05 July 2023
14 min read
#Property, Planning & Development
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The Commonwealth’s mutual recognition scheme under the Mutual Recognition Act 1992 (Cth) was amended in 2021 to introduce automatic deemed registration (ADR), enabling holders of a valid occupational licence in their home state to work across jurisdictions simply, quickly and cheaply.
It allows states the flexibility to exclude occupations if a Minister of a State determines that the occupation presents a significant risk to consumer protection, the environment, animal welfare, health or safety of workers or the public.
NSW adopted the amended scheme from 1 July 2021 but immediately declared various occupational licences exempt from ADR for 12 months and made a similar 12-month declaration on its expiry in 2022.
Effective 1 July 2023, a further 12-month exemption has been declared by the Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 2023. The exemption affects the construction sector in particular and is important to note given the implications of operating without a licence in NSW. The current declaration can be found here.
Relevantly, the construction sector exemptions to ADR include:
The risk statement notes:
“Significant risk to consumer protection and the public safety. The building and construction sector in NSW is subject to additional requirements and protections. Building failures result in costs to homeowners in remedying defects and an increased risk to safety for people living with non-compliant building work. The NSW Government and consumers need to have confidence in the building and construction sector”.
The explanatory statement for the declaration indicates there was consultation with industry stakeholders and a recognition of ongoing risks associated with ADR. Looking ahead, the 12 months provided in the declaration is said to provide additional time for NSW agencies to address the risks identified to safely transition these occupational licences into ADR in the future.
Authors: Christine Jones, Scott Watkinson-Hall & Danya Balakrishnan
The pipeline of new home building continues to fall
The ABS released the Lending to Households and Businesses data for May 2023 today, as well as the same month’s building approval for detached houses and multi-units covering all states and territories. The number of loans issued for the purchase or construction of a new home increased by 1.9 per cent in May, which still leaves the last three months 31.1 per cent below the same quarter a year ago (3 July 2023). More…
Institute calls for amendments to NSW’s new affordable housing planning rules
The New South Wales chapter of the Australian Institute of Architects says it fully supports the government’s measures to deliver more housing; however, it is calling on the government to make amendments to the legislation that allow for affordable housing provisions to be limited to 15 years (3 July 2023). More…
Stamp duty axed for thousands of first home buyers from 1 July
On Saturday 1 July, the threshold for stamp duty exemptions will increase from $650,000 to $800,00 and the threshold for stamp duty concessions will rise from $800,000 to $1 million. It means that first home buyers purchasing a property up to $800,000 will pay no stamp duty, saving up to $30,735 under the changes (30 June 2023). More…
HAFF Bill central for coordinated approach to increase housing supply
“The Housing Australia’s Future Fund Bill 2023, that failed to pass Parliament at the last sitting, aims to address the affordability problem by increasing the supply of new homes,” said Jocelyn Martin, HIA Deputy Managing Director – Policy and Industry (28 June 2023). More…
Sydney becomes Australia’s most expensive city to build in
Sydney is the most expensive city to build in across Australia, according to a new report from professional services consultancy Turner & Townsend (27 June 2023). More…
Australian Bureau of Statistics: Building approvals, Australia
ABS has released its May 2023 statistics on the number of dwelling units and value of buildings approved (3 July 2023). Read more here.
Decisions reserved as at 30 June 2023
The Court of Appeal maintains a list of matters before the Court for which judgement is reserved (30 June 2023). Read more here.
Engineers Australia accredited programs
Engineers Australia has released its comprehensive list of accredited engineering programs from Australian tertiary and VET education providers (29 June 2023). Read more here.
Housing Industry Association: NSW site signage and advertising requirements
In NSW, various laws determine what details are required to be displayed on site signs for residential building work, as well as details when adverting your business services (22 June 2023). Read more here.
Doonside Holdings Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1343
DEVELOPMENT APPLICATION – additions and alterations to an existing commercial building – non-compliance with height and floor space ratio standards – cl 4.6 variation of development standards – conciliation conference – agreement between the parties – orders.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2021; Land and Environment Court Act 1979; State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Resilience and Hazards) 2021; Woollahra Local Environmental Plan 2014.
Smith v Waverley Council [2023] NSWLEC 1341
DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders.
Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Resilience and Hazards) 2021; Waverley Local Environmental Plan 2012.
