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News

Building approvals released for February 2012
The February 2012 Building Approvals figures were released today by the Australian Bureau of Statistics. Queensland performed better than the national average, although the result is tempered by the fact that the local industry has suffered a much more severe contraction during the GFC than the rest of Australia (02 April 2012) More...

Getting the Right Infrastructure in the Right Place at the Right Time
With government figures showing Australia’s freight task is expected to double by 2030 and to triple by 2050, the need to ensure Australia has high quality and efficient infrastructure has never been more important, the Australian Logistic Council said (29 March 2012) More...

NBN Co to rollout NBN to a third of Australia by 2015
The Federal Government’s national broadband network builder - NBN Co , announces that construction of  the NBN is underway or to be completed in areas containing over 3.5 million homes and businesses in 1500 communities in all states and territories by 2015 (29 March 2012) More...

New guidelines to boost value for money on Victorian construction projects
The Victorian Coalition Government has released enhanced Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry (03 April 2012)
New guidelines to boost value for money on Victorian construction projects

Vic building firms risk being blacklisted
Firms that don't comply with new building code rules for Victorian government projects could be blacklisted for future contracts. The guidelines will apply to all public building and construction work in Victoria but mining, landscaping and cleaning activities are exempt (03 April 2012) More...

Victoria's building permit activity $1.3 billion for January 2012
The value of building permit activity in Victoria for the month of January was $1.3 billion, a 9.5 per cent decrease from 12 months ago, which saw the highest January building permit activity on record at $1.4 billion (30 March 2012)
Victoria's building permit activity $1.3 billion for January 2012 (123KB)

Coalition Government to support direct geothermal project for heating and cooling
The Victorian Coalition Government today announced a $1.6 million grant to support the University of Melbourne and its partners to demonstrate the efficiency of direct use geothermal for heating and cooling buildings (03 April 2012)
Coalition Government to support direct geothermal project for heating and cooling

Community Works Program a boon for local jobs and infrastructure
Grants of up to $200,000 are available for physical infrastructure projects including streets, walkways, playground fences, bike paths, bridges, open space, plazas, squares, transportation hubs, gateways, parks, waterfronts and natural features (02 April 2012) Community Works Program a boon for local jobs and infrastructure

Ring Road rounds off to completion
Commuters will see less congestion and extra lanes as building will continue on a freeway upgrade in Melbourne’s north.  Jointly funded from the Australian and Victorian Governments, the M80 Ring Road Upgrade is a $2.25 billion project under the federal Nation Building Program (02 April 2012) More...

Mining building boom ‘to end soon'
Queensland’s mining-driven construction boom could end in just three years, a new report said. The state's civil construction activity is expected to reach its peak as early as 2014, according to economic forecaster BIS Shrapnel (04 April 2012) More...

Xstrata wins approval for Australia's biggest coal mine
An Australian court ruled in favour of global miner Xstrata in a case which sought to halt the company's plans to build the country's largest coal mine on the grounds that it would contribute to climate change (27 March 2012) More...

Monthly housing approvals data delivered
The Department of Planning and Infrastructure has published data for January 2012 on dwelling approvals as well as more detailed approval and lot production data for greenfield release areas on Sydney’s outskirts. While the 2010/11 report shows Sydney has a record level of land supply for new homes, more land needs to be connected to local water and other infrastructure (05 April 2012) Monthly housing approvals data delivered

Project to refine and clarify approval conditions
The NSW Department of Planning and Infrastructure is helping industry and the wider community become more familiar with the conditions that could be placed on significant development projects. Director-General Sam Haddad said the department has prepared a database containing conditions of consent for state significant projects by industry sector (01 April 2012) More...

1,500 homes for Green Square
The NSW Government welcomed a deal struck between Landcom and two developers to create some 1,500 homes and 7,000 jobs at inner-Sydney’s Green Square town centre. An agreement is in place for one of Australia’s biggest urban renewal sites, according  to  Minister for Planning and Infrastructure Brad Hazzard (28 March 2012) 1,500 homes for Green Square

Coal seam gas critical to NSW energy security
NSW businesses and consumers face the risk of constrained gas supply and higher prices in the absence of a growing local gas industry, according to new research released today by Santos (28 March 2012) More...

