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Residential Focus

07 April 2021

#Property, Planning & Development

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Residential Focus

Automatic mutual recognition of contractor licences a step closer

The Commonwealth has released an exposure draft of the Mutual Recognition Amendment Bill 2021, its uniform scheme for automatic mutual recognition (AMR) of state and territory-based occupational licences and registrations.

The reforms, which were announced last year and endorsed by National Cabinet, are intended to commence on 1 July 2021. Adoption or other enabling activity by the states will be required to complete the reform.

Current recognition schemes, relevantly that for contractor and specialist licences, are a simplified form of establishing a licence, but still require an application and fees. AMR would do away with that, in a bid to enable licence holders to work across jurisdictions, simply, quickly and cheaply.

What the Bill does not address are the idiosyncrasies between states in terms of what activity requires a contractor licence at all, an issue that will continue to plague cross-border contractors from a regulatory compliance perspective. AMR will not be a silver bullet to this issue. Interstate contractors who would not require a licence for an activity in their home state will still need to determine whether that activity would require a licence in NSW.

Given, in NSW, the adverse consequences of non-compliance with the Home Building Act, cross-border contractors will do well to continue to pay close attention to compliance, well beyond the anticipated introduction of AMR.

Author: Christine Jones

In the media

HomeBuilder economic impact
The extraordinary success of the HomeBuilder grants scheme is continuing to underpin economic recovery by harnessing the industry's economic multiplier effect. According to Master Builders Australia's analysis of the Treasury data on HomeBuilder applications, the scheme is continuing to drive economic recovery around the country (01 April 2021).  More...

Home builders needing structural timber could be waiting months due to supply shortage
The timber industry is calling for a time extension of the Government's HomeBuilder scheme to ease demand for both domestic and imported timber (01 April 2021).  More...

Construction cost will rise in coming years
Construction costs will rise throughout Australia in coming years as a resurgent building sector and a massive volume of engineering work drives competition for resources, a leading economist has warned (29 March 2021).  More...

PwC: Building a more circular Australia
The circular economy offers Australia the opportunity to generate $1,860 billion in direct economic benefits over twenty years and save 165 million tonnes of CO2 per year by 2040, finds a new report from PwC Australia. Building a more circular economy explores the opportunity for Australia to adopt the concept of a circular economy, offering a robust and holistic framework for sustainable growth (26 March 2021).  More...

Global shortages, HomeBuilder demand causing building delays and price rises
A sharp increase in global demand for building products during the COVID-19 pandemic has caused price rises and delays on Australian construction sites and is prompting calls for changes to the federal government's HomeBuilder scheme (25 March 2021).  More...

$2.4 billion economic boost as government cuts red tape for tradies
The federal government has announced it will cut red tape to allow a uniform scheme for automatic mutual recognition of state and territory-based occupational licences and registrations (24 March 2021).  More...

3 and 4 Parramatta Square achieve six star ratings
Two towers at Walker Corporation’s Paramatta Square precinct have been awarded six star green star ratings. Walker Corporation Executive Chairman, Lang Walker, said the awarding of the six star ratings is an important statement for major corporates seeking state-of-the-art environmental features combined with cost-effective, premium-grade office space (01 April 2021).  More...

Certainty sought for compliance funding
The NSW Government is undertaking a review into council compliance levies on building works to create a more certain, consistent and transparent planning system. Minister for Planning and Public Spaces, Rob Stokes, said the review will help ensure councils have the necessary resources to make sure builders are doing the right thing (25 March 2021).  More...

Scaffolding under scrutiny in NSW
SafeWork inspectors will be visiting construction sites across New South Wales to inspect scaffold structures, issuing on-the-spot fines and stop-work notices for failure to comply with the state's safety standards (25 March 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
31 March 2021 Building Approvals, Australia
31 March 2021 Engineering construction falls in December
Engineering Construction Activity, Australia

ABAB March 2021 Forum Communique
March 21, 2021 – Australasian BIM Advisory Board’s successes to date, and more to come.

Practice and courts

Consultation open: Draft National Building Product Assurance Framework
A discussion paper is now open for public comment in response to the Building Confidence Report. The Framework seeks to address the problems associated with building product safety. Responses to questions in the discussion paper are welcomed until 6 June 2021. Click here to read more (29 March 2021).

HIA: Severe weather event – what are your warranty obligations?
March 22, 2021 – HIA provides some helpful information about what you can do when a homeowner contacts you complaining about issues from a severe weather event. Read more here.

HIA: HomeBuilder: Delays and deadlines – what you need to know
March 23, 2021 – HIA has developed resources to assist members to manage delays and price increases. Click here to learn more.