Windang Kruger Resorts Pty Ltd ATF Windang Kruger Resorts Unit Trust v Wollongong City Council (No 2) [2023] NSWLEC 1339
DEVELOPMENT APPLICATION – finalising conditions of consent following directions in primary judgement – groundwater contamination mitigation details – permeable reactive barrier – numerous disputed conditions.
Environmental Planning and Assessment Act 1979; State Environmental Planning Policy (Resilience and Hazards) 2021.
Drummond v Gordian Runoff Ltd (No 2) [2023] NSWSC 731
PRECEDENT – whether NCAT decisions binding on tribunal – whether District Court judgments binding on NCAT – principles at [21] – neither binding but legally persuasive.
COSTS – plaintiffs sue insurer for $215,000 in NCAT – case turns on legal issue already determined by NCAT and District Court in insurer’s favour – insurer makes Calderbank offer when serving defence – $10,000 inclusive – insurer does not refer to NCAT and District Court decisions – no evidence plaintiffs aware of these decisions – rejection of offer not unreasonable in circumstances.
COSTS – offer of compromise – ‘walk away’ – proceedings on foot for a year – legal issues fully ventilated – application of Regency Media considered at [28]-[31].
Uniform Civil Procedure Rules.
DSJ Carpentry & Construction Pty Ltd v Trajcevski [2023] NSWCATAP 174
CONTRACTS – parties – name of company and licence number of individual on quotation – decision that both were parties to the contract affirmed.
APPEALS – procedural fairness – failure to give reasons – adequacy of reasons.
APPEALS – orders – variation to remove potential ambiguity.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW).
Sunshine East Pty Ltd v CBEM Holdings Pty Ltd [2023] NSWSC 744
APPEALS – procedure – leave to appeal against summary judgment of District Court Registrar – plaintiff/judgment debtor ordered to pay unanswered progress claim for building works undertaken by defendant/judgment creditor pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where summary judgment entered against plaintiff/judgment debtor due to absence of triable defence.
CONTRACTS – parties – agency – whether second plaintiff entered into contract with defendant for building works – where corporate agent empowered to enter into trade contracts on behalf of second plaintiff with prior approval – where no evidence that second plaintiff did not give prior approval in circumstances from which approval could be inferred – corporate agent acted with express actual authority to bind second plaintiff – no triable issue that second plaintiff was not a party to the contract.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – where defendant/judgment creditor was uninsured – statutory prevention to recover costs of work for failing to insure under s 94(1) not applicable to parts of the work that are not “residential building work” under the Act – where defendant/judgment creditor was unlicensed – where statutory consequences of being unlicensed do not include loss of entitlement to progress payments under s 15 of the Security of Payment Act – no triable issues arise due to the defendant/judgment creditor being uninsured or unlicensed.
Building and Construction Industry Security of Payment Act 1999 (NSW); District Court Act 1973 (NSW); Home Building Act 1989 (NSW); Supreme Court Act 1970 (NSW).
Ganghui Pty Ltd v YTO Construction Pty Ltd [2023] NSWSC 729
BUILDING AND CONSTRUCTION – multi-storey residential development – dispute between developer and builder – whether there was an “arrangement” or “further arrangement” outside the contract – whether developer engaged in misleading or deceptive conduct – developer’s claim under “handwritten agreement” – whether developer’s final payment certificate effective – whether director of developer appointed as developer’s principal’s representative – purported variations – whether work in question was within scope of works under the contract.
EVIDENCE – witness evidence – interpreter – where interpreter reported that plaintiff’s director’s translator had advised director as to the evidence he should give in their native tongue during court adjournment – whether such conduct is established.
Building and Construction Industry Security of Payment Act 1999 (NSW); Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth); Evidence Act 1995 (NSW).
Promina Design & Construction Pty Ltd v The Owners – Strata Plan No. 97449 (No 2) [2023] NSWCATAP 164
COSTS – failed application for a stay of order transferring proceedings from Tribunal to a Court – Appeal Panel not satisfied order capable of being meaningfully stayed – whether r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) engaged or whether special circumstances warranting an order as to costs established.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW).
Intelligent Building Pty Ltd v Ibrahim [2023] NSWCATAP 170
APPEAL – error of law – adequacy of reasons – measure of damages for breach of contract – whether oral variation of contract enforceable – whether appeal should be remitted for hearing.
