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Residential Focus

07 November 2018

#Property & Real Estate

Christine Jones

Published by Christine Jones

Residential Focus

On 31 October 2018 the NSW Government passed the Building and Development Certifiers Act 2018 (the Act). The Act forms part of the Government’s response to the Independent Review of the Building Professionals Act 2005 (the BP Act), also known as the Lambert Review. The Act will replace the BP Act and aims to improve the administration of certifiers in NSW with a simplified, modern and updated structure.

Key changes 

Registration of certifiers

Under the Act, certifiers will no longer be referred to as accredited. Rather, any person who undertakes certification work will need to be registered by the Secretary of the Department of Finance (the Secretary). The Act will extend the duration of a registration licence from one year to up to five years, which will allow the Secretary to reward low-risk certifiers. 

Similarly to the BP Act, the Secretary will be able to place conditions on a certifier’s licence. The Act will provide the Secretary with further powers to issue a standard or methodology, such as a practice guide, as a condition of the certifier’s licence. 

Independence and impartiality

The Act improves the independence of certifiers to ensure that certifiers provide services with impartiality and make decisions that are robust. Accordingly, under the Act it will be an offence for a registered certifier to carry out certification work whilst having a conflict of interest in the certification work. The conflict of interest provisions under the Act have been broadened to cover all rather than some types of work undertaken by certifiers. The Act also introduces the concept of a private interest to help clarify what constitutes a conflict. 

The Act will amend the Home Building Act 1989 (NSW) (HBA) to support consumers in choosing their own certifier. Under the amendments to the HBA, a holder of a contractor licence will be required to give consumers information that explains the role of the certifier before entering into a building contract with the consumer. This is to ensure that consumers are aware of the types of functions that certifiers are required to perform and the things that can be expected of them. Contractor licence holders will also be strictly prohibited from unduly influencing or attempting to influence the appointment of a certifier. 

The Act will also amend the Environmental Planning and Assessment Act 1979 (NSW) (EPA) to prescribe circumstances in which a principal certifier is to be appointed by the Secretary, such as when it is in the public interest to do so. Under the amendments to the EPA, classes of development may also be prescribed in which the principal certifier is appointed in a manner prescribed by the regulations, such as through a scheme. This introduces a process aimed at ensuring greater independence of certifiers and providing the Government with the ability to intervene in the appointment of certifiers in specific circumstances.

Disciplinary proceedings

The Lambert Review raised issues concerning slow and ineffective processes for pursuing disciplinary proceedings. To address these concerns the Act introduces a more modern and effective compliance framework than the two-stage disciplinary process under the BA Act. The Act deletes the terms unsatisfactory professional conduct and professional misconduct and will provide grounds for taking disciplinary action. The Secretary may also serve a written notice on the certifier to show-cause why disciplinary action should not be taken. The process for review will also be replaced with the standardised internal review provisions found in the Administrative Decisions Review Act 1997 (NSW).

Accreditation of persons carrying out regulated work

The Act seeks to deliver on the Government’s commitment to provide co-regulatory industry accreditation schemes for certain building professionals. The Act introduces the concept of regulated work which is the carrying out of work as an accredited practitioner under the EPA or any other work declared by an Act to be regulated work. Accreditation may be granted to a person to carry out regulated work by an accreditation authority, which includes non-government organisations that operate industry accreditation schemes. This seeks to ensure regulated work is only carried out by individuals with the appropriate skills, competencies and experience.  

The Act will commence on a day to be appointed by proclamation. 

Editorial: Christine Jones & Lauren Stables

In the media

Parliamentary report on mould hands down its finding, but there are sceptics
Federal member for Robertson and Liberal MP Lucy Wicks knows first hand what mould related issues are like: she’s been sensitised to such an extent she could no longer tolerate shopping centres, meeting rooms – even the then-Prime Minister’s office. But the sceptics are questioning the science (01 October 2018).  More...

Approvals for detached houses sink to five year low
Approvals for new detached houses across Australia are at their lowest ebb since late 2013, according to Shane Garrett, Chief Economist of Master Builders Australia. ABS figures which have just been released indicate that detached house approvals fell by 2.1 per cent during September to record their weakest monthly result since December 2013 (30 October 2018).  More...

The future of on-site construction
Known as Smart Site Hubs, they will redefine the construction narrative as the on-site workplace changes to incorporate more off-site fabrication and factory-led innovations to change the way buildings are made, assembled and operated (25 October 2018).  More...

New South Wales

Closing loopholes for certifiers
The Minister for Better Regulation Matt Kean said the reforms passed in Parliament would allow the NSW Government to come down hard on dodgy operators with the toughest penalties to date. Changes in the Building and Development Certifiers Bill 2018 are outlined here (26 October 2018).  More...

Consumers and small businesses win big with better business reforms
The NSW Coalition’s sweeping Better Business Reforms will  help small businesses thrive include making 13 types of home building licenses ongoing, meaning tradies will only have to notify Fair Trading every 5 years to confirm they want to maintain their licence (26 October 2018).  More...

Prompter payments for subbies
Building contractors and sub-contractors will now enjoy more financial security and prompter payments for their work, under reforms introduced to Parliament. Minister for Better Regulation Matt Kean said the Government was continuing to consult on the potential for a statutory trust arrangement, which would quarantine money for paying sub-contractors (24 October 2018).  More...