HIA submissions
Planning approvals to be impacted by new State planning policy 24 March 2021

ABCB consultation open: Building Manuals – a response to the Building Confidence Report
A discussion paper is now open for public consultation in response to the Building Confidence Report. Recommendation 20 of the Building Confidence Report states that each jurisdiction should require a comprehensive building manual for Class 2 - 9 buildings to be lodged with the building owners and made available to successive purchasers of the buildings. Responses to questions in the discussion paper are welcomed until 17 May 2021, using form via the ABCB’s Consultation Hub.

ABCB consultation
Discussion paper: Integrity of private building surveyors and their role in enforcement – a response to the Building Confidence Report
A discussion paper is now open for public consultation in response to the Building Confidence Report. The report made 24 recommendations for a best practice model for compliance and enforcement, to strengthen the effective implementation of the National Construction Code (NCC). Comment closes 27 April 2021.

ABCB: Improvements to the code’s structure and format will be implemented for NCC 2022
To guide users through the changes, the ABCB has developed a range of supporting resources that will be released in stages leading up to the publication of the NCC 2022 public comment draft on 10 May 2021.

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 here.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

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.

The draft Design and Building Practitioners Regulation 2020
The NSW Design and Building Practitioners Act 2020 provisions of the Act will commence on 1 July 2021. The draft Design and Building Practitioners Regulation includes registration schemes for design and building practitioners and engineers who work on multistorey, multi-unit residential apartment buildings. The Government will finalise the Regulations in early 2021, ready to be implemented on 1 July 2021. Have your say.

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.

NSW Revenue: Land tax build to rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery.

NSW Revenue: Extension to HomeBuilder Grant
On 29 November 2020 the Australian Government announced an extension to the HomeBuilder program until 31 March 2021. Click here to learn more.

Cases

NSW

Kwiatek v Elite Services (Aust) Pty Ltd [2021] NSWCATAP 80
Leave to appeal is refused and the appeal is dismissed.
CONTRACT LAW – claim for breach of contract to carry out floor repairs – formation of contract and terms – no breach established.
Civil and Administrative Tribunal Act, 2013 (NSW); Home Building Act 1989 (NSW).

Global Abode Pty Ltd v Podgoetsky
The appellant is to pay the respondent’s costs of the appeal on the ordinary basis as agreed or, if not agreed, as assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).
COSTS – costs on appeal – appeal withdrawn – whether fixed sum costs order should be made.
In proceedings HB19/22752 filed in May 2019, Global Abode claimed $108,085.55 in respect of works and alleged approved variations under a home building contract between it and the homeowner, Mr Podgoetsky. In proceedings HB 19 /39527 Mr Podgoetsky claimed $94,844.94 from Global Abode in respect of alleged defective works performed under the contract.

The Owners – Strata Plan No 93543 v Zhang [2021] NSWSC 277
PRACTICE AND PROCEDURE – application to withdraw admissions – admission in List Response that plaintiff owners corporation was entitled to benefit of statutory warranties – further admissions that defendant entered into a contract with the builder of the strata development and that the builder entered into contracts with contractors on behalf of defendant – application to withdraw admissions made on first day of a five day hearing – where admissions said to have been made as a result of an error by counsel then briefed and by present solicitor – where withdrawal of admissions would cause plaintiff to seek to investigate further facts hitherto admitted and result in vacation of hearing dates.

Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 274
PROCEDURE – summary dismissal – COSTS – application for security of costs – no solicitor retained – application refused – costs in the cause – in conclusion, the Owner has been partially successful on this Motion and Nutek has also been partially successful, having resisted some of the orders sought.

Keogh v Commissioner for Fair Trading [2021] NSWCATOD 30
(1) The Respondent’s decision that Mr Keogh is not a fit and proper person pursuant to sections 56 (b) and 56 (c) of the Home Building Act 1989 is affirmed.
FIT AND PROPER PERSON – whether false and misleading information provided – whether applicant provided false and misleading information – whether purpose of Act is to punish or protect – whether hardship can be taken into account in determining penalty.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Crimes Act 1900; Evidence Act 1995; Home Building Act 1989.

Hope v Hutchings; Hutchings v Hope [2021] NSWCATAP 70
COSTS – Rule 38A Civil and Administrative Tribunal Rules 2014 – amount claimed or in dispute in appeal proceedings – whether special circumstances must be established.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989.

OWNERS SP 92648 v BINAH CONSTRUCTIONS PL & ANOR [2021] NSWCATAP 68
(4) Order that the respondents pay three-quarters of the appellant's costs of the appeal on the ordinary basis as agreed or assessed.
HOME BUILDING – whether costs order appropriate on consent transfer to Supreme Court – costs on appeal against primary costs order where a different order is made but not substantially that sought by appellant.
Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4 cll 6, 12; Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38A; Design and Building Practitioners Act 2020 (NSW) Pt 4; Home Building Act 1989 (NSW) ss 3A, 3B, 3C, 18B, 18BA, 18C, 18D, 18E, 48A, 48K, 48L, 48MA.

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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