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Residential Focus

23 November 2023

#Property, Planning & Development

Published by:

Caitlyn Trussell

Residential Focus

In the media

NSW Building Commissioner set to receive more powers to tackle defects

New South Wales builders will be forced to fix defects before finishing a new home under laws set to pass this week, strengthening the powers of the state's building watchdog. Current legislation only permits inspectors to issue a rectification order after construction is complete and a buyer has complained. However, the changes will give inspectors the authority to enter any dwelling while it is being constructed to look for defects (19 November 2023).  Read more here.

New Homes Sales Volumes Remain Low

The Housing Industry Australia’s (HIA) monthly New Home Sales report has shown that, across Australian in the last three months to October, new home sales have fallen by 5.8 per cent compared to the same quarter last year. In New South Wales, sales fell by 17.4 per cent (16 November 2023).  Read the media release here.

Minns Government to fast-track op-quality building designs

The Minns Labor Government will help deliver more desperately needed homes for families by fast-tracking buildings that choose to use high-quality, pre-approved designs – speeding up the construction of homes for buyers and renters. As part of this process, the NSW Government is developing a pre-approved list of designs alongside government and private-sector architects and the community. Further, the Government will launch an international competition, calling Australian and international architects and schools to design best-practice Sydney terrace and mid-rise apartments. Details of the competition will be announced in 2024 (16 November 2023).  Read more here.

Backlash after Illawarra housing developer dismisses ‘citizen science’ about platypus habitat

A housing developer's attempt to dismiss decades of citizen science about platypus habitat in the Illawarra region as "unreliable" has sparked controversy over the treatment of community-sourced information. Rawson Communities is taking Shellharbour Council to the Land and Environment Court (LEC) over its decision to reject its plans for 227 homes and a new bridge crossing at Calderwood in New South Wales' south-east (15 November 2023).  Read more here.

Proposed Macquarie Park precinct to pave way for thousands of new homes

The NSW Government proposing at least 3000 new homes for a 68-hectre area between Macquarie Park and Macquarie University train stations as part of a plan to create a lively community in the suburb. The rezoning proposal would deliver 3060 new homes, 8 hectares of new public open space, a large multi-purpose indoor recreation facility, along with paths for walking and cycling (9 November 2023).  Read more here.

Expanded program to fast-track housing infrastructure

The NSW Government is expanding its Urban Development Program (UDP), which includes a housing insights dashboard, following a successful pilot program. The expanded UDP is aimed at helping to boost housing supply by prioritising infrastructure for development-ready land, removing roadblocks and enabling more homes to be built in the right places, faster. The program is now being introduced to the Central River City and expanded to the Eastern Harbour City next year (7 November 2023).  Read more here.

Publications 

Engineers Australia – the engineering profession: a statistical overview (15th edition)

Engineers Australia has published the 15th edition of the engineering profession: statistical overview report. It provides insights about the profession for the period of 2016-2021 and contains empirical data required to “make decisions to develop an engineering workforce that will be the backbone of a sustainable, safe and energy efficient future” (16 November 2023). Read more here.

National Construction Code – Living Housing Design Standard

The standard provides a set of technical provisions that enable dwellings to better meet the needs o the community, including people with mobility limitations. The National Construction Code Volume Two H8D2(2) now contains a correction to the concession removing the requirement to provide a step-free pathway to the dwelling in certain circumstances: clause 1.1(4)(a) (15 November 2023). Read the ABCB Liveable Housing Standard here. Read the NCC Volume Two H8D2(2) here.

Cases

The Owners – Strata Plan 89412 v Brookfield Residential Developments Australia Pty Ltd [2023] NSWSC 1420
BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – statutory duty under s 37 – application to amend Technology and Construction List Statement.
Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW).

Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405
BUILDING AND CONSTRUCTION – contract – construction of residential unit development in Gosford – where builder agreed to fund first $37 million of development – where builder procured that its Chinese parent company caused its bank to issue standby letter of credit to secure that obligation – where builder contended it had provided the $37 million finance by entering into loan agreement – whether builder had performed its obligation to finance – where receivers appointed to developer – where developer by the receivers made demand under the letter of credit – whether demand invalid and of no effect.
CIVIL PROCEDURE – pleadings – Commercial List Statement – where case propounded was that developer not entitled to make demand under letter of credit because letter of credit security for provision of $37 million finance and that such finance had been provided by entry into loan agreement – whether builder had established that case.
BANKING AND FINANCE – instruments – standby letter of credit – proper law of letter of credit – letter of credit subject to Rules on International Standby Practices ISP98 – how ISP98 should be construed – whether Official Commentary available in aid of construction of ISP98 – where receivers appointed to beneficiary – where demand made under letter of credit by receivers – whether rules in ISP98 concerning transfer by operation of law engaged – whether bank entitled to suspend payment pending provision of documents by beneficiary.
PRIVATE INTERNATIONAL LAW – orders with extraterritorial effect – where Chinese Court made a Civil Ruling that bank suspend payment under standby letter of credit issued by bank in Shanxi in the People’s Republic of China – whether this Court should order bank to make payment – whether judgment should be entered against bank – whether judgment should be suspended pending approach to Chinese Court or recognition of judgment in the People’s Republic of China.
International Standby Practices ISP98; Law of Civil Procedure of the People’s Republic of China; Uniform Customs and Practice for Documentary Credits UCP600.

Colman v The Owners – Strata Plan 61131 [2023] NSWCATAP 308
APPEALS – adequacy of reasons.
LAND LAW – Strata title – By-laws - interpretation of by-law – whether by-law is an “instrument” for the purposes of the Interpretation Act 1987 (NSW).
WORDS AND PHRASES – “Instrument”.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW); Interpretation Act 1987 (NSW); Residential (Land Lease) Communities Act 2013 (NSW); Strata Schemes Management Act 2015 (NSW); Strata Titles Act 1973 (NSW).

Liprini v Thirdi William Street Pty Ltd [2023] NSWSC 1375
COSTS – security for costs – Relevant factors – representative proceedings – where proceedings brought in part for benefit of others – plaintiff holds significant equity in real property – funding agreement in place among the group members – strong arguable case – no order for security.
Civil Procedure Act 2005 (NSW); Conveyancing Act 1919 (NSW); Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW).

The Owners Strata Plan 65120 v Petty [2023] NSWLEC 122
Costs – strata renewal plan – application for an order giving effect to – discontinuance of proceedings – statutory provision that owners corporation pay dissenting owner’s costs – otherwise order for costs sought.
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 55; Strata Schemes Development Act 2015 (NSW) ss 154, 158(4)(b), 170(1), 174(1), 179, 180(1), 182(1), 182(4), 188(1); Strata Schemes Development Regulation 2016 cl 33(c); Strata Schemes Management Act 2015 (NSW) s 90(2); Uniform Civil Procedure Rules 2005 s 12.1(1)(b).

Redmyre Group Pty Ltd v Stockman [2023] NSWCATAP 305
APPEALS – appeal on question of law – scope of question of law – allegations of constructive failure to exercise jurisdiction.
APPEALS – procedure – time limits – extension of time – application dismissed.
Civil and Administrative Tribunal Act 2013 (NSW), ss 5, 28, 29, 32, 41, 80; Civil and Administrative Tribunal Rules 2014, r 25; Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW), r 51.

Foo v Frew [2023] NSWCATAP 303
REAL PROPERTY – STRATA MANAGEMENT – appointment of compulsory strata manager – no error of law or fact – Strata Schemes Management Act 2015 (NSW) s 237.
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes Management Act 2015 (NSW).

Bou-Harb v Commissioner for Fair Trading [2023] NSWCATOD 160
ADMINISTRATIVE LAW – Owner Builder Permit – s 31(2)(c) Home Building Act 1989 – Secondary Dwelling –requirement to occupy.
Administrative Decisions Review Act 1997; Home Building Act 1989; Home Building Amendment Act 2014 (NSW) (Repealed); Interpretation Act 1987 (NSW); Standard Instrument (Local Environmental Plans) Order 2006.

Gee v The Owners – Strata Plan No 32191 [2023] NSWCATAP 296
LAND LAW – Strata title – appointment of compulsory strata manager – no error of law identified – no grounds for leave to appeal established.
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes Management Act 2015 (NSW).

Legislation

Non-government Bills
Water Management Amendment (Water Access Licence Register) Bill 2023 – introduced LA 12 October 2023

Passed by both Houses
Building Legislation Amendment Bill 2023 – passed 21 November 2023

Assented to
Statute Law (Miscellaneous Provisions) Act (No 2) 2023 No 35 – assented to 30 October 2023

Environmental Planning Instruments
State Environmental Planning Policy Amendment (Flood Planning) 2023 (EPI 609) – LW 10 November 2023
Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023 (EPI 608) – LW 10 November 2023
State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 (EPI 554) – commenced 1 October 2023

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

Published by:

Caitlyn Trussell

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