Specialist Taskforce to drive development at Macquarie Park
The Minister for Finance & Services Greg Pearce announced the Macquarie Park Taskforce together with Member for Ryde Victor Dominello. The Taskforce will consist of representatives from the Department of Finance and Services, Department of Planning and Infrastructure, Infrastructure NSW, NSW Treasury, Transport for NSW and Housing NSW, the City of Ryde and Macquarie University (28 March 2012) Specialist Taskforce to drive development at Macquarie Park

Articles

ALC Annual Report 2011-2012
Author: Australian Logistics Council
As Australia’s freight task continues to expand – perhaps tripling by 2050 – it is imperative that the transport and logistics supply chain operates as efficiently and effectively as possible (April 2012) More...

Towards an Efficient Freight Future
Author: Economic Energy Connections Pty Ltd for ALC
Highlighting a range of regulatory and infrastructure challenges, these include protecting access corridors to ports and terminals, improved access for higher productivity vehicles, critical rail corridors, robust transport plans, and identifying appropriate sites for intermodal terminals in urban areas (April 2012)
Towards an Efficient Freight Future – A Review of Progress in Tackling Blockages to Freight Efficiency 

Too much of a good thing: the macroeconomic case for slowing down the mining boom
The Australian mining boom has been driven by rapidly rising world commodity prices. The world is now willing to pay much higher prices for our coal, iron ore, gold and other resources than they were 10 years ago (03 April 2012)
Too much of a good thing? The macroeconomic case for slowing down the mining boom

Queensland Floods Commission of Inquiry
Author: Greg Vann; Queensland Planner, 2012, Autumn, pp20-22

BPBulletin - 30 March 2012
Author: NSW Building Professional Board
BPBulletin - 30 March 2012

Metropolitan Development Program Report 2010/11 – 2019/20
Author: NSW Department of Planning
An indicative ten-year dwelling supply forecast, which is an important tool in tracking the likely future availability of land for housing purposes, thereby ensuring the demand of the housing market can be adequately met, and the affordability of housing maintained (April 2012)
MDP Residential Forecasts 2010/11 - 2019-20

Practice Notes

Clean Energy Regulator commences in April 2012
The Clean Energy Regulator commenced operations on 02 April. The list of entities expected to be liable under the carbon pricing mechanism will be published to the Clean Energy Regulator website. The Liable Entities Public Information Database will be published in a staged approach of updates as information is available to the Clean Energy Regulator (02 April 2012) http://www.orer.gov.au

EEX - Energy Efficiency Exchange website
An initiative between the Australian and state and territory governments, the website is designed to save businesses time and money by providing comprehensive, quality information on energy efficiency in one online location. The website can help businesses identify, investigate and implement energy efficiency projects that can reduce their energy costs and save money (30 March 2012) http://eex.gov.au/

NSW: North West Rail Link plans – Public Comment
The public is being invited to comment on the first Environmental Impact Statement (EIS) for the North West Rail Link project. The EIS, which includes the concept plan amendment and Stage 1 project application for major civil construction works, is being exhibited by the NSW Department of Planning and  Infrastructure until Monday 21 May 2012 (04 April 2012) Have your say on North West Rail Link plans

NSW: Project to refine and clarify approval conditions
The department has prepared a database containing conditions of consent for state significant projects by industry sector. The draft conditions cover the following sectors: Mining and Extractive Industries; Urban Development; Linear Infrastructure; Industry and Manufacturing; Waste and Remediation; Energy, and Wind Farms (30 March 2012) Project to refine and clarify approval conditions

VIC: Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry
The Guidelines will apply to all on-site public building and construction work undertaken in Victoria, that are the subject of an expression of interest or request for tender on or after 1 July 2012. Compliance with the new Guidelines will be overseen by a new Construction Code Compliance Unit in the Department of Treasury and Finance, More information about the new Guidelines can be found here. To view the Guidelines, please click here.

