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Residential Focus

28 July 2021

#Property, Planning & Development

Published by:

Simona Njaim

Residential Focus

New requirement for registered easements for ground anchors under the Design and Building Practitioners – Particulars for Regulated Designs Order 2021

On 10 June 2021, the Minister for Better Regulation and Innovation made the Design and Building Practitioners - Particulars for Regulated Designs Order 2021 (Order) under section 5(3) of the Design and Building Practitioners Act 2020 (NSW) (Act). The Order commenced on 1 July 2021.

Schedule 2 of the Order deals with particulars that apply to regulated designs prepared for building work involving a ground anchor if any part of the ground anchor will extend onto a neighbouring property.

Generally, where a developer or builder is required to install ground anchors under a neighbouring property, they must obtain consent from the neighbour to avoid trespass claims. Consent for installing the ground anchors under the neighbouring property usually occurs in the form of a licence or deed. However, where an agreement between the builders and neighbours is not reached, the builder can apply for a court-ordered easement under section 88K of the Conveyancing Act 1919 (NSW).

The Order has imposed a new requirement on developers and builders of class 2 buildings in respect of ground anchors on neighbouring properties. Section 3(a) of Schedule 2 of the Order specifies that “evidence of a registered easement” over the neighbouring property granting the right to install an anchor on that property is required for such regulated designs. This means that builders and developers will now be required to obtain registered easements for regulated designs prepared for building work involving a ground anchor if any part of the ground anchor extends onto a neighbouring property, rather than relying on a licence or deed to grant them access to install ground anchors.

This requirement does not apply to a neighbouring public road where the relevant roads authority has granted consent under section 139 of the Roads Act 1993 (NSW).

How does this requirement fit into the Act?

Under section 9 of the Act, a registered design practitioner must provide a design compliance declaration to a person if the practitioner provides the person with a regulated design prepared by the practitioner, and the design is in a form suitable for use by that person or another person in connection with building work.

Section 8 of the Act specifies that the design compliance declaration must address various matters, including any matters prescribed by the Design and Building Practitioners Regulation 2021 (NSW) (Regulations).

Further matters to be included in the design compliance declarations are set out in clause 9 of the Regulations. Relevantly, clause 9(1)(c) of the Regulations states that the design compliance declaration must include whether or not the design accords with relevant elements of guidance material for regulated designs that have been approved by the Secretary and published on the Department of Customer Service's website.

NSW Fair Trading published a Regulated Design Guidance Material (Guidance Material) under clause 9(1)(c) of the Regulations, which sets out each class of design and the categories within that class, specifying the minimum requirements.

With respect to ground anchors, the Guidance material states that under the Geotechnical class of design (prepared by a registered design practitioner in the class of structural engineering with geotechnical expertise and/or by a class of geotechnical engineering), the minimum requirement is “compliance with requirements set out in Ministerial Order relating to verification of easements”. This is replicated in the Design Practitioners Handbook.

Pursuant to section 19 of the Act, builders must not carry out any part of building work for regulated designs unless they have obtained a design compliance declaration that complies with the applicable requirements set out in section 8 of the Act. Therefore, to comply with the Act, registered design practitioners must address the requirement for a registered easement in respect of ground anchors on neighbouring properties in their design compliance declaration, which is then provided to the builder to enable them to commence the building work.

Further, section 4A of the Act states that regulated designs and compliance declarations required to carry out the building work under a construction certificate must be provided to the Secretary before building work commences under that construction certificate.

Preference for easements

There are many reasons that could justify the preference for registered easements over the use of a licence, including:

  • easements carry certain property rights and are a more secure way to obtain rights of access to neighbouring land
  • licences do not create any interest in the land
  • easements are registered on the title of the property, whereas a licence is not
  • if the neighbouring property is sold, the easement transfers to the new owner and remains active
  • licences cannot be assigned
  • easements can be perpetual, whereas licences only last for a specified period of time
  • licences can be terminated by default, whereas easements cannot.

However, while a registered easement may be preferable for the reasons set out above, making it mandatory may create additional challenges for developers or builders as:

  • a number of additional parties, including lessees and mortgagees of the burdened land, will be required to give their consent to the easement
  • until certificates of title are abolished later this year, the certificate will need to be located for both the burdened and benefited lot and produced at NSW Land Registry Services to allow the easement to be registered
  • unlike a licence, which will usually be binding on the date it is executed and entered into, the easement will not be binding until it is registered
  • if the easement involves burdening land held by a community, neighbourhood or precinct association, the Community Land Development Act 1989 (NSW) requires that the relevant association pass a unanimous resolution before it can grant the easement
  • if the easement involves burdening land held by an owners corporation, the Strata Schemes Development Act 2015 (NSW) requires the owners corporation to pass a special resolution before it can grant the easement.

