20 December 2024
16 min read
#Property, Planning & Development
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On 20 November 2024, the Strata Schemes Legislation Amendment Bill 2024 was introduced to Parliament.
The Bill proposes to implement several recommendations from the statutory review report prepared by the Department of Customer Service in November 2021.
The changes implemented by the Bill include:
Significantly, the Bill also proposes to amend section 106 of the Strata Schemes Management Act 2015, which places a strict obligation on an owners corporation to repair and maintain the common property.
This obligation permits owners to bring claims for damages against the owners corporation for “any reasonably foreseeable loss suffered by the owner” arising from a failure to repair and maintain the common property. A common example of this is a failed waterproofing membrane causing water damage to an owner’s lot.
The damages claimable under section 106 are very broad, and may include things such as direct repair costs, replacement of damaged furniture and loss of rent.
Currently, an owner may only bring an action against the owners corporation under section 106 within two years of the date that the owner first became aware of the loss.
If enacted, the Bill will extend this statutory limitation period to six years. This significantly increases the exposure an owners corporation faces, as the current limitation period is the primary method by which an owners corporation can avoid an otherwise meritorious claim, particularly those relating to latent defects.
Notably, the extension broadly aligns with the longer of the statutory warranty periods under the Home Building Act 1989 to back to back claims. Perhaps arguably, post the introduction of the Design and Building Practitioners Act 2020, there is a policy argument that it should be even longer.
Authors: Christine Jones & Brandon Thai
More homes and jobs near transport as masterplans finalised
The masterplans and rezonings around seven transport centres will have the capacity to provide nearly 60,000 homes and more than 126,000 commercial and retail jobs. The rezonings include space for schools, health services, public parks and options for councils to nominate Special Entertainment Precincts within the areas. Masterplans have been completed for Bankstown, Bella Vista, Crows Nest, Homebush, Hornsby, Kellyville and Macquarie Park (25 November 2024). Read more here.
Building Homes for NSW delivers sites for another 1,400 homes with developers invited to register interest
The Minns Labor Government is delivering on its commitment to stimulate housing supply with sites for another 1400 homes to be delivered through its Building Homes for NSW program, as housing developers are invited to register their interest in market sites. The sites announced today include two sites at Menai and Haberfield earmarked for transfer to Homes NSW, delivering an estimated 242 dwellings with roughly 130 social and affordable homes. Read more here.
Chain Valley Bay intersection upgrade to unlock more housing
The Minns Labor Government is investing $6.7 million to carry out a safety upgrade to a critical coastal intersection which will help unlock more than 900 new homes and reduce travel times. The upgrade will include installation of traffic lights to provide safe, efficient and reliable access to and from the highway for all road users (19 November 2024). Read more here.
Architects critique controversial NSW Productivity Commission report
A topic of much debate, the New South Wales Productivity and Equality Commission’s recent report sets out 32 recommendations to “boost the NSW Government’s efforts to address the housing crisis.” A contentious report outlining barriers and actions to improve the state's housing supply has prompted critique from built environment professionals working across architecture, planning, development and research (25 November 2024). Read more here.
The construction sector’s carbon profile needs an overhaul – here’s why
Sydney is known for its ambitious infrastructure projects, high rise developments, and urban expansion. However, the city’s construction sector faces a looming challenge – sustainability. The industry is grappling with its significant carbon footprint, waste generation, and the demand for greener alternatives (25 November 2024). Read more here.
Labor pushing prefab to build more homes, quickly
Homes could be built faster, cheaper and with less waste following the federal government's promise to cut red tape holding back modular construction. In addition, banks will work with government to make it easier to finance the build of prefabricated and modular homes. The government will also convene a meeting with the Australian Banking Association and other industry groups next week to establish more suitable financial products (23 November 2024). Read more here.
Housing Taskforce delivering faster approvals
The New South Wales Government has revealed that its new Housing Taskforce has already unlocked more than 13,000 homes by resolving development delays. The Housing Taskforce was established in September 2024 as a pilot scheme initially, to tackle post consent requirements where developments are bogged down in a part of the planning system that has historically had no oversight and has become increasingly complex. The Taskforce brings together staff from multiple New South Wales Government agencies and departments seconded into the same office in Parramatta to go line by line through projects clogged in the system while solving problems to unblock applications (15 November 2024). Read more here.
