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Residential Focus

16 July 2019

#Property & Real Estate

Christine Jones

Published by Christine Jones, Divya Chaddha

Residential Focus

Recent updates on the NSW Government’s plan to 'Build Stronger Foundations'

The NSW Government continues to demonstrate its commitment to delivering ‘a more robust regulatory framework’ for the building industry by recently announcing two significant proposed regulatory reforms for NSW. The NSW Government has also confirmed that Part 6 of the Environmental Planning and Assessment Act 1979, which contains key provisions relating to building regulation and certification, will commence on 1 September 2019.

Have your say on Building Stronger Foundations

On 26 June 2019, NSW Fair Trading launched Have your say on Building Stronger Foundations, seeking feedback from industry stakeholders on the four key reforms arising from the Building Stronger Foundations Discussion Paper. Details of the four key reforms can be found in our previous article here.

Particular issues that the NSW Government seeks feedback on includes:

  • the process for signing off plans, and any variations to plans, and declaring them as compliant with the BCA, including the role of builders
  • the form of insurance, skills and qualifications that should be mandatory for building designers under the registration scheme
  • the types of practitioners who should owe the duty of care and the type of work to which the duty should apply.

The consultation is open until 24 July 2019.

NSW Government’s Inquiry into the Regulation of Building Standards, Building Quality and Building Disputes

Another significant public consultation currently underway is the NSW Government’s Inquiry into the Regulation of Building Standards, Building Quality and Building Disputes (the Inquiry), submissions for which close on 4 August 2019.

The Public Accountability Committee, which is heading the Inquiry, will be extensively examining, amongst other things:

  • the role of private certification and strata committees’ responsiveness to building defects
  • the adequacy of consumer protections for owners and purchasers of new buildings
  • the limitations on building insurance and compensation schemes, as well as the effectiveness and integrity of insurance provisions under the Home Building Act 1989
  • the protections offered for all strata owners in disputes.

The final report is expected to be published by 14 February 2020.

Commencement of Part 6 of the Environmental Planning and Assessment Act 1979 (EPAA)

By way of background, in 2015, the Independent Review of the Building Professionals Act 2005 (known as the 'Lambert Review') identified areas for improvement in the building regulation and certification system. This included setting out clear requirements in the EPAA that deal with the consistency between construction certificates and development consents, rather than being addressed in the regulation as was previously the case.

Most of the updates to the EPAA commenced on 1 March 2018.  The remaining Part 6 will commence on 1 September 2019, which will allow time for the sector to adjust to the numerous regulatory changes that have recently formed, in particular the Building and Development Certifiers Act 2018.

The new Part 6 provisions will, among other things:

  • remove interim occupation certificates.  This will not affect the ability to have staged occupation of buildings
  • create a new certificate for subdivision works, separating subdivision from construction works
  • provide powers for principal certifiers to issue directions to quickly act on non-compliant aspects of a development.

It is anticipated that the introduced measures will ensure construction is consistent with the approved plans, enhance usability and raise the level of community confidence.

Author: Christine Jones & Divya Chaddha

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In the media

Have your say on Building Stronger Foundations
The NSW Government is continuing to progress reforms to the building and construction sector through the release of a discussion paper, Building Stronger Foundations (11 July 2019).  More...

NSW building inquiry targets insurance
Insurance will be one of the key aspects of the Public Accountability Committee’s broad inquiry, which was established yesterday. A final report is expected by February 14, 2020 (05 July 2019).  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.

Combustible cladding is becoming an insurance “disaster” for the construction industry
As we mark the second anniversary of the Grenfell Tower fire, the Australian construction industry is facing a crisis, with building certifiers finding it difficult to secure professional indemnity insurance to assess buildings that could contain combustible cladding (09 July 2019).  More...

Housing Approvals Flat but Apartments Improve: ABS
National building approvals remained relatively flat for the month of May, while Victoria led with a solid increase of 14.4 per cent in dwellings approved for construction (04 July 2019).  More...

A new roadmap sets a course for sustainable homes
A new roadmap for sustainable homes presents a win for builders, consumers, the economy and the environment.  The report reveals that two thirds of Australian home buyers prefer energy efficient homes when given a choice – but significant barriers prevent them from turning that desire into reality (01 July 2019).  More...

How watering down of building codes two decades ago to fast-track development is now causing high-rise buildings to fall apart
Watered-down building laws from the late 1990s have been blamed for Australia's apartment safety crisis with brand-new residential towers having an 80 per cent chance of being faulty (30 June 2019).  More...

