regulation
2021 (2021–381) – published LW 16 July 2021.
Environmental
Planning and Assessment Amendment (Compliance Fees) Regulation
2021 (2021–383) – published LW 16 July 2021.
Environmental
Planning and Assessment Amendment (Glenfield Precinct) Regulation
2021 (2021–384) – published LW 16 July 2021.
Environmental
Planning and Assessment Amendment (Modifications) Regulation
2021 (2021–377) – published LW 14 July 2021.
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.