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Residential Focus

13 February 2019

#Property & Real Estate

Christine Jones

Published by Christine Jones

Residential Focus

New South Wales building laws: Renovate and extend or knock down and rebuild?

With high-rise building methods and flammable cladding issues now entering the realm of dinner discussions and debate, it’s not surprising that the release of the NSW Government’s plans to overhaul the building and construction industry has grabbed the headlines this week.

It has been touted as the ‘biggest overhaul of building laws in NSW history’ and we will watch with interest to see whether the plan will indeed help improve some key parts of the industry – and ideally help avoid such issues as we have seen with the Opal Tower in Sydney.

The proposed changes outlined in the NSW Government’s announcement include:

  • appointing a NSW ‘Building Commissioner’, with responsibility for licensing and auditing practitioners, to act as the building regulator
  • that builders declare buildings have been built according to plans
  • that building designers and builders must be registered
  • ensuring the right to compensation for homeowners and owners corporations if builders have been negligent.

This announcement is the government’s response to an independent report commissioned after the Building Ministers’ Forum in August 2017.

We await more details from NSW Labor about their proposed plans for building reform. So far there has been talk about promoting accountability through the setting up of a single agency, if elected, and developers would also be prevented from choosing their own certifier. Federal Labor has discussed introducing a national registration scheme.

A reform package could take the approach of either tinkering with and supplementing existing legislation or starting again from scratch, renovate and extend vs knock down and rebuild, if you will. The latter approach would present an opportunity to draft laws which address and overcome many issues with the existing system and which are fit for the future. 

Editorial: Christine Jones

In the media

Construction slump intensifies, home building in sharpest slide since 2012
The broad-based decline in construction activity, especially apartment building, is now hitting jobs and becoming a serious drag on the economy (7 February 2019).  More... 

AHURI: Treat social housing as essential infrastructure to attract greater investment
With growing interest from Government in attracting investment into social housing, new AHURI research has developed a persuasive and credible case for social housing to be treated as a form of essential infrastructure, in order to create a viable basis for private investment (6 February 2019).  More...

Black Saturday: Bushfire planning as our population grows
Bushfire planning around our expanding urban environments is crucial for dealing with Australia’s increasing bushfire risk. While significant advances have been made since 2009 in urban planning and building, many challenges remain, including houses built to meet building standards (6 February 2019).  More...

Beyond Opal: A 10-point plan to fix the residential building industry
Planning policies embraced by the NSW and Victorian governments mean a greater percentage of new housing is being constructed in tall multi-unit developments than ever before, particularly in Sydney and Melbourne. Between 50 per cent and 80 per cent of multi-unit buildings have defects serious enough to be the subject of strata committee involvement (5 February 2019).  More...

Cladding fires expose gaps in building material safety checks
A fire at the Neo 200 apartment building in Spencer Street, Melbourne has highlighted the risk to human safety from flammable cladding and other non-conforming building products. Building quality and safety are compromised when there is no transparency about the products used (5 February 2019).  More...

MBA: New apartments see weakest result since mid-2012
The volume of new apartment building is smaller than at any time since July 2012, according to Master Builders Australia’s Chief Economist Shane Garrett. Just released figures from the ABS show that new home building approvals lost another 8.4% during December 2018 (4 February 2019).  More...

Doorstop – Building Ministers’ Forum, Hobart 

The Minister for Industry, Science and Technology, the Hon Karen Andrews MP held a doorstop to discuss the Building Ministers' Forum (8 February 2019).  More... 

Building Ministers’ Forum communique
The Building Ministers’ Forum (BMF) met in Hobart to discuss progress with priority issues relating to the safety of Australian buildings, and public confidence in the building and construction industry (8 February 2019).  More...

Biggest overhaul of building laws in New South Wales following Opal
Plans to overhaul the New South Wales building and construction sector are underway with new reforms the state government says will ‘shake up’ the way high-rise towers are regulated (11 February 2019).  More...

Published - reports, papers, speeches

A conceptual analysis of social housing as infrastructure
Kathleen Flanagan, Chris Martin, Keith Jacobs, Julie Lawson
Australian Housing and Urban Research Institute: 6 February 2019
This study into the role of social housing as essential infrastructure assessed evaluation tools and techniques needed to enable investment by government.  More...