NSW strata watchdog seeks power to enter apartment buildings without a warrant, fine owners if common property not maintained
NSW Fair Trading is seeking new powers to enter any apartment building without a warrant if there is suspicion the owners corporation is not maintaining common property. The regulator will also be able to enter private apartments to inspect defects if it obtains a search warrant. A key consumer group said it did not recommend the changes and had concerns the laws will have unintended privacy implications (22 November 2024). Read more here.
Future of Sydney housing revealed in NSW pattern book debut
It’s been almost a year since NSW announced it would bring back a state “pattern book” to provide easy approvals for residential building. After the long process of launching a competition to select architects, nominating a shortlist of 21 professionals and firms and then charging them with the task, the NSW government has finally revealed the designs that will shape the future of home building in the state. Many of the designs are tailored for medium-density building, and therefore are expected to be primarily popular with Sydney development (18 November 2024). Read more here.
The two surprising states where nearly half of buyers are favouring new homes
Data from REA Group’s 2024 Property Seeker Report has found that over the past 12 months, 42% of homebuyers surveyed in both New South Wales and Victoria are considering buying or have already bought a new home. This includes free-standing houses, townhouses, off-the-plan apartments and house and land packages. The numbers are even higher for first-home buyers – over half (51%) of first timers in NSW and Victoria opted for new builds or are considering making the leap (15 November 2024). Read more here.
HIA Welcomes 'Housing Bills' Support
“The Help to Buy scheme is an important initiative of the Federal Government to enable 40,000 eligible home buyers to obtain and secure a deposit for a new home faster. “Equally, the Build-to-Rent Bill coupled with broader targeted policy measures, has the potential to boost the number of rental properties and specifically new apartments, which are in critical shortages with rental vacancies at record levels and apartment construction numbers at decade lows (25 November 2024). Read more here.
NSW draft Building Bill - what should insurers and brokers look out for?
Building regulations in NSW are undergoing a major revision with implications for insurers and brokers. In August, the Minns Government released the Building Commission’s NSW draft Building Bill for comment. The consultation period ended in October. The new legislation is expected to be released in the coming months. However, the recent appointment of a new Building Commissioner, James Sherrard, may impact the timing of the release and the bill’s content (22 November 2024). Read more here.
National Association of Women in Construction appoints new CEO
The National Association of Women in Construction (NAWIC) has announced the appointment of Cathryn Greville as its new CEO, effective November 18, 2024. This appointment comes at a crucial time when the role of women in the construction industry is increasingly significant. Her leadership is anticipated to drive transformational change and create a more inclusive environment for women in construction across Australia (18 November 2024). Read more here.
New strata laws introduced to protect owners and make strata living easier
The Minns Labor Government has introduced its third wave of strata reforms to the NSW Parliament today, continuing its work to confront the state’s housing challenges and address cost of living pressures. More than 1.2 million people are already living in strata communities in NSW, and that number is set to grow under the Government’s comprehensive plan to build a better NSW. The latest round of reforms builds on our commitment to working across all levels of Government and industry to encourage people to live and invest in strata (20 November 2024). Read more here.
Magistrates to be called judges under historic change to Local Court Act
NSW Local Court magistrates will be known as judges under amendments to the Local Court Act 2007 designed to reflect the seriousness and volume of work done in this jurisdiction. This will more appropriately reflect the jurisdiction’s vital role in the state’s justice system (20 November 2024). Read more here.
WMTS:542-2024 | Public Comment Draft Round 1
Technical Specification for the WaterMark Certification Scheme sets out the minimum requirements for pipe couplings (spigot x spigot) that provide an interference seal on the internal surface of non-pressure soil, waste, and vent pipe of similar or dissimilar pipe materials. The coupling is to be used in vertical installations only within all classes of buildings and installation is to be undertaken via a performance solution. 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, which closes on 5 February 2025, stakeholders have an opportunity to provide input and/or comment during a Technical Specification's development (13 November 2024). Access the draft here.
Re-issued Practice Note SC GEN 23 – Use of Generative Artificial Intelligence
On 21 November 2024, the Supreme Court of NSW issued Practice Note SC GEN 23, governing the use of generative AI in relation to court documents. The Court has also issued an accompanying guideline to judges in respect of the use of generative AI in writing judgments (21 November 2024). Read more here.
