The NSW Government’s plan to build stronger foundations
The New South Wales Government has heightened its crack down on compliance and standards in the building industry in the wake of Mascot Towers, by revealing proposed legislation as part of the Government’s Building Stronger Foundations Discussion Paper (Discussion Paper).
Recent high profile instances of building defects have pressed the Government to grapple with long standing concerns of accountability and quality of work in the building industry.
The Government’s response, as set out in the Discussion Paper released on 26 June 2019, proposes four key reforms designed to deliver a more robust regulatory and enforcement framework.
The proposed reforms seek to implement various recommendations from the Shergold-Weir report, commissioned by the Building Ministers’ Forum to improve the national best practice model for effectively implementing building regulation and the National Construction Code.
The four key reforms:
1. a requirement for buildings to be designed and constructed to plans that fully comply with the Building Code of Australia (BCA). This involves the introduction of the term ‘building designers’ in NSW legislation and legislatively enshrined obligations on ‘building designers’ to declare that design documentation is compliant with the BCA, and for such documentation to be made available to the building regulator on request. It is intended for ‘building designers’ to encompass architects, engineers, draftspersons or other building practitioners involved in the preparation and provision of the plan and specifications
2. a requirement for building practitioners to be registered as a 'building designer' to sign off plans and make declarations of BCA compliance
To register, building designers are required to complete an application form, pay a registration fee and certify that they:
3. introduction of a new industry-wide principle of duty of care, enabling home owners to seek compensation if a building practitioner or ‘building designer’ has been negligent.
This reform would in effect reverse the High Court landmark decisions of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd. Often criticised for eroding the rights of consumers, these cases generally held that builders or engineers did not owe a duty of care in negligence to an owners’ corporation or subsequent purchasers where there is protection provided in contract.
The NSW Government is concerned that these cases erode the degree of protection afforded to property owners and therefore intends to enact a law that ensures an industry wide duty of care to homeowners, owners’ corporations, subsequent titleholders and small businesses.
4. appoint a Building Commissioner who regulates all aspects of NSW building industry, including compliance with the proposed reforms.
The Building Commissioner would be vested with the power to investigate and take disciplinary action for improper conduct, including cancelling the registration of ‘building designers’. Building designers may seek administrative review of decisions on the Building Commissioner in the Tribunal.
The consultation period for the proposed reforms with industry and community stakeholders will continue to 23 July 2019. Consequently the reforms are not likely to take effect until late 2019 or 2020. It has, however, been reported that the Building Commissioner will be appointed in the “coming weeks”.
Author: Christine Jones , Divya Chaddha & Jeffery Shi
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PCA: Federal leadership needed to resolve looming insurance crisis
The Property Council of Australia is calling for the Commonwealth, state and territory governments to immediately convene an industry roundtable on resolving the insurance crisis. Insurers around the world have withdrawn exclusion-free professional indemnity insurance for building certifiers and other professionals including engineers and architects in the aftermath of fires involving combustible cladding products (28 June 2019). More...
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MBA: Governments Must Act Now On Building Certifier Insurance Crisis
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Building Regulation Reforms Essential for Industry Confidence
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Improving the thermal performance of dwellings for carbon positive and healthy homes
Anir Kumar Upadhyay, Krishna Munsami, Chris Lockhart Smith
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Build4Life business model analysis: sustainability publishing and peer to peer advice service
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Guide to low carbon landscapes
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Australian Bureau of Statistics
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New Australian Standards
SA MP 103:2019
Modelling of space heating and cooling and ventilation systems, using TRNSYS
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AS 3959:2018/Amdt 1:2019
Construction of buildings in bushfire-prone areas
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Building Stronger Foundations
Consultation period: 26/06/2019 to 24/07/2019
The NSW Government is implementing four key reforms to deliver a more robust regulatory framework for the construction of buildings. The consultation period is open until 23 July 2019. The appointment of the Building Commissioner is expected to be finalised in coming weeks. More...
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New dates for Environmental Planning & Assessment Act Updates
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Slotwinski v Nutek Constructions Pty Ltd; Nutek Constructions Pty Ltd v Slotwinski [2019] NSWCATAP
(5) Remits the proceedings to the Consumer and Commercial Division of the Tribunal for further determination
Appeal – Determination of quantum meruit claim – Failure to consider expert evidence relevant to the assessment of a builder’s quantum meruit claim – quantification of quantum meruit entitlement - Leave to appeal granted – Appeal allowed – remittal for further consideration of quantum meruit claim.