Published - articles, papers, reports

ABCC Industry Update – 04 July 2019
The July 2019 edition of Industry Update, our quarterly online newsletter.  Industry Update provides updates on the latest activities of the ABCC, industry trends, and emerging issues.  More...

Australian Bureau of Statistics

10/07/2019 Building Activity, Australia, Mar 2019 (cat no. 8752.0)

10/07/2019 Construction Activity: Chain Volume Measures, Australia, Mar 2019 (cat no. 8782.0.65.001)

Practice and courts

RICS Update to members: PII in Australia – factors for encouragement

Following Opal Tower, we wrote early this year about the value of delivering best practice assurance to Australia’s coregulatory landscape and subsequently the importance of not expecting governments to do all the lifting. These sentiments continue to hold great relevance (04 July 2019).  More...

ABCB Notice: CMI product certification body accreditation suspended in Australia
As of 10 July 2019, CMI's accreditation as a product certification body has been suspended by JAS-ANZ (11 July 2019).  More...

OFSC: Changes to Accredited Contractor reporting requirements 2019
Key Dates:  Scheme Project information, including End of Project information will be reported on the new Scheme Biannual Report from 1 July 2019 and the first Scheme Biannual Report, for the January to June 2019 reporting period, is due by 31 July 2019.  More...

NSW Fair Trading: Have your say on the Building Stronger Foundations discussion paper
The NSW Government is continuing to progress reforms to the building and construction sector through the release of a discussion paper, Building Stronger Foundations (the discussion paper).  We are seeking feedback on the scope of the reforms outlined in the Response and how they can be integrated into building regulation and the NSW planning and approvals system.  More...

Cases

Champion Homes Pty Ltd v Lal [2019] NSWCATAP 170
BUILDING AND CONSTRUCTON – s 48O Home Building Act 1989 – work order – appropriateness of an order ... New South Wales. The respondents filed home building application HB 16/36337 on 10 August 2019. The application ... identified the wrong issue. Section 48MA of the Home Building Act 1989 (NSW) contemplates a work order

The Owners - Strata Plan 89023 v AT Building Pty Ltd
APPEAL – home building – work orders for rectification of defects – costs decision – whether rejection of Calderbank offer unreasonable – whether error of law – whether leave should be granted - dismissed
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989

Ngo v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 103
ADMINISTRATIVE REVIEW – Home Building – Supervisor certificate – Where respondent refused to grant applicant supervisor certificate - Whether applicant had experience which would enable him to do, or to supervise, the work for which the certificate is required – Whether the Tribunal should depart from a policy known as the “Instrument” – Whether application of the policy would produce an unjust decision – Whether the Tribunal may take into account uncorroborated evidence given by the applicant about his construction experience

Phillip v Bell Solar Pty Ltd [2019] NSWCATAP 162
Leave to appeal is denied. CONSUMER CLAIM – error of law – s 48MA – fair and equitable
Civil and Administrative Tribunal Act 2013 Home Building Act 1989

Dimitropoulos v Capitol Constructions Pty Ltd [2019] NSWCATAP 164
A hearing on costs is dispensed with in accordance with s 50(1)(c) of the Civil and Administrative Tribunal Act 2013. APPEAL – Costs – r 38 – r 38A – indemnity costs
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989 

Sewell v Bush [2019] NSWCATAP 161
CONTRACTS – breach of contract – quantum of damages - procedural fairness
The appeal is allowed. The Tribunal made a decision at first instance in relation to two claims arising from home building work performed

Clarke v Bowen [2019] NSWCATAP 163
CONSUMER CLAIM – against the weight of evidence – fair and equitable – excessive damages
Civil and Administrative Tribunal Act 2013 (NSW);  Fair Trading Act 1987 (NSW);  Home Building Act 1989 (NSW)

Legislation

NSW

Proclamations commencing Acts
Fair Trading Legislation Amendment (Reform) Act 2018 No 65 (2019-270) — published LW 28 June 2019
(a) to commence, on 1 July 2019, amendments to the Architects Act 2003 in relation to the removal of architect’s names from the register of architects

Regulations and other miscellaneous instruments
Civil and Administrative Tribunal Amendment (Fees) Regulation 2019 (2019-326) — published LW 11 July 2019
Civil Procedure Amendment (Fees) Regulation 2019 (2019-327) — published LW 11 July 2019
Protection of the Environment Operations Legislation Amendment (Scheduled Activities) Regulation 2019 (2019-319) — published LW 5 July 2019

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, Divya Chaddha

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