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Residential Focus: A new era for building reform

06 December 2023

#Property, Planning & Development

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Residential Focus: A new era for building reform

As anticipated, on 21 November 2023, NSW Parliament passed the Building Legislation Amendment Bill 2023, which will become the Building Legislation Amendment Act 2023 and is currently awaiting assent. It remains likely to commence in February 2024, subject to proclamation.

Our previous article outlined the reforms it will introduce, which will affect the following legislation:

  • Home Building Act 1989 (HB Act)
  • Building Products (Safety) Act 2017 (BPS Act)
  • Strata Schemes Management Act 2015
  • Strata Schemes Management Regulation 2016
  • Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020
  • Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020
  • Building and Development Certifiers Act 2018.

Given that the Amendment Bill was the first of a suite of reforms, we can expect that 2024 will see the introduction of the Building Bill 2022 (see the public consultation draft here) and the Building Compliance and Enforcement Bill 2022 (see the public consultation draft here) to Parliament in 2024.

For more information on the suite of reforms, in the public consultation draft form, access our webinar here.

In the media

Are Australian house prices dropping? Here’s how much prices have risen or fallen in each capital city
Australia's median property value is now at a record high of $753,654. But experts are expecting prices to stabilise next year. Currently, Sydney is still the most expensive place to buy a property, with a median house value of almost $1.4 million. Here’s a quick rundown of how prices changed in November: Perth (up 1.9%), Brisbane (up 1.3%), Adelaide (up 1.2%), Canberra (up 0.5%), Sydney (up 0.3%), Melbourne (down 0.1%), Hobart (down 0.1%) and Darwin (down 0.3%).  Read more here.

Australia’s $21b home building surge hides slump to come
A 1.3 per cent increase in the value of residential construction in the third quarter hides the slowdown coming in new home building as higher costs make new projects less viable and rising borrowing costs for buyers prevent developers from hitting presale targets. Home building in the three months to September 30 picked up to $20.7 billion from a revised $20.4 billion in the three months to June 30, the Australian Bureau of Statistics said on Wednesday, reflecting the delays on detached home building in particular from capacity and labour constraints.  Read more here.

In practice and courts

AAT Bulletin Issue No. 23/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions (20 November 2023). Read more here.

New regulator for the building and construction industry in NSW
From 1 December 2023, the Building Commission NSW will take on the role of regulator of the building and construction industry in NSW. Building Commission NSW is a new, fit-for-purpose building regulator bringing teams together from NSW Fair Trading and the Office of the Building Commissioner into one, to provide an integrated and consistent approach to ensuring confidence in residential building quality in NSW. Building Commission NSW will be responsible for the regulation of laws as they apply to certifiers, design and building practitioners, developers, home building tradespeople, businesses and others. Read more here.

Changes to building legislation in NSW
Several amendments have been made to building legislation as part of ongoing reforms to transform the regulation of the construction industry and restore trust and confidence in residential buildings. Read more here.

Publications

Australian Bureau of Statistics – Construction Work Done: September 2023
Provides preliminary estimates of value of total construction work done, building work done and engineering construction work done. In the September quarter, total construction work done rose 1.3% to $64,768.7m, building work done rose 0.2% to $34,300.2m and engineering work done rose 2.6% to $30,468.5m. 29 November 2023: [Release].

Cases

Brown v Commissioner for Fair Trading [2023] NSWCATOD 171

Catchwords
ADMINISTRATIVE REVIEW – Home Building Act 1989 – disciplinary proceedings – statutory warranties – improper conduct – evidence relied upon to establish defects by building inspector – defences – actual knowledge – influence

Legislation Cited
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Home Building Act 1989
Home Building Regulation 2014
Occupational Health and Safety Act 2000

Zurich Australian Insurance Ltd v FKP Commercial Developments Pty Ltd [2023] FCA 582

Catchwords
INSURANCE – determination of separate question – leave to appeal – whether relief sought advisory or hypothetical – construction of design and construction professional indemnity insurance policy – whether insuring clause limited to claims for civil liability based on the insureds personal provision of professional services – whether extension to the insuring clause limited to loss resulting from any claim arising from the conduct of any consultant, sub-contractor or agent of the insured providing professional services for which the insured is legally liable – leave to appeal granted and appeal dismissed

Legislation Cited
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Design and Building Practitioners Act 2020 (NSW) s 37
Home Building Act 1989 (NSW)

The Owners – Strata Plan 89412 v Brookfield Residential Developments Australia Pty Ltd [2023] NSWSC 1420

Catchwords
BUILDING AND CONSTRUCTION – Design and Building Practitioners Act 2020 (NSW) – statutory duty under s 37 – application to amend Technology and Construction List Statement

Legislation Cited
Design and Building Practitioners Act 2020 (NSW)
Home Building Act 1989 (NSW)

Lockard v Reeves [2023] NSWCATAP 321

Catchwords
APPEAL – Error of law – Leave to appeal – New evidence not reasonably available – New evidence obtained after the date of the decision.

Legislation Cited
Caravan Parks Camping Ground Act 2021
Civil and Administrative Tribunal Act 2013
Home Building Act 1989
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021
Local Government Act 1993
Fair Trading Act 1987

Commissioner for Fair Trading v Hall [2023] NSWCATAP 320

Catchwords
APPEAL – Administrative Law – application for a contractor licence under the Home Building Act -whether the applicant had attained experience as an employee or as a subcontractor – factors to be considered when determining whether an employer/employee relationship existed – consideration of the purpose of the requirement for experience to be attained as an employee.

Legislation Cited
Civil & Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)

Legislation

Assented to
Work Health and Safety Amendment Bill 2023 – assented to 24 October 2023.

Regulations and miscellaneous instruments
Building and Plumbing Amendment (Solar Water Heater and Other Matters) Regulations 2023 (S.R. No. 122/2023) – LW 28 November 2023.

Bills passed by both Houses of Parliament
Climate Change (Net Zero Future) Bill 2023 – passed 30 November 2023
Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – passed 14 November 2023

Bills introduced by Government
Climate Change and Energy Legislation Amendment (Renewable Energy and Storage Targets) Bill 2023 – introduced 28 November 2023

Environmental Planning Instruments
Ballina Local Environmental Plan 2012 (Amendment No 54) – published LW 1 December 2023
Ballina Local Environmental Plan 2012 (Map Amendment No 8) – published LW 1 December 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.

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