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).
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.
There are many reasons that could justify the preference for registered easements over the use of a licence, including:
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:
Authors: Christine Jones, Elly Ashley & Simona Njaim
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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.
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Cohen v Double Bay Bowling Club (No 2) [2021] NSWSC 872
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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).
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.
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