Public warning – Do not deal with Tevita Tiliti Ungounga
NSW Consumers are being warned not to deal with Tevita Tiliti Ungounga or his associated entities T.T. Construction, an unregistered business name in NSW, and T & T Sandstone Construction Pty Ltd operating in NSW (24 October 2018).  More...

Published - articles, papers, reports

ACI Construction Brief - 29 October 2018
A fortnightly communication highlighting key updates related to Australia's construction industry.  More...

Australian Bureau of Statistics
30/10/2018 Building Approvals, Australia, Sep 2018 (cat no. 8731.0).

In practice and courts

ABCB Accessible Housing Options Paper: consultation
The ABCB’s Accessible Housing Options Paper has been released for public consultation. The Options Paper provides a preliminary menu of options and costings on the possible inclusion of a minimum accessibility standard for housing in the NCC. Feedback on the Options Paper is invited until Friday 30 November 2018.

Better Business Reforms
The Fair Trading Legislation Amendment (Reform) Bill 2018 passed Parliament on 24 October 2018. This implements the majority of the Better Business Reforms first explored in the Easy and Transparent Trading consultation paper.  More...

BPB: Cert Alert newsletter issue 7
'Cert Alert' is your regular update on work by the Board, legislative change, events, training and consultation opportunities (31 October 2018).  More...

New dates for Environmental Planning & Assessment Act Updates
Councils, certifiers and other industry practitioners have more time to implement some of the recent EP&A Act updates. Changes affect new provisions for building and subdivision certification, Local Strategic Planning Statements for councils in the Greater Sydney Region and Community Participation Plans. While most of the changes will commence on 1 March 2018, there will be a number of other changes that will involve further design and consultation from mid to late 2018 outlined here.

Cases

Ghazal v Masterton Homes Pty Ltd (No 2) [2018] NSWCATAP 258
COSTS - Appeal - no question of principle. 

The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256
The appeal is allowed, the order for costs made 23 April 2018 is set aside and the application for costs is dismissed.
COSTS – Rule 38(2)(b) – meaning of the expression “the amount claimed or in dispute is more than $30,000” – scope of operation of the rule – special circumstances – challenge to finding that claimant had arguable case.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules, 2014 (NSW); District Court Act 1973 (NSW); Fair Trading Act 1987 (NSW); Home Building Act 1989 (NSW). 

Briggs v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATOD 175
ADMINISTRATIVE REVIEW – Home Building – application for contractor licence – where application rejected on basis that Applicant did not meet requirements of an instrument made by the Respondent - whether the Tribunal is satisfied that the Applicant has the requisite qualifications and experience to be a builder.

Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
REPRESENTATIVE PROCEEDINGS – Representative proceedings brought by Plaintiff on behalf of passengers (Group Members) who paid for and travelled on European river cruises supplied by the defendant – a number of the cruises were seriously disrupted by high water levels on the rivers – Plaintiff seeks compensation for loss of value and damages for disappointment and distress for himself and Group Members – whether proceedings satisfactorily identified common questions of law or fact.
CONSUMER PROTECTION – Plaintiff relies on the Defendant’s failure to comply with the Consumer Guarantees in ss 60 and 61 of the Australian Consumer Law (ACL) – whether the “services” to be provided by the Defendant for the purposes of the Consumer Guarantees were co-extensive with the defendant’s contractual obligations – whether services included provision of pre-embarkation information to passengers as to river conditions – whether the services provided by the defendant on the cruises were fit for the particular purpose for which Plaintiff and Group Members acquired them (ACL s 61(1)) – whether the services were not of a nature and quality as could reasonably be expected to achieve the result Plaintiff and Group Members wished the services to achieve (ACL s 61(2)) – whether primary Judge correctly applied the test for assessing compensation for lost value (ACL s 267(3)(b)) DAMAGES – whether Plaintiff and Group Members precluded from claiming damages for disappointment and distress by s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) – effect of s 275 of the ACL in picking up and applying the Civil Liability Act as a surrogate federal law – whether s 16 of the Civil Liability Act capable of applying to claims for non-economic loss where the claims arise from conduct outside Australia. 

Woodward v D J & T L Mellross Pty Ltd t/as Mellross Homes [2018] NSWCATCD 42
Res judicata – Anshun estoppel. 

Burkitt v Ultimate Car Rentals Australia P/L & Ors [2018] NSWDC 328
CONTRACT – Successive bailments of sports car – determination of liability for damage to vehicle whilst in the possession of a sub-bailee.  

Legislation

Regulations and other miscellaneous instruments

Access Licence Dealing Principles Amendment Order (Broken Hill Pipeline) 2018 (2018-601) — published LW 26 October 2018.

Bills introduced Government – 26 October

Building and Construction Industry Security of Payment Amendment Bill 2018
Fair Trading Legislation Amendment (Miscellaneous) Bill 2018
Protection of the Environment Operations Amendment (Asbestos Waste) Bill 2018
Public Works and Procurement Amendment (Enforcement) Bill 2018
Snowy Hydro Corporatisation Amendment (Snowy 2.0) Bill 2018

Bills passed by both Houses of Parliament – 26 October

Building and Development Certifiers Bill 2018

Bills assented to

Building and Development Certifiers Act 2018 No 63 — Assented to 31 October 2018.
Fair Trading Legislation Amendment (Reform) Act 2018 No 65 — Assented to 31 October 2018.
Government Telecommunications Act 2018 No 67 — Assented to 31 October 2018.

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

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.

Christine Jones

Published by Christine Jones

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