HIA Submission Silica Worker Register – SafeWork Australia
HIA refers to the Draft Work Health and Safety Amendment (Silica Worker Register) Regulation 2024 (Worker Register Regulation) recently released by SafeWork NSW and associated Silica Worker Consultation Paper (Consultation Paper). In this submission HIA opposes the Worker Registration Regulation, and the proposals set out in the Consultation Paper (13 November 2024). Access the submission here.
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).
Sydney Contracting Engineers Pty Ltd v; Gulawita [2024] NSWCATAP 231
BUILDING AND CONSTRUCTION – proceedings transferred under Home Building Act 1989 (NSW) to NSW Civil and Administrative Tribunal from Local Court.
APPEALS – whether appeal involves questions of law or other questions – whether decisions under appeal against weight of evidence or not just and equitable – impact of failure to lodge appeal materials as directed – use of reply to appeal to raise appeal ground.
Building and Construction Industry Security for Payment Act 1999 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW).
Teyfouri v Secretary of the Department of Customer Service [2024] NSWCATAD 348
ADMINISTRATIVE LAW – qualified supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (motors only) – refusal – scope of work within the Instrument – qualifications required by the Instrument.
Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW).
Duplex Australia Pty Limited v Hathaway [2024] NSWCATAP 228
APPEALS – sections 18C, 18D and 18E(4) in the Home Building Act 1989 considered – the role of building experts in Tribunal proceedings.
Civil and Administrative Tribunal Act 2013 NSW; Home Building Act 1989 NSW; Home Building Regulation NSW 2014; NCAT Procedural Direction 3 – Expert Witnesses Effective date - 28 February 2018.
Choi v The Owners Strata Plan No 53482 [2024] NSWCATAP 233
LAND LAW – strata title – common property rights by-law – unreasonable refusal – s 149(1)(b) Strata Schemes
Management Act 2015 (NSW).
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Strata Schemes Management Act 2015 (NSW).
York & Edwards v The Owners – Strata Plan No 675 [2024] NSWSC 1478
CIVIL PROCEDURE – hearings – application to vacate hearing date.
Civil and Administrative Tribunal Act 2013 (NSW), s 83; Strata Schemes Management Act 2015 (NSW), s 236.
Jeffcott v Davesi Construction Group Pty Ltd [2024] ACTSC 366
CIVIL LAW – BUILDING AND CONSTRUCTION – breach of contract – Building Contract and Project Management Agreement entered into at same time – allegations of agency and sham not pressed – whether contracts inconsistent – defects in construction of residential building – whether delay in practical completion – alleged lock out from property – damages incurred owing to delay in completing property – rectification of defects – whether evidence of valid insurance policy.
Building Act 2004 (ACT), ss 25, 42, 88; Home Building Act 1989 (NSW), ss 18B(1)(d), 18G.
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Government and Non-Government Schools) Regulation 2024 (2024-577) – published LW 22 November 2024
Environmental Planning Instruments
Cumberland Local Environmental Plan 2021 (Amendment No 9) (2024-579) – published LW 22 November 2024
Fairfield Local Environmental Plan 2013 (Map Amendment No 10) (2024-580) – published LW 22 November 2024
Gilgandra Local Environmental Plan 2011 (Map Amendment No 1) (2024-581) – published LW 22 November 2024
Inner West Local Environmental Plan 2022 (Map Amendment No 2) (2024-582) – published LW 22 November 2024
Lake Macquarie Local Environmental Plan 2014 (Amendment No 55) (2024-583) – published LW 22 November 2024
State Environmental Planning Policy (Precincts – Central River City) Amendment (Railway Terrace Site) 2024 (2024-584) – published LW 22 November 2024
State Environmental Planning Policy (Transport and Infrastructure) Amendment (No 2) 2024 (2024-585) – published LW 22 November 2024
Wentworth Local Environmental Plan 2011 (Amendment No 22) (2024-586) – published LW 22 November 2024
Bills Introduced by Government
Protection of the Environment Legislation Amendment (FOGO Recycling) Bill 2024
Strata Schemes Legislation Amendment Bill 2024
Bills revised following amendment in Committee
Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024
Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024
Revenue Legislation Further Amendment Bill 2024
Royal Botanic Gardens and Domain Trust Amendment Bill 2024
Bills assented to
Water Legislation Amendment Act 2024 No 80 – assented to 21 November 2024
Portable Long Service Leave Legislation Amendment Act 2024 No 84 – assented to 21 November 2024
Energy Amendment (Long Duration Storage and Investment) Act 2024 No 83 – assented to 21 November 2024
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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