CONTRACT – measure of damages for breach of home building contract – whether “overpayment” correct measure.
Building and Construction Industry Security Of Payments Act 1999 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Residential Tenancies Act 2010 (NSW).
Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145
PARTNERSHIPS – winding up – accounts – whether monies advanced were contributions made to the partnership then loaned to a partner, or a direct loan outside the partnership – parties not manifesting legal sophistication – application of Occam’s Razor.
APPEALS – from finding of fact – proof of undocumented payments of large sums of cash is fraught – inherent unlikelihood of payment using very large sums in physical cash for a commercial transaction.
APPEALS – from finding of fact – contribution of a sum of $200,000 was documented – does not matter whether the payments were made to assist in the purchase of one property or another, or made in cash or otherwise, where account is to be taken.
CONTRACTS – remedies – declarations – pleadings – claimed contractual entitlement to consultancy fees not pleaded nor an issue fairly raised in the proceedings.
Home Building Act 1989 (NSW); Partnership Act 1892 (NSW).
TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178
APPEALS – appeal on question of law – scope of question of law – allegations of constructive failure to exercise jurisdiction.
APPEALS – from exercise of discretion – acting on the wrong principle.
APPEALS – leave to appeal – principles governing – leave to appeal refused.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – where the builder breached statutory warranties – money order made against the builder.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Fair Trading Act 1987 (NSW); Home Building Act 1989 (NSW).
NSW legislation
Regulations and other miscellaneous instruments
Local Government (General) Regulation 2021 – published 1 July 2023
Environmental Planning and Assessment Amendment (NSW Planning Portal) Regulation 2023 – published LW 30 June 2023
Environmental planning instruments
Bayside Local Environmental Plan 2021 (Amendment No 3) – published LW 30 June 2023.
Central Coast Local Environmental Plan 2022 (Map Amendment No 2) – published LW 30 June 2023.
Cessnock Local Environmental Plan 2011 (Map Amendment No 5) – published LW 30 June 2023.
Ku-ring-gai Local Environmental Plan 2015 (Amendment No 34) – published LW 30 June 2023.
Lake Macquarie Local Environmental Plan 2014 (Map Amendment No 9) – published LW 30 June 2023.
Newcastle Local Environmental Plan 2012 (Map Amendment No 3) – published LW 30 June 2023.
North Sydney Local Environmental Plan 2013 (Amendment No 36) – published LW 30 June 2023.
Parramatta Local Environmental Plan 2023 (Amendment No 3) – published LW 30 June 2023.
Penrith Local Environmental Plan 2010 (Amendment No 29) – published LW 30 June 2023.
Penrith Local Environmental Plan 2010 (Amendment No 30) – published LW 30 June 2023.
Standard Instrument (Local Environmental Plans) Amendment (Willoughby) Order 2023 – published LW 30 June 2023.
State Environmental Planning Policy (Precincts – Western Parkland City) Amendment (Penrith Lakes Scheme) 2023 – published LW 30 June 2023.
Willoughby Local Environmental Plan 2012 (Amendment No 34) – published LW 30 June 2023.
Wollondilly Local Environmental Plan 2011 (Amendment No 45) – published LW 30 June 2023.
Wollondilly Local Environmental Plan 2011 (Map Amendment No 7) – published LW 30 June 2023.
Blacktown Local Environmental Plan 2015 (Amendment No 34) – published LW 29 June 2023.
Canterbury-Bankstown Local Environmental Plan 2023 – published LW 23 June 2023.
Kempsey Local Environmental Plan 2013 (Amendment No 32) – published LW 23 June 2023.
Parramatta Local Environmental Plan 2023 (Amendment No 4) – published LW 23 June 2023.
Tamworth Regional Local Environmental Plan 2010 (Map Amendment No 1) – published LW 23 June 2023.
Bills introduced non-government
Residential Tenancies Amendment (Rent Freeze) Bill 2023 29/06/2023
Bills passed by both Houses of Parliament
Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Bill 2023 28/06/2023
Bills assented to
Residential Tenancies Amendment (Rental Fairness) Act 2023 No 9 – assented to 03 July 2023
Other
Automatic Mutual Recognition (New South Wales) (Exemption – Various) Declaration 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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