Authors: Christine Jones, Elly Ashley & Simona Njaim

In the media

Standards Australia Provides temporary free access to mandatory construction course
Due to the current restrictions on the construction industry, Standards Australia in partnership with the NSW Office of the Building Commissioner and TAFE NSW is providing free access to an e-learning module, "The value of Australian Standards" (22 July 2021).  More...

Sentinel’s Build to Rent is Australia’s first Carbon Neutral Certified apartment building
A Build to Rent project in Subiaco, Western Australia has become the first Carbon Neutral Certified apartment building in Australia under the Climate Active Carbon Neutral Standard for Buildings (21 July 2021).  More...

Engineered stone has become popular in homes across Australia – but it's left a deadly legacy
Engineered stone benchtops have transformed kitchens and bathrooms across Australia, but the number of people being diagnosed with a serious lung condition after working with it is continuing to rise at an alarming rate (15 July 2021).  More...

Building Commissioner targets bottom 20pc
NSW Building Commissioner David Chandler has confirmed that 20 per cent of developers are currently underperforming – and that they’re up for review. Newly-enacted legislation has helped push NSW ahead of other states in the race to beef up regulation of an industry notorious for poor oversight (23 July 2021).  More...

Watchdog orders more defects to be fixed in Sydney’s Opal Tower
The orders were issued after inspectors found incorrectly fitted shades on the tower’s facade and fire-safety problems (23 July 2021).  More...

Moving towards reopening of Sydney construction sites
The Australian Constructors Association welcomes advice that Sydney construction sites are confirmed to reopen on 31 July 2021 (20 July 2021).  More...

Statement on NSW construction industry pause
While the pause on construction in NSW is disappointing, the industry will work with Government to ensure construction can safely and swiftly resume as soon as conditions allow, said Infrastructure Partnerships Australia Chief Executive (17 July 2021).  More...

Crown's prized $2.2 billion Sydney tower is leaking water less than a year after being built
The 271 metre tower became the tallest in Sydney when it opened in December but work is now underway to fix an issue in its basement (13 July 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
14 July 2021: Dwelling commencements rise in March.

ABCC Industry Update – 15 July 2021 edition
In this edition of Industry Update we recognise NAIDOC Week and feature how Indigenous Australian businesses can tender for Commonwealth funded work, our recent wages audit of apartment building projects, the 2.5 per cent increase to the minimum wage, a report evaluating our impact on security of payment regulation, litigation news and more. Read the Industry Update – July 2021 edition.

Practice and courts

ABCB: The process for developing Performance Solutions A2.2(4) is now in effect
What this means is that the NCC provisions for developing Performance Solutions is now legislated under the NCC Governing Requirements, and must be used by all practitioners when developing Performance Solutions. Below are the available resources for this process (19 July 2021):
The handbook: Performance Solution process
Case study: Accessible entrance

ABCB: A step by step guide to preparing for NCC Provision A2.2(4)
One helpful blueprint for this reform has been the Shergold-Weir Building Confidence report commissioned by the Building Ministers Forum. Two of the recommendations (14 and 15) were centred around the documentation and approval of Performance Solutions, and as a fire engineer, these were of particular interest (15 July 2021).

ABCB Consultations

WMTS-040 | Public comment draft round 1
This Technical Specification sets out requirements for metallic and plastics bodied waste pipe outlets and gratings, separate or integral, for sanitary plumbing applications. Closes 3 August 2021. Read more here.

Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key dates in the amendment cycle process for NCC 2022 to allow stakeholders time to participate. These adjusted dates include:
May – July 2021: NCC 2022 public comment draft released for public consultation.
May 2022: NCC 2022 preview published at ncc.abcb.gov.au.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government’s building reform agenda, with the scheme commencing on 1 July 2021. In response to your feedback, we've drafted a report that explains the changes that were made to the draft regulation. Click here for more information.

Conflicts of interest – savings and transitional arrangements
Clause 71 of the Regulation introduces savings provisions for certain conflict of interest situations where the certifier was appointed before 1 July 2020 and the work will be completed before 1 July 2022. The provisions relate to council-certified developments and to developments where the certifier gave advice on how to comply with the BCA deemed to satisfy provisions. For all the changes, access the Amendment Regulation here.

New mandatory standards for building rectification
The standard will be reviewed and updated prior to the 1 July 2021 commencement of the Government’s game changing building reform agenda underpinned by the Design and Building Practitioners Act 2020. The first Practice Standard will initially apply to certifiers working on residential apartment buildings, where the majority of problems and complaints have been received. The Practice Standard for registered certifiers is available on the Fair Trading NSW website.

Building Information Modelling (BIM) for WHS management
What is the best practice and implications of using BIM in WHS management? Timeline of project: Project completion: Mid 2021. Research submissions are now open. Apply online at the eTender website.