Legislation

Commonwealth
Assented 29 March 2012 and Registered 02 April 2012:
Petroleum Resource Rent Tax (Imposition—General) Act 2012
Petroleum Resource Rent Tax (Imposition—Excise) Act 2012
Petroleum Resource Rent Tax (Imposition—Customs) Act 2012
Petroleum Resource Rent Tax Assessment Amendment Act 2012
Minerals Resource Rent Tax (Imposition—General) Act 2012
Minerals Resource Rent Tax (Imposition—Excise) Act 2012
Minerals Resource Rent Tax (Imposition—Customs) Act 2012
Minerals Resource Rent Tax (Consequential Amendments and Transitional Provisions) Act 2012
Minerals Resource Rent Tax Act 2012

Cases

QGC Pty Limited v Bygrave [2012] FCA 309
COSTS – application under Administrative Decisions (Judicial Review) Act 1997 (Cth) for review of decision by a delegate of the Native Title Registrar to register an Indigenous Land Use Agreement – application to review decision successful – whether reasonableness of review application and public importance of issues raised warrant departure from ordinary rule as to costs – relevance of s 85A of the Native Title Act – public interest elements in private interest litigation – liability of a contradictor or intervener for costs – whether a body with statutory responsibilities as a party in private interest litigation is liable for costs More...

Moresload Pty Limited v Hebden Quarries Pty Limited [2012] NSWDC 28
CONTRACT: Whether contract formed and if so, its terms - consideration of pre and post contract conduct in the absence of ambiguity - credit- whether failure to provide feed rock to allow plaintiff to perform its part of the bargain constituted a breach of contract- construction of exclusion clause - methodology of assessment of damages More...

Anthony Augustine Libreri and Marie Doris Libreri v Jeffrey Pau Burke [2012] NSWDC 27
Verdict for the defendants on the plaintiff's claim. 2. Verdict and judgment for the cross claimants on the cross claim in the sum of $27,217.12. 3. The proceedings are
BUILDING: Rights of termination - unpaid invoice - claim of overpayment - misrepresentation of status as licensed builder - exercise of discretion to award quantum merit More...

Geoffrey and Christine Hanson v Tamworth Regional Council [2012] NSWDC 26
Duty of care of public authority arising from leaking stormwater pipe - foreseeability - control and relationship - causation - competing expert evidence - adequacy of investigation and factual basis for expert opinion - breach - special statutory power - damage - mitigation of loss - whether claim statute barred
Limitation Act 1969Civil Liability Act 2002 Local Government Act 1993; Roads Act 2003 More...

Xstrata Coal Queensland Pty Ltd & Ors v. Friends of the Earth - Brisbane Co-Op Ltd & Ors, and Department of Environment and Resource Management [2012] QLC 013
Mining  -  applications  for  mining  leases  -  objections  - functions   and   powers   of   the   Land   Court   -  Mineral Resources Act 1989, ss.268, 269
Mining - application for environmental authority - objections - functions and powers of the Land
Court - Environmental Protection Act 1994, ss.216, 219, 222, 223
Mining - significant project - effect of Coordinator- General's conditions - statutory limits on the powers of the Land Court - State Development and Public Works Organisation Act 1971, ss.45(1), 46, 49(1) - Environmental Protection  Act  1994,  s.222(2)  -  extent  Court  can recommend conditions that are inconsistent with Coordinator-General's conditions - meaning of "inconsistency" - principles of statutory interpretation - ordinary and natural meaning
Mining - objections to draft environmental authority - limitations under the Environmental Protection Act 1994 - Coordinator-General's conditions can not be objected to by anyone - power of the Land Court to hear "new" objections - Environmental Protection Act 1994, ss.216(2), 222(2)
Mining - inclusion of environmental buffers and exclusion zones in lease areas - inclusion of mining pit areas not intended to be mined during the life of the leases - whether acceptable level of development and utilisation of the mineral resources within areas applied for - whether leases sought  an  appropriate  size  and  shape  -  whether  leases sought for appropriate purposes - public interest - whether the proposed mining operation an appropriate land use - Mineral Resources Act 1989, ss.234(1), 269(4)(b), (c), (d), (i), (k), (l), (m)
Mining - whether improvements properly identified in mining lease applications - restricted land (category B) - "artificial water storage" - water troughs - water pipelines - Mineral  Resources  Act  1989,  ss.238(2),  245(1)(g), Schedule 2 (Dictionary)
Jurisdiction of the Land Court – statutory limits on Court's powers to make recommendations under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 - "environmental authorities" - "mining activities" - activities authorised under the Mineral Resources Act 1989 extent Court can make recommendations for activities regulated by the Water Act 2000 - Mineral Resources Act 1989,  s.235(3)  -  Environmental  Protection  Act  1994, ss.146, 147
Jurisdiction of the Land Court - groundwater impacts - whether   impacts   of   "mining   activities"   or   activities regulated  by  the  Water  Act  2000  -  insufficient investigations - conflicting expert opinions - precautionary principle - adequacy of draft conditions for the draft environmental authority - effect of Coordinator-General's conditions – Environmental Protection Act 1994, ss.146, 147, 222(2)
Jurisdiction of the Land Court - groundwater impacts - make-good agreements - jurisdiction and powers of the Court limited to activities authorised under the Mineral Resources Act 1989 - Court unable to make recommendations to Minister administering the Water Act 2000  -  Mineral  Resources  Act  1989,  ss.235(3),  269  - Environmental Protection Act 1994, ss.146, 147, 222
Evidence - expert opinion - impact of coal dust on cattle - conflicting opinions of different experts - lack of research - scientific uncertainty - precautionary principle - lack of evidence as to appropriate precautionary remedy - Environmental Protection Act 1994, ss.223(c), Schedule 4 (Dictionary)
Mining - dust and noise emissions - application of environmental protection policies - effect of Coordinator- General's conditions imposing relevant emission limits - limits on Court's power to recommend conditions for the draft environmental authority - State Development and Public Works Organisation Act 1971, s.49 - Environmental Protection Act 1994, s.222(2) - Environmental Protection (Air)  Policy  2008  -  Environmental  Protection  (Noise) Policy 2008
Climate Change - whether "any adverse environmental impact" - whether the MRA permits consideration  of downstream indirect environmental impacts - scope of "operations" limited to physical mining  activities - test of causation - whether evidence required of specific environmental impact -  public interest - whether "a good reason" to refuse proposed mining lease applications - Mineral  Resources Act, ss.2, 6A, 234(1), 269(4)(i), (j), (k), (l)
Climate Change - consideration of the "standard criteria" - public  interest  -  principles  of  ecologically  sustainable development (ESD) - limits on the jurisdiction of the Land Court - "environmental authorities" -  "mining activities" - objects of the Environmental Protection Act 1994 limited to protection of  Queensland's environment - extent Court can consider "global impacts" under the ESD principles -  evidence of scope 3 greenhouse gas emissions irrelevant - Environmental Protection Act 1994, ss.3,  5, 8, 223, 146, 147, Schedule 4 (Dictionary) More...