Civil and Administrative Tribunal Act 2013 ss36, 38; Home Building Act 1989 ss 48K, 94; Law Reform (Law and Equity) Act 1972, s 6; Civil and Administrative Tribunal Rules 2014 (NSW), r 29
Taouk v Ho [2019] NSWCA 156
APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal
Indorato v Ottaviano t/as Transbuild Construction [2019] NSWCATAP 156
Costs - The application for an order for costs of the appeal to be paid by the appellant is refused.
Michael v Hunters Hill Council [2019] NSWLEC 1281
BUILDING CERTIFICATE APPLICATION – conciliation conference – agreement between the parties – orders
The Owners – Strata Plan 89041 v Galyan Pty Ltd (No 2) [2019] NSWSC 788
Defendants to pay the plaintiff’s costs of the proceedings including the costs of the references
COSTS – party/party – proper construction of Heads of Agreement concerning costs – whether agreement to share equally the costs of the referees was subject to agreement as how costs of the proceedings were to be resolved. Civil Procedure Act 2005 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules (2005) NSW - determined that the Builder had not established that it was unreasonable for the Owners Corporation to refuse to allow the Builder back on site to carry out remedial work and, accordingly, the Builder should pay the Owners Corporation’s costs.
Hodder v Fair Trading [2019] NSWCATOD 95
PROFESSIONS AND TRADES – licensing and regulation – contractor license – required experience in residential building work
Alliance Project Group Pty Ltd v The Owners – Strata Plan No. 92334 [2019] NSWCATAP 154
PRACTICE AND PROCEDURE – Leave to appeal – dismissal of application for summary dismissal – abuse of process – failure to enquire about the value of works for which a work order is sought under the Home Building Act prior to the commencement of proceedings.
Matterson v Sunrise Pools Australia Pty Ltd (No. 2) [2019] NSWCATAP 152
COSTS – costs of appeal – each party enjoyed success on the appeal – where appellant successful on a new ground permitted at hearing of appeal – indemnity costs sought - measurement of success on appeal– costs of hearing at first instance when second trial of one issue led to a different result than at first trial - fresh evidence at second trial.
Solar SG Pty Ltd t/as Solar Service Group v Hufton [2019] NSWCATAP 147
APPEAL – Leave to appeal on a ground other than a question of law – Whether Tribunal’s decision fair and equitable – Whether Tribunal’s decision against the weight of evidence – Whether significant new evidence had arisen since the hearing below – Whether leave should be given to admit evidence available below
Parry v Andrews [2019] NSWLEC 86
APPEAL – appeal from Local Court – appeal against conviction for environmental offence – carry out reclamation work without permit – construction of retaining wall and concrete boat ramp on water land – whether involved “reclamation work” – meaning of “reclamation work” – whether works proved to involve reclamation work
Nationwide Builders Pty Ltd v Castelino [2019] NSWCATAP 157
APPEAL – no error of law – leave to appeal refused – no question of principle
The Owners - Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30
STRATA SCHEMES---Orders under Strata Scheme Management Act 1996 (NSW)---Operation of savings and transitional provisions under Strata Schemes Management Act 2015 (NSW)---Whether orders expired---Whether Lot owner had failed to comply with orders---Whether owners corporation should be granted access to perform work
Pollak v Yapp [2019] NSWCA 150
Appeal dismissed with costs. CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate
BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building
(iv) please provide details of insurance under the Home Building Act 1989.”
Pascali v Carr [2019] NSWCA 151
Appeal dismissed with costs. TORT – sale of residential property – special condition for provision of evidence concerning home warranty insurance and compliance with council requirements in relation to building works – implied fraudulent representations in relation to evidence referable to fulfilment of special condition – whether representations made and relied upon
Notwithstanding that the Vendor was not party to the building contract, Section 92C of the Home Building Act 1989(NSW), entitles him to the benefit of the Policy.
NSW
Regulations and other miscellaneous instruments
Building Professionals Amendment (Insurance) Regulation 2019 (2019-277) — published LW 28 June 2019
Coal Mine Subsidence Compensation Amendment (Miscellaneous) Regulation 2019 (2019-278) — published LW 28 June 2019
Contacts:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477
E: Christine.Jones@holdingredlich.com
Divya Chaddha, Associate
T: +61 2 8083 0457
E: Divya.Chaddha@holdingredlich.com
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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