Cases

NSW

Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405
APPEAL – development application – in fill affordable housing under the SEPP – whether proposed development can be characterised as multi dwelling housing – the application of the Low Rise Housing Diversity Design Guide – compatibility with the character of the local area – setbacks – adequacy of private open space – solar access – density – visual privacy – amenity for future residents and neighbours.
State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 4, 10, 13, 14, 15, 16A.
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 1.5.

Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 832
APPEALS – leave to appeal – from the Appeal Panel of the New South Wales Civil and Administrative Tribunal – where plaintiff alleged that Appeal Panel took wrong approach in assessing damages – where issue raised by plaintiff in Supreme Court not argued before the Tribunal at first instance or the Appeal Panel – where plaintiff bound by how it conducted its case at first instance and on appeal to the Appeal Panel – where even if damages methodology was incorrect it was the plaintiff who led the Appeal Panel into error – summons dismissed.
APPEALS – leave to appeal – whether plaintiff demonstrated anything more than error – no matter of principle – where two prior hearings and two appeals – no basis for leave demonstrated – leave to appeal refused.

Cohen v Double Bay Bowling Club (No 2) [2021] NSWSC 872
BUILDING AND CONSTRUCTION – statutory duty under s 177 not to do something that removes support from supporting land to supported land – allegation that vibrations from work on supporting land caused removal of support by supporting land to supported land – where proposed Technology and Construction List Statement did not allege facts that if proved would show how vibrations removed such support – where the only geotechnical evidence adduced by plaintiffs was to effect that the vibrations themselves have caused damage to supported land – where plaintiffs also alleged that breach of statutory duty constituted by failure of owner of supporting land to contract with its builder to prevent builder using vibratory equipment.
CIVIL PROCEDURE – amendment – Technology and Construction List Statement – claim for breach of the statutory duty in s 177 of the Conveyancing Act 1919 – where earlier application to amend List Statement refused – where proceedings on foot for two years – whether proposed List Statement alleged facts that if proved could amount to a breach of such statutory duty.

Phibbs v Giannone [2021] NSWCATAP 223
APPEALS – appellant failed to attend Tribunal hearing – procedural fairness provided to parties – no unfairness to appellant – leave to bring appeal refused – contractor onsite wiring damages.

Egan v Commissioner for Fair Trading, Department Of Customer Service [2021] NSWCATAD 209
ADMINISTRATIVE LAW – building and construction – licence – home building – experience – Instrument.

The Owners – Strata Plan No 89005 v Stromer [2021] NSWSC 853
BUILDING AND CONSTRUCTION – civil procedure – application to amend Technology and Construction List Response – proposed amendment to limitation defence based on construction of Home Building Act 1989 (NSW), ss 18C and 18E and schedule 4, clause 109 – defendants had previously withdrawn limitation defence – prejudice to the plaintiff if limitation defence now re-introduced – whether consistent with overriding purpose and dictates of justice to grant leave to amend – leave refused.
CIVIL PROCEDURE – application for leave to file a cross-summons and list cross-claim statement against sub-contractors of the defendant builder – where no material facts pleaded or alleged defects particularised in support of the allegations – application dismissed.

Woodward v Warwick Green Building Pty Ltd [2021] NSWCATAP 210
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – contract not complying with the Home Building Act – quantum meruit – whether do-and-charge building contract an entire contract – where owner had paid invoices issued by builder but failed to pay further invoices – whether assessment of value of benefit received by owner should include work the subject of invoices which had been paid – sufficiency of evidence – whether builder had established the reasonable value of work performed.

Precision Flooring Pty Ltd v Armstrong [2021] NSWSC 844
ADMINISTRATIVE LAW – appeal – questions of law – whether ground properly involved no evidence point – intermediate findings – ultimate findings – whether some probative evidence – adequacy of reasons – procedure fairness – appeal upheld – judgment below set aside – remitter.

AGC Roof Maintenance Northern Division Pty Ltd v Chief Commissioner of State Revenue [2021] NSWCATAD 199
TAXES AND DUTIES – payroll tax – independent contractor – common law employee – relevant contract – 90-day exemption – services to the public exemption – two-person exemption.
Home Building Act 1989 (NSW); Payroll Tax Act 2007 (NSW); Taxation Administration Act 1996 (NSW).

Legislation

NSW

Regulations and other miscellaneous instruments
Mutual Recognition (Automatic Licensed Occupations Recognition) Regulation 2021 (2021–405) – published LW 23 July 2021 – an unrestricted electrician’s licence held by an individual under the Construction Occupations (Licensing) Act 2004 of the Australian Capital Territory.
Electricity Infrastructure Investment Amendment (Consumer Trustee) Regulation 2021 (2021–381) – published LW 16 July 2021.
Environmental Planning and Assessment Amendment (Compliance Fees) Regulation 2021 (2021–383) – published LW 16 July 2021.
Environmental Planning and Assessment Amendment (Glenfield Precinct) Regulation 2021 (2021–384) – published LW 16 July 2021.
Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 (2021–377) – published LW 14 July 2021.

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 article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Simona Njaim

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