Andric v Queensland Building Services Authority [2012] QCAT 108
Extension of Time – application to review direction to rectify – infringement notice served – application to be filed within 28 days of service of direction on the applicant – application out of time – whether power to extend time
Smith v Queensland Building Services Authority [2010] QCAT 448 followed More...

Everett Constructions Pty Ltd v Martin and Anor [2012] QCAT 103
Residential building contract – where home owner alleged defects including dissatisfaction with interior paint colour – determinations as to contractual requirements including paint brand and paint colour – construction industry custom to tint paints – claim for interest under Master Builders Residential Building Contract More...

Colmer v Queensland Building Services Authority [2012] QCAT 089
Costs – where applicant commenced a proceeding to review the respondent's decision and failed to comply with the Tribunal’s directions – where applicant acted to the disadvantage of the respondent – where interests of justice require that a costs order be made
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 More...

Oakview Constructions P/L v Stuckler [2012] QCAT 087
Building Dispute – where builder built in accordance with agreement – written plans not truly reflecting the agreement between the parties – substantial breach – requirements of notice of substantial breach – experts in conclave – party ignoring experts reports – Tribunal appointing assessor – draftsman errors – owner’s repudiation of contract – costs More...

Vale Belvedere Pty Ltd v BD Coal Pty Ltd & Anor [2012] QCA 077
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties are joint venture partners in a coal mining project governed by a written contract – where the contract provided a process for determining a price for the interests of the respondents – whether a valuation obtained by the first respondent as part of that process was in accordance with the contract – whether the valuation lacked contractual effect for its alleged errors
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the primary judge struck out the amended statement of claim of the appellant – where the appellant contends that the amended statement of claim disclosed a viable case that ought to have been permitted to have the benefit of proper disclosure by the first respondent and proceed to trial – where the appellant alleges fundamental errors in the reasoning of the primary judge in striking out the amended statement of claim – whether the primary judge erred in striking out the amended statement of claim
Uniform Civil Procedure Rules considered-     Rule 171 — Striking out pleadings More...