Australian Bureau of Statistics
04/02/2019 Building Approvals, Australia, Dec 2018 (cat no. 8731.0)

In practice and courts

What to expect from the National Construction Code (NCC) 2019
The Australian Building Codes Board (ABCB) recently gave consideration to the content of the 2019 edition of the NCC. NCC 2019 will be available for public preview in February 2019 and will be adopted from 1 May 2019. Some of the key changes from the 2016 edition are described here (30 January 2019). More...

ABCB: Preview NCC 2019
All three volumes of the NCC 2019 preview, as well as The Guide to Volume One, are now available to download. To get a copy, log into your NCC account through the NCC Online or create your NCC account and login to access. NCC 2019 will be adopted from 1 May 2019. If you’d like an overview of the key changes and dates, please check out the latest ABCB Connect article (1 February 2019).

Combustible cladding registration due 22 February 2019
Under the new Regulations, owners of certain buildings with external combustible cladding are required to register their building with the NSW Government through the Cladding Registration portal. The deadline for registration is 22 February 2019. Owners of new buildings will be required to register their building within four months of the building first being occupied.  More...

Cases

Hamed v Borg [2019] NSWCATAP 38
APPEAL – Home building – where parties contracted for construction of granny flat – where builder installed water tank on pavers - where tank fell over causing damage – whether Tribunal’s decision that builder not responsible for collapse of tank was legally unreasonable – whether decision was against the weight of evidence due to the Tribunal’s failure to give a plumber’s report any weight - whether Tribunal failed to have regard to relevant considerations or critical evidence when failing to consider plans – whether appellant should be permitted to raise a new ground of appeal at the hearing. 

Edgewater Homes Pty Ltd v Donohoe [2019] NSWSC 44
The plaintiffs’ release of the second to eighth defendants released the first defendant from the plaintiffs’ claim for breach of fiduciary duty but not their claim for breach of contract.
EQUITY – Fiduciary duty – release by beneficiary of parties who allegedly knowingly received fruits of breach of fiduciary duty and who allegedly were knowingly involved in the breach – whether defaulting fiduciary also released.
CONTRACT – Inducing breach of contract – whether release of parties who allegedly induced breach of contract also released party allegedly in breach of contract.
Mr Donohoe’s responsibilities as Building Manager was to approve the payment of invoices rendered to Edgewater by contractors who supplied goods and services to Edgewater. 

Vella v Mir [2019] NSWCATAP 28
(1) The appeal is allowed in part.
APPEAL – Home building – definition of major defect – limitation defence or jurisdictional issue – s 18F defence – Jones v Dunkel inference.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

Mo v ABC Homes NSW Pty Ltd [2019] NSWCATAP 16
CONTRACT INTERPRETATION – Fresh evidence on appeal.
Civil and Administrative Tribunal Rules 2014; Civil and Administrative Tribunal Act 2013.
The Decision concerned two applications: one brought by the appellant (the homeowner) and the other, an application brought by the respondent to the appeal (the builder). Both applications were dismissed. 

Castillo v Presmist Formwork Contractors Pty Ltd [2019] NSWDC 6
TORTS – Occupier’s liability – injury to labour-hire employee on defendant’s building construction site – plaintiff’s claim of negligence on the part of the defendant – defendant’s claim of contributory negligence on the part of the plaintiff – defendant’s claim of notional negligence of plaintiff’s employer – issues to be determined according to provisions of Civil Liability Act 2002 and s 151Z(2) of the Workers Compensation Act 1987.
DAMAGES – Assessment of claimed heads of damage. 

Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75
BUILDING AND CONSTRUCTION – Home building  - contracts – standard form HIA NSW Residential Building Contract for New Dwellings – payment of progress claims - suspension of work - notices of breach - termination - cost to complete – defective work.  

Booth v Langlands Building Group; Langlands Building Group v Booth [2018] NSWCATCD 73
Principal judgment. 

Sydney Building Defects Inspections and Reports Pty Ltd v Thomas [2018] NSWCATCD 65
COSTS – Absence of special circumstances. 

Legislation

New South Wales

Regulations and other miscellaneous instruments
Workers Compensation Commission Rules 2011 - Amendments (2019-16) - published Gazette No 3 of 18 January 2019, n2019-92.

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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