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Residential Focus

08 September 2021

#Property, Planning & Development, #Construction, Infrastructure & Projects

Published by:

Nicholas Achurch

Residential Focus

Piecing together the Design and Building Practitioners Act jigsaw

The compliance provisions of the Design and Building Practitioners Act commenced on 1 July 2021.

To help you understand how you are impacted, we have pieced together the following guides for key participants with compliance obligations under the new regime:

You can also refer to the following summary flow charts.

If you have any questions or would like to learn more about how these changes impact you, please get in touch with us.

Authors: Christine Jones & Nicholas Achurch

In the media

Dwelling approvals continue to fall in July
BS Director of Construction Statistics, said: "The decline in the total number of dwellings approved in July was broad-based, with private sector houses falling 5.8 per cent and approvals in private sector dwellings excluding houses falling 12.3 per cent (31 August 2021).  More...

Construction delays pushing builders into red
More than one in 10 construction businesses are struggling to pay their bills on time as the industry emerges as the worst hit by COVID. The Creditor Watch report on business arrears showed the construction industry universally remained the worst performer when it came to businesses in arrears, often due to stalled project financing or other delays (30 August 2021).  More...

Targets for construction code shake-up revealed
Homes across Australia will be more energy efficient if proposed changes to the National Construction Code are pushed through for 2022. Consultation has begun on the final tranche of the Australian Building Codes Board’s National Construction Code 2022, which has been flagged as the most substantial change to the residential construction code since 2010 (30 August 2021).  More...

Building occupant safety linked to building fire protection checks
The Insurance Council of Australia and the National Fire Industry Association are joining forces to remind building owners and managers to ensure they are staying up to date with fire protection safety and maintenance checks for commercial, industrial, and residential (27 August 2021).  More...

Feedback sought on fire safety systems discussion paper
The ABCB has released the final consultation in response to the Shergold Weir Building Confidence Report (BCR). Recommendation 19 of the BCR is that each jurisdiction requires registered fire safety practitioners to design, install and certify the fire safety systems necessary in commercial buildings (24 August 2021).  More...

Delay to removal of flammable cladding from NSW apartment buildings
The removal of cladding from the apartment towers as part of a state government project has been delayed until early next year (02 September 2021).  More...

‘Most risky’ certifiers of NSW apartment buildings in watchdog’s sights
Almost a dozen certifiers will be put under intense scrutiny by the state’s building watchdog as it attempts to boost public confidence in apartments (31 August 2021).  More...

New home buyers being hit with unfair infrastructure contributions
Research released by the NHFIC confirms that the NSW Government has allowed the scope of local infrastructure contributions to grow to such an extent that they now account for between 8–11 per cent of the total cost of a new home – with NSW being the highest at up to $85,000 per dwelling (compared to $77,000 in Victoria and $42,000 in Queensland) (31 August 2021).  More...

Green ban on Willow Grove lifted
NSW Minister for the Arts Don Harwin has announced that the green ban imposed by the Construction, Forestry, Maritime, Mining and Energy Union on Parramatta’s Willow Grove site will be lifted. This decision follows consultation with the community resulting in the retention of significant heritage items (24 August 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
31 August 2021: Building approvals, Australia

Practice and courts

ABCB: National Construction Code (NCC) 2022 public comment draft (stage two)
The National Construction Code is updated every three years, based on industry research, public feedback and policy directions from governments to the Australian Building Codes Board (ABCB) between publishing cycles. The ABCB is now seeking comment on proposed amendments to energy efficiency and condensation technical provisions, via this second and final stage of public consultation, which closes 17 October 2021. Click here for more information.

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.

NSW

Guide for design practitioners and engineers
Consult Australia, Engineers Australia and the Australian Institute of Architects have joined forces to develop the Guide for design practitioners and engineers to help their members tackle the recent NSW building confidence reforms. There are multiple new obligations on design practitioners, engineers and building practitioners throughout the life of a building under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021.

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 to learn more.

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.

Cases

NSW

Awad v 316 Plumbing Pty Ltd [2021] NSWCATAP 260
(1) Leave to appeal is refused. (2) The appeal is otherwise dismissed.
APPEALS – whether error of law – whether leave to appeal should be granted.
Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

EMG Stone Pty Ltd v Gonda [2021] NSWCATAP 259
APPEAL – from finding of fact – whether against weight of evidence – whether substantial miscarriage of justice.
For the reasons set out below, we have decided to refuse to grant leave to appeal and to dismiss the appeal.
The respondents were dissatisfied with the quality of the work and refused to pay the balance then owing of $3,383.60.

Monument Building Group Pty Ltd v Kapila [2021] NSWCATAP 256
(1) Leave to appeal is refused. (2) The appeal is otherwise dismissed.
APPEALS – whether error of law – whether leave to appeal should be granted.
Civil and Administrative Tribunal Act 2013, sections 50, 80; Scheme 4, clause 12(1); Home Building Act 1989, section 48K, Scheme 1, clauses 1 and 2.

Deeb v Commissioner for Fair Trading [2021] NSWCATAD 253
Pursuant to section 55(1)(d) of the Civil and Administrative Tribunal Act 2013 the application for review is dismissed.
PROCEDURE – summary dismissal – want of prosecution.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Anwari v Commissioner for Fair Trading [2021] NSWCATOD 129
The respondent’s reviewable decision is affirmed.
ADMINISTRATIVE LAW – administrative review – licensing – whether applicant meets requirements for issue of builders licence – application of instrument – experience – referee statements – “wide range of building construction work”.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989; Home Building Regulation 2014; Licensing and Registration (Uniform Procedures) Act 2002.

Kirzner v Jetmaster Fireplaces Aust Pty Ltd [2021] NSWCATAP 255
(1) Leave to appeal refused. (2) Appeal dismissed.
APPEAL – from finding of fact – credibility of witnesses – weight to be given to expert report – procedural fairness – reasonable opportunity to be heard – leave to appeal – decision fair and equitable – decision not against the weight of the evidence.
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989.

ACS Equip Pty Ltd v Richards [2021] NSWCATAP 253
APPEAL – consumer claim – services concerning redevelopment of a bore to produce water – independent expert report – no weight given to opinion of a director of appellant – rejection of “no evidence” ground-failure to warn of risk that service might not reasonably be expected to achieve intended outcome – Australian Consumer Law – section 60 and section 61.
ACS issued a tax invoice for the services performed by it in the sum of $16,228.65. The Richards refused to pay the account, on the basis that the redevelopment of the bore pursuant to the works performed by ACS had not made any improvement to the operation of the bore.

Legislation

NSW
Strata Schemes Management Act 2015 No 50 – updated 25 August 2021.

Regulations and other miscellaneous instruments
Contaminated Land Management (Adjustable Amounts) Notice 2021 (2021–478) – published LW 27 August 2021.
Environmental Planning and Assessment Amendment (Port Kembla Gas Turbine Power Station) Order 2021 (2021–480) – published LW 27 August 2021.
Protection of the Environment Operations (Clean Air) Regulation 2021 (2021–485) – published LW 27 August 2021.
Protection of the Environment Operations (General) Regulation 2021 (2021–486) – published LW 27 August 2021.
Road Transport (General) Regulation 2021 (2021–487) – published LW 27 August 2021.
Water Industry Competition (Access to Infrastructure Services) Regulation 2021 (2021–496) – published LW 27 August 2021.
Water Industry Competition (General) Regulation 2021 (2021–497) – published LW 27 August 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:

Nicholas Achurch

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