Riddell and Anor v Cousins [2012] QCAT 123
Building dispute – Retaining wall – lack of engineered plans – walls unable to be certified requiring rectification More...

Bickle v Queensland Building Services Authority [2012] QCAT 114
Building and Home Warranty Insurance Scheme – where defective building work – where claim on the Home Warranty Insurance Scheme – whether residential construction work – where respondent contends the building falls with the definition of “multiple dwelling of more than 3 storeys” in Regulation 13 of the Queensland Building Services Authority Regulation 2003 – where residence is a duplex – whether Regulation 13 includes duplex as a multiple dwelling – whether building comprises more than three storeys – where definition of “storey” in the Building Code of Australia considered
C&E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244 More...

Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor [2012] VSCA 63
ARBITRATION – Building contracts – Legislative prohibition on reference of disputes to arbitration – Dispute over construction of inground water tank – Whether ‘domestic building contract’ – Whether works carried out under domestic building contract – Whether building permit required – Whether tank was class 10b structure under Building Code – Approach to classification of buildings and structures – Whether ‘retaining wall, swimming pool or the like’ – No permit required – Appeal dismissed – Domestic Building Contracts Act 1995 (Vic) ss 3, 4, 5(1), 14, 54, Building Act 1993 (Vic) ss 3, 16, Building Regulations 2006, Regulation 1801, Building Code of Australia cll 1.3.2, 1.3.3 considered. More...

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2012] VSC 99
CONTRACT – building engineering and related contracts – principal served notices to show cause for substantial breach on contractor– whether substantial breach of obligation under cl 30.1 to use the standard of materials or provide the standards of workmanship required by the contract – whether substantial breach of obligation under cl 30.3 to comply with superintendent’s directions - whether substantial breach of obligation under cl 33.1 to proceed with the work with due expedition and without delay – whether notices invalid because defective in content or form, wanting particulars, or being prolix and confusing – general conditions of contract AS 2124–1992, clauses 30, 33, 44.
CONTRACT – building engineering and related contracts - content of the contractual requirement of cl 33 to proceed with the works with due expedition and without delay – obligation to work to approved construction program – whether grounds for unapproved extensions of time relevant - general conditions of contract AS 2124–1992, clauses 33, 35.
CONTRACT – building engineering and related contracts – whether principal obliged to act reasonably in serving show cause notices - whether contractor failed to show reasonable cause why principal should not exercise a right under cl 44.4 to take the work remaining to be completed out of the hands of the contractor - principal’s obligations when evaluating response of contractor to a show cause notice - whether principal obliged to act reasonably in serving notice to take the works out of the hands of the contractor - general conditions of contract AS 2124–1992, cl 44.
CONTRACT – building engineering and related contracts – principal serves notices to take the works out of the hands of the contractor – whether principal repudiated contract.
CONTRACT – building engineering and related contracts – principal takes the works out of the hands of the contractor - principal completes the project works to an enhanced scope of works – principal served on contractor a costs to complete certificate - whether cost to complete certified a cost of the works provided for under the contract – whether costs to complete certificate final and binding or reviewable for error – whether principal entitled to common law damages in addition to debt due under certificate – where no claim made for liquidated damages – entitlement of principal to delay damages at common law - general conditions of contract AS 2124–1992, cl 44.
EVIDENCE – admissibility – opinion evidence – exception under s 79 – requirements for admissibility - Evidence Act 2008 (Vic) ss 55, 56, 76, 79.
PRACTICE AND PROCEDURE – expert evidence taken by concurrent evidence sessions following joint conclaves – late objection to admissibility of expert evidence – conditional admission of evidence - ruling reserved to judgment – whether good reason to defer ruling - circumstances include pre-trial case management of large proceeding by trial judge directed to preparation of expert evidence by concurrent evidence sessions following joint conclaves - Civil Procedure Act 2010 ss 8, 9, 49 - Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 Order 3 Chapter II (Technology Engineering and Construction Cases) (TEC Rules) - Practice Note No. 2 of 2009 The Technology Engineering and Construction List. More...

Contact details

Melbourne

Chris Edquist, Partner
T: +61 (0)3 9321 9919
E: chris.edquist@holdingredlich.com.au

Brisbane

Troy Lewis, Partner
T: +61 (0)7 3135 0614
E: troy.lewis@holdingredlich.com.au

 

"The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances”

 

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